Psychotherapist declared employee fit to return but employee refused two job offers and wanted continued funding for sessions
A government worker was entitled to accommodation of his psychological issues but asked for too much, the Canada Public Service Labour Relations Board has ruled.
Paul Ouellet worked for Human Resources and Social Development Canada (HRSDC) in Moncton, N.B., for more than 31 years. In 1998 he was assigned to the Canada Pension Plan office, but HRSDC wasn’t happy with his job performance. Ouellet disagreed but HRSDC reassigned him to a new position in early 2001.
Ouellet’s performance didn’t improve in the new position and HRSDC met with him to determine the problem. Ouellet said his job duties weren’t challenging enough and he also suffered from post-traumatic stress disorder stemming from a sexual harassment complaint he filed in 1996 — which had been settled — for which he needed accommodation.
Employer paid for initial therapy
In April 2002, HRSDC agreed to put Ouellet on paid medical leave and he would see a psychotherapist at HRSDC’s expense. Ouellet chose a psychologist, Jacques-A. Frigault, who did not have a medical degree nor was registered with any professional body in Canada. The therapist was in Fredericton, a three-hour drive from Moncton, but Ouellet said he wanted Frigault for religious and spiritual reasons. HRSDC agreed to reimburse Ouellet for his travel and accommodation expenses in addition to paying for the sessions, with the understanding the therapist would inform HRSDC of Ouellet’s psychotherapy requirements after the assessment.
In November 2002, Frigault recommended Ouellet receive 15 to 20 sessions of psychotherapy and remain on paid leave during the treatment.
Frigault performed a functional and occupational assessment in February 2003 and declared Ouellet was fit to return to work on a gradual basis. However, he said Ouellet should continue his therapy. HRSDC agreed to continue to pay for the psychotherapy and met with Ouellet and Frigault on Aug. 27, 2003.
Disagreement on return-to-work plan
However, the parties couldn’t agree on a return-to-work plan. Afterwards, HRSDC said since Frigault had done the assessment on Ouellet and had declared him fit to return to work, it would not pay for any more therapy.
In November 2003, HRSDC offered Ouellet a new position at his old salary but Ouellet declined since he would be working under a supervisor he felt was hostile, though he had not actually worked with this person before. Little progress was made until August 2004, when Ouellet filed a complaint saying HRSDC was not accommodating him for his mental disability.
HRSDC asked Ouellet to undergo an assessment of his fitness to work by Health Canada which it would follow up with a new return-to-work plan. Ouellet refused because he felt Frigault’s assessment should be sufficient. In April 2005, HRSDC asked again so it could determine what accommodations he required. Ouellet again pointed to Frigault’s assessment and said he would return to Frigault for an update.
In June 2005, HRSDC assigned Ouellet to another position but Ouellet declined because it was in the same department where he had been harassed. Frigault backed up his refusal by recommending a return-to-work plan that involved Ouellet working in a different department. However, HRSDC didn’t think Ouellet was right for the suggested department.
Ouellet remained on sick leave with a note from his family physician which did not provide an estimated return-to-work date. HRSDC asked him again to undergo an assessment but Ouellet still refused. He also requested financial assistance for further therapy sessions.
In October 2005, Ouellet finally agreed to an assessment if the reasons for it were explained and the employer exchanged information with his doctors. HRSDC agreed and indicated if he refused again it would consider dismissing him for being unable to do his job.
Ouellet was assessed in February 2006 and it was determined he was not fit to return to work anytime in the near future and he needed a long period of psychotherapy. HRSDC gave Ouellet unpaid sick leave for 12 months and he decided to retire in November 2007 rather than be dismissed for incapacity to work. His complaints for accommodation were dismissed by HRSDC and he took his case to the Canada Public Service Labour Relations Board.
The board found when HRSDC learned Ouellet suffered from post-traumatic stress disorder, it placed him on paid leave and arranged for an occupational assessment. It also allowed Ouellet to choose who would do the assessment. These initial actions showed a willingness to accommodate him, said the board.
However, the board found Ouellet did not do his share of co-operating in the accommodation process. It agreed that once Frigault pronounced Ouellet fit to return to work, the employer had no obligation to continue paying for therapy. At that point, it offered Ouellet two positions but he refused and wanted one for which HRSDC felt he was not suited.
