The Director of Criminal and Penal Prosecutions (DPCP) did not have the right to dismiss a disabled prosecutor without carrying out a rigorous accommodation exercise, concludes the Public Service Commission. However, the prosecutor’s complaint for psychological harassment was dismissed.
Me David Létourneau was a prosecutor in the Bureau of Serious Crime and Special Affairs (BGCAS), the DPCP’s elite team, when he was fired in February 2019. According to the DPCP, his diagnoses of ADHD and giftedness were a “undue hardship” to employment.
The experienced prosecutor challenged his “arbitrary, discriminatory and illegal” dismissal before the Public Service Commission, arguing that he had a disability within the meaning of the Quebec Charter. His disability was well known to the employer when he was hired in 2018. He had also been a federal prosecutor for six years.
Four years later, after 30 days of hearings and the filing of 340 documents, administrative judge Mathieu Breton agreed with him and canceled his dismissal last May.
To dismiss M.e Létourneau, the DPCP had to prove that his functional limitations and the requested accommodations represented an excessive constraint for the organization. However, the DPCP did not analyze “in an exhaustive and rigorous manner” whether Me Létourneau could hold another position within the DPCP, which has 600 prosecutors.
“The DPCP failed in this obligation because of too limited and superficial examination”, concludes the administrative judge.
At the time, the DPCP did not have a job description for all of its prosecutor positions. Even if it would have taken a long time to accomplish, the DPCP should have drafted job descriptions for all his positions to check whether it was possible to accommodate Me Letourneau. It was not enough for the employer to seek the opinion of managers, considers the administrative judge.
Reasonable management fee
In another part, M.e Létourneau claimed to have been the victim of psychological harassment by his superiors, the chief prosecutor at the time, Josée Grandchamp (now retired), and the deputy chief prosecutors Betty Laurent and Julie Desbiens (appointed judge at the Municipal Court in last February).
In the summer of 2018, the bosses of Me Létourneau asked him to write a legal opinion on a file. The prosecutor thought it would only take him a few days. However, it took several weeks to complete the task. Meanwhile, the tension has risen a notch between his managers and him, while he took many leaves. His superiors then demanded his “more constant” presence in the office.
Me Létourneau even complained directly to the director of the DPCP of the “undue and abusive pressures” that had become “unsustainable” from her bosses.
“There is a significant difference between feeling harassed and actually being harassed”, immediately indicates the administrative judge. He concludes that M.e Létourneau was not psychologically harassed by his superiors. These have “remained[e]s within the limits of a reasonable right of management,” he argues.
The administrative judge considers that the absences of Me Létourneau for a short time could raise “legitimate questions” for the employer. Thus, it was not psychological harassment to refuse him leave and to demand a medical note for any absence.
“The management of the employer was sometimes firm, but it was not bellicose, aggressive or threatening”, concludes the administrative judge.
The Association of Criminal and Penal Prosecuting Attorneys, which represented Mr.e Létourneau, said she was “satisfied” with the decision, rendered after a “stations of the cross”.
“It’s important: we have to accommodate and ensure that people are integrated and reintegrated. It is a right. The employer must do everything possible. We are seeing the changes appear, ”explained to The Press Me Andy Drouin, vice-president of the Association.
The DPCP told The Press have “taken note” of the decision and have no further comments to make due to confidentiality obligations. The DPCP did not request a review of the decision.