Gravel v. Public Service Commission of Canada

Gravel v. Public Service Commission of Canada
Collection
Canadian Human Rights Tribunal
Date
2010-02-03
Neutral citation
2010 CHRT 3
File number(s)
T1324/5408
Decision-maker(s)
Bélanger, Réjean
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
SHELLEY ANN GRAVEL
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
PUBLIC SERVICE COMMISSION OF CANADA
Respondent
REASONS FOR DECISION
2010 CHRT 3 2010/02/03
MEMBER: Réjean Bélanger
I. INTRODUCTION:
A. THE COMPLAINANT IS SELF-REPRESENTED
II. CHRONOLOGICAL OUTLINE OF FACTS AND ALLEGATIONS THAT GAVE RISE TO THE COMPLAINT
A. Closing of the International Programs Unit
B. Closing of the Learning and Development Programs Branch
C. Abandonment of Complainant for six weeks
D. The Complainant becomes the administrative support for the Director of the Equity and Diversity Directorate
E. The Complainant's disability
F. January 2004, Offer for Program Coordinator
G. Ms. Gravel's return to work from March 8 to April 14, 2004
H. Complainant's long-term disability period
I. The Respondent, who was aware of the Complainant's depression, should have taken this into account and made the necessary adjustments when she asked to return to work on November 8, 2004.
J. Last day of work, Complainant's letter of resignation
III. COMPLAINANT'S OTHER FACTS AND ALLEGATIONS
A. Human Resources did nothing to help the Complainant
B. No one at Human Resources answered the Complainant's messages
C. Unfair treatment
D. Human Resources ignored the Complainant's experience, qualifications and interests
E. The Respondent was aware of the Complainant's fibromyalgia and refused to make the appropriate accommodations
F. The executive assistant position should have been offered to the Complainant instead of Ms. C.J.
G. The Respondent is responsible for falsely spreading the news of her retirement
H. The Respondent is responsible for the Complainant's resignation
I. The Respondent is responsible for the deterioration in the Complainant's health
IV. APPLICABLE LEGAL CRITERIA
V. WHAT ARE THE ISSUES
A. First Issue
(i) Prima facie evidence
(ii) Respondent's position
(iii) Conclusion
B. Second Issue
(i) Prima facie evidence
(ii) The Respondent's position
(iii) Conclusion
C. Third Issue
(i) Prima facie evidence
(ii) The Respondent's position
(iii) Conclusion
D. Fourth Issue
(i) Prima facie evidence
(ii) The Respondent's position
(iii) Conclusion
E. Fifth Issue
(i) Prima facie evidence
(ii) Conclusion
VI. WHAT IS THE APPROPRIATE REMEDY?
I. INTRODUCTION: [1] The Complainant, born June 29, 1944, claims to have worked for the Department of Foreign Affairs and International Trade (DFAIT) for around 20 years, in Canada and abroad. During this time, she provided administrative support to senior-level government employees. At one point during this period, from 1989 to 1995, she had to take disability leave due to fibromyalgia.
[2] On January 5, 2001, the Complainant asked for a transfer from the DFAIT to the International Programs Unit, which was part of the Learning, Assessment and Executive Programs Branch (LAEPB) of the Canada Public Service Commission, where she was a Portfolio Coordinator, a clerical position classified at the CR-5 group and level.
[3] Since its structure had not changed since 1918, the Public Service Commission made many modifications to it in 2003 without reducing its staff. Furthermore, it made sure changes were made in accordance with the recommendations made by the Task Force on Modernizing Human Resources Management in the Public Service and taking into account legislative changes as established in Bill C-25.
[4] Two of these changes were made to the LAEPB and had significant consequences for the Complainant: first they led to the closing of the International Programs Unit on June 30, 2003, where the Complainant worked. This automatically led to the elimination of 11 positions, including the Complainant's position.
[5] Secondly, on October 31, 2003, senior executives also closed the rest of the LAEPB, which had been renamed the Learning and Development Programs Branch, to which the Complainant had been transferred. This second closing led to the elimination of 10 other positions. Once again, the Complainant's position was eliminated. She found herself without a specific assignment.
[6] In the next while, until the beginning of 2005, the Complainant, who held the affected employee status, held various positions at the Public Service Commission, sometimes with written assignments, sometimes without; she also spent several months on disability leave during this period. On January 13, 2005, deciding her situation was intolerable, the Complainant resigned from the Public Service and retired.
[7] On February 28, 2006, the Complainant filed a complaint with the Canadian Human Rights Commission against the Respondent, her former employer, the Public Service Commission. She claims that the Respondent discriminated against her based on her age and her disability, which is in contravention of sections 7 (Employment) and 10 (Discriminatory policy or practice) of the Canadian Human Rights Act (the Act).
[8] She alleges that her health deteriorated primarily as a result of the behaviour of the Respondent's representatives. For these reasons, she felt forced to resign. Her early retirement prevented her from working another five years and being able to add five years worth of contributions to her pension plan, which went against her career plan. She claims that she planned to work until the age of 65. The consequences of her premature retirement were very damaging both economically and health-wise. As a result, she is claiming compensation for the damages incurred.
A. THE COMPLAINANT IS SELF-REPRESENTED [9] The Complainant, at the start of the hearing on September 14, 2009, through a preliminary motion, verbally asked the Chairperson of the Tribunal for permission to schedule the hearing for a later date because she needed more time to get new counsel and better prepare herself.
[10] She then told the Tribunal that when she filed her complaint, she had access to counsel that her union had offered to pay for.
[11] She then consulted a non-lawyer who offered to represent her on the condition that she waive doing business with the union-provided counsel. The Complainant preferred this advice and decided to take on the file with this individual's assistance without the presence of the union's counsel.
[12] Finally, the Complainant informed the Tribunal at the beginning of June 2009, a few days before the scheduled start of the hearing at the end of June and beginning of July, that the advisor who agreed to help her with her file decided for medical reasons to cease representing her.
[13] It was agreed upon with the Tribunal that the hearing scheduled for the end of June and beginning of July 2009, would be rescheduled for the week of September 14 to 18, 2009, to give the Complainant time to get new counsel and prepare herself.
[14] However, to justify the motion for an extension, although the initial application in June set forth only one reason, being the health of the advisor that would not allow her to proceed, she added a second reason: there was a disagreement between herself and the representative in how to proceed with the file. It is for these two reasons that she decided to go ahead without the advisor's services.
[15] To support the second application for postponement, she specified that she was so sick during the summer of 2009, that she could not take care of the file in the manner she would have liked and to this day, she could not find counsel who would agree to represent her on a contingency basis.
[16] The Tribunal, pursuant to the stipulations of section 48.9 of the Act, which says that the proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirement of natural justice and rules of procedure allow, found that the additional 2.5 month extension gave the Complainant sufficient time to prepare and find new counsel and respected the principle of natural justice. It therefore ordered to proceed with the hearing without further delay.
[17] To facilitate comprehension of this judgment, we have decided to start by setting out in section II the facts and allegations that gave rise to the Complainant's complaint while respecting the chronology of the events. Then, in section III, we will analyze the Complainant's other facts and allegation that we were unable to include in this chronology, as they are facts of a prolonged and continued nature. We will then focus, in section IV on the legal criteria applicable and then in section V, we will analyze the issues in dispute, finishing with section VI, which contains our observations on the appropriate remedy applicable to this file.
II. CHRONOLOGICAL OUTLINE OF FACTS AND ALLEGATIONS THAT GAVE RISE TO THE COMPLAINT A. Closing of the International Programs Unit [18] At the beginning of January 2003, the then Deputy Chairperson for the Learning and Development Programs Branch, met with the employees of the International Programs Unit, which was a part of her Branch, including the Complainant, to inform them that, as a result of the restructuring of the Public Service Commission, their unit would be closing on June 30.
[19] She assured them that following this reorganization, no one would lose their job and the Human Resources Office, then represented by its director, would handle their situation by assisting them in the process of finding a new position within the same group at the same level.
[20] In March of 2003, the Complainant started working for the Deputy Chairperson for the Learning and Development Programs Branch in an administrative support role. When she was replaced on April 1, 2003, the new Deputy Chairperson invited the Complainant to continue working for him as a correspondence assistant; she continued to provide administrative support for the Director of Special Projects.
[21] According to the Complainant, of the 11 people who worked at the Branch, some took the opportunity to retire and others, who were much younger than her, as she was 59 years old at the time, found a job before the end of June, 2003, except her.
[22] According to the Respondent's witnesses, the version is a little different. They claim that it was also the Complainant's case and that she continued to benefit from the affected employee status.
B. Closing of the Learning and Development Programs Branch [23] The senior executives of the Public Service Commission also decided to close what was left of the Learning and Development Programs Branch on October 31, 2003. The Complainant was part of this Branch, which was only made up of 11 people.
[24] According to the Complainant, some of these people took the opportunity to retire while others, who were much younger than the Complainant, then 59 years of age, found another job. Only the Complainant could not find a job.
[25] Again, the version of the Respondent's witnesses is slightly different. They claim that the Complainant continued to be employed by the Public Service Commission and that she continued to take advantage of her affected employee status.
C. Abandonment of Complainant for six weeks [26] The Complainant complained about being left alone for a 6-week period in a large, recently vacated space on the 21st floor of Esplanade Laurier, after the employees of the Learning and Development Programs Branch left. This situation lasted from the beginning of November until mid-December, 2003.
[27] The Director of Human Resources recognized that his unit was supposed to take care of the people looking for work whose Unit or Branch had been removed, said that at the time, he was not aware of the 6-week period the Complainant alleged having spent alone on the 21st floor of Esplanade Laurier.
[28] When questioned as to whether they frequently lost employees, he admitted that it was the first time, to his knowledge, that he had heard of this case and that he had never been confronted with a situation like this one before. Neither he nor the other Respondent's witnesses could shed any light on this situation.
[29] The director of Human Resources added that the Complainant continued to receive a salary during that time, right until she retired. Two of the Respondent's witnesses, who had already left the office to work elsewhere at the time, were not in a position to comment on what occurred during this 6-week period.
D. The Complainant becomes the administrative support for the Director of the Equity and Diversity Directorate [30] Following the Complainant's submissions to the Senior Strategic Advisor, a manager she knew, she explained the whole situation to him and asked him to help her find a new job. With his efforts, she quickly found short-term work with the Director of the Equity and Diversity Directorate, as an administrative assistant, where she started mid-December, 2003. It was, again, a temporary position.
E. The Complainant's disability [31] On January 19, 2004, after having worked for the Senior Strategic Advisor for about a month, the Complainant became ill and went on disability leave. At the time, she was experiencing digestion and memory problems. According to the Complainant, these symptoms were caused primarily by her job and the worry that plagued her, as she was afraid of not having a job.
[32] Though the Complainant claims her symptoms were primarily because of the problems she experienced at work, the Respondent's witnesses expressed the idea, during the hearing, in light of the Complainant's medical reports, that the Complainant's work was not the sole trigger for her health issues and; that problems of a personal nature could also cause a good portion of her health problems, as reported in the medical reports, particularly of her psychiatrist.
[33] The Complainant's family doctor explained to the Tribunal that the stress experienced by the Complainant at work was not the cause of her depression but one of the major triggers for it.
[34] This very same doctor wrote a note stating that the Complainant would be on disability from January 19 to March 1, 2004. The Complainant stressed that this notice did not state that she would be ready to go back to work on March 1 but that the medical situation would be reviewed at the end of that disability period and until then, she was on disability leave for an indeterminate period. Her family doctor confirmed this during his testimony.
F. January 2004, Offer for Program Coordinator [35] The then Director of Executive Resourcing, who had a position to fill, informed Human Resources of his needs. The Complainant's appointment was suggested and he was informed of her precarious situation. They indicated that she should be strongly advised to accept the position offered as time could work against her. Given she had the affected employee status, she must fear being given surplus status. This meant that in the near future, she would become surplus and eventually laid-off. Human Resources sent the Complainant's C.V. to the Director of Executive Resourcing.
[36] After examining the Complainant's C.V., the Director of Executive Resourcing consulted some people to get some references, including the then Director of Special Projects. The responses were sufficiently favourable for the Director to decide that the Complainant's application was adequate.
[37] He called her January 20, 2004, to tell her that the position of Program Coordinator with Executive Resourcing Directorate, that he managed, was available and was being offered to her, and specified that it was a CR-5 position.
[38] The Director of Executive Resourcing explained to the Tribunal that he had difficulty recruiting and keeping staff. This is why he took the time to speak to or phone potential candidates to promote himself by demonstrating enthusiasm in the obvious goal of making them want to work in his directorate. He did his best to motivate people, which is what he did during this phone call.
[39] He therefore offered the Complainant the position of Program Coordinator that he described as being administrative but that was, in fact, according to the Complainant, nothing but a clerical position where she would have to work primarily on a computer about 7 hours a day and do copy/paste type work.
[40] The Complainant maintained that this position did not correspond in any way to her skills and qualifications, which were clearly outlined on her C.V., which the Director of Executive Resourcing had. Not to mention that this kind of work went against the note written by her family doctor in 2001 (see Exhibit R-1, tab 5) that was in her file and referred to her pre-existing condition of fibromyalgia. She reaffirmed her interest in an administrative position. Despite the Complainant's lukewarm reaction, the Director of Executive Resourcing continued to insist and attempted to reassure her with respect to her ability to do the job.
[41] He painted her a picture of the tasks associated with the position offered, tried to reassure her by telling her that even if she did not have experience with this kind of work, they could give her training. He did his best to make her feel like she was welcome in his Directorate.
[42] The Director of Executive Resourcing also suggested, in a manner interpreted as menacing by the Complainant, that if she did not accept the position being offered, there could be unpleasant consequences for her: that she may be put on a priority list and after a year, she would be unemployed. He ended the telephone call by asking her to seriously consider his offer and that he would call her back in two weeks.
[43] For his part, the Director of Executive Resourcing, explained that it was not until he sensed the Complainant was going to refuse his offer that he risked tell her about the consequences of her refusal. He told her about the situation as explained to him by Human Resources. He estimated that it was in the best interest of the Complainant that she be informed of the danger of her situation.
[44] The Complainant, over the course of the telephone call, explained him that she was very sick and unable to return to work at that time and could not give him an approximate date of return. She alleges also having discussed her fibromyalgia problem with him and her worries about a relapse resulting from the type of work proposed for a person with her specific condition.
[45] Also, according to the Complainant, even though she was very sick, she took notes about the telephone call as accurately as possible. She transcribed them immediately after.
[46] The Director of Executive Resourcing claimed that at no time during the telephone call did the Complainant mention to him that she would need to make specific arrangements as a result of her particular medical condition; never did she refer to her issues in terms of fibromyalgia. He added that at no time, even after this conversation, did the Complainant and he discussed her needs in the matter.
[47] He specified that he himself had worked in a Human Resources department for several years and has been confronted numerous times with requests for accommodation from employees returning from long term disability leave. In these situations, he would start by asking the employee for a medical certificate, issued either from the employee's doctor or from the employer's doctor supporting the needs of the employee in terms of accommodation. Then, upon receiving the certificate, he would discuss with the employees how he could accommodate them. In his eyes, it goes without saying that you have to make things easier for the employee and have them come back in the best condition.
[48] He added that if the Complainant had told him about her fibromyalgia, he would have taken that approach. He added that he never knew that she had a disability of any kind.
[49] Despite the Complainant's reticence expressed during the January 20 phone call, on January 21, 2004, she signed the document R-2, tab 6 signed by the then Director General of Executive Resourcing, dated January 16, 2004, entitled Response to a letter of offer; this letter of appointment stated that she would come in to work on March 1, 2004.
[50] The Complainant claims that two weeks later, at the beginning of February 2004, the Director of Executive Resourcing called her back, as promised. He insisted again that she accept his offer and provide him with a return to work date. She reiterated that she could not confirm the date for her return and the position offered was not suitable for a person with fibromyalgia and furthermore, she was not offered any accommodation. Here is an excerpt from this telephone conversation that the Complainant claims to have faithfully reproduced by typing out its contents immediately after hanging up. (C-1, Tab 58)
... I told him that I still could not give him a date and re-stated that the job he was offering me did not accommodate my disability and that I had serious doubts about taking it. Mr ( ... ) repeated his threat of my taking a huge risk of landing up unemployed at the end of one year and landing up on the street. This time he scared me much that I told him that I would take his job offer but did not feel that I could not return to the work place until early March. Therefore, despite reports from 2 specialists (Drs X and Y) that stated that they did not feel that I was well enough to return and were even doubtful that I could so with a gradual return of one or two days a week, out of sheer terror of being unemployed, I went back and accepted (...)'s job offer and started work in his shop, still quite ill on March 8, 2004...
(Emphasis added)
[51] It is difficult to imagine this conversation that the Complainant alleges having had with the Director of Executive Resourcing in February 2004. How can she say, This time he scared me much that I told him that I would take his job offer when she had already signed the Response to a letter of offer on January 21?
G. Ms. Gravel's return to work from March 8 to April 14, 2004 [52] On March 1, 2004, the Director of Executive Resourcing waited in vain for the Complainant to arrive at work. She did not show up for her new job until March 8, later claiming that she was still sick during the first week of March. She worked until April 14, 2004, and had to stop working due to illness. This was her last day of work. The disability period that followed would continue until her resignation and the beginning of her retirement at the start of 2005, supported by a series of reports and medical certificates.
[53] During this short work period of March 8 to April 14, 2004, in the Director of Executive Resourcing's opinion, the quality of the Complainant's work left a lot to be desired. Her training period was difficult. She took a long time learning her position's tasks. The Complainant knew herself that her work was not satisfactory and that it was at her immediate superior's insistence that she came back to work, which was evidently too quickly.
H. Complainant's long-term disability period [54] The complainant's family doctor wrote a note on May 20, 2004, in support of these facts, see Exhibit R-2, tab 7, indicating that his patient, the Complainant, would be completely disabled for the period from April 28, 2004, until September 3, 2004.
[55] On June 10, her family doctor specified that his patient was in a state of severe depression and would not be back to work before September 3.
[56] With the exception of the insurance company's psychiatrist, the three other doctors who examined the Complainant during the summer and/or autumn months of 2004, all recognized that the Complainant's depression rendered her incapable of working.
[57] In a letter dated October 15, 2004, exhibit R-1, tab 11, the insurance company accepted to pay the Complainant disability benefits from July 28 to October 31, 2004.
[58] In a letter dated January 21, 2005, Exhibit R-1, tab 13, the insurance company agreed to pay the Complainant disability benefits from October 31, 2004, until March 31, 2005. Unfortunately, she had already resigned when the letter arrived.
[59] At the beginning of September 2004, the Director of Executive Resourcing claims to have called the Complainant for an update. She told him that her doctors did not think she should go back to work.
I. The Respondent, who was aware of the Complainant's depression, should have taken this into account and made the necessary adjustments when she asked to return to work on November 8, 2004. [60] The Complainant said that at the time, a change in her medication had a positive impact on her health and she felt well enough to think that November may mark a good time to slowly return to work even if the psychiatrist who was treating her did not share this opinion. During the trial, she said:
Despite what Dr. ( ... ) had stated that she was not sure I could do part time, I, the one, knew how I felt and I felt much better that I contacted Mr. ( ... ) and asked him if I could do a gradual return to work.
[61] Then, the Complainant alleges having called her immediate superior on November 8, 2004, and offered to come back to work gradually, offering at the start to work two days per week and later, moving up to five days a week. She offered to take the position of telephone operator currently occupied by a temporary employee and suggested to switch tasks with that employee so the receptionist could do her own tasks. He categorically refused this suggestion: No, no, absolutely not.
[62] His reaction left her speechless, especially because in the time she worked for him, her impression of him was as follows: (excerpt from her notes taken following the telephone call of November 8, Exhibit C1- tab 57)
N.B.: I am truly shocked at what Mr. ( ... ) said and at the harshness of his words and his tone because for the short period of time that I did work for him he was always soft spoken, always calm, prim and proper and always behaved in a professional manner. A very distinguished gentleman ...
[63] When asked about the telephone call that the Complainant alleged she made to him on November 8, 2004, the Director of Executive Resourcing stated that he did not remember this at all. He went as far as saying that he had no recollection of the Complainant asking for accommodations, neither by phone nor any other means, not on that day, nor at any other time.
[64] The medical evidence and the letters from the insurance company included in the file say that the Complainant was on total disability from April 14, 2004 until March 1, 2005.
[65] The following excerpt, from the last paragraph of page 2 of Dr. ( ...)'s medical report, who assessed the patient in November 2004, at the request of her family doctor, (Exhibit R-1, tab 10), illustrates what the psychiatrist then thought about a possible gradual return to work by the Complainant:
...I do not feel she can currently return to the workplace full-time and I am not at all optimistic that that will ever be achieved for her given both her age and her past history and her current mechanism of coping. I doubt even that she will manage a part-time reintegration into the workplace to give that a trial. It may be possible but I would start at a low level such as half a day a week.
[66] As a result, the observation indicates that at the time when the psychiatrist met the Complainant in November 2004, she did not recommend a gradual return to work. She even raised doubts regarding the Complainant's eventual return to work.
J. Last day of work, Complainant's letter of resignation [67] In fact, the Complainant worked until mid-April 2004 and was still on disability the day she decided to resign and retire in January 2005.
[68] On January 10, 2005, the Complainant sent her immediate superior a resignation letter (R-1, tab 12) informing him that she was retiring on January 13. In this letter, the Complainant blames the insurance company that, by depriving her of an income and refusing to assume the cost of the treatment that would have given her the opportunity to return to work in December 2004, as recommended by her doctor, she felt obliged to resign and retire as soon as possible.
[69] The reasons given by the Complainant to justify her decision to resign do not mention the role played by the Respondent in this case and do not cover any allegations against her immediate superior. Questioned on the absence of allegations against to the Respondent's representatives, she said it was a diplomatic gesture and she wanted to leave on good terms; that she was a diplomat in this world that ignored diplomacy altogether.
[70] Here is the response to the resignation letter, written by her boss, as a handwritten letter attached to the Complainant's letter:
Ann
I assume you mean January 13, 2005. If it is, I concur with your retirement at the end of the business day January 13, 2005. I wish you all the best and I thank you for your continued dedication.
( ... ) (signature) 01.01.12
[71] On February 28, 2006, the Complainant filed a complaint with the Canadian Human Rights Commission.
III. COMPLAINANT'S OTHER FACTS AND ALLEGATIONS A. Human Resources did nothing to help the Complainant [72] The Complainant claims that Human Resources did nothing to find her a job. The following is the reaction of the Respondent's witnesses to that reproach.
[73] According to the Respondent's witnesses, all the necessary measures were taken to help the Complainant find a new job.
[74] The Director of Human Resources for the Public Service Commission, who was very familiar with the Complainant's situation, explained how Human Resources worked.
[75] Pursuant to the rules established for the reassignment of personnel affected by unit closures, an attempt to find a job within the work unit is the first step; then, if no position is available, there is an attempt to place the employee in the same position and level within the Directorate, then within the Department, then outside the Department; the witness said that to understand this approach, you just need to imagine [TRANSLATION] concentric circles; the smallest circle representing the employee's unit of work, the next circle representing the directorate, then the Department, and finally, the last circle is outside the department. This approach is designed to have as little impact as possible on the employee and is less traumatizing for the employees involved.
[76] The witness added that the Complainant was considered a CR-5 and that there were always many positions at this level to fill, that each year, there were 10 to 12 positions that became available. In his opinion, he was not remotely concerned that it would have been simple at any point to find the Complainant a job.
[77] However, Human Resources did not take any proactive or specific measures: they let the Complainant search for herself. She had expressed a preference for an administrative position when she met with the Deputy Chairperson for the Learning and Development Programs Branch in January 2003 and later, during a second interview with the chief of Human Resources, as such a position would better suit her qualifications and experience. While waiting to find what she was looking for, she continued to be paid and to work; there was therefore no great urgency to move things forward.
[78] The witness told the Tribunal that by giving the Complainant time and by not pressuring her, she would have the opportunity to find a job that would suit her.
[79] According to the person who replaced the Deputy Chairperson for the Learning and Development Programs Branch, it takes a minimum of six months before an employee, who submits an application for employment and attends an interview, can obtain the results. The Respondent's responsibility consisted of helping employees affected by the unit closure in finding a job at the same group and level and not finding them a job at a higher level. However, the Complainant demonstrated an interest in administrative level work, which she considered more suitable based on her experience and qualifications when, in fact, this meant that she was interested in a job at a higher level.
[80] He took measures to have someone train her in financial matters; however, the Complainant complained that this training was insufficient given the lack of availability of trainers.
[81] Two people gave reference letters to the Complainant.
[82] According to the Director of Human Resources, the Complainant's name was put on a priority list by Human Resources and internal managers were informed of her availability.
[83] The Complainant continued to work for the Deputy Chairperson for the Learning and Development Programs Branch, until the branch closed at the end of October 2003. Before leaving, on September 30, 2003, he signed an assignment agreement covering the Complainant from September 1 until December 31, 2003.
[84] The Director of Human Resources stated that, following the closure of the Learning and Development Programs Branch at the end of October 2003, Human Resources took the same approach as when the International Program Unit closed with respect to helping employees who lost their jobs; they left the employees to take the necessary steps to find a new job. This was also the case for the Complainant until the end of 2003.
[85] Some further clarification by a witness, who retired in 2008, after 37 years in the public service, who was the Deputy Chairperson of the Corporate Management Branch, was provided during the hearing. He explained the approach the Public Service Commission took and that it promoted to transform and modernize the PSC and specified that he used this approach in the Complainant's case.
[86] At the time that the PSC was being reorganized, this person had approximately 1,400 employees. With his team, he proceeded with the writing of the two following documents: PSC Transformation Realigning for Modernization - Backgrounder Exhibit R-1, tab 2 and PSC Transformation Realigning for Modernization - Questions & Answers Exhibit R-1, tab 2.
[87] The second document, which had: Prepared by the Transformation Secretariat, February 18, 2003 on the front page, was distributed to all PSC employees; the Complainant would have received a copy.
[88] It was clear for all those involved that the public service modernization would not reduce the staff in place. This is the reassurance that was sent to everyone. Here is a relevant excerpt from page 10 of the Questions and Answers (Exhibit R-1, tab 5):
Q. Will all PSC staff have jobs after the April 1 reorganization?
A. The April 1 reorganization is not a job reduction exercise. In the unforeseen circumstance of reductions, we will identify opportunities for employment elsewhere in the PSC, opportunities for retraining, as well as provide employee assistance and career counselling. In some cases, we may also look to other departments. Although it is not anticipated, if it becomes necessary, the Treasury Board Workforce Adjustment Directives will apply....
[89] Given the concerns raised by the Complainant, who claimed she went a long time before finally receiving a Written Assignment Agreement, the Director of Human Resources was invited to shed some light on the subject.
[90] He said that a written assignment specifically had an administrative advantage in determining who from the Home Organization or the Host Organization or from Corporate Reserve would pay the employee. He then specified that the Complainant continued to be paid even when she did not have a written assignment agreement. In fact, it is sufficient for there to be a verbal agreement between the employee and the managers of the Home Organization and the Host Organization.
[91] The Director of Executive Resourcing explained that the absence of a Written Assignment Agreement was normal and that it was common practice to give employees non-written assignments. He specified that managers sometimes signed written assignments to reassure worried employees or if there was mistrust between managers.
[92] It became clear during the hearing that Complainant had a written assignment agreement from April 1 to June 30, 2003 and from September 1 to December 31, 2003.
[93] When asked about how employees found new job, the Deputy Chairperson for the Learning and Development Programs Branch said there were three ways:
The block transfer of a group of people and their functions; this was the case for employees of Language Training Canada, that after being part of the Learning Programs Branch were transferred as a block elsewhere in the Public Service. Employees who found work using their own resources; this was the case for the staff of the International Programs Unit, except Ms. Gravel. Not much help was given these people. Employees incapable of finding a job using their own means, like Ms. Gravel, who, consequently, needed more support.
[94] He explained that he did for Ms. Gravel what he usually did for employees in the last category. In addition to still receiving a salary, he gave her less work to give her the opportunity to put more time and energy into finding a new job; he gave her access to a closed office with a telephone and a computer with e-mail access. He gave her a letter of reference (Exhibit R-1, tab 3). No pressure was put on the Complainant; he said he was aware that when applying for a competition, the process could take up to six months.
[95] In fact, the Complainant applied to three competitions; unfortunately, she did not get a job through these competitions.
[96] The witness said he was not in a position to say how much time the Complainant had to find a new job. This issue was never raised before he left the Corporate Management Branch at the end of October 2003. He added that a period of one year or more would be normal.
[97] There was no financial pressure on the Complainant or the Branch as her salary was covered by Corporate Reserve.
[98] When asked about the age of the Complainant, he answered that this issue had no bearing for him. In any case, he did not know the Complainant's age. Sometimes he learned an employee's age; as an engineer, he signed the passport forms of some employees who requested it but this was not the Complainant's case.
[99] When asked about his relationship with Complainant, he answered that their work relationship was pleasant but infrequent in the 5 months that they worked in the same office. When asked about her performance, he said that the work requested was well done and he did not notice that she may be disabled in any way. He never received a request for accommodation from her. He never had to consult the Complainant's personal file and obviously, did not know about the medical certificate issued in 2001 that was in her file that described the Complainant's fibromyalgia. He specified that it was not current practice for managers to consults employees' personal files.
[100] However, at the beginning of 2004, given it Complainant's fate had not yet been sealed and that she still had not managed to find a permanent position using her own means, the Human Resources Office decided to take matters into its own hands. It was even considering the Complainant a surplus employee as of March 2004.
B. No one at Human Resources answered the Complainant's messages [101] The Complainant repeated several times and discussed the many ways she regularly contacted the Human Resources office to get its director's help, by leaving him phone messages, sometimes daily, and e-mails to his attention but no one ever followed up.
[102] She claimed that she went in person to the Human Resources Office and asked for help. She was told that the Director would call her back.
[103] When the Director of Human Resources was asked about the Complainant's accusation, he categoricall