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166-34-31393 and 31394 (2003 PSSRB 18)
Lévesque v. Canada Customs and Revenue Agency
Before: J.-P. Tessier
Appearances: M. Ranger, for the Grievor; H. Brunelle, for the Employer
Decision rendered: March 3, 2003
Collective agreement – Employer's failure to take appropriate corrective action for harassment – Request for additional paid sick leave – the first grievance referred to article 22 of the collective agreement and objected to the employer's not taking appropriate corrective action for him following a complaint of harassment and, in parallel, the grievor also requested paid leave under clause 17.17 for which he filed a second grievance when this was refused by the employer – the grievor had been employed with the Canada Customs and Revenue Agency and had been assigned to a special project at another location – in the summer of 1999, there was some confusion as to the holidays the grievor was to take and the relationship between him and his project leader – the grievor filed a complaint in October alleging harassment from his superiors – the employer contracted a private company to investigate the complaint and the final report confirmed that the grievor had been the victim of harassment by his superiors and that the actions of the latter had contributed to a hostile work environment – with respect to article 22 of the collective agreement, which deals with safety and health and talks about collaboration between the employer and the union to prevent or reduce the risk of employment accidents, the adjudicator determined that the grievance was unfounded as no evidence had been submitted regarding the application of this article – based on an analysis of the evidence, the adjudicator found that the request for leave was related to the grievor's state of health and was supported by medical expertise and that it could be likened to a request for sick leave – the adjudicator affirmed support for the principles in two Board cases, St-Jacques and Grignon, whereby the role of the adjudicator is to determine whether or not the employer reasonably exercised its discretionary authority by refusing special leave and found that, in the circumstances of the present case, the employer had had reason to liken the grievor's request to a request for additional sick leave and that it had correctly applied clause 17.17 – however, although he dismissed the grievances, the adjudicator made the following three recommendations, in obiter, to the parties; that the employer maintain an offer of settlement it had made previously and that the grievor accept it subject to the other two recommendations being met; that the employer clarify its position on the origin of the misunderstanding that led to the grievor's problems and send out a letter confirming this; and that the grievor be allowed to take paid leave for the purposes of personal growth.
|Cases cited:||St-Jacques (166-2-13467); Grignon (166-2-27602).|