Corrections officer can’t have gun, won’t travel

Corrrections Canada discharged employee after it couldn't find a job for him after he developed anxiety

This instalment of You Make the Call involves a dispute over whether an employee was able to do his job after a disability leave.

Richard Sioui was a correctional officer at Donnacona penitentiary near Quebec City. He supervised other officers, did front-line work with inmates and responded to crises when they sprung up. On Nov. 16, 2001, Sioui witnessed a violent altercation between an inmate and another officer. Combined with an incident he had with an inmate two years previously, Sioui developed post-traumatic stress disorder and had to stop working.

Corrections Canada (CSC) ordered a psychiatric assessment that showed he had an anxiety disorder with no permanent effects and Sioui provided a medical report that recommended he move to another occupation without contact with inmates or firearm use because there was a risk of a relapse.

CSC determined Sioui could not return to a position at Donnacona because all positions there involved some contact with inmates and there was a significant probability of violent altercations due to the type of inmates housed there. It also found it wasn’t possible to modify a correctional officer position to avoid inmate contact without undue hardship.

On April 18, 2006, CSC dismissed Sioui because he could no longer fulfil his job duties and it was unable to find him another position. On Jan. 12, 2007, Sioui signed a memorandum of understanding that CSC would reinstate him on leave without pay so he could benefit from the organization’s back-to-work program. CSC assigned a training officer to help him find another position.

The training officer checked with other government departments as well as potential positions at Donnacona. Most outside positions were elsewhere and the Donnacona positions involved contact with inmates. Sioui didn’t follow up on the opportunities because he didn’t want to move and he insisted he could still be a correctional officer. He wrote to his supervisors at Donnacona, asking them to reinstate him to a correctional officer position. He claimed he didn’t have a stress disorder and it was “work-related burnout.” He believed he could return to work at Donnacona and applied for positions there.

On Oct. 4, 2007, CSC terminated the memorandum of understanding and reactivated Sioui’s dismissal.

You Make the Call

Did CSC do enough to try to accommodate Sioui before terminating him?
Did CSC wrongfully terminate Sioui because of his disability?

If you said CSC did enough to meet its duty to accommodate, you’re right. The arbitration board said it was clear Sioui had “permanent functional limitations” that prevented him from having contact with inmates and carrying firearms, which ruled out returning to his old job. These were bona fide occupational requirements for the position, so CSC’s duty to accommodate involved trying to find Sioui another position.

The board found there were unarmed positions available in CSC, but they were not at Donnacona. Because Sioui didn’t want to move, it limited what CSC could do. CSC made several attempts to find Sioui another job, but Sioui didn’t follow through because of his desire to stay where he was.

“(Sioui) focused his efforts on employment in the Quebec region, and more specifically at the Donnacona penitentiary, despite knowing he could no longer work with inmates and carry a firearm,” said the board. “By limiting his job search in that way, he made the employer’s task of finding him work suited to his functional limitations impossible.”

The board ruled CSC had fulfilled its obligation to accommodate with the memorandum of understanding that allowed him to use its return-to-work program. Those efforts failed and CSC had the right to dismiss Sioui because his limitations prevented him from working as a correctional officer. See Sioui v. Canada (Deputy Head-Correctional Service), 2009 CarswellNat 1263 (Can. Pub. Service Lab. Rel. Board).

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