Roslyn Talusan v. Canada’s Public Service

 
 

The following outlines Ms. Roslyn Talusan’s experience as an employee of the Canadian public service while working for Immigration, Refugees and Citizenship Canada, and the Immigration and Refugee Board of Canada. The evidence demonstrates how her managers violated her human rights, failed to provide her with a harassment-free work environment, and discriminated against her for developing Post-Traumatic Stress Disorder after a co-worker sexually assaulted her.

IMMIGRATION, REFUGEES, AND CITIZENSHIP CANADA

• In February 2015, a co-worker from Immigration, Refugees, and Citizenship Canada (IRCC) sexually assaulted Ms. Talusan in his car on their way home from work. This is a proven fact of public record supported by a finding made by the Ontario Criminal Injuries Compensation Board. On a balance of probabilities, Ms. Talusan is a victim of a sexual assault perpetrated by her co-worker at IRCC.

• Ms. Talusan reported the assault and her co-worker to their managers when her traumatic symptoms began to manifest, causing her to feel unsafe in the workplace. Her managers notified the police.

• The Toronto Police charged her co-worker with one count of sexual assault contrary to the Criminal Code of Canada. 6 months later, the Crown prosecutor agreed to withdraw the charge on the condition her co-worker complete a diversionary course.

• Senior management at IRCC declined to launch a disciplinary investigation into the assault, as Ms. Talusan’s co-worker violated her offsite and off hours.

o In Sather v. Deputy Head (Correctional Service of Canada) (2015 PSLREB 45), the grievor was terminated for sexually assaulting his co-worker outside of the workplace while off duty. The Board upheld the employer’s decision to terminate his employment as the sexual assault had been proven on a balance of probabilities, and dismissed his grievance.

o Per Robichaud v. Canada (Treasury Board) [1987], an activity is considered to have been within “the course of employment” if it is incidental to the employment or logically connected with it. The sexual assault was a consequence of the employment relationship between Ms. Talusan and her rapist as co-workers at IRCC. Moreover, the assault had a substantial and adverse effect on the workplace, in that Ms. Talusan’s co-worker created a hostile work environment that impacted her wellbeing and productivity. In other words, because her co-worker was aware of their relationship as co-workers when he assaulted her, Ms. Talusan was sexually assaulted within the course of employment.

• When the criminal proceedings concluded, Ms. Talusan disclosed to her managers that her co-worker’s presence was a traumatic reminder of the violence he perpetrated against her, and was triggering symptoms of her Post-Traumatic Stress Disorder. She implicitly requested a medical accommodation, and asked to be assigned work on a different floor than her rapist.

• Management declined the accommodation, and ignored calls from Ms. Talusan’s union representative and social worker who advocated for her request on her behalf.

• Ms. Talusan submitted documentation from her family doctor and a detailed letter from her social worker. She made an explicit request for medical accommodations, asking to be deployed to a position in a different office altogether.

• For 6 weeks, management forced Ms. Talusan to report to a workspace that was within 100 feet of her rapist despite their knowledge of the assault and her medical condition. Management deliberately created a work environment that aggravated Ms. Talusan’s traumatic symptoms, knowingly depriving her the right to a safe workplace free from harassment and discrimination.

• Management had the power to assign Ms. Talusan to a different floor while they waited for a position to become available for her deployment and refused to do so. Her managers believed it was “not their job” to accommodate her medical needs, as it created “extra work” for them. Even though a sexual assault occurred, management insisted that there was “no evidence” that anyone had acted disrespectfully.

• Documents that Ms. Talusan obtained pursuant to the Access to Information and Privacy Act (ATIP) revealed that her managers characterized a workplace sexual assault as an “interpersonal conflict.” They likened an employee sexually assaulting his colleague to an “acrimonious divorce” between an employee couple.

• 3 weeks after Ms. Talusan’s accommodation was met, her former managers contacted her to threaten disciplinary action against her if she were to discuss the sexual assault with anyone in the department. Doing so would violate her rapist’s privacy and create an adverse work environment for him.

• Ms. Talusan filed a complaint with the Canada Human Rights Commission, and a formal harassment complaint within IRCC.

• IRCC found that Ms. Talusan’s complaint met the Treasury Board definition of harassment on 3 counts:

o 1) In retaliation for reporting him to management, her co-worker and another colleague posted on social media calling Ms. Talusan a “crazy bitch” and “false victim.”

o 2) After the charge was withdrawn, her co-worker deliberately approached her at her desk and smirked at her.

o 3) Managers at IRCC forced her to work on the same floor as her rapist, despite knowing about her medical condition.

• Quintet Consulting was hired to investigate the complaint, which they did between June 2016 and May 2017. IRCC released the Final Report to the parties in November 2017. On a balance of probabilities, the investigation found that Ms. Talusan’s co-worker and managers all harassed her in the workplace within the meaning of Treasury Board policies.

• Senior management at IRCC agreed to take unspecified corrective action against her co-worker, but also chastised Ms. Talusan for her own “inappropriate” tweets. Reneging their own finding in 2016, management “disagreed” with the findings of the investigation and refused corrective measures against her managers. According to the department, the issue was a matter of accommodation and did not fall under the harassment policy.

• Supported by her union (the Canada Employment and Immigration Union, a component of the Public Service Alliance of Canada), Ms. Talusan filed a grievance over this decision. As she was currently employed at the Immigration and Refugee Board (the IRB), IRCC refused to accept her grievance and directed her to file it with her current supervisor per Treasury Board policy.

• The IRB accepted Ms. Talusan’s grievance but dismissed it at the first two levels without a hearing, violating her collective agreement. Her grievance was eventually heard at the third level.

IRCC agreed to mediation in September 2018, but was unwilling and unprepared to work towards a mutually beneficial decision with Ms. Talusan. Their attitude was re-traumatic. Accordingly, the IRB dismissed her grievance at the third level.

• PSAC referred her grievance to adjudication before the Federal Public Sector Labour Relations and Employment Board in November 2018. Unless the employer agrees to mediation with the FSLREB, the hearing will be scheduled in approximately 3 years.

IMMIGRATION AND REFUGEE BOARD OF CANADA

• At the end of October 2017, Ms. Talusan filed a claim with the Ontario Worker’s Safety and Insurance Board (WSIB). She was experiencing heightened PTSD symptoms caused by the substance of her harassment complaint with IRCC, along with unresolved pay issues, and other major stressors in her personal life. Her symptoms interfered with her ability to perform her duties in the workplace and inhibited her ability to function in her day-to-day life.

o In her WSIB claim, Ms. Talusan made management aware that taking an extended amount of sick leave would jeopardize her health, as the resulting stress from the financial implications would only further compound her symptoms.

• Documents later obtained under an ATIP request revealed that as early as November 2, Ms. Talusan’s managers were intent on not renewing her term employment due to her “very long list of demands” in her grievance. This bad faith intention demonstrates that management held an unwarranted hostile attitude towards Ms. Talusan and characterizes their further actions as discriminatory in nature.

• On November 15, 2017, Ms. Talusan’s manager forced her to take sick leave until she underwent a medical examination conducted by a Health Canada psychiatrist. Ms. Talusan was already scheduled to see her family doctor at the end of the month. Management denied her the right to see her own doctor, as they wanted the examination to be done sooner and by an independent party of their own choosing.

• Management neglected to consult with Ms. Talusan in scheduling the examination. On November 30, Ms. Talusan’s manager notified her of the appointment on December 8. She immediately advised her manager that she was unavailable that date due to a prior family commitment. The appointment was rescheduled for December 18, 2017.

o Management resented Ms. Talusan for this scheduling conflict. In e-mail exchanges between Labour Relations officials and the Director General, they believed that there was “no reason” for the appointment to be rescheduled, as her family commitment was in the morning, while the evaluation was in the afternoon.

o E-mails show that management had the option of scheduling the appointment on December 6 with another clinic. Management chose December 8 instead, as the December 6 clinic was more expensive.

• The IRB’s medical examiner psychologically abused Ms. Talusan during the evaluation, causing her mental health to further deteriorate. The doctor was not yet in receipt of Ms. Talusan’s medical history from her family doctor, and was not in a position to conduct a thorough or accurate assessment of her health.

o Prior to the appointment, e-mails show that management was concerned about the accuracy of the examination given the missing medical records. Management chose to proceed without her file, demonstrating negligence and their lack of genuine concern for Ms. Talusan’s health.

• Ms. Talusan was effectively financially penalized for suffering from PTSD. On December 22, Ms. Talusan’s manager informed her that they exhausted her available sick leave and that she would be on unpaid leave until their doctor provided them with her medical report.

• Around this time, the IRB began to surveil Ms. Talusan’s Twitter account, having found her freelance writer portfolio through her e-mail signature.

• On January 9, 2018, the doctor submitted her report, and Ms. Talusan’s managers ordered her to return to work the following day. The doctor recommended a gradual return to work, where Ms. Talusan was to work half days, and take the remainder of the day as unpaid sick leave. On the recommendation of her family doctor, Ms. Talusan refused to return to work as the IRB was actively creating a hostile workplace.

• If Ms. Talusan were to return to the workplace, management was given direction to “monitor her health and performance very closely, and react quickly on either front.” The IRB intended to treat her differently than other employees on the basis of her post-traumatic stress disorder. In other words, management was willing to discriminate against Ms. Talusan based on sex and disability upon returning to the workplace.

• E-mails reveal that management did not believe that Ms. Talusan was being truthful about being sexually assaulted. Labour Relations officials insisted on describing her as having been “allegedly” assaulted and this was “her version” of the facts, although Ms. Talusan made the Criminal Injuries Compensation Board decision available to them.

o Refusing to believe a victim or survivor of sexual assault citing the lack of criminal charges is discriminatory. This line of thinking is used exclusively to discredit and invalidate the experiences of sexual assault victims/survivors. Neither the public service or society-at-large operate on the incredibly high burden of proof used by criminal courts. Workplace investigations and reasonable personal judgment rely on a balance of probabilities. Thus, the IRB discriminated against Ms. Talusan based on sex and disability.

• At the end of January 2018, Ms. Talusan shared an open letter to Prime Minister Trudeau about her experience in the public service in relation to the #MeToo movement. On February 22, Ms. Talusan received a letter from her manager to cease and desist.

• On February 27, Ms. Talusan received a second letter threatening the non-renewal of her term contract if she did not comply. She viewed this as management attempting to intimidate her into silence by threatening her livelihood, therefore her life. Contrary to her collective agreement, management failed to use a progressive disciplinary model, and failed to give her the opportunity for a disciplinary hearing.

On March 2, a psychiatrist within her family doctor’s office diagnosed Ms. Talusan with Complex Post-Traumatic Stress Disorder, due to her employer’s consistent and deliberate aggravation of her traumatic symptoms stemming from her sexual assault. Upon their request, Ms. Talusan shared this information with the employer.

• Ms. Talusan received formal notice from the IRB that they would not be renewing her term employment, as she continued to publicly report on her personal experiences with workplace sexual assault and harassment. The IRB alleged that she had breached her “duty of loyalty” to the employer. Her term employment was to end on April 23, 2018.

o IRCC and the IRB contributed to a toxic, hostile work environment that significantly damaged Ms. Talusan’s psychological health. As they failed to provide her with a harassment-free workplace as per the terms and conditions of her employment, and as it is this failure that she was publicizing, Ms. Talusan was not bound by her duty of loyalty.

• CEIU grieved Ms. Talusan’s termination of employment as it contravened the Canada Human Rights Act and her collective agreement. The IRB used Ms. Talusan’s status as a non-permanent employee to deny that they had terminated her employment.

o A termination is defined a “unilateral decision by the employer to end an employment contract that would otherwise have continued to exist” (Rootham, Labour and Employment Law in the Federal Public Service). According to Labour Relations’ e-mails, all terms in the region were renewed. They confirm that this would have included Ms. Talusan if she were still employed. Since her term contract was not renewed on the grounds of her alleged breach of duty of loyalty when it would have been extended otherwise, Ms. Talusan was effectively terminated from her position in the public service.

o Per the collective agreement, this grievance should have gone straight to adjudication, bypassing the departmental process altogether. The IRB insisted that this was not a termination, attempting to exploit Ms. Talusan’s precarious employment position, and unduly delayed her swift and rightful resolution.

• The IRB heard the grievance at the first-level on October 23, 2018, and denied it. They purposefully ignored the grave context under which Ms. Talusan wrote her open letter to suit their argument. Again, they denied it was a termination, and insisted it was a simple non-renewal of term contract.

• The IRB heard the grievance in-person at the second-level on January 30, 2019. Ms. Talusan presented new arguments based on evidence acquired under her ATIP requests in a 4,800 word written presentation.

• Contrary to the collective agreement, the employer took over 40 days to issue a reply which yet again denied the grievance. Their reply was reductive in nature, re-using the exact argument put forth in their response at the first-level.