DND breached confidentiality of mediation process
The Department of National Defence (DND) discriminated against a worker when it terminated him after he was on sick leave for seven years without adequately investigating ways he could return to work, an adjudicator for the Canadian Public Service Labour Relations Board has ruled.
Michael Pepper joined DND as an apprentice in 1977, later taking on the role of systems electronic technician at the fleet maintenance facility in Cape Scott, N.S.
In 1993, a female apprentice was brought into the maintenance shop where Pepper worked under an equal-employment initiative. After her apprenticeship, she was classified one level higher than Pepper, though he had more seniority and experience. Pepper often had to review and redo her work, which frustrated him. He and other employees viewed the female co-worker as a “protected person.” She was able to advance without seniority, contrary to regular practice.
In his 1995 performance review, Pepper was told his co-worker had filed an unofficial complaint against him, claiming he had closed a door in her face. Pepper felt his job was being threatened but his supervisor told him to forget about it.
Pepper continued to be anxious about his job and, finally, in December 1996 he took five months’ sick leave. During his leave, he met with the production manager and supervisor to discuss his concerns and they agreed to an action plan. However, nothing was done with the plan and he returned to work in May 1997.
On Dec. 2, 1997, Pepper’s frustration boiled over and he made a comment about his female co-worker getting “darn good money to do electronic work and she had better darn do it.” The co-worker asked for an apology, which was taken as an official complaint by the supervisor.
On Jan. 23, 1998, Pepper asked his supervisor to resolve the complaint but was told nothing could be done until the co-worker came back from medical leave due to a car accident. In May 1999, she returned to an area adjacent to Pepper’s. He ran into her near the washrooms and suffered a panic attack. After experiencing several other attacks, he went on sick leave on June 8, 1999.
While on leave, Pepper filed harassment complaints against his supervisor and manager, claiming their inaction was an abuse of authority and created a bad situation at work, causing his panic attacks. DND found Pepper’s complaints were justified and recommended he be given the opportunity to return to his job or a similar position. Pepper’s supervisors were ordered to take harassment prevention and resolution training but were allowed to stay in their positions.
Pepper’s psychiatrist felt he could return to work if the issues were resolved, but his problems would continue if he had to report to the same supervisor or was demoted to another position.
After Pepper filed a grievance claiming his illness was the result of mistreatment at work, a mediation process was started in September 2003. That resulted in a July 27, 2004, return-to-work proposal by DND with several options. However, none of them involved returning to his old job under a different supervisor and Pepper rejected them.
On March 17, 2006, DND presented the same options to Pepper and told him if mediation didn’t resolve things, it would consider terminating him. After some attempts to get an update on a report from his psychiatrist, DND determined he couldn’t return because the workplace issues “will never be resolved to his satisfaction.” It terminated Pepper on June 30, 2006.
Pepper filed a complaint of wrongful dismissal, claiming DND based its decision on information from a confidential mediation process and it failed to accommodate his disability.
The adjudicator found Pepper and DND had signed an agreement for the September 2003 mediation emphasizing the confidentiality of the process. However, the recommendation to terminate Pepper’s employment relied on several pieces of information that were in the mediation process, including: the psychiatrist’s 2004 medical report, for which DND asked for an update before deciding to terminate him; the return-to-work options; the assessment of Pepper’s ability to return to work; Pepper’s wish to work with a different supervisor; and Pepper’s rejection of the return-to-work options.
“It is clear the employer did not treat the mediation process as a means of resolving the precise dispute for which it had been set up,” the adjudicator said. “Rather, the process was confused as merely a step within an entirely different process, namely, the decision to terminate (Pepper’s) employment.”
The adjudicator ordered Pepper to be reinstated to his position and be entitled to the same wages and benefits.
For more information see:
•Pepper v. Canada (Treasury Board — Department of National Defence), 2008 CarswellNat 401 (Can. P.S.L.R.B.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.
Michael Pepper joined DND as an apprentice in 1977, later taking on the role of systems electronic technician at the fleet maintenance facility in Cape Scott, N.S.
In 1993, a female apprentice was brought into the maintenance shop where Pepper worked under an equal-employment initiative. After her apprenticeship, she was classified one level higher than Pepper, though he had more seniority and experience. Pepper often had to review and redo her work, which frustrated him. He and other employees viewed the female co-worker as a “protected person.” She was able to advance without seniority, contrary to regular practice.
In his 1995 performance review, Pepper was told his co-worker had filed an unofficial complaint against him, claiming he had closed a door in her face. Pepper felt his job was being threatened but his supervisor told him to forget about it.
Pepper continued to be anxious about his job and, finally, in December 1996 he took five months’ sick leave. During his leave, he met with the production manager and supervisor to discuss his concerns and they agreed to an action plan. However, nothing was done with the plan and he returned to work in May 1997.
On Dec. 2, 1997, Pepper’s frustration boiled over and he made a comment about his female co-worker getting “darn good money to do electronic work and she had better darn do it.” The co-worker asked for an apology, which was taken as an official complaint by the supervisor.
On Jan. 23, 1998, Pepper asked his supervisor to resolve the complaint but was told nothing could be done until the co-worker came back from medical leave due to a car accident. In May 1999, she returned to an area adjacent to Pepper’s. He ran into her near the washrooms and suffered a panic attack. After experiencing several other attacks, he went on sick leave on June 8, 1999.
While on leave, Pepper filed harassment complaints against his supervisor and manager, claiming their inaction was an abuse of authority and created a bad situation at work, causing his panic attacks. DND found Pepper’s complaints were justified and recommended he be given the opportunity to return to his job or a similar position. Pepper’s supervisors were ordered to take harassment prevention and resolution training but were allowed to stay in their positions.
Pepper’s psychiatrist felt he could return to work if the issues were resolved, but his problems would continue if he had to report to the same supervisor or was demoted to another position.
After Pepper filed a grievance claiming his illness was the result of mistreatment at work, a mediation process was started in September 2003. That resulted in a July 27, 2004, return-to-work proposal by DND with several options. However, none of them involved returning to his old job under a different supervisor and Pepper rejected them.
On March 17, 2006, DND presented the same options to Pepper and told him if mediation didn’t resolve things, it would consider terminating him. After some attempts to get an update on a report from his psychiatrist, DND determined he couldn’t return because the workplace issues “will never be resolved to his satisfaction.” It terminated Pepper on June 30, 2006.
Pepper filed a complaint of wrongful dismissal, claiming DND based its decision on information from a confidential mediation process and it failed to accommodate his disability.
The adjudicator found Pepper and DND had signed an agreement for the September 2003 mediation emphasizing the confidentiality of the process. However, the recommendation to terminate Pepper’s employment relied on several pieces of information that were in the mediation process, including: the psychiatrist’s 2004 medical report, for which DND asked for an update before deciding to terminate him; the return-to-work options; the assessment of Pepper’s ability to return to work; Pepper’s wish to work with a different supervisor; and Pepper’s rejection of the return-to-work options.
“It is clear the employer did not treat the mediation process as a means of resolving the precise dispute for which it had been set up,” the adjudicator said. “Rather, the process was confused as merely a step within an entirely different process, namely, the decision to terminate (Pepper’s) employment.”
The adjudicator ordered Pepper to be reinstated to his position and be entitled to the same wages and benefits.
For more information see:
•Pepper v. Canada (Treasury Board — Department of National Defence), 2008 CarswellNat 401 (Can. P.S.L.R.B.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, visit employmentlawtoday.com.
