Canadian Employment Law Today

October 30, 2013 Federal department can't accommodate worker THIS INSTALMENT of You Make the Call features an accommodation dispute involving a federal employee. Denys Fontaine was an audit and control assets officer with the Department of Fisheries and Oceans in Quebec City, since 1992. In March 2006, he took an extended sick leave for two years, during which he received disability insurance. In March 2008, Fontaine's physician provided a short, handwritten note stating he was fit to return to work "if the return involved a relocation acceptable to him." The department asked for Fontaine's expectations and he said he Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. 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We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 12 How would you handle this case? Read the facts and see if the judge agrees was prepared to return to work but not at the same location because he wanted to avoid contact with certain people with whom he had had past conflicts. In July 2008, Fontaine provided another medical note that indicated he required another workplace without contact with the people who had earlier disputes with him. The physician suggested a relocation would be preferable. However, Fontaine didn't disclose the names of the people he wanted to avoid. On Aug. 13, 2008, Fontaine's manager offered to reinstate him to his old position in the same office. She told him they had identified the employees involved in conflicts with him and they no longer worked there. Additionally, there was a clear communication procedure with management if he came into contact with any employees with whom he had past problems. If he did not want to be reinstated, he could choose a layoff or termination for reasons other than breaches of discipline or misconduct. Fontaine was "outraged" by the offer and reiterated his demand for a job in a different location. He also said several people, including "the highest authorities in the department" were some of the people with whom he had problems, though he again didn't provide names. The department said it was open to discussing reasonable alternatives for returning to work in another position. Fontaine wanted to relocate to another department but stay in the immediate Quebec City area, so options were limited. He was ultimately offered a position in Quebec City that would give him independent work without contact with other Quebec employees. However, Fontaine refused the offer and still didn't provide any details on who he was trying to avoid, though he suggested some of them still worked for the department. After a couple of months during which Fontaine refused to provide a medical opinion on the job offers, the department told him his absence was unauthorized and he needed to provide the medical opinion by Jan. 30, 2009, and report to work by Feb. 9. Fontaine filed a harassment complaint, which was investigated and dismissed. He was told to report to work or face termination. The department then received a medical opinion that the job offer didn't meet the criteria to protect Fontaine's "physical and psychological integrity" due to chronic asthma problems, which had not been raised before. The department determined Fontaine could no longer hold his substantive position, even if it were modified, and terminated his employment on July 28, 2009. You make the call K Did the department fulfill its duty to accommodate? OR K Should more have been done before terminating Fontaine? IF YOU SAID the department fulfilled its duty to accommodate, you're right. The adjudicator found the department's efforts were "considerable" and ensured he would be able to return to his original position or, alternatively, work in the other position offered. However, Fontaine made it impossible to accommodate him because of his refusal to accept working in the department again, said the adjudicator. He also didn't make any attempts himself to find another position, and the vagueness of his limitations didn't support efforts to get him back at work, said the adjudicator. The adjudicator found the department met its duty to accommodate and Fontaine didn't live up to his duty to cooperate with those efforts. See Fontaine c. Canada (Administrateur general, ministère des Pêches et des Océans), 2012 CarswellNat 3539 (Can. Pub. Service Lab. Rel. Bd.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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