May 18, 2016

Accommodation – employee moved to new office location after protesting colleague's bizarre behaviour

Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 (CanLII)

May 18, 2016

A Public Service Labour Relations and Employment Board adjudicator ruled that the Parole Board of Canada failed in its duty to accommodate one of its employees by refusing her request to work in a different building after she developed mental health problems triggered by a threatening and disruptive colleague. Accepting that the employee suffered from a disability, the Board held that the employer breached its duty to accommodate by failing to heed her doctors' statements that moving her to another floor in the same building as the co-worker was inadequate accommodation. The Board ordered that the employee be moved to a different building and compensated for lost wages and benefits.

The Facts:

When she was cleared to return to work after taking stress leave resulting from her feelings of harassment by a co-worker, a public service manager filed a grievance because her employer refused her request to work in a different office or telework.

Line Emond began working for the Parole Board of Canada in 1975. At the time of the grievance, she worked as a statistics and data quality manager at 401 Laurier Avenue in Ottawa. Beginning in November 2009, Emond claimed that she began to have difficulties with one of her colleagues, "X," when he was assigned to the cubicle next to hers and engaged in bizarre and intimidating behaviour. According to Emond, X, who was approximately six feet tall and 180 pounds, frequently made strange noises and swore, which made her feel nervous. She claimed that the first time she spoke to X, who wore sandals at work throughout the year, it was to tell him that washing his feet with vinegar in his cubicle was inappropriate. She also spoke to her supervisor about this issue, who advised that she would look into it. The supervisor claimed that she subsequently told X that he should lower his voice and stop washing his feet in his office.

Emond alleged that, on May 4, 2010, she banged on their common wall because X was making too much noise while she was on the phone, causing him to enter her office with his fists on his hips, and state: "What is your problem?… [T]here is a line on the floor and do not cross that line because I do not know what will happen…." Emond reported this incident to her supervisor, asking to move from her cubicle, and subsequently contacted the employee assistance program. However, she did not file a formal complaint as she had reported the issue to management, and was told that X would likely file a complaint against her in response.

At the end of the summer of 2010, Emond was moved to a closed office. However, as this office faced the kitchen, she claimed that X often walked by, making strange taunting or singing noises.

On the morning of August 19, 2010, just before going on vacation, Emond was notified that X had filed a harassment complaint against her. She became extremely upset and requested sick leave. Accordingly, her three weeks of vacation were changed to sick leave, based on the advice of her family doctor, who also referred her to a psychologist and prescribed an antidepressant.

Emond remained on sick leave until November 2011, when she indicated that she was ready to return to work on condition that she telework or work at a location other than her previous office. On November 22, while still waiting for a reply to this request, Emond received a letter containing the details of the harassment complaint filed against her by X. That same day, she sent her supervisor a medical certificate from her family doctor in which he stated that Emond could return to work on December 2, as long as it was gradual and in another location. On December 14, Emond was notified that she was being placed on long-term disability leave commencing December 28, 2011. On January 9, 2012, Emond was informed by letter that the employer was launching a formal investigation into X's harassment complaint and that, in the meantime, she would be relocated to a cubicle on the seventh floor of the building, which required a special access card that X did not have. Emond was not satisfied with this proposal. On January 17, 2012, Emond's request to work out of the Montreal office, where her spouse had obtained a year-and-a-half contract, was denied by her supervisor, who stated that Emond could not telework and would have to follow the procedure set out in the collective agreement if she wished to relocate.

On January 19, 2012, Emond was called to an investigative meeting, which ultimately took place in another location as she refused to come to the office. In her report, an external investigator concluded that one of the three allegations contained in X's complaint was valid and constituted harassment. Following the report, Emond was called to a disciplinary interview and received an oral reprimand as a sanction. On April 26, 2012, Emond filed a harassment complaint against X, but it was dismissed because she had filed it too late.

In the meantime, Emond's repeated requests to work at a different location were denied. In February 2012, Emond's supervisor requested further information from Emond's family doctor regarding her restrictions. He replied in a March 23 letter that Emond could not work in the same building as X.

On April 26, 2012, Emond filed a grievance, pursuant to s. 209(1)(c)(i) of the Public Service Labour Relations Act, alleging that the employer had not complied with the Treasury Board's Policy on the Duty to Accommodate Persons with Disabilities.

In December 2012, Emond's supervisor suggested that she look into assignment possibilities with another department. On February 18, 2013, Emond signed a one-year assignment agreement with the Correctional Service of Canada. However, when this assignment ended in March 2014, Emond did not return to her original position because her request to telework or to work at another location had not been granted.

Several co-workers testified at arbitration that X was noisy, flatulent, often swore, told loud jokes, and was perceived as bothersome. However, Emond's supervisor testified that X was a friendly employee who could act awkwardly on occasion, and was often the subject of ridicule and mockery by his co-workers, but that Emond was the only employee who took issue with and complained about his behaviour. Emond's family doctor of over 20 years testified that she would feel unsafe and experience real emotional stress if she was returned to work in the same building as X. Emond's psychologist also testified that she exhibited symptoms of severe depression when he first met with her in the fall of 2011, attributable to what she perceived as X's disturbing behaviour, which was further exacerbated by X filing a harassment complaint against her. He testified that Emond genuinely felt threatened by X and was afraid he would be violent, and that the suggestion that she work a few floors away from X was not sufficient to assuage her fear of encountering him in the building. He testified that she had been fit to return to work at the end of 2011 provided that she would work in a different building from X.

The Arguments:

Contending that the medical evidence demonstrated that her health issues resulted from X's abusive and intimidating behaviour, and management's failure to take steps to remedy the situation, Emond argued that the employer's duty to accommodate her required it to allow her to telework or work in a building other than the one in which X worked. She argued that the employer had failed to demonstrate that doing so would amount to undue hardship and that accommodation on the seventh floor was not reasonable as it ignored her doctors' recommendations.

The employer submitted that the case involved a conflict between two employees, which became particularly difficult after X filed a harassment complaint against Emond, and not an accommodation issue. It argued that suffering stress from a conflict with a co-worker did not amount to a disability or incapacity, pointing out that it was only after X had filed his complaint that Emond refused to return to work. In any event, the employer maintained that it had offered a reasonable accommodation in seeking to move Emond to a different floor that could not be accessed by X, and that Emond had failed to cooperate by not attempting the accommodation before rejecting it. It also submitted that Emond's duties were specialized and could not be performed from a different location.

The Decision:

Public Service Labour Relations and Employment Board adjudicator Linda Gobeil allowed the grievance and ordered the employer to move Emond to a building away from X.

At the outset, Gobeil noted that she was not making a finding as to whether Emond was actually harassed by X, given that these allegations were not the subject of the grievance and X had not been called to testify. Finding on the evidence that the two clearly had a conflict, Gobeil identified the issues before her as whether Emond had demonstrated that she suffered from an incapacity or disability and whether the employer's accommodation was reasonable.

Gobeil found that the evidence demonstrated that Emond did suffer from a disability, specifically "that she was suffering from emotional stress caused by … X and that his presence at 410 Laurier made her fear for her safety." Although accepting that Emond's fear was "subjective," Gobeil emphasized that both of her doctors "affirmed that [she] was credible and that her fear of … X was real," and that "both stated without reservations that she could not work at [the building], despite the employer's proposed accommodation, as long as the situation with … X remained unresolved." Moreover, she rejected the employer's assertion that Emond's medical problems only began once she received the harassment complaint against her, noting she had consulted her family physician about these issues prior to August 2011. While accepting that stress "cannot automatically be associated with a disability or incapacity," she held that the medical evidence in this case indicated that it met this threshold. She observed that the employer had not sought another opinion as it could have done if it was not satisfied with the medical information provided by Emond.

Turning to the proposed accommodation, Gobeil held that she could not find it reasonable in light of the doctors' recommendations. Although noting that Emond had refused to even try the accommodation, she stated:

[T]he fact remains that [her family doctor] was categorical in his testimony that [Emond] had a real and genuine fear and that her medical condition would not improve were she to return to [the building], regardless of the precautions the employer would put in place.

.....

Although … the employer's proposed accommodation did not have to be perfect, nevertheless, the fact remains that the proposal to move [Emond] to the 7th floor, even with precautions, was not enough, in [the doctors'] opinion.

In addition, Gobeil held that the employer had not proven that Emond needed to work out of her current building, opining that "it was hard to believe that a cubicle could not be found in Ottawa in which [Emond] could work," and noting that the employer's evidence "was limited to affirming that in general [Emond's] duties could not be carried out anywhere other than at 401 Laurier Avenue."

In the result, Gobeil allowed the grievance. She ordered that the employer move Emond to another building of its choice, compensate her for the difference between her salary and long-term disability benefits as of March 23, 2012, when full medical information was provided regarding her restrictions, and return her sick leave and annual leave for the period. She cautioned, however, that her decision should not be interpreted as "carte blanche in favour of [Emond] and does not aim to allow her to impose where and how she works in the future." Emond must "also cooperate and show good faith…."

Comment:

The issue in this case was not whether or not harassment had in fact occurred, but rather the employer's duty to accommodate the employee's medically-documented disability regardless of its cause. In this regard, the arbitrator emphasized that the subjective nature of the employee's condition was irrelevant, in light of compelling medical evidence that stress and anxiety did in fact impact her ability to do her job, and that working in the same building as her co-worker was not an acceptable accommodation. This case follows a long line of arbitral jurisprudence holding that arbitrators will carefully evaluate all circumstances in support of a disability claim, but that the subjective nature of the symptoms is not a barrier to entitlement. Stress and stress-related problems can be evidence of and/or themselves constitute a disability, where the evidence supports a claim that the condition rises to the level of a disability capable of a medical diagnosis.

See, for example, SB v. Yellow Cab Co., 2011 BCHRT 14, reported in Lancaster's Human Rights and Workplace Privacy, October 27, 2011, eAlert No. 168, in which the grievor was diagnosed as suffering from acute stress, anxiety and depression constituting a disability; Canadian Union of Public Employees (Ottawa-Carleton Public Employees' Union), Local 503 v. Ottawa (City) (Stephens), reported in Lancaster's Municipal Employment Law, November 23, 2012, eAlert No. 53, in which the grievor's mental stress was supported by a diagnosis of irritable bowel syndrome; MV v. 528716 BC Ltd., 2009 BCHRT 117, reported in Lancaster's Disability & Accommodation, November 10, 2009, eAlert No. 120, in which anxiety, depression and post-traumatic stress left the grievor unable to cope with workplace-related stresses, which were found to require accommodation; and University of Western Ontario Faculty Association v. University of Western Ontario, (Knopf), reported in Lancaster's Disability & Accommodation, March 16, 2009, eAlert No. 115, in which the arbitrator accepted that medically-recognized symptoms of stress that result in an inability to continue work have been accepted as evidence of a form of "disability."

As noted by Mitchnick and Etherington in Leading Cases on Labour Arbitration Online, as part of the accommodation process "an employer will be expected to give serious consideration to recommendations made by a disabled employee's physician or independent medical evaluator." Thus in Civic Institute of Professional Personnel v. Ottawa (City), 2009 CanLII 87532 (ON LA), reported in Lancaster's Municipal Employment Law, August 18, 2009, eAlert No. 28, Ontario arbitrator Pamela Picher held that an employer did not fulfill its duty to accommodate an employee and breached the collective agreement when it failed to transfer her to a new position, as recommended in an independent medical evaluation. Picher rejected the employer's arguments that the grievor, diagnosed with fibromyalgia, did not need a transfer because she was coping with her job, as evidenced by her regular attendance at work, and that any stress experienced by the grievor in her current position was the same as the stress any other employee might experience, stating: "[I]t is within the scope of a physician's expertise to advise regarding the medical impact of a job currently being performed on an employee's medical condition. It is within the physician's expertise to advise whether for medical reasons an employee needs to be removed from a current work environment. It is within the scope of the physician's expertise to assess stress and to evaluate its impact on an employee's medical condition…."

Similarly, in C.U.P.W. v. Canada Post Corp., [2003] C.L.A.D. No. 624 (QL), reported in Lancaster's Human Rights and Workplace Privacy, March/April 2004, Arbitrator Picher ruled that Canada Post was obligated to offer an employee a transfer, pursuant to a duty to mitigate the effects of sexual harassment, and its duty to accommodate her resulting disability. Similarly to the instant case, Picher ruled that, regardless of whether the employer believed the grievor's allegations, "[t]he medical restriction that [the grievor's] disability in the form of serious depression be accommodated through a placement outside [the Toronto facility] was not dependent on a finding of sexual harassment," and that by failing to transfer the grievor, the employer failed to accommodate the grievor's disability of severe depression.