Layne v. Deputy Head (Department of Justice)
2017 PSLREB 10
- Before: Nathalie Daigle
- Decision Rendered: January 20, 2017
- Original Language: English
- Aggressive behaviour towards co-worker –
- Credibility –
- Discrimination –
- Disguised disciplinary action –
- Financial penalty –
- Jurisdiction –
- People with disabilities
Labour relations – Disciplinary action – Suspension – Misconduct – Aggressive behaviour towards co-worker – Harassment – Credibility
The grievor grieved a one-day disciplinary suspension for pushing a colleague and for referring to that colleague in an insulting manner in the workplace – the Board found that the grievor displayed offensive conduct contrary to the departmental conflict and harassment in the workplace policy and that discipline was justified – the Board found further that a one-day suspension was not excessive because the grievor refused to accept responsibility for her behaviour.
Labour relations – Disguised disciplinary action – Financial penalty – Denial of sick leave with pay (2.5 hours) – Perceived misconduct – Failure to notify management before going home sick – Jurisdiction
The grievor grieved that the denial of her sick leave with pay was disciplinary action that resulted in a financial penalty – the Board found that the deputy head denied that leave because the grievor did not notify management before going home – there was no evidence that anything required the grievor to obtain authorization before going home sick – the Board found that the denial was disguised discipline over which it had jurisdiction under s. 209(1)(b) of the Public Service Labour Relations Act – the Board ordered the deputy head to grant the grievor paid sick leave for her absence.
Labour relations – People with disabilities – Mental stress – Fitness to work – Whether discrimination occurred – Human rights – Burden of proof
The grievor grieved that she was discriminated against in the course of her employment because of a disability, on the following three grounds: 1) a performance improvement plan was imposed on her while she was on sick leave; 2) there was a failure to meet with the lawyers for whom she was a legal assistant to discuss her performance assessment; and 3) the employer failed to accept her return to the workplace for a year – the Board found that the grievor did not establish a prima facie case of discrimination with respect to the first and second grounds because she failed to establish that her performance was satisfactory before going on sick leave and that the missed meetings were linked to the employer’s delay accepting her return to the workplace – however, the Board found that she established a prima facie case of discrimination with respect to the third ground since the evidence showed that, after an extended sick leave, the grievor’s physician recommended that she return to work, with accommodations, and the employer did not accept her back in the workplace for a year, during which time she was without income – the Board further found that the employer had a reasonable and probable non-discriminatory reason for not accepting the grievor’s return to work on her physician’s recommendation and until it received a detailed fitness-to-work assessment that established that she did not represent a risk to workplace health and safety – the Board also found that the employer worked diligently to obtain a detailed fitness-to-work assessment but that the process was significantly delayed because of the grievor’s actions.