Canada Employment and Immigration Union -
May 21, 2011

Service Canada fails in its duty to accommodate, adjudicator awards grievor $18,000

In a decision that found Service Canada guilty of failing to accommodate an employee’s physical disability, a Public Service Labour Relations Board adjudicator has awarded $8,000 for pain and suffering and a further $10,000 for “clearly reckless conduct” by the employer.

The grievor, Nathalie Cyr, suffers from environmental hypersensitivity and became ill after working at Phase IV of Place du Portage in Gatineau, Quebec. A PM-5 Project Manager, Cyr had never had particular health issues before working at Phase IV. An hour after arriving at work she would have headaches and sinus pain that would disappear after returning home.

In 2004, Cyr asked for a full-time telework arrangement but was instead allowed to work three days per week from home. This was done without formally raising her health problems with the employer or involving her union. In 2005, the employer forced Cyr to work three days per week at Phase IV and her health deteriorated as a result. Nevertheless, her work performance between 2004 and 2006 was judged to be excellent.

When the employer told Cyr that it was terminating the telework arrangement, she obtained a report in April 2006 from her doctor that put the diagnosis of environmental hypersensitivity formally on record with the employer. In view of the report, she was allowed to work from home on a full-time basis.

However, when the grievor’s supervisor retired, his replacement told her that the telework arrangement would be terminated and that she would have to report to Place du Centre, a different structure from Phase IV, but sharing the same Place du Portage air circulation system. In response, Cyr contacted her union and provided a further medical report that confirmed that she could not work at Place du Centre. In view of the medical certificate, the employer agreed to allow a telework arrangement to meet the grievor’s needs. However, this concession came after the employer had clearly demonstrated a pattern in failing to meet the requirements of the duty to accommodate.

The first failure came in the employer’s refusal to make sustained and prolonged efforts to accommodate the grievor. Instead, it took the position, despite a medical certificate, that the employer’s organizational preferences came first. It was simply against a telework arrangement, preferring instead that Ms. Cyr report to an office every day of the week. It took a further medical certificate from the girevor to push the employer toward its duty to accommodate her physical disability.

This initial failure was followed by an attempt to change the grievor’s work tasks to suit, again, the employer’s organizational preferences with no regard to her need for accommodation.

The third failure was the refusal to provide the grievor with all of the equipment she needed to carry out her duties as a teleworker. This continued for over two years despite the grievor having provided all of the necessary medical certification.

In his decision, the adjudicator found that the employer had discriminated against the grievor and ordered Service Canada to pay $8,000 for pain and suffering and $10,000 for “clearly reckless conduct”. The adjudicator’s comments on the employer’s reckless conduct are worth noting:

The employer’s representatives were all aware of the telework policy. They also knew the employer’s accommodation duties. They all worked for the federal department that assumes the government’s responsibility for fostering employment equity in Canadian society. The employer’s representatives have no excuse because they knew what they should have done. In spite of that, the employer delayed months before providing Ms. Cyr with appropriate work tools, despite known policies contrary to its actions. Even worse is that Ms. Dumont, on her arrival, clearly let Ms. Cyr know that she disagreed with telework even though she knew that Ms. Cyr had a physical disability. That is clearly reckless conduct. It is akin to telling a sight-impaired person that one is opposed to having a guide dog in the office. The evidence reveals that reckless comments and written communications continued to accumulate over the months that followed and that Ms. Cyr suffered because of them.

Many CEIU members continue to struggle to have the employer recognize its duty to accommodate their disabilities, and the union will actively advocate on their behalf. The outcome of the Cyr case will offer support to those members and, hopefully, motivate the employer to improve its practices around this important issue.

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