A Quality and Service Manager working for the Parole Board of
Canada is entitled to work in an entirely different building from a
co-worker – identified only as "Mr. X" –
because she suffered from stress caused by Mr. X's behaviour, a
grievance adjudicator has held.
In 2009, Mr. X was moved to the cubicle next to the worker's
office. The worker alleged that Mr. X constantly distracted her
during the workday by loudly unpacking his bag in the morning,
eating strong smelling leftovers, walking barefoot in the office,
making loud guttural noises, passing gas, swearing, and washing his
feet with vinegar in his cubicle. The worker also testified that on
one occasion when she was on the telephone, Mr. X was making so
much noise that she stood up and hit their common wall to get him
to stop. Mr. X then entered her office and said "What is your
problem?... there is a line on the floor and do not cross that line
because I do not know what will happen...".
The worker testified that she complained to her supervisor, and
asked that one of them be moved. The employer offered mediation as
a method of resolving the conflict between the two workers, but the
worker refused. The worker moved offices a few months later but she
was still bothered by Mr. X's behaviour when he passed by her
new office location.
Despite the worker's office move, 8 months later, Mr. X
filed a harassment complaint against her, which included
allegations that she called him a pig. To read the National
Post's article on Mr. X's harassment complaint, click
Once the worker learned of the harassment complaint against her,
she filed a harassment complaint against Mr. X and went on sick
leave from September 2011 until March 2013. During that time, the
employer offered the worker the accommodation of an office on a
floor that Mr. X could not access. The worker refused, claiming
there was a risk that Mr. X could access the floor by riding in an
elevator with someone who did have access.
In or around April 2012, the worker filed a grievance against
her employer, alleging that it did not comply with its duty to
accommodate because she had medical notes stating she was fit for
work, but not at the building in which Mr. X worked, and she did
not receive an offer of accommodation that met her medical
The worker went on secondment in March 2013 for one year (in
another building), at the end of which she was supposed to return
to her position with her employer in the same building as Mr. X.
The worker refused to return to work because, according to her, the
corrective measures sought in her grievance (teleworking or working
in a different building) had not been granted.
At the hearing, the worker tried to show that Mr. X's
abusive behaviour caused her emotional stress that affected her
memory and her capacity to concentrate, and that she did not feel
safe working in the same building as him. The Adjudicator
considered whether the employer's proposal to move her to
another floor constituted a reasonable accommodation. The
Adjudicator found that, in light of the testimony of the
employee's doctor that she had a real and genuine fear and that
her medical condition would not improve if she returned to the
workplace, even on a different floor, the employer's proposed
accommodation was not reasonable. Further, the Adjudicator found
that the employer did not satisfy her that it was absolutely
necessary for the worker return to that workplace.
The Adjudicator ordered the employer to move the worker to a
different building, and to compensate her for the wages and
benefits she lost during her sick leave.
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