VICTORY: Layoff of disabled public servant ‘an abuse of process,’ Public Service Staffing Tribunal rules

OTTAWA — A tribunal has ordered Human Resources and Skills Development Canada (HRSDC) to reinstate a disabled public servant from Orléans who was laid off in 2012 under the federal government’s workforce adjustment program.

In a decision dated Feb. 26, the Public Service Staffing Tribunal found that the department’s decision to lay off Claudette Besner was an abuse of authority because it was based, at least in part, on her disability.

Besner, an administrative coordinator with HRSDC, is hearing impaired and has been diagnosed with an anxiety disorder and environmental sensitivities. She went on long-term disability in 2008 and returned to work in June 2010.

To accommodate her disabilities, the department agreed she could work from home and provided the necessary computer equipment, furniture and supplies.

But Besner had ongoing technical problems with her equipment that were not fixed until after she had been selected for layoff, the tribunal found. Documentation showed she contacted the department’s IT support group 20 times in 2010, 28 times in 2011 and 49 times in the first nine months of 2012.

To determine whether to lay off Besner, department officials followed a selection for retention and layoff (SERLO) process. It involved a written exam and a reference check to assess six qualifications, such as reliability, judgment and interpersonal skills, reviewed by an assessment board.

Besner scored well on the written exam, but received low marks from the reference check. As a result, her overall score was lower than that of another public servant and she was selected for layoff.

At the tribunal hearing, Besner argued that she was disadvantaged in the SERLO process for several reasons, including the ongoing technical problems with her equipment, an unstable work environment and the department’s failure to take her needs as a disabled person into account.

The tribunal found that Besner’s evidence was sufficient to establish a prima facie case of discrimination, which shifted the onus to HRSDC to provide a “reasonable non-discriminatory explanation” for its decision to lay her off.

The department denied that Besner’s disabilities were in any way a factor in the decision to lay her off. But the tribunal ruled otherwise, saying Besner would not have had to deal with the challenges presented by her balky computer equipment if her disabilities had not required her to work from home.

It found that Besner’s disabilities were factors in the department’s assessment of her interpersonal skills and her reliability. The department, it concluded, “has not provided a reasonable, non-discriminatory explanation for the poor references in those qualifications upon which the assessment board relied.”

While there was no evidence HRSDC intended to discriminate against Besner, “evidence of intent is not necessary to make a finding of discrimination,” the tribunal said. It ordered the department to reinstate Besner in her job and pay her $2,000 for pain and suffering.

In an interview, Besner, 55, said she took medical retirement after her layoff and isn’t planning to return to work at this point.

She said the tribunal decision is the first in response to eight or nine grievances she has filed over the past 13 years alleging harassment, discrimination and failure of properly accommodate her disabilities.

“I’ve heard I was one of the first to win this, and they’re very, very difficult to win,” Besner said “So I was very surprised.”

Ian Thompson, an official with the Canada Employment and Immigration Union (CEIU) who helped represent Besner at the hearing, called the tribunal’s decision “hugely significant.”

Thompson said government departments have “introduced elements of unfairness” into staffing processes. “This happens to be a very good example,” he said. “Here we have a person who has identified accommodation needs. They went through a SERLO process and essentially used her disability to eliminate her.”

Public service managers “essentially get to pick who they want to stay,” Thompson said. “And the criteria, as in this case, isn’t always fair.” The decision in Besner’s case, he said, “starts to chip away at that.”

From the Ottawa Citizen.