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 and was appointed full-time in 1981. He worked as a systems electronic technician since 1989 and was on staff at DND’s fleet maintenance facility at Cape Scott, N.S.
New co-worker undermines seniority
In 1993, a female apprentice was brought in to the maintenance shop where Pepper worked under an equal employment initiative for women. After she completed her apprenticeship, she was classified one level higher than Pepper, despite the fact he had more seniority and experience. Pepper was often asked to review and redo her work, which frustrated him.
Pepper and other employees viewed the female co-worker as a “protected person,” as she had been appointed over more senior male employees. She was able to advance without seniority, contrary to regular practice in the shop. She often said she would be around longer than the others, which made Pepper nervous about his job security.
In his 1995 performance review, where he received a high rating, Pepper’s supervisor told him his co-worker had filed an unofficial complaint against him, claiming he had closed a door in her face. Pepper didn’t recall it happening and the supervisor said “if two people could not get along, one of them could be removed.” Pepper said he felt his job was being threatened but his supervisor told him to forget about it.
Pepper continued to get anxious about his job and the stress of compensating for his co-worker’s shortcomings and finally, in December 1996, he became sick and took five months of 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 Pepper returned to work in May 1997.
On Dec. 2, 1997, Pepper’s frustration boiled over and he made a comment about her 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 but no further action was taken.
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 to work from medical leave due to a car accident.
Panic attacks lead to sick leave
In May 1999, the co-worker returned in an area adjacent to Pepper’s. He bumped into her near the washrooms and it triggered a panic attack. After experiencing several other panic attacks, Pepper went on sick leave on June 8, 1999.
After multiple attempts while on leave, Pepper’s request for an investigation was granted. DND found Pepper’s harassment complaints were justified and recommended he be given the opportunity to return to his job in the shop 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 within a few months if his workplace issues were resolved, but his problems would continue if he had to report to the same supervisor or was demoted to another position.
Mediation to negotiate return to work
After filing a grievance claiming his illness was the result of mistreatment at work, a mediation process was started in September 2003. The process 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 discussed in the 2003-2004 mediation, DND determined he couldn’t return to work because the workplace issues that caused his illness “will never be resolved to his satisfaction.” As a result, it terminated Pepper on June 30, 2006.
Pepper filed a complaint of wrongful dismissal, claiming DND based its decision to terminate him on information from a confidential mediation process and it failed to accommodate his disability.
DND based termination on information from mediation
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.”
DND didn’t try to resolve workplace issues
The adjudicator also found since Pepper’s medical condition was a factor in the decision to terminate him, he was discriminated against and accommodation was required to the point of undue hardship.
The adjudicator agreed the termination decision met two of the Meiorin elements in that Pepper’s attendance was rationally connected to his job performance and the standard was adopted in good faith and tied to a work-related purpose. However, the third element, that the standard is reasonably necessary to the accomplishment of the legitimate work-related purpose, wasn’t met as Pepper’s psychiatrist had said he could return to work if the workplace issues were resolved or he was retrained. However, DND ignored these possibilities.
“The employer made up its mind to terminate (Pepper’s) employment before obtaining any evidence of his complete disability,” the adjudicator said. “Had the employer truly been concerned with accommodating his return to work, it would have become knowledgeable about his disability and examined the possibilities of accommodation as they existed (in 2006).”
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.).
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