The grievor had provided the employer medical evidence of a disability and had been accommodated by being allowed to work from home. A new supervisor took over and demanded she report to the office. The ruling found that her disability had not been accommodated and awarded her damages.
A worker grieved when telework arrangements to accommodate her environmental hypersensitivity were unilaterally revoked by a new manager.
N.C.’s career with the public service began in 1992. In 2004, she began a new job in a new office complex. Healthy up until that point, one month after starting her new job, N.C. developed a number of health issues.
Ultimately she was diagnosed with environmental hypersensitivity sourced to workplace exposures to irritants.
However, N.C. did not immediately get a written diagnosis or certificate from her doctor. Instead, she talked to her supervisor and proposed an arrangement that would allow her to work from home. Though she asked to be allowed to work from home full-time, N.C. accepted the offer of three days per week. The arrangement was not entirely satisfactory, but she acquiesced to it so as not to antagonize her superiors.
About one year later, a departmental director who did not favour telework decided to bring all the home-workers back into the office. An exception of sorts was made in N.C.’s case in view of her medical condition. N.C. was now required to come into the office three days per week instead of two. Her condition deteriorating, N.C. took the advice of her supervisor and obtained a medical certificate from her doctor confirming her condition.
Beginning in April 2006, N.C. was permitted to work from home full-time.
New supervisor
Six months later, N.C. came under the authority of a new supervisor. The supervisor was aware of N.C.’s condition and of management’s obligation to accommodate N.C. Nevertheless, the supervisor was not in favour of telework and, in the course of reorganizing the division’s work, insisted that N.C. return to the office.
N.C. responded that the supervisor’s proposal was contrary to her doctor’s orders. N.C. talked to her union. She also got a new certificate from her doctor, which she personally put into the hands of her supervisor.
In January 2007 — one month later — the supervisor responded, seeking to confirm a date for N.C.’s return to the office. She said that N.C. had been seen recently in buildings similar to the office that she was apparently sensitized to and she was asked to provide another medical note addressing the feasibility of N.C.’s return to the office.
N.C. complied. She provided a new and more detailed note that confirmed the earlier diagnosis and restrictions with respect to her ability to work in buildings with mechanical ventilation systems. She also billed the employer $300 for the cost of the additional note.
The supervisor refused to pay the bill. N.C. grieved.
N.C. said that her environmental hypersensitivity constituted a disability. She charged that the employer had harassed her and failed in its duty to accommodate her disability up to the point of undue hardship. The union charged that the employer’s actions were in violation of the Canadian Human Rights Act (CHRA) and the collective agreement. The union said that N.C. was entitled to acceptable accommodation, $20,000 in damages for pain and suffering and $20,000 in special damages.
No harassment
N.C. was not harassed, the Adjudicator said. The relationship between N.C. and the new supervisor was clearly not friendly but N.C.’s treatment did not approach the standard of harassment.
However, the employer did fail in its duty to accommodate N.C.’s disability. It did violate both the CHRA and the collective agreement.
The employer’s conduct before September 2006 was not at issue, the Adjudicator said. N.C. may not have been entirely satisfied with the requirement that she spend some of the time in the office, but she agreed to it.
After September 2006, it was a different story.
Despite being aware of N.C.’s circumstances, the new supervisor informed N.C. that she did not favour telework. That was the employer’s first failure of its duty to accommodate, the Adjudicator said.
“It is very clear from analyzing the case law that the employer must make sustained and prolonged efforts to accommodate employees. [The supervisor], by her comments, did exactly the opposite.”
The supervisor never consulted with N.C. before deciding to change her work and terminate her telework agreement.
The supervisor did not discuss with N.C. the new medical certificate that N.C. provided in December 2006. Instead, the supervisor asked for another certificate and appeared to be attempting to undermine N.C.’s credibility.
Damages warranted
Damages were warranted in this case. The Adjudicator accepted that the conduct of the supervisor likely did cause N.C. considerable stress and anxiety, which in turn compromised her health and had a negative effect on her family life.
The employer was ordered to pay N.C. $8,000 for pain and suffering.
The Adjudicator also ordered the employer to pay special damages.
The employer did not deliberately discriminate against N.C. However, its actions were reckless and “showed a lack of thought and of consideration in managing an employee with a known physical disability and in applying known legal obligations.”
“I consider that conduct a serious violation of the duties of the employer and of its representatives who, in addition, stated that they knew the accommodation laws, policies and obligations. Therefore, I order the employer to pay [N.C.] $10,000, half the maximum that I can award under subsection 53(3) of the CHRA.”
Reference: Public Service Alliance of Canada and Treasury Board. Renaud Pacquet — Adjudicator. Patricia Harewood for the Union. Michel Girard for the Employer. March 22, 2011. 14 pp. Full Decision Order No. LVI3972-2.
