May 7, 2015
25.4.160
Background
The grievor was seconded to Department B from Department A for a two-year assignment beginning in August 2009. A June 2009 letter indicated that the grievor's pre-posting medical assessment determined the grievor to be fit for posting. The grievor returned to a substantive position at Department A in August 2011. The grievor completed a return from posting assessment with Health Canada (HC) in November 2011.
The grievor began Sick Leave with Pay in February 2012, using sick leave credits until January 2013. In April 2012, the grievor was sent for a Fitness to Work Evaluation with HC. In a response letter dated May 2012, HC wrote that the grievor was unable to work and that psychiatric follow-up be commenced. The letter also indicated that the grievor's condition was likely related to the posting, and that the grievor may be eligible for benefits under FSD 47. The grievor therefore requested benefits under FSD 47. In February 2013, the grievor underwent another HC medical evaluation. In March 2013, a letter was provided by HC to Department A stating that the initial symptoms of the grievor's condition were likely post-attributable, and that the apportionment of the ongoing symptoms to the posting will require further evaluation. At HC's request, the grievor was again examined in July 2013 by an independent medical consultant. Upon receipt and review of the independent medical consultant's report in a letter dated August 2013, Department A was advised that the consultant identified the grievor's condition as being 100% post-attributable, and that the evaluation was complete.
The grievor was approved for Disability Insurance effective February 2013.
In 2013 and early 2014, Department A consulted with Department B and Department C regarding the application of FSD 47. The resulting recommendation to refer the grievor's request to the Workforce Safety and Insurance Board's (WSIB) process was shared with the union during a discussion in March 2014.
The grievor's representative contacted WSIB upon receipt of the Employer's recommendation, and was told that the grievor was outside of the 6-month timeframe to apply for benefits under the WSIB, and also that the grievor's overseas assignment does not fall under the purview of the WSIB, as no application for coverage was submitted before the out-of-country assignment took place. WSIB denied the grievor's claim in October 2014, on the basis that the cause of the condition is related to the general work duties of the posting and not a specific traumatic event and, stating that workers who develop mental stress gradually over time due to general workplace conditions are not entitled to WSIB benefits. The grievor is considering appealing this decision. The grievor submitted the grievance in April 2014.
Bargaining Agent Presentation
The Bargaining Agent representative submitted that upon two occasions, one in 2012 and the second in 2013, the grievor underwent two HC assessments which came to the same conclusion – the grievor's illness was post-attributable with the second assessment stating that it is 100% post-attributable. The Bargaining Agent representative noted that under this pretense, and taking into the account the adjudicator's reasoning from Dubois supra, it can be argued that as soon as it is demonstrated that an illness that caused an absence from the workplace is directly or indirectly post attributable, FSD 47 should apply. As such, the Bargaining Agent representative maintained that the grievor was not treated within the intent of the Directive.
Departmental Presentation
The Departmental representative argued that it is the Department's position that FSD 47 was neither intended for nor the most appropriate mechanism for providing assistance to employees who require an extended period of sick leave with pay, almost a year of leave in the case of the grievor, as a result of a workplace injury or illness that is not endemic to Canada. The Departmental representative further stated that although HC submitted that the grievor's condition was 100% post attributable in August 2013, an error in the perspective of the Department as it contradicts previous assessments from HC, the issue was never addressed as to whether or not the illness was endemic to Canada. Furthermore, the Departmental representative noted that the Directive allows for Deputy Head discretion as to whether or not to approve benefits in accordance with FSD 47. As such, the Departmental representative maintained that the Department is of the opinion that FSD 47 was designed to provide sick leave with pay on a short term basis and hence, the grievor was treated within the intent of the Directive.
Executive Committee Decision
The Executive Committee reviewed and agreed with the report of the Foreign Service Directives (FSD) Committee which concluded that the grievor was not treated within the intent of the Directive because FSD 47 was not considered. The provisions of FSD 47 should have been considered by the Department as they are intended to provide assistance to employees requiring sick leave as a result of a post-attributable illness, when such illness is determined by Health Canada. As such, the grievance is upheld. The department is directed to consider the application of FSD 47 in this case.