Former federal public servant Zabia Chamberlain, who alleges she was harassed by her boss at Human Resources and Skills Development Canada in 2007-2008 and has been unsuccessfully fighting for years to get restitution from the government, is now taking her fight for financial security and closure to the Supreme Court.
Ms. Chamberlain currently suffers from severe post-traumatic stress disorder and has for years been unable to function as a result of the nine months she alleges her boss harassed her when she worked as an executive in HRSDC from September 2007 to June 2008.
The 45-year-old Gatineau, Que., resident and mother of two university-age daughters started her two-decade long federal career in the federal government with National Defence in 1988.
In fall of 2007, a temporary promotion brought Ms. Chamberlain under the supervision of a director general in HRSDC’s Skills and Employment Branch. She was in charge of administering more than $2-billion in grants, had three team leaders, and 25 employees working under her.
Ms. Chamberlain alleges her boss would barge into her office, yelling and swearing at her. She alleges he would also hover behind her, touching the back of her chair and rubbing her shoulders while she worked.
Co-workers nearby have said they heard her boss also screaming at Ms. Chamberlain at least once a week. In a sworn affidavit, one co-worker said that whenever she heard the boss walking down the hall, “I used to think to myself, ‘Oh no, here we go again, poor Zabia.’”
Ms. Chamberlain says the harassment has impacted her health.
“I had no health left and I lived completely in fear,” she said of that time. Her voice grows shaky when she talks about the trauma today.
In April 2008, Ms. Chamberlain spoke to Karen Jackson, the HRSDC’s senior assistant deputy minister of her branch; her permanent boss; and an official in human resources.
“I was pleading, ‘Please move me.’ That’s all I pleaded,” she said.
Ms. Chamberlain said she wanted to be moved away from her boss so she could continue her career.
Other employees have described Ms. Chamberlain as “soft-spoken and polite,” and a “good worker.”
Ms. Jackson began investigating in late May 2008, focusing on a specific incident where the boss allegedly yelled at Ms. Chamberlain in January 2008. Ms. Chamberlain left work on paid leave at the end of May.
In Ms. Jackson’s investigation report notes, she indicates that she interviewed Ms. Chamberlain’s boss about the incident, where he yelled and swore at Ms. Chamberlain in her office. The report states that after the incident, her boss apologized to Ms. Chamberlain, and “apologized on at least two other occasions.” He also told Ms. Chamberlain “he realized it had been damaging,” according to Ms. Jackson’s investigation notes.
At the end of the investigation, Ms. Jackson and other senior officials agreed that Ms. Chamberlain was verbally and physically harassed by her boss.
Ms. Chamberlain’s boss “behaved improperly and he should have known that his behaviour would cause offence and harm,” wrote Ms. Jackson in the investigation report.
The boss was sent to executive coaching and conflict management classes, according to the investigation report. The report stated that he had apologized and was remorseful. Another co-worker noted that the boss seemed to have learned from the situation and had “mellowed.”
“HRSDC takes harassment matters seriously and is committed to providing a workplace environment that supports productivity and the personal goals, dignity, and self-esteem of every employee,” HRSDC told The Hill Times in an email.
The department would not comment specifically on Ms. Chamberlain’s situation as the case is currently before the Public Service Labour Relations Board. The Hill Times also contacted her former boss directly for comment but did not receive a response.
Her former boss continues as a director general at HRSDC. Ms. Chamberlain never returned to work. She spent one-and-a-half years on leave while she and the department wrangled with finding a suitable new job for her. In February 2010, after she had run out of all her sick leave and vacation time, and after two failed attempts to relocate her at work, she was fired.
Ms. Chamberlain alleges HRSDC officials were not acting in good faith to find her a safe and career-appropriate place to work. In 2009, she filed a grievance that HRSDC management was decided against her. She took her grievance, as well as workplace safety complaints under the Canada Labour Code, to the PSLRB later that year. These complaints are still being heard at the board.
There is no court finding specifically on whether her boss harassed Ms. Chamberlain. At the Public Service Labour Relations Board the harassment is taken as a given by both the government and Ms. Chamberlain and instead the proceedings focus on whether or not how the department properly handled how to bring Ms. Chamberlain back into the workforce appropriately.
In a letter typical of the government’s position regarding Ms. Chamberlain’s harassment claims, a letter from the government’s legal team to the Public Service Relations Board from January 2010 states, “Indeed, Ms. Chamberlain was found to have been the victim of harassment through a harassment investigation.”
At the PSLRB Ms. Chamberlain alleges she was disciplined for refusing to work due to an unsafe workplace when the department cut off her temporary promotion’s pay in October 2008, while she was on leave. She also alleges that she was effectively excluded from participating in the competition to fill her temporary job permanently and three other jobs because the selection process was run by her boss.
HRSDC has stated in labour board documents that Ms. Chamberlain was never penalized at work because of speaking out about the alleged harassment.
The lawyer for HRSDC, Caroline Engmann, objected to the matter going to the PSLRB at all, arguing Ms. Chamberlain’s original grievance did not allege she was disciplined, according to the PSLRB’s ruling.
In response to this objection, adjudicator George Filliter ruled he had partial jurisdiction on the case, opting to hear the Labour Code complaints while rejecting the grievance. Ms. Chamberlain is appealing this decision at the Federal Court, and a hearing date has been set for May 15. A similar attempt this February at the Federal Court of Appeal, where Ms. Chamberlain also alleged procedural unfairness by Mr. Filliter, was unsuccessful.
Federal Court of Appeal Judges David Stratas, John Evans and Johanne Trudel said on Feb. 8, 2012: “The fact that Ms. Chamberlain may not agree with the Board’s conclusions on issues, with its assessment of the relevance of the material before it, or with its selection of the material that it included in its reasons, comes nowhere near to establishing that a reasonable person, who had thought the matter through in a practical way, would infer that the Board had not adjudicated Ms. Chamberlain’s complaints fairly.”
Ms. Chamberlain has asked the Federal Court of Appeal to reconsider the ruling but has not heard back. Now she has applied to the Supreme Court for leave to appeal, alleging that the FCA’s ruling didn’t handle a number of “errors of law” made by Mr. Filliter.
HRSDC and Ms. Chamberlain also tried to reach a settlement in 2010 through PSLRB mediation. Ms. Chamberlain said that while the department would mention possible settlement figures in the meeting, they wouldn’t follow up with formal offers.
In February 2011, Ms. Chamberlain wrote to the PSLRB with her settlement criteria. They include $125,000 in damages, and payment of all legal and health costs and compensation for all lost salary, pension and benefits from October 2008, when she lost her executive job, to 2023, when she will be of retirement age.
The difference in pay between Ms. Chamberlain’s annual salary in her permanent position and her pay in the executive position was around $9,000. Her pay in the acting job was about $117,000 a year, including a performance bonus. Had she continued to work at the executive level, Ms. Chamberlain said she would have soon been earning about $125,000.
Ms. Chamberlain’s brother, Fareed Dean, said the alleged harassment she has experienced changed her from the “fun sister” to “very much removed, even in family gatherings.”
Ms. Chamberlain said she emailed her superiors frequently after she left work, asking to be moved to a different building and to work under a different chain of command. Her psychologist had said it would be best if she worked under new people when she returned to work.
Treasury Board Secretariat’s guide on handling harassment states that managers don’t have to separate an employee and their harasser physically or hierarchically, but suggests it could be an effective remedy.
In October 2008, HRSDC offered to move Ms. Chamberlain to another floor of the building where she had worked. She would be reporting to the bosses who supervised her before she took the temporary assignment. After the new space was arranged, Ms. Chamberlain declined the offer, citing a need to fully recover her health. She also said she was also unsure of what sort of support she would have at work.
“I was terrified of going to the building,” she said.
Even on a different floor, it was likely Ms. Chamberlain would run into her former boss.
While Ms. Chamberlain belonged to the Canadian Association of Professional Employees, the union did not represent her because she was in an executive position when the harassment was alleged to have occurred.
In spring of 2009, Ms. Chamberlain’s long-term boss changed, as did the head of employee human resources at HRSDC. Ms. Chamberlain’s situation was delegated to a new, unfamiliar, team of bureaucrats.
“I was very confused about the bouncing of the responsibility,” said Ms. Chamberlain.
Around this time, in March 2009, Ms. Chamberlain also received a form from HRSDC telling her to choose between collecting worker’s compensation for her injury or suing the “third party” that caused her injury.
HRSDC policy defines a third-party as “someone who is neither your employer nor a federal co-worker.”
Ms. Chamberlain thought the form was a mistake. Officials with Labour Canada explained that only after she signed the form would they decide whether or not her former boss would be classified as a third party.
Ms. Chamberlain said that she could not sign something she knows is wrong.
She never signed it, and so she has not been able to collect any workers’ compensation. Ms. Chamberlain’s only income is conditional funding from a private insurer. The money comes with the expectation that she will continue to pursue compensation from the government.
“No fair-minded manager in any department should have asked somebody to sign it, knowing full well that it wasn’t an outsider who had done it,” said David Kilgour, a former Liberal MP who has become an advocate for public servants with the government watchdog FAIR.
In an email dated July 24, 2009, HRSDC’s lawyer Peter Séguin, one of the new bureaucrats on the case, emailed Ms. Chamberlain about her return to work.
“I cannot state strongly enough that HRSDC regards you as a very valuable and valued employee and wishes to make every effort to restore your employment and career,” he wrote, adding that she was bound by the principle of “work now, grieve later.”
Ms. Chamberlain was still asking to be moved away from her boss and the bureaucrats she felt had not helped her, while not suffering a career setback.
In September 2009, HRSDC again offered to move Ms. Chamberlain, to an office on Sparks Street. The position was at her pre-executive level, and she would be reporting to her new long-term boss. Letters from her doctors indicated at the time her health had deteriorated to the point where they recommended against returning to work, and she didn’t.
In a letter to Ms. Chamberlain on Oct. 23, 2009, her new boss, Stephen Johnson, wrote to her saying that her request to be return to work as an executive was not “an appropriate measure” because she was still technically classified at a lower pay level.
Ms. Chamberlain had also been trying to get transferred out of the department. She estimates she applied for or explored 21 different jobs at other departments.
Mr. Johnson wrote that transfers to another department were outside HRSDC’s powers.
By late fall 2009 she had run out of options for taking paid leave. In February 2010, after running out of all her sick leave and vacation time, and after two failed attempts to re-locate her at work, she was effectively fired when the department sent her a record of employment.
Ms. Chamberlain is essentially self-represented before PSLRB, as she was before the Federal Court of Appeal. She has an assistant to help her with files and she has a lawyer who offers advice and sometimes attends hearings but does not address the Board.
She said she feels the lack of representation is hurting her case, and has alleged it’s causing Mr. Filliter to treat her differently.
Procedural issues that arise from Ms. Chamberlain’s legal inexperience have also been causing the PSLRB case to proceed slowly. Since January 2010, when the Board began hearing the matter, there have been 24 hearing days, with more scheduled for this summer.
“Although I had the worry for a very, very long time that I was disadvantaged, it’s really only in the last few months that I’ve seen it very clearly,” she said.
NDP MP Françoise Boivin (Gatineau, Que.) is Ms. Chamberlain’s Member of Parliament and a labour lawyer. She noted that in many cases, people with labour issues don’t see a lawyer until it’s too late.
“By the time they realize it and then they turn around and go see some legal specialist to help out or advise, they’re already in a road that may not have been the right road to take to get the result they want,” Ms. Boivin said.
Ms. Chamberlain said that the cost of a full-time lawyer is prohibitive, and that when she began the Board hearings, she believed she could represent herself.
As a neutral body, the PSLRB doesn’t provide any aid or financial assistance to individuals. There are no transcripts of proceedings and recordings are prohibited, forcing parties, observers and the adjudicator to rely on their own notes.
Many of Ms. Chamberlain’s family members, close friends, and those she calls “moral observers”—people from the public service, government watchdog and human rights communities—sit in on hearings. At the Federal Court of Appeal last February, three pews on the side of the courtroom behind Ms. Chamberlain were filled with supporters, and more stood at the back.
Mr. Kilgour has attended some of Ms. Chamberlain’s hearings as an observer.
“All it takes is competent managers with some principles to say that this is wrong,” said Mr. Kilgour.
Ms. Boivin told The Hill Times she could not comment directly on Ms. Chamberlain’s case, as it’s still before the PSLRB, but that in her experience, human weakness comes into play when someone who complains of harassment looks for redress in the workplace.
“It’s the good old, you shut your eyes, you try to avoid the problem, you think the problem will go away. It’s wrong, but at the same time it’s human,” she said.
That Ms. Chamberlain is without a place in the public service is something Damian Londynski, former vice president of the local chapter of CAPE, finds “mind-boggling,” especially in a department as large as HRSDC.
Mr. Londynski noted that HRSDC has 14 branches, and dozens of buildings in the Ottawa-Gatineau area. According to departmental statistics, HRSDC employs more than 23,000 people.
Ms. Chamberlain has also noted the irony that while she has continued to be unemployed, many of the original senior bureaucrats responsible for finding a her new position have been promoted or moved to other departments and branches.
Ms. Chamberlain said she is past being able to return to work anywhere, given the circumstances of her departure and her diagnosis of being long-term disabled. Along with her PTSD, Ms. Chamberlain says she has suffered from depression and physical trauma, including headaches, nausea and dizziness.
Almost four years after her last day of work, Ms. Chamberlain said her family still encourages her to fight, but she never thought her case would last this long.
She explained: “I will fight my cause so that I don’t live under the threat of financial ruin. That’s why I continue. I don’t deserve, after everything that happened to me, and after everything that has been proven has happened to me, after the career and hard work that I had for two decades, I don’t deserve to live a life of projected financial ruin.”
Ms. Chamberlain said at this point she wants “a fair and just rectification of my financial losses.”
When asked what she thinks of her chances in getting such a remedy, after a long pause, she said, “In the early years…I may have foolishly been under the illusion that my employer and the PSLRB would show me a kind duty of care and protection.”
In the past year she said she has realized, “well, that’s not going to happen.”
Original article on Hill Times website (subscription required)