Stressed employee lost baby but board says employer fulfilled its duty to accommodate
A pregnant British Columbia correctional officer didn’t fully co-operate with her employer’s accommodation efforts and the stress she experienced that contributed to the loss of her baby was not the result of workplace harassment, the Canadian Public Service Labour Relations Board has ruled.
A female corrections officer was assigned to Fraser Valley Institution, a federal penitentiary in Abbotsford, B.C. She was on a team preparing a secure unit for maximum security inmates since most inmates there could move about freely and lived in housing units.
In 2006, a new team leader was hired for the secure unit and tension between her and the employee quickly developed when the team leader made changes to the policies and protocols the employee had developed and the employee joined the union executive. The team leader also accused the employee of breaching policy twice and the employee later complained to management about the team leader’s attitude.
High risk pregnancy
In August 2006, the employee found out she was pregnant. She had been pregnant three times before with only one successful birth, so she knew there were risks. A dangerous offender would be coming to the unit soon, so she requested to be accommodated by avoiding contact with inmates. Her doctor supplied a note indicating she had a high-risk pregnancy and should be given “clerical work.” The employee didn’t expect any accommodation issues since she had been accommodated by the Correctional Service of Canada (CSC) during her last pregnancy. She was given duties in case management but, at her request, continued to do some documentation work for the secure unit.
During preparation for the dangerous offender’s arrival in the unit, the team leader modified protocol so the inmate didn’t need restraints while inside the secure unit. Several staff members, including the employee, disagreed with the decision and some filed a complaint about unsafe work under the Canada Labour Code. The employee, who was in the unit for lunch, left in solidarity with the employees making the complaint.
Accommodation assignment changed
On Aug. 30, 2006, the team leader told the employee her accommodation with case management was being revoked and she would get a new assignment at the front entrance checking vehicles and screening people. The employee was upset because she felt the new assignment didn’t match her accommodation needs and her workload would be too heavy. She felt the reassignment was punishment for her union involvement.
The employee obtained another medical note that specified she had a high risk pregnancy and should not be exposed to “physical altercations.” Management gave her three choices: Working at the main control centre, working at the front entrance or going on medical leave with employment insurance. She felt none of the choices were appropriate and didn’t understand why her original accommodation was withdrawn.
The employee’s physician provided her with another note that specified duties that didn’t put her at risk for emotional stress or physical harm. It listed several clerical tasks that were suitable and several restrictions, including an avoidance of inmate contact and stressful or violent situations. CSC agreed to assign her to the mailroom.
Things didn’t go well in the mailroom and on a few occasions the employee was confined to an office while an inmate was taken through the area. She felt she was under scrutiny and the environment was “tiring and stressful.”
On Aug. 19, 2006, CSC determined the accommodation was not going well and placed the employee on paid leave because it was not “reasonably practical” to accommodate her, as was permitted in the collective agreement. On Sept. 25, she was reassigned to regional headquarters for office work.
Stress caused loss of baby: Employee
On Oct. 9, the employee gave birth to a stillborn baby. When she returned to work two weeks later, she filed a grievance, claiming CSC failed to properly accommodate her during her pregnancy, which led to her losing the fetus. She also said she was subjected to harassment and discrimination and requested she no longer be supervised by her team leader, who should be transferred elsewhere. CSC couldn’t transfer the team leader so it offered the employee a position that wasn’t under her old supervisor. When she rejected it, CSC placed the employee on paid leave again. She filed a second grievance, claiming it was punitive because it denied her the chance to earn shift premiums or overtime.
The board found CSC ended the employee’s assignment in case management because she was spending more time in the secure unit and occasionally performing tasks such as admitting inmates, which was contrary to her medical notes.
CSC showed it was willing to accommodate her, the board found, by moving her when it saw the risk of contact with inmates. It offered her the option of clerical duties but the employee refused them, feeling they were beneath her position. The board found the employee’s rejection of the various options was coloured by a preference to work from home, which she had done during her first pregnancy. However, that option was not available this time.
The board found CSC made sufficient efforts to accommodate the employee that were not matched by an equal effort from the employee. In addition, the board said workplace tension that resulted from the employee’s interaction with her team leader and those in other areas was not a basis for harassment.
Finally, the board found CSC was acting in a good-faith attempt to find a solution when it placed the employee on leave while it tried to find her a position where she didn’t have to work with her team leader.
