Complaint against Manitoba Human Rights Commission, Yukon Human Rights Commission, Government of Manitoba, Civil Service Commission
I would like to make a formal request for a review of my MHRC complaint File No. 08EN238 for a report on investigation Section 36(1) of the Manitoba Ombudsman Act in that a decision made on the recommendation, act or omission of evidence by the MHRC appears to have been
1. What is your complaint?
I first spoke to HRC Intake Officer Pat Daniels on June 24, 2008. I began by explaining the difficulties I had with regard to work overload and harassment by my supervisor, resulting in unfair termination of employment. I explained I was even more susceptible to the stress due to my disability – bipolar. Ms Daniels explained that poor management and work overload, in itself is not cause for a complaint under the HRC. It wasn’t until I explained what happened at the June 4th meeting that she agreed the complaint did pertain to HRC. She explained the procedures and what insofar as the Commission’s support I could expect.
In a matter of minutes, the Intake Officer had identified what was relevant under the Code. It is then surprising that 2.5 years later a 52-page Assessment prepared by the Investigator evades this critical point of evidence. I believe the Investigator failed in her obligation to act in good faith throughout the investigation of the complaint evidenced by the excessive delays as well as straying from the most basic of standard procedures; particularly in the oddities surrounding the Respondent’s Reply, leading to the unusual turn of events of having my decision pending in the Yukon Territories. The Yukon Human Rights Commission is possibly the most unlikely panel, given the YHRC own admitted critical problems in shortage of staff and resources and an already overwhelmed caseload of its own.
Upon a review by the Manitoba Ombudsman, I am certain you will agree that I have been unjustly biased and precluded of a fair review by the YHRC panel and of my complaint overall by MHRC.
I believe that the MHRC failed to adequately investigate my complaint. I had been assured by the Intake Officer that although the MHRC does not advocate for either side, I was assured that I could reasonably expect that the power imbalance between me and my employer (Gov’t of MB) would not be abused and that I would be provided with assistance as to procedures and information throughout the process. In reality, oftentimes my only remedy to get answers or action occurred only as a result of making the request through the Executive Director, Dianna Scarth. The Government’s Reply was designed and signed by Robert Olson, in his personal capacity. He did not identify himself as signing on behalf of the Government as legal counsel (private law firm of Thompson Dorfman Sweatman, specializing in Labour Law and Human Rights). As provided herein all attempts by me to mediate were never acknowledged or acted on, seemingly under advice of legal counsel. In addition, the Government had, and made use of all available resources through its various departments and own in-house legal counsel. The Respondents’ comments were not limited or screened by MHRC as to what was relevant. The lengthy and many excessive delays were likely intended to wear me down, ultimately to stop my complaint from going forward to hearing (aka stonewalling). The median time reported in MHRC annual report for investigating a complaint is 8-9 months. The complaint was first initiated June 2008.
During the investigation, information was not provided in a timely manner, and promises of action were not delivered. Ms Scarth’s own personal assurances to me in email dated February 26, 2010 that lawyer Elliot Leven would not sit on the upcoming panel of April 7, 2010 wherein she states:
It is not disputed that I have bi-polar and there is evidence that the employer knew. The Reply in LRA complaint admitted to 22 incidents by both management and staff of recognizing ‘red flags’ of mental illness as an issue. The only reason it openly admitted to this in a sworn document, is that it had no knowledge that a MHRC complaint had already been commenced and that it would soon be served. This documentary evidence did not form part of the Assessment. In any event there is more than enough evidence to support that my behaviour or performance had changed from that of an exemplary employee as described as recently as the former supervisor’s March 17, 2008 letter. Investigator did not put any weight on the documentary evidence ‘reference letter’ and it is evident that she accepted the Respondent’s explanation that the letter didn’t really mean anything and was only given because I asked for one. One would have to reason, that in such cases where a reference is asked and the employee is seen to fall short, the reference letter generally follows along the line, similar to the exit letter dated June 25, 2008 from the COO; just facts with little bravado. The letter of March 17, 2008 authored by the former supervisor is clearly more than a form letter (excerpts):
Given its entrusted authority to uphold all civil rights, the Respondents were fully aware of its duty and knew the full impact a decision to not accommodate would bring but still decided to shirk its responsibility. To protect itself from possible repercussions, it then willfully committed further wrongful acts so malicious and outrageous, it put me in further crisis as set out below.
Page 9 of my Comments on Investigation.
(a) The contradiction in sworn testimony in LRA that there were numerous meetings upon my return from the 3.5 week sick leave is contrary to what is provided to Investigator;
(b) COO perjured herself in LRA when she stated under oath that I was screaming and yelling throughout the duration of the June 2 and June 4, 2008 meeting.
(c) COO perjured herself when she provided in Reply to Request for Review and Recommendations that the CSC had an additional EAP provider in place at the end of June 2008, and this is known to not be true;
(d) COO perjured herself when she said that my position was a backfill and it was necessary to keep filling it as a term position. The annual report showing the org chart shows as at March 2007, the Clerk 3 position was vacant; and Laurel Munn who previously held the Clerk 3 position was made permanent in a newly developed position.
There were no meetings for three weeks upon my return for clarification of my ‘crisis’ email with copy to the Civil Service Commissioner. When an employee is absent due to an illness or disability, the employer has a duty to recognize that they may have to accommodate that employee by providing training opportunities that were missed by reason of the employee's absence. It is agreed that the next meeting with my Supervisor did not occur until three weeks after my return. Evidence was submitted that extra duties were added on during my absence and that I had not received notice or training. In fact, three weeks later I was criticized for “not being able to take on the duties of my job.” Evidence of 5 new HR programs online where my number was the direct line as the contact person – directed to answer questions beyond the scope of my position and knowledge. I was also not updated that their expectations had changed regarding my involvement in addressed missed training material. The last memo on policy regarding just that, I had was September 2007 wherein it was clear that the duty was on the broker/consultant (as provided). Considering the June 4th meeting stemmed from my inabilities surrounding this fact, it would be reasonable to believe it would be included in the Investigation Assessment.
The decision to accommodate my need as set out herein would have not resulted in any hardship to the Government of Manitoba, in fact the cost of not accommodating is great considering the time, energy, resources and legal fees; not to mention they lost a good employee. Also, in doing so, it would have aligned with its own stated objectives, as indicated in the 2008 -09 annual report, of hiring more people with disabilities.
The Government of MB, Civil Service Commission knew or ought reasonably to have known that its conduct would result in pecuniary losses to me by affecting both present and future employment; that its actions not to accommodate would cause me mental distress and suffering both to me and my family. The importance of non-pecuniary matters was acknowledged by Dickson C.J.C. in Reference re Public Service Employee Relations Act (Alta.) (1987), 87 C.L.L.C. 14,021 (S.C.C.) in the context of litigation under the Canadian Charter of Rights and Freedoms (at p.12,180) and as indicated in LRA complaint: In addition The Supreme Court of Canada, an Overview of the Duty to Accommodate reported as follows:
Mental health experts agree that the window of opportunity closes very quickly and it is not fair to put all the responsibility on the one who is experiencing symptoms of the illness. My perception was repeatedly questioned by the Respondents as irrational. By this point, one has to see that the primary responsibility rests with the employer, because only the employer has the ultimate control over the workplace and must be made aware to link the work problems with that of an employee’s condition. In Allbright Cleaners Ltd., [1997] BCHRTD No 26 (QL)
My October 20, 2008 complaint indicated (p. 1 para.1) “My employment with the Provincial Government began January 2005 and was terminated June 3, 2008.” My situation is similar to that outlined in the June 1998 complaint above. Had it not been for my illness, I too would have continued working on a daily full-time basis and have been eventually in line for a permanent position to a new department. As a result, I endured emotional distress and social embarrassment due to the financial circumstances and loss of employment; damages that go far beyond money."
DOCUMENTARY EVIDENCE REGARDING JUNE 4, 2008 MEETING
I provided full details of the June 4th meeting as created by me on July 2, 2008 (a 3-page Memo) to MHRC. A shortened version was included in pages 4 and 5 “Background” as mailed to Pat Daniels in July 2008. (40 revisions 6636 minutes* )
the COO “…in making reference to my medical condition and asking if perhaps this was causing me to imagine things was her way of saying that my concerns were not real. Anna asked me if it was possible that I had overreacted…Anna made comments such as “You’re wrong” “You can’t think that way” That I was “not making sense” “You think everybody is out to get you” and then belittling me to the point that I was a crying mess saying “Look at you. There’s something wrong with you.”
My complaint was redrafted by Pat Daniels, and I believed it to be an extremely ‘watered down’ version of what I had submitted. The revised draft made no reference to the substance of evidence presented nor the emotional climate of the June 4th meeting. In addition to the comments that formed part of my complaint, I also provided a verbatim memo of the conversation that took place (document properties shows created July 2, 2008) The redraft made only a passing mention that there was a meeting and,
As the rewrite was unacceptable, and it was never offered that my original complaint could stand, I felt it necessary to rewrite my complaint. A second complaint signed October, 20, 2008 was submitted (*38 revisions 3274 minutes); and once again the details of the June 4, 2008 meeting are included by me as indicated in para. 24 pages 5 and 6. And through my persistence in not burying this evidence, I had to re-introduce again outlined in my Rebuttal and it is here that I express the stress and trauma inflicted on me at the June 4th meeting (*216 hours to complete). :
2. Why do you believe you have been treated unfairly?
The fact that the MHRC Investigator put more credence in the employer’s defence, which was not corroborated with any documentary evidence; and when I was able to explain with consistent, solid documented proof, my side did not get included. In fact there are many instances that the Report made comments that are in direct contradiction to what had been provided as evidence. It would seem that my experience is no different than what the Government knows itself to be true, that women with disabilities have a very difficult time in presenting evidence. As a woman with a disability of mental illness, I am the most oppressed group in North American/Canadian society today. The Government of Manitoba is more than aware that it is going on in fact; it would appear it was counting on it as its most powerful defence. I, on the other hand, found its Achilles’ heel – it wrongly identified mental illness with mentally retarded and let its guard down and you as Manitoba Ombudsman are asked to investigate. Community Living, Manitoba states,:
Findings of the redirected research are that Manitoban women with intellectual disabilities indeed are experiencing a range of mistreatments, some of which fall within the Criminal Code of Canada and Manitoba’s Vulnerable Persons Living with a Mental Disability Act (VPA). Such mistreatments include those of a sexual, physical, mental, emotional and financial nature.
Furthermore, the Investigator portrayed me without any documentary evidence in the stereotypical role of how society portrays people with mental illness believes it to act; screaming, abusive and confrontational as presented by a Supervisor, who was known to the investigator to have committed perjury and was vehemently defending itself against multiple complaints to various boards and commissions. In contrast, all files I presented showed documentary evidence to the contrary. Email to Dianna Scarth dated September 19, 2010 provides more details on the irregularities and injustices of this complaint and I wish it to form part of this complaint.
3. Who is your complaint about and when did it happen? As indicated above.
4. Whom have you dealt with about this problem?
After receiving the letter dated August 4, 2010 from the YHRC, (signed by an Assistant)
I sent an email August 12, 2010 to the Executive director at YHRC and I asked for her indulgence in accommodating my disability. As a person with bipolar II I have great difficulty in comprehending and I asked for written decisions.
Aug 12, 2010 received a reply from the assistant and that she had forwarded my query to Ms Atkinson (the Executive Director YHRC)
August 14, 2010 email to Ms Atkinson advising that I was taking the next 10 days away from work to ‘stabilize mental health…This is clearly a David and Goliath story.”
August 17, 2010 – response from assistant that she has forwarded my concerns YHRC legal counsel, Colleen Harrington.
Email dated September 2, 2010 stating from Ms Atkinson, but signed again by the assistant. Makes no reference to accommodation and that I am to direct all inquiries to MHRC.
September 6, 2010 email to YHRC making FIPPA request for all documents received from MHRC.
Email from Legal Counsel YHRC September 7, 2010 not complying with FIPPA request, and redirecting me to ask the MHRC what they sent instead.
Email to Legal Counsel YHRC asking what authority the assistant has to sign in place of the E.D.? As well as I clarified that the FIPPA request was, and should be made on the YHRC.
Email from legal counsel YHRC stating to direct all inquiries to MHRC.
After this point my emails were blocked to the Yukon.
September 19, 2010 letter to Dianna Scarth (attached)
5. Did you file an appeal or ask for a review? If yes, when was the last appeal or review and what was the result?
I was given the option by both the YHRC as well as the MHRC to contact the Ombudsman of Manitoba and request that the processes that were followed by reviewed by that Office.
6. Have you received anything in writing? As indicated.
7. How can this problem be solved?
- Government accountability that it erred in its decision to not accommodate, in keeping with its own objectives and in accordance with past rulings as provided herein.
- I also believe financial restitution is in order for the time I was without work as well as the loss regarding the differences in salary and benefits.
- Removing the online LRA references to mental health.
-The government take proper measures to ensure safeguards are in place so this does not happen to anyone else.
- Compensation for the time, energy and costs that I incurred as a result.
- Letter of apology to me and my family.
8. Is this matter urgent? Yes Please explain why.
I believe the matter has been dragging on for far too long, and Statute of Limitations is a factor. Statistics report that people with bipolar have on average, a 15 year shorter lifespan affected by lifestyle habits and stress. My family will agree with me that this needs to stop. Mentally, I am not capable to stop thinking and working on this. I believe you have the power to deal with this so I can.
I would like to make a formal request for a review of my MHRC complaint File No. 08EN238 for a report on investigation Section 36(1) of the Manitoba Ombudsman Act in that a decision made on the recommendation, act or omission of evidence by the MHRC appears to have been
i. contrary to law, or
ii. unreasonable, or
iii. unjust, or
iv. oppressive, or
v. improperly discriminatory, or
vi. in accordance with a practice or procedure that is or may be unreasonable, unjust, oppressive, or improperly discriminatory, or
vii. based wholly or partly on a mistake of law or fact, or
viii. wrong;
1. What is your complaint?
I first spoke to HRC Intake Officer Pat Daniels on June 24, 2008. I began by explaining the difficulties I had with regard to work overload and harassment by my supervisor, resulting in unfair termination of employment. I explained I was even more susceptible to the stress due to my disability – bipolar. Ms Daniels explained that poor management and work overload, in itself is not cause for a complaint under the HRC. It wasn’t until I explained what happened at the June 4th meeting that she agreed the complaint did pertain to HRC. She explained the procedures and what insofar as the Commission’s support I could expect.
In a matter of minutes, the Intake Officer had identified what was relevant under the Code. It is then surprising that 2.5 years later a 52-page Assessment prepared by the Investigator evades this critical point of evidence. I believe the Investigator failed in her obligation to act in good faith throughout the investigation of the complaint evidenced by the excessive delays as well as straying from the most basic of standard procedures; particularly in the oddities surrounding the Respondent’s Reply, leading to the unusual turn of events of having my decision pending in the Yukon Territories. The Yukon Human Rights Commission is possibly the most unlikely panel, given the YHRC own admitted critical problems in shortage of staff and resources and an already overwhelmed caseload of its own.
Upon a review by the Manitoba Ombudsman, I am certain you will agree that I have been unjustly biased and precluded of a fair review by the YHRC panel and of my complaint overall by MHRC.
I believe that the MHRC failed to adequately investigate my complaint. I had been assured by the Intake Officer that although the MHRC does not advocate for either side, I was assured that I could reasonably expect that the power imbalance between me and my employer (Gov’t of MB) would not be abused and that I would be provided with assistance as to procedures and information throughout the process. In reality, oftentimes my only remedy to get answers or action occurred only as a result of making the request through the Executive Director, Dianna Scarth. The Government’s Reply was designed and signed by Robert Olson, in his personal capacity. He did not identify himself as signing on behalf of the Government as legal counsel (private law firm of Thompson Dorfman Sweatman, specializing in Labour Law and Human Rights). As provided herein all attempts by me to mediate were never acknowledged or acted on, seemingly under advice of legal counsel. In addition, the Government had, and made use of all available resources through its various departments and own in-house legal counsel. The Respondents’ comments were not limited or screened by MHRC as to what was relevant. The lengthy and many excessive delays were likely intended to wear me down, ultimately to stop my complaint from going forward to hearing (aka stonewalling). The median time reported in MHRC annual report for investigating a complaint is 8-9 months. The complaint was first initiated June 2008.
During the investigation, information was not provided in a timely manner, and promises of action were not delivered. Ms Scarth’s own personal assurances to me in email dated February 26, 2010 that lawyer Elliot Leven would not sit on the upcoming panel of April 7, 2010 wherein she states:
Given your advice that you have had discussions with Mr. Leven …you may be assured that he will not participate in any aspects of the Board processes pertaining to your complaint. I hope this is helpful but please let me know if you have any further questions.At the time of Ms Scarth’s email, it is likely that plans and notices to the panel were already underway and that Mr. Leven was scheduled on the panel list. My experience as an Executive Assistant with the Province has been that a panel is given the necessary documentation prior to a panel’s meeting to review and prepare beforehand. Ms Scarth’s explanation is not credible that ‘by accident, he just happened to be there and nobody noticed’ is not credible, and I believe it was intentional. Their “admitted regrettable mistake” then led to further delays that then led to MHRC’s unlikely choice of the YHRC to delegate the complaint to. I believe Mr. Leven’s action in itself, if not under MB Ombudsman than of the Law Society, constitutes grounds for a review. The likelihood of not remembering me and that he is counsel to the MGEU is beyond belief. There were two very valid conflicts of interest.
It is not disputed that I have bi-polar and there is evidence that the employer knew. The Reply in LRA complaint admitted to 22 incidents by both management and staff of recognizing ‘red flags’ of mental illness as an issue. The only reason it openly admitted to this in a sworn document, is that it had no knowledge that a MHRC complaint had already been commenced and that it would soon be served. This documentary evidence did not form part of the Assessment. In any event there is more than enough evidence to support that my behaviour or performance had changed from that of an exemplary employee as described as recently as the former supervisor’s March 17, 2008 letter. Investigator did not put any weight on the documentary evidence ‘reference letter’ and it is evident that she accepted the Respondent’s explanation that the letter didn’t really mean anything and was only given because I asked for one. One would have to reason, that in such cases where a reference is asked and the employee is seen to fall short, the reference letter generally follows along the line, similar to the exit letter dated June 25, 2008 from the COO; just facts with little bravado. The letter of March 17, 2008 authored by the former supervisor is clearly more than a form letter (excerpts):
she offered to provided any and all support services related to the OPCP (shows this was not part of my job description and I offered to help but the work kept growing and never stopped)…Her willingness to take on this cumbersome (strong use of word that properly reflects the amount of work) project was a great asset to the organization. The program files are now up to date and well organized. Marie continues to support the program. (Indicates a results-oriented approach, resilient in finishing work to a successful conclusion. I pride myself in high standards. I thought I was doing a very good job and based on the former supervisor’s comment, this was mutually agreed.).By the Government’s own Core Competencies standards, my responsibilities ranked well above the expected level of a Clerk 3 clerk whose primary job was to print workbook materials, pack them in a box and arrange a courier to deliver and return materials. By all accounts I voluntarily brought my skill set to the organization; thought reasonable in my expectation that in so doing, I would secure a permanent position within the government. Had the Government provided me with a little support and allowed me time for mental maintenance, I could have resumed to the level of excellence as previously described. MB Government’s policy to accommodate page 1 Rebuttal:
She also created a Guide Style Book (on my own initiative) to help streamline workshop materials designed by our various facilitators. The guide style book was created in order to eliminate the various formatting problems we encountered when updating participant workbooks. (shows a proactive approach to problem solving)
Marielle is well organized, efficient, detail oriented and extremely proficient with all of our software packages. She has brought forward many new ways of using our existing software to its fullest capacity which has saved staff time and energy.
It is not a fixed rule that an employee must advise the employer of a need for accommodation. If an employer has reason to suspect, or ought reasonably to have suspected, based upon a significant change in an employee’s behaviour or performance, that an employee might be contending with a dependency, depression or other psychological condition, the employer should make real efforts to pursue relevant inquiries to determine if there is a disability issue at the heart of the conduct that is resulting in the employee’s inability to meet the normal expectations of the workplace. http://www.gov.mb.ca/csc/policyman/accomm.html%20-%20sevenI think it is reasonable to expect that the Government and MHRC would act in the utmost of good faith at all times in dealing with me. It certainly has the knowledge and the resources and therefore obligation to provide the highest duty of care. As provided in YHRC website:
The duty to accommodation is like an elastic band. When the employee or service provider is government, that elastic band is very large…However, when the employer or service provider is very small, the elastic band of the duty to accommodation becomes much smaller. There is far less room for flexibility or, therefore, for accommodation (December 2004)There is no documentation to support that real efforts were made to accommodate or address my concerns. Page 6 of the Rebuttal,
Given its entrusted authority to uphold all civil rights, the Respondents were fully aware of its duty and knew the full impact a decision to not accommodate would bring but still decided to shirk its responsibility. To protect itself from possible repercussions, it then willfully committed further wrongful acts so malicious and outrageous, it put me in further crisis as set out below.
Page 9 of my Comments on Investigation.
Even after I left …and it was explicit in my July letter…that I had a protected disability, the respondents’ approach did not empathize with my situation or acknowledge that there might have been other ways to approach my situation. I think the CSC was not at all responsive to considering the larger issues of how employers can practically respond to needs to employees with mental illness in ways that align with its own stated objectives in employing people with disabilities. There were opportunities after I left and after my diagnosis was disclosed, for the CSC to be conciliatory and accommodating in the references provided or in arranging alternative accommodated work, based on the information they then had. That did not happen.After speaking with the Intake Officer on June 24th I made a formal request to meet and discuss the circumstances surrounding the June 4th meeting with the designated person for appeal, the CSC Human Resources. I had believed and hoped that the matter could be settled amicably within the department. I was not asked to meet, nor did anyone from the Treasury Board Secretariat contact me. An investigation was said to have been done, but as I was never asked to provide information an investigation was not likely to have occurred. My letter asking for help on June 25th was submitted as evidence, and yet the Investigation Report claims I made no attempt to rescind ‘my decision’ to terminate or that I had made any attempts for accommodation. My albeit futile attempt shows a concerted effort to mediate before resorting to a formal complaint with MHRC. I even tried one more time by email on September 21, 2008 (disability was now known) to the CSC HR yielded no response. It is also at this time that I received the RWP Investigative report. I had requested to meet with the Investigator, Ginette Grimard to discuss errors and omissions, even here again, disability was a known factor but I was not accommodated. And once again there was no response by either Labour Board or Respondents to my November 24, 2008 cover letter in LRA 324/08/LRA wherein I indicated,
The information is provided in good faith and with respect for the Government of Manitoba, as it is my genuine desire to resolve the conflict peacefully. Mediation cannot begin until a meaningful exchange of perceptions is conducted. I believe the Respondents are in agreement with me that there can only be a win/win /win resolution and that can only be done in a climate of mutual support and respect.Given the Respondents were not forthcoming in discussing accommodation after it was known, on the balance of probabilities it is not likely that it would have made any attempts to accommodate me during employment. Further proof would be that after my return from an extended 3.5 week sick leave (“likely as a result of stress and the extreme increase in the workload as stated by the Respondents) the COO eventually agreed that there were no meetings upon my return as she explained ‘for fear of jeopardizing the RWP complaint’. Further instances of perjury by COO:
(a) The contradiction in sworn testimony in LRA that there were numerous meetings upon my return from the 3.5 week sick leave is contrary to what is provided to Investigator;
(b) COO perjured herself in LRA when she stated under oath that I was screaming and yelling throughout the duration of the June 2 and June 4, 2008 meeting.
(c) COO perjured herself when she provided in Reply to Request for Review and Recommendations that the CSC had an additional EAP provider in place at the end of June 2008, and this is known to not be true;
(d) COO perjured herself when she said that my position was a backfill and it was necessary to keep filling it as a term position. The annual report showing the org chart shows as at March 2007, the Clerk 3 position was vacant; and Laurel Munn who previously held the Clerk 3 position was made permanent in a newly developed position.
There were no meetings for three weeks upon my return for clarification of my ‘crisis’ email with copy to the Civil Service Commissioner. When an employee is absent due to an illness or disability, the employer has a duty to recognize that they may have to accommodate that employee by providing training opportunities that were missed by reason of the employee's absence. It is agreed that the next meeting with my Supervisor did not occur until three weeks after my return. Evidence was submitted that extra duties were added on during my absence and that I had not received notice or training. In fact, three weeks later I was criticized for “not being able to take on the duties of my job.” Evidence of 5 new HR programs online where my number was the direct line as the contact person – directed to answer questions beyond the scope of my position and knowledge. I was also not updated that their expectations had changed regarding my involvement in addressed missed training material. The last memo on policy regarding just that, I had was September 2007 wherein it was clear that the duty was on the broker/consultant (as provided). Considering the June 4th meeting stemmed from my inabilities surrounding this fact, it would be reasonable to believe it would be included in the Investigation Assessment.
The decision to accommodate my need as set out herein would have not resulted in any hardship to the Government of Manitoba, in fact the cost of not accommodating is great considering the time, energy, resources and legal fees; not to mention they lost a good employee. Also, in doing so, it would have aligned with its own stated objectives, as indicated in the 2008 -09 annual report, of hiring more people with disabilities.
The Government of MB, Civil Service Commission knew or ought reasonably to have known that its conduct would result in pecuniary losses to me by affecting both present and future employment; that its actions not to accommodate would cause me mental distress and suffering both to me and my family. The importance of non-pecuniary matters was acknowledged by Dickson C.J.C. in Reference re Public Service Employee Relations Act (Alta.) (1987), 87 C.L.L.C. 14,021 (S.C.C.) in the context of litigation under the Canadian Charter of Rights and Freedoms (at p.12,180) and as indicated in LRA complaint: In addition The Supreme Court of Canada, an Overview of the Duty to Accommodate reported as follows:
Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identify, self worth and emotional well being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect.I have taken responsibility in dealing with my disability, in pursuing the necessary treatment to control the effects of my condition, both through periodic contact with my physician and the maintenance of appropriate levels of medication, adopting healthy lifestyles, changing my occupation from an entrepreneurial sales position to ‘a good Government job’ to mitigate the symptoms of my illness. As indicated in my comments to the Assessment Report, I felt I did all I could to ask for help. I left myself open enough times to test the waters, but the more I changed likely in panic, the more confused I became that I saw and thought, they had changed. When the COO sent me a Get Well Card and promises that the matter would be addressed, I was very thankful that things would finally be okay, and I saw her as my angel.
Mental health experts agree that the window of opportunity closes very quickly and it is not fair to put all the responsibility on the one who is experiencing symptoms of the illness. My perception was repeatedly questioned by the Respondents as irrational. By this point, one has to see that the primary responsibility rests with the employer, because only the employer has the ultimate control over the workplace and must be made aware to link the work problems with that of an employee’s condition. In Allbright Cleaners Ltd., [1997] BCHRTD No 26 (QL)
…the employee had been hospitalized for depression, and a distinct change in her behaviour had been observed by the employer. The human rights tribunal found that it was already apparent to the employer, when it dismissed her, that she was suffering from a mental disability. Instead of firing her, the tribunal ruled, the employer should have sought to accommodate her. It upheld the employee’s complaint.The Assessment Report made several references and gave significant relevance to the fact that I was just a term. All employees are owed duty and that includes temporary, probationary or part-time. Canada Post Corporation and the Canadian Union of Postal Workers - June 1998 Grievor: Holly Reniak, the employer discharged a temporary letter carrier for incapacity after she suffered a workplace injury. The employee’s manager acknowledged that, had the employee been on regular status, a greater effort would have been made to accommodate her. Arbitrator Ponak reinstated her, ruling that temporary employees have a general right to be accommodated. Although temporary employees may have a lower undue hardship threshold in accommodation matters, the employer failed to meet even this lower threshold. To quote in part from the decision:
“...The Grievor, though temporary, was being offered work on a continuing basis. Under the contract she was accumulating seniority. The evidence established that except for her injury, she would have continued working on a daily full-time basis and would have been eventually in line for a permanent position. Thus, the point of undue hardship is higher for her than it would be for an “on-call” temporary employee with little experience.(p.26)...
…The Grievor is to be reinstated to employment status. She must provide medical information, and then the Employer, in consultation with the Union, must undertake a diligent effort to accommodate the Grievor, to the point of undue hardship...” (p.28).
My October 20, 2008 complaint indicated (p. 1 para.1) “My employment with the Provincial Government began January 2005 and was terminated June 3, 2008.” My situation is similar to that outlined in the June 1998 complaint above. Had it not been for my illness, I too would have continued working on a daily full-time basis and have been eventually in line for a permanent position to a new department. As a result, I endured emotional distress and social embarrassment due to the financial circumstances and loss of employment; damages that go far beyond money."
Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identify, self worth and emotional well being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respectIn addition, I have had to endure cyber-bullying. There are several online comments identifying me, by name, as having a mental illness in the online decision as posted in LRA decisions. Complaint was made regarding violations under FIPPA on July 2009 to the office of MB Ombudsman. The last contact from its office indicated I could expect a decision March5, 2010. Follow up letters to MB Ombudsman Investigator, Jacqueline Sedor dated May 10, 2010 and July 15, 2010 have not resulted in a response and the violation is still outstanding and still posted online.
DOCUMENTARY EVIDENCE REGARDING JUNE 4, 2008 MEETING
I provided full details of the June 4th meeting as created by me on July 2, 2008 (a 3-page Memo) to MHRC. A shortened version was included in pages 4 and 5 “Background” as mailed to Pat Daniels in July 2008. (40 revisions 6636 minutes* )
the COO “…in making reference to my medical condition and asking if perhaps this was causing me to imagine things was her way of saying that my concerns were not real. Anna asked me if it was possible that I had overreacted…Anna made comments such as “You’re wrong” “You can’t think that way” That I was “not making sense” “You think everybody is out to get you” and then belittling me to the point that I was a crying mess saying “Look at you. There’s something wrong with you.”
My complaint was redrafted by Pat Daniels, and I believed it to be an extremely ‘watered down’ version of what I had submitted. The revised draft made no reference to the substance of evidence presented nor the emotional climate of the June 4th meeting. In addition to the comments that formed part of my complaint, I also provided a verbatim memo of the conversation that took place (document properties shows created July 2, 2008) The redraft made only a passing mention that there was a meeting and,
… During this meeting Ms. Beauchamp said my e-mail had been disrespectful. I disagreed and tried to clarify if Ms Elson meant it was my routine response to an everyday situation that made little sense or was she implying that “I” made little sense.Following receipt of the redraft, I was bombarded with phone calls and emails to sign the redraft ‘as is’. When I refused, Ms Daniels advised it might be best to drop my complaint and let the RWP investigation handle it. She indicated that the RWP had the same power and jurisdiction as the HRC said on the phone, and then II followed up by email. Ms Daniel never corrected me.
As the rewrite was unacceptable, and it was never offered that my original complaint could stand, I felt it necessary to rewrite my complaint. A second complaint signed October, 20, 2008 was submitted (*38 revisions 3274 minutes); and once again the details of the June 4, 2008 meeting are included by me as indicated in para. 24 pages 5 and 6. And through my persistence in not burying this evidence, I had to re-introduce again outlined in my Rebuttal and it is here that I express the stress and trauma inflicted on me at the June 4th meeting (*216 hours to complete). :
19.24(g)…in situations of manipulation, abuse or harassment…only the person in a position of power has control. The COO”s admission that she was able to “maintain exceptional levels of calmness is revealing. The humane response, “when in the presence of someone who is seen as totally irrational” is to be affected by it. The Response alleges that I was “again screaming at Ms Beauchamp and Ms Elson for the duration of the whole one-hour meeting” and states, “The complainant was not making reasonable assessment of her interactions.” If this truly depicts the climate of the office, why not stop the meeting and arrange for employee representation? If for no other reason, at least in its defence that if acted appropriately.As harassment can only be understood if one looks at how the victim perceives things to be, how is it possible that my thoughts and perception be excluded from a fair investigation.
19.25 For legal counsel to suggest that a person who is being victimized and eventually submits to not endure more abuse is “technically in agreement, is void of all legality and humanity. The decision to terminate was made by the COO. I was not asked to sign…memo created June 6…supports that I was not in agreement with the contents of the June 5th Memo created by the COO. As I was without Union representation (I felt I had no recourse. I was also concerned that if I spoke out against the COO and document what had happened, I was concerned it would affect my work reference. I was confused and anxious. I call for a doctor’s appointment. I decided to hold off until I could speak to someone who could help
2. Why do you believe you have been treated unfairly?
The fact that the MHRC Investigator put more credence in the employer’s defence, which was not corroborated with any documentary evidence; and when I was able to explain with consistent, solid documented proof, my side did not get included. In fact there are many instances that the Report made comments that are in direct contradiction to what had been provided as evidence. It would seem that my experience is no different than what the Government knows itself to be true, that women with disabilities have a very difficult time in presenting evidence. As a woman with a disability of mental illness, I am the most oppressed group in North American/Canadian society today. The Government of Manitoba is more than aware that it is going on in fact; it would appear it was counting on it as its most powerful defence. I, on the other hand, found its Achilles’ heel – it wrongly identified mental illness with mentally retarded and let its guard down and you as Manitoba Ombudsman are asked to investigate. Community Living, Manitoba states,:
Findings of the redirected research are that Manitoban women with intellectual disabilities indeed are experiencing a range of mistreatments, some of which fall within the Criminal Code of Canada and Manitoba’s Vulnerable Persons Living with a Mental Disability Act (VPA). Such mistreatments include those of a sexual, physical, mental, emotional and financial nature.
Furthermore, the Investigator portrayed me without any documentary evidence in the stereotypical role of how society portrays people with mental illness believes it to act; screaming, abusive and confrontational as presented by a Supervisor, who was known to the investigator to have committed perjury and was vehemently defending itself against multiple complaints to various boards and commissions. In contrast, all files I presented showed documentary evidence to the contrary. Email to Dianna Scarth dated September 19, 2010 provides more details on the irregularities and injustices of this complaint and I wish it to form part of this complaint.
3. Who is your complaint about and when did it happen? As indicated above.
4. Whom have you dealt with about this problem?
After receiving the letter dated August 4, 2010 from the YHRC, (signed by an Assistant)
I sent an email August 12, 2010 to the Executive director at YHRC and I asked for her indulgence in accommodating my disability. As a person with bipolar II I have great difficulty in comprehending and I asked for written decisions.
Aug 12, 2010 received a reply from the assistant and that she had forwarded my query to Ms Atkinson (the Executive Director YHRC)
August 14, 2010 email to Ms Atkinson advising that I was taking the next 10 days away from work to ‘stabilize mental health…This is clearly a David and Goliath story.”
August 17, 2010 – response from assistant that she has forwarded my concerns YHRC legal counsel, Colleen Harrington.
Email dated September 2, 2010 stating from Ms Atkinson, but signed again by the assistant. Makes no reference to accommodation and that I am to direct all inquiries to MHRC.
September 6, 2010 email to YHRC making FIPPA request for all documents received from MHRC.
Email from Legal Counsel YHRC September 7, 2010 not complying with FIPPA request, and redirecting me to ask the MHRC what they sent instead.
Email to Legal Counsel YHRC asking what authority the assistant has to sign in place of the E.D.? As well as I clarified that the FIPPA request was, and should be made on the YHRC.
Email from legal counsel YHRC stating to direct all inquiries to MHRC.
After this point my emails were blocked to the Yukon.
September 19, 2010 letter to Dianna Scarth (attached)
5. Did you file an appeal or ask for a review? If yes, when was the last appeal or review and what was the result?
I was given the option by both the YHRC as well as the MHRC to contact the Ombudsman of Manitoba and request that the processes that were followed by reviewed by that Office.
6. Have you received anything in writing? As indicated.
7. How can this problem be solved?
- Government accountability that it erred in its decision to not accommodate, in keeping with its own objectives and in accordance with past rulings as provided herein.
- I also believe financial restitution is in order for the time I was without work as well as the loss regarding the differences in salary and benefits.
- Removing the online LRA references to mental health.
-The government take proper measures to ensure safeguards are in place so this does not happen to anyone else.
- Compensation for the time, energy and costs that I incurred as a result.
- Letter of apology to me and my family.
8. Is this matter urgent? Yes Please explain why.
I believe the matter has been dragging on for far too long, and Statute of Limitations is a factor. Statistics report that people with bipolar have on average, a 15 year shorter lifespan affected by lifestyle habits and stress. My family will agree with me that this needs to stop. Mentally, I am not capable to stop thinking and working on this. I believe you have the power to deal with this so I can.
