Executive Summary: Key Legal and Evidentiary Issues

• The Board characterized the change from leave with pay to sick leave with pay as part of a fact-driven inquiry into the applicant’s fitness to work and found no disciplinary intent, with the burden on the applicant to prove disguised discipline, which he did not meet.

• In addressing the leave grievance, the Board relied on the applicant’s own accounts of mental health struggles and the collective agreement sick leave clause stating that an employee is granted sick leave with pay when unable to perform duties because of illness or injury.

• For the termination grievance, the Board found that the employer had legitimate concerns about workplace safety and the applicant’s overall state of mind, and that the employer had reasonable and probable grounds to require a fitness to work evaluation.

• The Board concluded that the applicant’s refusal, over approximately 17 months, to participate in the fitness to work evaluation process or provide a report from his physician constituted cause for non-disciplinary termination of employment under paragraph 12(1)(e) and subsection 12(3) of the Financial Administration Act.

• The Court accepted the Board’s view that the applicant’s right to privacy and bodily integrity must be balanced with the employer’s obligation to ensure a safe workplace, consistent with the jurisprudence cited, including Burke and Grover.

• Applying the reasonableness standard and according a high degree of deference to the specialized labour Board, the Federal Court of Appeal upheld the dismissal of both grievances and dismissed the application for judicial review, without costs.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

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Facts of the case
The applicant, Ghani Osman, sought judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board. In that decision (2024 FPSLREB 180), the Board dismissed two complaints made under the Canada Labour Code and two grievances filed under the Federal Public Sector Labour Relations Act. The complaints and grievances stemmed from emails sent by Mr. Osman to his managers and others in the Department of Employment and Social Development. The Federal Court of Appeal focused on the two grievances, as Mr. Osman did not challenge the Board’s findings on his Canada Labour Code complaints. The triggering event was a work refusal in December 2019, based on alleged encounters with another employee who allegedly told him that he was being watched and was on a “watch list”. A few days later, the employer instructed him to work from home and indicated that an investigation into the refusal-to-work complaint would be launched.

Work refusal, evolving concerns and fitness to work evaluation process
After the work refusal, the employer became concerned about Mr. Osman’s fitness for duty. Those concerns arose from subsequent email correspondence he sent to managers and others shortly after the refusal to work and from changes observed in his overall behaviour. In early January 2020, the employer placed him on leave with pay pending completion of a fitness to work evaluation (FTWE). Nine months later, Mr. Osman had still not provided a FTWE from his physician and refused to attend an appointment arranged by the employer with an independent physician. The Court noted that, in the later termination letter, the employer stated that its intention had always been to ensure that Mr. Osman was fit to perform his duties and to ensure the health and safety of all employees, and that his refusal to participate in the return-to-work process meant the situation could not continue.

Change to sick leave status and first grievance (alleged disguised discipline)
At the end of October 2020, after approximately nine months without a FTWE, the employer changed Mr. Osman’s leave status from leave with pay to sick leave. Mr. Osman filed a grievance alleging that this change was disguised disciplinary action. The Board treated the question of disguised discipline as a fact-driven inquiry and held that Mr. Osman, as grievor, bore the burden of proving on a balance of probabilities that the employer’s actions were meant to correct his behaviour. The Board concluded that he had failed to meet this burden and that it could not discern any disciplinary intent on the employer’s part. The Board instead found that the employer wanted to resolve the issue of Mr. Osman’s fitness to work as quickly as possible, and that it was Mr. Osman who refused to cooperate. In reaching that view, the Board relied on his own accounts to the employer describing mental health struggles and on the collective agreement’s sick leave provision, which states that an employee shall be granted sick leave with pay when they are unable to perform their duties because of illness or injury. In the context of the perceived threats contained in the emails he sent to fellow employees, the Board concluded that the employer’s actions were guided by safety concerns rather than disguised discipline, and it noted that the employer could have placed him on sick leave with pay as early as January 2020 when it became aware of the allegedly threatening emails.

Termination of employment and second grievance (cause under the Financial Administration Act)
After approximately 17 months of unsuccessful efforts to obtain information regarding Mr. Osman’s fitness to work, the employer terminated his employment on June 9, 2021. The termination letter stated that the intention had always been to confirm his fitness to perform his duties and to ensure the health and safety of all employees, and that his refusal to participate in the return-to-work process made the situation unsustainable, leading to termination. Mr. Osman filed a second grievance contesting this decision. He argued that the termination was not for cause under paragraph 12(1)(e) and subsection 12(3) of the Financial Administration Act but was disguised disciplinary action. He also relied on Burke v. Deputy Head (Department of National Defence), 2019 FPSLREB 89, to argue that an employer cannot compel disclosure of personal medical information without an employee’s consent. The Board, after a detailed review of the legal principles and the evidence, concluded that the employer had cause to terminate his employment for non-disciplinary reasons. It found that the employer had legitimate concerns about workplace safety and about Mr. Osman’s overall state of mind, and that he had been given “ample opportunity” to provide a report from his treating physician regarding his fitness to work. The Board identified his refusal to participate in the FTWE process as the cause required by subsection 12(3) and found that the employer had established reasonable and probable grounds to require the evaluation.

Policy terms and legal principles on sick leave, safety and privacy
In addressing the leave grievance, the Board referred to the collective agreement clause providing that an employee shall be granted sick leave with pay when they are unable to perform their duties because of illness or injury, and it used Mr. Osman’s own descriptions of mental health struggles in applying that clause. For the termination grievance, the Board and the Court considered the interaction between the applicant’s privacy and bodily integrity and the employer’s obligations. The Court accepted the Board’s interpretation of Burke and related Federal Court jurisprudence, including Canada (Attorney General) v. Grover, 2007 FC 28, as standing for the proposition that an employee’s right to privacy and bodily integrity must be balanced with the employer’s obligation to ensure a safe workplace. The Board also noted that the employer was concerned for both Mr. Osman’s own health and the safety of other employees. It referred to one of his emails in which he stated that he would “defend myself by all [and] any mean[s]. I am not afraid of anymore [sic] consequences from now on” and observed that only he knew what he meant by those words and that an employer must take seriously statements or utterances that amount to a threat.

Standard of review and deference to the Board’s decision
The parties agreed that the applicable standard of review was reasonableness. The Court cited Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and emphasized that under this standard a reviewing court does not reassess the evidence or decide whether it would have reached the same result. Instead, the Court must examine whether the tribunal’s decision is based on an internally coherent and rational chain of analysis and whether it is justified in relation to the relevant facts and law. The Court noted that, as held in previous cases such as Canada (Attorney General) v. National Police Federation, 2022 FCA 80, and Insch v. Canada (Attorney General), 2019 FCA 211, the Board is entitled to a high degree of deference because of the factually-suffused nature of its decisions in the specialized employment context. In this case, the Court observed that Mr. Osman appeared to be re-arguing his case in an effort to obtain a different outcome.

Ruling and overall outcome
The Court found that the Board had properly identified the test and principles for analyzing disguised discipline, including confirming that it is a fact-driven inquiry. It held that the Board had demonstrated a rational chain of analysis in applying the law to the evidence, including its reliance on the sick leave clause and on Mr. Osman’s own descriptions of his mental health. Regarding the termination grievance, the Court accepted the Board’s conclusion that the employer had cause under paragraph 12(1)(e) of the Financial Administration Act to terminate his employment based on his refusal to participate in the FTWE process, and that the employer had established reasonable and probable grounds to require the evaluation. The Court also accepted the Board’s view that the employer offered several options for obtaining a FTWE, encouraged Mr. Osman to contact his bargaining agent to discuss the consequences of not participating in the assessment process, continued to communicate with him, and only moved to termination after 17 months. The Court held that the Board’s conclusion—that his refusal to provide evidence of his fitness to work provided cause and made it impossible for the employer to responsibly return him to the workplace—fell within the range of acceptable outcomes defensible in light of the facts and law. Accordingly, the Federal Court of Appeal dismissed the application for judicial review, without costs.