Tribunal slams 'wilful and reckless' discrimination against employee by Service Canada

Article content

Doug Nicol’s six-year battle with the federal government cost him his livelihood, his health and his marriage. The 55-year-old former public servant in Edmonton was forced to rely on food banks and scrounge for empty bottles for cash. Twice he almost lost his house.

Last month, Nicol got his best Christmas present ever. An adjudicator awarded him three years’ pay and $38,000 in damages after finding that his employer, Service Canada, made no real effort to accommodate his disabilities and engaged in discriminatory practices “wilfully and recklessly.”

The Public Service Labour Relations and Employment Board upheld a June 2008 grievance by Nicol, a former EI claims assessor with Service Canada who took medical retirement in December 2011.

Nicol alleged that Service Canada denied him accommodation for physical and mental disabilities, causing him “serious financial, physical and psychological damages.” He also alleged his employer discriminated against him on the basis of his disability.

The board heard the grievance over 12 days in 2012, but it took more than two years to issue its decision. When it finally came, though, it was a withering indictment of the department’s handling of Nicol’s case.

Arbitrator Deborah Howes said the medical evidence was “overwhelming” that Nicol had physical and mental disabilities that required him to seek accommodation.

Though Service Canada offered Nicol three positions in August 2008 — two of which were demotions — none was a reasonable offer of accommodation in the circumstances, Howes said.

The department ignored recommendations made by its own medical assessor and “failed or refused” to give Nicol the opportunity for further employment. It did so, Howes concluded, “based solely on his medical disabilities because the employer did not want to take the steps to properly accommodate him.”

It also repeatedly sent letters threatening termination directly to Nicol, rather than to his bargaining agent, as he had explicitly requested.

“The letters were sent at a time when he had no income and he was becoming increasingly desperate for funds for basic necessities,” said Howes, who concluded the letters were meant “to frustrate (Nicol) and prompt him to take a desperate action, like quitting.”

The department’s slow response to Nicol’s requests for accommodation “exacerbated his situation and resulted in his health deteriorating,” Howes said.

His medical condition worsened to include post-traumatic stress disorder and his financial situation “could only be described as desperate,” she said. “He borrowed from family, extended his credit card debt and borrowed against his house. He contemplated suicide.”

Ultimately, Nicol was “cornered” — by his employer’s pressure and its “passive resistance” to his return to work — into applying for medical retirement.

The adjudicator ordered Service Canada to pay Nicol lost pay and benefits from June 1, 2008, until his medical retirement in December 2011, an award likely worth about $150,000.

She also awarded the maximum $20,000 in damages for pain and suffering and special damages of $18,000 for the department’s discriminatory treatment. “In my view, the conduct was repeated, sustained and calculated to ensure (Nicol) would not return to work.”

In an interview, Nicol said his bosses at Service Canada treated him “almost criminally bad,” but he toughed out the long struggle because he was “99.9 per cent sure I was going to be vindicated. And I have been.”

He said he had a spotless employment record for two decades before developing neck and back problems that made it impossible for him to work all day at a computer. He suggested an accommodation that would let him work halftime on other tasks, “but they had no interest in that.

“They’ve just tried to draw this out as long as they can,” he said. “That’s what they do.” He now suffers from agoraphobia and expects to be on medication for the rest of his life.

During the long battle, his wife left him and he became alienated from his family. “This has gone on for so long that people get sick of you calling them to help you with money. I’ve practically been disowned by my family over this.”

In an unusual move, the tribunal sealed the exhibits presented at the hearing because of the extensive medical information presented about Nicol. Howes ruled the potential harm to him outweighed the open-court principle.

David Orfald, a spokesman for Nicol’s union, the Public Service Alliance of Canada, called the decision “a very big win,” saying it sends a clear message to the government about its obligations to disabled employees.

What was tragic, he said, was the lengthy delay in hearing and deciding Nicol’s grievance, which forced him into medical retirement. “This is a problem around how the system as a whole works,” Orfald said.

Fiona MacLeod, a spokeswoman for Treasury Board, said the government “respects” the board’s decision and will not appeal it.

The government “remains committed to developing and supporting an inclusive and barrier-free work environment that accommodates individuals with physical and mental disabilities,” she said.

dbutler@ottawacitizen.com

Twitter.com/ButlerDon