HomeMy WebLinkAbout1990-2022.McKnight.91-11-12 Decision1991 - OPSEU (McKnight) and Ministry of Health, GSB#1990-2022, (Kaplan)
DE LA COURONNE DE L'ONTARIO DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO).
M5G (4 16) 326-1388 : (4 16) 326-1396 2022/90 IN THE MATTER OF AN ARBITRATION Under I THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU
(McKnight) Grievor Land The Crown in Right of Ontario (Ministry of Health) Employer W. Kaplan I. Thomson R. Scott Vice-Chairperson Member Member BEFORE : J. Paul Grievance Officer Ontario
Public Service Employees Union FOR THE GRIEVOR J. Brooks Counsel Genest Murray Barristers & Solicitors FOR THE EMPLOYER March 19, 1991 August 1, 2, 1991 July 31, 1991 HEARING
2 Introduction By a grievance dated October 29, 1990, Mr. Joel McKnight grieves '*unjust dismissal, denial of sick leave entitlement and harassment.'* Mr. McKnight seeks '*immediate
reinstatement to the position of Rehabilitation Officer 2 (Health) with full reimbursement of all monies owing, verification that the sick leave provisions of the Collective Agreement
will be honoured and verification that the harassment I have been subjected to will cease and desist immediately.'* A hearing was held in Toronto and Brockville. As the position Mr.
McKnight held was now filled, the incumbent was given notice of these proceedings, but chose not to participate. Very simply, it is the employer's position that Mr. McKnight was released
from employment pursuant to section 22 (5) of the Public Service Act, This section permits the release of an employee during the first year of his or her employment for failure to meet
the requirements of the position. The employer also took the position that there had been no denial of sick leave and that there had been no harassment. The union argued that this was
not a release, but was instead a disguised discharge. Accordingly, the Board took jurisdiction to hear and decide the matter. The Evidence As is customary in cases of this kind, the
employer presented its evidence first. Before turning to that evidence it is convenient to set out some of the facts that are not in dispute. In July 1990, as a result of a newspaper
advertisement, the grievor applied
3 I I I for a Supported Employment Coordinator position ( “SEC” with the Brockville Psychiatric Hospital. A competition was held and the grievor was offered the job, which he began on
August 7, 1990. At all relevant times the grievor's supervisor was Ms. Sherri Larmour-Trode, who was the Rehabilitation Program Coordinator. Ms. Larmour-Trode's supervisor was Mr. Calvin
Prescott, who was Director of Vocational Services. There are seven SEC's at Brockville Psychiatric Hospital (the “Hospital”). Five of the SEC's worked primarily in the wards and in the
surrounding community. However, these five SEC's would also spend approximately one day per week in the Vocational Centre, also referred to as the Workshop. Of the remaining two SEC's,
one of them worked full-time in the Vocational Centre on various projects, such as supervising clients on various employment activities like small packaging. The remaining SEC spent
half-days in the carpentry shop, also located in the Vocational Centre, and the remainder of the time in the wards or in the community. When the grievor commenced his employment he was
assigned to the full-time position in the Vocational Centre. Ms. Lamour-Trode testified first. She has extensive educational and practical experience in vocational rehabilitation, and
is well recognized as a professional in this field. The purpose of vocational rehabilitation is to assist clients in achieving their maximum vocational and educational potential. Ms.
Larmour-Trode
4 testified about the various vocational activities at the Hospital, and the team approach taken in dealing with clients. The SEC's are part of the team, and Ms. Larmour-Trode testified
that the SEC who spends most of his or her time in the Vocational Centre is responsible for the day-to-day management of the Centre. Generally, there are about twenty-five clients in
the Vocational Centre. In addition, this SEC has a case load of between five and fifteen clients, and he or she is responsible for their assessment and program development. These additional
responsibilities may involve some community work. Ms. Larmour-Trode was part of the selection committee that interviewed the grievor. The other members of that committee were Calvin
Prescott and Elaina, Kushelnyk. Thirty-five people applied for the position, and eight of the applicants were invited for an interview. Mr. McKnight did very well at the interview, and
at the end of the interview Ms. Larmour-Trode spent five to ten minutes explaining to him what his responsibilities would be if he were offered the position. Briefly put, Mr. McKnight
was to occupy the full-time position in the Vocational Centre. Mr. McKnight was advised that the Vocational Centre was in a period of transition, and that if he was hired, one of his
jobs would be to look at the work in the Centre and make recommendations for change. Mr. McKnight began work on August 7, 1990, and Ms. Larmour-Trode met with him for the whole morning
and reviewed the position. She
5 also met with Mr. McKnight one week later on August 15th, and they had a discussion about how things were going. Mr. McKnight advised her that things were was held, and there McKnight
was invited going well. On August 24th, another meeting was another discussion about his job. Mr. to raise any concerns that he might have, and he apparently did not do so. On September
7th, Ms. Larmour-Trode, Mr. Prescott and the grievor met to discuss some of the grievor's ideas about initiating a stained glass project for the clients, and the grievor was given the
go-ahead to purchase some materials for a pilot project. Indeed, part of the grievor's mandate was to pursue vocational enclaves within the community. At this time, in addition to the
management of the Vocational Centre, Mr. McKnight had five clients assigned to him. On Monday September 10th Mr. McKnight called in and left and message for Ms. Larmour-Trode that he
was sick, and that he would be away for approximately three to five days. Ms. Larmour-Trode called him later that day to see how he was and he advised her that he had gone to the hospital
on the weekend because he was experiencing difficulty in breathing. Mr. McKnight told her that his doctor told him that the problem was the result of his breathing in dust, and his doctor
referred him to an allergist. Mr. McKnight told Ms. Larmour-Trode that this had never happened before and that he would be back at work soon. This was the first time that Mr. McKnight
had raised any concerns with Ms. Larmour-Trode about dust in the workplace.
I .^_-6 Mr. McKnight returned to work on Monday September 17th. Ms. Larmour-Trode met with him that day and the grievor told her that he was feeling better and that he wanted to continue
with his job. On Friday September 28th, Ms. Larmour-Trode approached the grievor about a possible change of duties, after noticing that he appeared to be suffering from allergies. Ms.
Larmour-Trode suggested a switch with one of the community SEC's. One of these SEC's was assigned to apple picking, and Ms. Lamour-Trode suggested that the grievor switch with her for
several weeks. This would get him out of the Vocational Centre. The grievor agreed to the proposal, which Ms. Larmour-Trode next discussed with the other SEC. The switch was arranged
and the grievor was scheduled to start his new duties on Tuesday October 2nd. However, on October 2nd, the grievor phoned in sick. Meanwhile, Ms. Larmour-Trode went away on vacation
and did not return to work until October 17th. At that time she was advised that the grievor was still off sick. Ms. Lamour-Trode was advised about certain accommodations that had been
offered to the grievor. Ms. Larmour-Trode participated in some of these discussions, about which more will be said later, and she arranged to move the grievor's office out of the Vocational
Centre into the Hospital so as to reduce his exposure to the dust. Ms. Larmour-Trode was not involved in the decision to release the grievor, and in fact, did not have any discussions
with him after October 1st.
7 C In cross-examination, Ms. Larmour-Trode testified that she has participated in a number of selection panels, and is responsible for the performance appraisals of her staff. Ms. Larmour-Trode
was asked about the Hospital's orientation policy, and a document relating to this policy was introduced into evidence. Ms. Larmour-Trode testified that this particular form had not
been developed at the time the grievor began work, but she did orient him to the Hospital and to the requirements of his position, and she testified generally about the different matters
she and the grievor discussed. Mr. McKnight was advised, for example, that his first formal performance appraisal would take place after three months, and Ms. Larmour-Trode testified
that she gave him a copy of the performance appraisal form. Ms. Larmour-Trode testified that she thought highly of the grievor and had been looking forward to having him as part of the
team. She testified that the grievor demonstrated enthusiasm for his position, and often stayed past quitting time working on various projects. The witness was asked whether the grievor
indicated to her that he was surprised to find out that his job was in the Vocational Centre, and she replied that the grievor never made this statement. Indeed, Ms. Larmour-Trode testified
that it was because of his experience that he had been hired for the Vocational Centre position. Ms, Lamour-Trode was asked whether the grievor ever received a job specification and
she told the Board that she did not know if he received one at the interview, but that she did know
8 that there was a specification in one of the manuals that the grievor reviewed. Moreover, Ms. Larmour-Trode explained the job at the interview and after the grievor began work on at
least two occasions. Ms. Larmour-Trode agreed that if the only information about the job that the grievor had had was that in the job advertisement and that in the position specification,
then it might be understandable if the grievor had not understood that he was being hired to work in a dedicated SEC program. Ms. Larmour-Trode reiterated her earlier evidence, however,
that this was not the only information he had, and that she had, in fact, quite clearly explained the position to him. Ms. Larmour-Trode testified that other than the difficulties caused
by the grievor's absence, he was a good employee and that if the accommodation had worked out, the grievor likely would have succeeded in meeting the requirements of his position. Ms.
Linda Eckert testified next. Ms. Eckert is the Regional Personnel Administrator for the Brockville Region, and she is located at the Hospital. She has extensive educational and professional
experience. On the morning of October 16th, Mr. Prescott attended at Ms. Eckert's office and provided her with a copy of a doctor's report from the grievor's physician. This report,
dated October 5, 1990, reads as follows: The above-named suffers from allergies caused by exposure to allergens in his current workplace. Remaining in this workplace puts him at risk
to his health. He can continue to work, but must avoid this particular
9 workplace except for a maximum of of the time. He has been under my care for this problem since 11 September, 1990, and I recommend that he remain off work until 15 October, 1990.
He may work vocationally without restriction (emphasis not ours). Mr. Prescott advised Ms. Eckert that he had been provided with this medical report the previous day. Ms. Eckert and
Mr. Prescott discussed the matter and the issue of job accommodation. Mr. Prescott had referred the grievor's concerns about the dust problem to the Health and Safety Committee the previous
day. Among the issues discussed was moving Mr. McKnight's job outside of the Vocational Centre, and cutting back on the time he spent in the Centre. The effect of these changes on the
other SEC's was also discussed, in particular the implications of shuffling around their duties and responsibilities. It was decided to limit the grievor to spending 20% of his time,
as indicated by the doctor's note, in the Vocational Centre, and to place the other SEC's on a rotation. Ms. Eckert expressed the opinion to Mr. Prescott that making these accommodations
did not, in her view, constitute undue hardship. Ms. Eckert testified that what she was trying to do was to arrive at an arrangement that met the grievor's needs as well as those of
the Hospital. Not long after the meeting with Mr. Prescott, Mr. McKnight came to Ms. Eckert's office for a pre-arranged meeting. The two discussed Mr. McKnight's concerns and his allergy
problems. Ms. Eckert advised him of the accommodation the employer intended to offer
10 him. He was told specifically that his office would be moved, that he would be placed on a rotation through the Vocational Centre and that the employer would undertake to investigate
ways in which the discomforts in the Centre could be ameliorated. Mr. McKnight was told that these arrangements were not written in stone, and that a monitoring process would be established
and that ongoing communication between the Hospital and Mr. McKnight was essential. Mr. McKnight was advised that similar types of accommodations had been established at the Hospital
and good communication was essential to their success. Ms. Eckert testified that the grievor was not impressed with the proposed accommodation and that he was not even interested in
discussing it. Instead, the grievor asked to be assigned to a different position in Ottawa. In this regard, the grievor came f r o m Ottawa and had, it appears from the evidence, been
commuting to the job in Brockville, although he lived for some time in a residential facility at the Hospital. Ms. Eckert explained to the grievor that she could not offer the grievor
the Ottawa job, and that jobs in the public service were filled by posting. Indeed, the position of interest to the grievor had already been posted and filled as an internal competition.
The grievor apparently reiterated his request that he be given the job. He was then advised that the employer's duty was to accommodate an employee with respect to his or her existing
job, and that the employer was not obligated to give Mr. McKnight a new job. The grievor then
ll I.I. a t indicated that the individual who obtained the Ottawa job was not qualified and that he was and so should get the job. Mr. McKnight then spent some time reviewing his qualifications
and experience. Mr. McKnight also advised Ms. Eckert that he did not like his SEC position and that it was not what he expected. Ms. Eckert explained to the grievor that the SEC job
was a new one, that it was an evolving position, and that some changes in it could be expected. The meeting lasted approximately one hour. Mr. McKnight was advised at the conclusion
of the meeting to go and see Mr. Prescott, who was ready with the details of the proposed accommodation. Later in the day, Ms. Eckert and Mr. Prescott met, and a letter to the grievor
setting out the terms of the accommodation was prepared. The salient section of this letter, dated October 17, 1990, provides: You will assigned to work as a Supported Employment Coordinator
linked to wards F and G. Your duties shall be consistent with the current Supported Employment job description and include a requirement to work 20% of the time in the Vocational Centre.
Please note that we shall endeavour to not exceed this maximum of 20% of your time spent in the Vocational Centre but not to the extent of compromising operational and program requirements.
Your office will be located outside of the Vocational Centre. The extent to which your work, in this assignment, will place you in other environments that may potentially place you at
risk re: your allergies, cannot be predicted other than to say that the possibility exists. Your ability to function in these new responsibilities vis a vis your medical condition, will
be regularly monitored to assess the efficacy of this accommodation. For your information, I have requested that our Occupational Health and Safety Committee review the
12 Vocational Centre environment with a view to identifying any additional measures that can be taken to further enhance dust control. ... It is hoped that this new arrangment will alleviate
the medical distress you have experienced and that we can look forward to a restored and productive working relationship. This letter was sent to the grievor by courier, and it requested
that the grievor report for work on Friday October 19, 1990. On Monday October 22nd, Ms. Eckert was advised by her secretary, Ms. Shirley Dumond, that she had received a telephone call
from the grievor at 4:45 p.m. on Friday October 19th. Ms. Dumond advised Ms. Eckert that the grievor said that he would not be reporting for work and that he would not be accepting the
accommodation as drafted. Later that morning, Ms. Eckert had a meeting with senior management, including the Administrator of the Hospital, Mr. P . A . Lee. The discussion centred on
whether or not the employer had made reasonable efforts to accommodate the grievor. Also considered was the grievor's attendance record: he had been away for a total of seventeen days
since starting work on August 7th. The conclusion was reached that Mr. McKnight should be released for failure to meet the requirements of his position, and he was advised of this by
letter dated that day. In cross-examination, Ms: Eckert agreed that the grievor asked for a job specification at their October 16th meeting. Ms. Eckert stated that the grievor should
have received a job specification
13 i-i =Twhen he started work. Ms. Eckert also agreed that the grievor, 'being new to the public service, might have reasonably thought that it was in Ms. Eckert's power to give him
the Ottawa job. Ms. Eckert indicated, however, that even after she explained why he could not have the job he continued to request that he be given it. Mr. Calvin Prescott testified
on behalf of the employer. He has held the position of Director of Vocational Services for ten years and has twenty years seniority with the Hospital. Mr. Prescott was a member of the
selection committee that interviewed and hired the grievor. Mr. Prescott testified that at the conclusion of the formal part of the interview he spent some time discussing the job with
the grievor. Thinking that the grievor was a competitive candidate, Mr. Prescott explained some of the details of the position. He also explained that the particular department that
the grievor would be working in was in a state of transition. Mr. Prescott explained that the Hospital was looking for someone who would facilitate change from the traditional workshop
environment, and that although the position would remain within the Vocational Centre, there would be an increased community component to it. The grievor was specifically advised that
he would be working in the Vocational Centre. Prior to September 10th Mr. Prescott had a number of conversations with the grievor, and while his recollection of these conversations was
not complete, Mr. Prescott testified that they discussed the
14 job in general terms. Prescott, medical certificate indicating exactly what his health requirements On October 15th, the grievor came to see Mr. who was pleased when the grievor provided
him with a were. The two had a brief meeting and the grievor was advised to return the next day for his meeting with Ms. Eckert. Mr. Prescott also testified about his meeting with Ms.
Eckert on the morning of October 16th, and his evidence, by and large, mirrored that of Ms. Eckert, Mr. Prescott testified that it was his intention that the accommodation be monitored
and that changes to it remained possible. If it did not work out, then they would try something else. Mr. Prescott also met with the grievor on October 16th, and he testified that the
two of them met for approximately two hours. The purpose of this meeting was to outline the accommodation to the grievor, which Mr. Prescott did. Mr. Prescott testified that the grievor
focused his attention on other factors, such as the Hospital not being sufficiently responsive to his medical condition. The grievor expressed his view that the SEC job had been misrepresented
to him, and he expressed his dissatisfaction about not being given the Ottawa job to which he felt entitled. Although the grievor was entitled to apply for this position at the time
of the posting, he had not done so. At the conclusion of the meeting Mr. Prescott felt somewhat frustrated because he had to keep coming back to the accommodation. Nevertheless, Mr.
Prescott
15 was satisfied that the grievor understood what the accommodation was. Mr. McKnight was advised that he would get a letter with respect to it, and Mr. Prescott expected that grievor
would accept the terms and conditions of the accommodation. The offer of accommodation, dated October 17th, was sent to the grievor that day, and he received it on Friday October 19th.
Mr. Prescott did not speak to the grievor again, but he did speak with Ms. Eckert on Monday October 22nd. Along with another member of management, they reviewed the events of the previous
days and weeks and reached the conclusion that the grievor should be released. Mr. Prescott testified to an overwhelming sense that the grievor was not interested in the accommodation,
and when this w a s combined with his poor attendance record, release seemed like the .only viable option. In cross-examination Mr. Prescott repeated his evidence that he spent some
time after the formal part of the interview telling the grievor what his job would be if he won the competition. Mr. Prescott testified that he did not doubt that the grievor was having
difficulties as a result of his allergies, although he was unsure until he received the doctor's letter dated October 5th on October 15th exactly what the problem was. Mr. Prescott was
asked whether the changes in the vocational program would have affected the amount of time that the grievor would spend in the Vocational Centre. The witness testified that he could
not give a precise
16 answer to this question and that, in fact, the employer was looking to the grievor for input and ideas in this regard. There was some expectation that the amount of time spent in
the Vocational Centre would decrease with time. Mr. Prescott testified that the grievor had an impressive resume and that he performed well in the interview. While Mr. Prescott did not
directly supervise the grievor, his impression was, in the initial period, that the grievor was doing well. Then frustration began to set in as a result of his absences. There was concern
because an individual in a key position was always away. Mr. Prescott agreed that it was normal for the grievor to inquire about the Ottawa job, not being familiar with the posting provisions
of the Collective Agreement. Mr. Prescott did not, for either of the grievor’s illnesses, consider having an attendance review meeting with him. With respect to referring the dust problem
to the Joint Occupational Health and Safety Committee, Mr. Prescott told the Board that the committee reported back to him that there were not unreasonable dust levels in the Vocational
Centre. The area of concentration of dust was in the carpentry shop, distinct from where the grievor actually worked, and there was a reasonable dust collection system. The report of
this committee, introduced into evidence, supports this conclusion and notes, moreover, that there were no complaints from other employees. The committee
17 nevertheless recommended further investigation. A Ministry of Labour document was introduced indicating that upon further investigation it did not appear that there was excessive
exposure to wood dust. Nevertheless an exposure assessment was requested, although it apparently has not yet taken place. Mr. Prescott was asked if he was aware that the grievor attempted
during his absences to contact him, but Mr. Prescott could not recall receiving any messages from him. Nor did Mr. Prescott call the grievor while he was away sick. Mr. Prescott told
the Board that the meeting at which the decision was made to recommend release took place on Monday morning. Ms. Shirley Drummond also testified on behalf of the employer. Ms. Drummond
has many years of seniority with the Hospital and is employed as a Staffing and Benefits Officer. Ms. Drummond testified that she received a telephone call from the grievor as she was
leaving the office for the weekend on Friday October 19th. The grievor told Ms. Drummond that he would not be back to work on Monday. This was the first and only time Ms. Drummond spoke
with the grievor, and she testified that she knew nothing about him. Ms. Drummond also testified that usually employees do not call the Personnel Office with this information, and that
when they do the normal practice is to advise them to call‘ their supervisors and to send in rnedical certificates. Ms. Drummond testified that this is what she did. Ms. Drummond did
not get the impression from her
-_e_--__ 18 brief conversation with the grievor that he would never be coming back. On Monday October 22nd, she advised Ms-Eckert of the telephone call. In cross-examination, Ms. Drummond
testified that she did not recall the grievor refusing the accommodation during her telephone conversation, and stated, moreover, that she knew nothing about it. Ms. Drummond was asked
whether she had any other conversations with the grievor, such as one involving setting up a meeting with the grievor and Ms. Eckert. Ms. Drummond was also asked whether or not she had
told the grievor not to worry because he was on sick time. . Ms. Drummond did not recall having these conversations, nor did she recall having a conversation with the union staff representative
Mr. Lane. The final employer witness was Mr. P.A. Lee, the administrator of the Hospital. Mr. Lee testified that in making the decision to release the grievor he consulted with Ms. Eckert
and Mr. Prescott, and he took into account the grievor’s high rate of absenteeism, and his failure to respond to the accommodation offer. After sending Mr. McKnight the release letter,
Mr. Lee received a telephone call from him. Mr. McKnight raised some concerns with Mr. Lee; in particular, he stated that he had not been advised that his position was to be in the Vocational
Centre. Mr. McKnight told Mr. Lee that he understood his position to be in the community. After listening to these concerns Mr. Lee wrote Ms. Eckert and Mr.
19 Prescott a memorandum asking for further information. Mr. Prescott replied to this memorandum‘ informing Mr. Lee that the grievor was advised at the time of the interview that his
position would be based in the Vocational Centre. Mr. Prescott noted that when Mr. McKnight arrived at work on August 7th, he did not raise any concerns regarding the nature of his position.
After receiving this reply, Mr. Lee called the grievor and advised him that he had looked into the grievor‘s concerns, and that he would not be changing his release decision. In cross-examination,
Mr. Lee was asked why he decided to release the grievor on the Monday, just two days after the grievor received the accommodation offer. In particular, it was suggested to him that he
had moved very quickly in deciding to end the grievor‘s employment at the Hospital. Mr. Lee did not agree with that suggestion, and stated that in the circumstances the decision was
proper. Mr. Lee testified that he had sufficient information on October 22nd to release the grievor, and the information obtained after that date did not affect his initial decision
in that he found there was no substance to the concerns raised by Mr. McKnight The Union Case Mr. McKnight testified on his own behalf. He told the Board that he was very excited about
beginning work at the Hospital, and he
20 gave some evidence with respect to his twenty-one years of experience ‘in the rehabilitation f ield The grievor testified that he thought the job was to be located in the community,
finding jobs for clients and monitoring their progress. He was, accordingly, surprised and disconcerted to learn that he was to be based in the Vocational Centre. i In this regard, Mr.
McKnight told the Board. that after the interview there was no discussion about the particulars of the position with either Ms. Larmour-Trode or Mr. Prescott. When Mr. McKnight began
work on August 7th, Ms. Larmour-Trode escorted him to the Vocational Centre and advised him that this was where he would be working. The grievor expressed surprise about this, and testified
that he told Ms. Larmour-Trode that he thought he was going to be working in the community. The grievor testified that he asked for a job specification, but was advised that one did
not exist. Ms. Larmour-Trode told the grievor that he was to be involved in drafting a new specification. The grievor further testified that he asked Ms. Larmour-Trode for a copy of
the evaluation form, but that she never provided him with one. Nor did she ever sit down with the grievor and establish goals and priorities with him. His orientation was similarly deficient,
for example, he testified that no one ever explained to him the details of h i s benefit entitlement under the Collective Agreement. Nor was he ever given WHMIS training.
21 Mr. McKnight saw Ms. Larmour-Trode every day until she left on vacation, and he had a number of discussions with her, such as, for example, the one about the stain glass project referred
to above. Mr. McKnight felt that he had a good rapport with Ms. Larmour-Trode and enjoyed working for her. With respect to his first absence, the grievor testified that he gave a doctor's
certificate to the Hospital upon his return to work, and in fact two such certificates were introduced into evidence. The grievor testified that this first absence began on September
11th not September 10th, and lasted for four days. The grievor was suffering from severe respiratory problems as a result of inhaling dust in the Vocational Centre. The grievor testified
that he discussed his health concerns with the Health Nurse on September 20th, who suggested that the grievor consider wearing a mask. After he returned to work, following his first
illness, he continued to suffer from the dust, and at one point he asked Ms. Larmour-Trode what was being No mask was, however, provided to him. done to assist him. On October 1st, Ms.
Larmour-Trode approached the grievor about apple picking, and the grievor enthusiastically agreed to the switch. Unfortunately, that night the grievor became ill again because of the
dust in the Vocational Centre. Mr. McKnight told the Board that his system had become clogged with dust and he could not breathe. His lymph glands became swollen, and as he was driving
22 home that night he drove off the highway as he went into respiratory distress. Accordingly, Mr. McKnight phoned in the next morning to say that he could not come to work. The grievor
subsequently visited doctor's office on October 5th' and his doctor provided him with the letter excerpted above. This letter indicated that the grievor would be ready to return to work
on October 15th, and Mr. McKnight phoned the Hospital to convey this information. A s already noted, the grievor gave the Doctor's letter to Mr. Prescott on the 15th, and he also had
a subsequent meeting with Ms. Eckert, followed by another meeting with Mr. Prescott. The grievor testified that the meetings on October 16th were set up on his initiative. The grievor
also expressed a number of concerns. For example, no one told him about the existence of a Health and Safety Committee, and members of management did not contact him while he was away
to inquire about his health. The grievor's account of his meeting with Ms. Eckert was different from that provided by Ms. Eckert. The grievor described the meeting as unpleasant and
told the Board that at one point Ms. Eckert raised her finger at him and said that he would be working in the Vocational Centre two days a week. The grievor testified that the meeting
lasted only twenty minutes, and that Ms. Eckert did not explain the details of the proposed accommodation to him. The grievor felt that the meeting was a total waste of time, and
23 that it was more of a lecture than a discussion. The grievor testified that he did ask about the Ottawa position, but it was because he was looking for a job that would not put his
health at risk. IF' i The meeting with Mr. Prescott went somewhat better, the grievor testified, stating that it lasted for two to two-and-a-half hours. However, the grievor told the
Board that Mr. Prescott did not provide him with any of the details of the accommodation, and that Mr. Prescott did not understand that the 20% referred to in the doctor's letter did
not mean one day a week, but meant one-and-ahalf to two hours a day. Mr. McKnight raised the Ottawa position with Mr. Prescott, but only within the context of trying to figure out some
way to work without jeopardizing his health. At the end of the meeting, Mr. Prescott told the grievor to go home and wait for a letter setting out the accommodation. Mr. McKnight testified
that he received the letter of accommodation on the morning of Friday October 19th. The grievor was shocked to read the letter, and this explains why he did not call the Hospital until
the end of the day. The grievor did not understand, for example, what was meant by him being assigned to wards F and G. He was not prepared to agree to the accommodation suggested until
he discussed the matter with his doctor, who advised him that he should stay off work until further notice. The grievor called his union representative, Mr. Lane. He also called Ms.
Eckert's office
and spoke to Drummond and would not be 24 Ms. Drummond. The grievor identified himself to Ms. told her that he was still under a doctor’s care, and returning to work until further notice.
Ms. Drummond told the grievor to make sure that he got another medical certificate. At no time did Mr. McKnight refuse the offer of accommodation. When Mr. McKnight received his release
letter he was very surprised and frustrated, and felt that this information should not have been conveyed to him through the mail. The grievor telephoned Mr. Lee, and testified that
he had had only one conversation with him, not two, as Mr. Lee had testified. After his release the grievor continued to receive medical attention from both his doctor and from a specialist.
The grievor testified that he has never been dismissed from a job before, and that he has never suffered from work-related health problems before. As a result of these health problems
and his release the grievor has suffered financially, and testified that he has lost his home and h i s car, and was without income for eight weeks. In cross-examination, the grievor
insisted that his accounts of his meetings with Ms. Larmour-Trode, Mr. Prescott and Ms. Eckert were accurate, and that theirs were not. Ms. Larmour-Trode and Mr. Prescott never told
him at the interview that his job was to be in the Vocational Centre. Mr. Prescott and Ms. Eckert never gave him any details of the offer of accommodation. Similarly, he stated
25 that his account of the conversation with Mr. Lee was accurate, and Mr. Lee's was not. The grievor testified about his difficulties in reaching either Ms. Larmour-Trode (who returned
from work on October 17th) or Ms. Eckert on Friday October 19th. He did not, however, attempt to phone either of them on Monday October 22nd, because he had made arrangements to see
his doctor and because Ms. Drummond had told him that everything was okay. The grievor phoned Mr. Lee that day, but did not say that there was a mistake or that he was interested in
the accommodation. Rather he focused on the misrepresentation of the position to him. The second and final witness for the union was Mr. A r t Lane, the union representative. Mr. Lane
testified that the grievor contacted him on October 15th or 16th, and that the two men had a long conversation about the job and the grievor's health problems. Mr. Lane also spoke with
the grievor on Friday October 19th, and he advised the grievor to contact Mr. Prescott and inform him that he had just received the accommodation letter and felt that he could not comply
as he was still under a doctor's care, and that he would be submitting further documentation. Employer Arqument In counsel's submission the jurisprudence of the Board is clear that a
"bona fide release of an employee from employment made in good faith during the first year of his employment for failure to
26 meet the requirements of his position cannot be-considered to be a dismissal as: that term is used-in both the public service A c t and the Crown Employees Collective Bargaining Act"
Leslie 80/77 (Adams) (reported at 22 L.A.C. (2d) 126). The Board in Leslie went on to state: .this Board is of the opinion that the employer cannot camouflage either discipline or the
termination of an employee for a reason other than the employee's failure to meet the requirements of his position, as that phrase is explained i n the Square D Co. Ltd. case, by the
guise of a release under s. 2 2 ( 5 ) of the Public Service Act. This Board, therefore, has jurisdiction to review a contested release to ensure that it is what it purports to be. But
in the adjudication of such a grievance, this Board is without jurisdiction to evaluate and weigh the reasons of the employer unless the collective agreement provides otherwise. The
Board must only be satisfied that the employer, in good faith, released the employee for a failure to meet the requirements of his position. As long as the Board can be satisfied that
the employer has made an evaluation of that kind it has no jurisdiction to review the fairness or correctness of that determination under 5. 17(2) (C) (at 134). In counsel's submission,
there was no evidence in the instant case of anything other than a bona fide release, and accordingly counsel urged that the grievance be dismissed. Counsel pointed out a number of the
many inconsistencies between the grievor's evidence and that of witnesses for the employer, and urged the Board to resolve this credibility issue in favour of the employer. Counsel also
pointed out that the doctor's letter of October 5th indicated that the grievor would be ready to return to work on October 15th. However, on October 19th, even though nothing had happened
to the grievor, he called in to say he would be away sick until further notice. There was no evidence that the
27 grievor was interested in accepting the accommodation; he did not, for instance, phone anyone on October 22nd to indicate such an interest or indicate a need for further modifications.
In these circumstances, counsel argued, it could hardly be said that the employer's decision to release the grievor smacked of bad faith. If anything, the opposite was true. The employer
attempted to assist the grievor by arranging a transfer for him to the applepicking assignment. It later arranged a permanent accommodation for him. These facts, in counsel's submission,
hardly supported an allegation that the employer had treated the grievor unfairly or improperly. In counsel's view, the decision to release flowed logically from the employer's experience
with the grievor. He had significant absences from work. He then provided a doctor's letter indicating that he was able to return to work provided he did not spend more than 20% of his
time in the Vocational Centre. The employer made this adjustment to its schedule and also arranged to move the grievor's office outside of the Centre. This information was conveyed to
the grievor in person and by letter. At the meeting in which the accommodation offer was communicated to the grievor, the grievor did not indicate that he was receptive to it. Rather
he focused on obtaining another position in Ottawa. Even when it was explained to him that the employer's obligation was to accommodate the existing position, the conversation between
the grievor and Ms.
28 Eckert and the grievor and Mr. Prescott continued at cross purposes. Following' these meetings, a formal accommodation was offered to the grievor and sent to him by courier. H e received
it in the morning, but did not phone the Hospital until the end of the day, stating that he was off sick until further notice, even though his doctor's letter said that he was fit and
able to return to work. In these circumstances the employer determined that the grievor was not and would not be meeting the requirements of his position. Accordingly, it determined
to release the grievor as it is entitled to do. And, counsel argued, there was nothing wrong with that. Union Argument In Mr. Paul's submission this was not a cause of a bona fide release
made in good faith. Rather it was a case of dismissal without cause made for innocent absenteeism. Mr. Paul also argued that there was confusion from the outset about what the grievor's
duties and responsibilities actually were, and that this was a factor that the Board should not ignore. Moreover, in the union's submission, the grievor indicated at the outset that
the job he was assigned to and the one he thought that he was accepting were not the same. Indeed, in the union's submission, the grievor did not receive a job specification until he
insisted that Ms. Eckert provide him with one. In addition, the grievor received only a token orientation, and Ministry policies with respect to orientations were not followed. There
was no goal setting, nor was
29 there any systematic review of his performance. Mr. Paul also questioned the efforts at accommodation; they were, in his view, thin. In Mr. Paul's submission, the grievor never turned
down the apple-picking job, nor did he ever turn down the employer's formal accommodation offer. Quite reasonably, Mr. Paul submitted, the grievor wished to discuss the accommodation
offer with his physician. In this regard, Mr. Paul pointed out that the grievor continued to require medical attention after his release, and he referred the Board to a post-release
doctor's report. Mr. Paul pointed out that the grievor demonstrated a real interest in his position. He was the person, for instance, who set up the meeting with Ms. Eckert and Mr. Prescott
to discuss accommodations. Even though that meeting was scheduled for October 16th, the grievor still reported for work on the 15th, indicating again his interest in his position. A
l s o demonstrating that interest w a s the fact that he stayed late at work, and the initiative he demonstrated with respect to the stained glass pilot project. In Mr. Paul's sat down
with Moreover, the view, the evidence indicated that the employer never the grievor and outlined its accommodation proposal. employer never asked Mr. McKnight for his input into such
a proposal. Instead, the employer sent him a letter by Courier, and required an immediate response. The grievor, Mr. Paul
30 submitted, did not know what was involved in the change of duties, and .was rightly concerned about .the effect of these changes on his health. employer that he was off sick until
further notice. Ms. Drummond then advised the grievor to obtain another medical certificate. But before he had a chance to provide it to the employer, the grievor was released. These
facts, Mr. Paul argued, do not demonstrate good faith. Accordingly, -he'c ontacted his physician and advised the Further demonstrating the absence of good faith in this case was the
fact that the employer, who knew that the grievor was suffering from an environmentally related illness, never referred him to the Health and Safety Committee. Mr. Paul submitted that
the evidence further indicates that the employer was in an unseemly rush to release the grievor. Why, Mr. Paul asked, did the employer not contact Mr. McKnight on Monday morning, rather
than just writing him a release letter? Instead of releasing the grievor, the employer could have called him in for an attendance review meeting. There were other options available as
well. But none of these were considered, much less implemented, and Mr. Paul suggested that the failure to work with the grievor indicated an absence of good faith. Counsel argued, moreover,
that the grievor should have been given some notice, or some warning, before being released; that as a matter of fairness, he should have been advised what his deficiencies were and
where improvements were required.
31 Mr. Paul referred the Board to a number of authorities supporting his arguments including Rupert 372/84 (Gorsky): Shaw 410/88 (Barrett); Ferraro 373/84 (Delisle); Abdulla 1103/85
(Verity): Shiralian 914/86 (Roberts) Sheppard 2492/86 (Slone) ; Crooks 1562/87 (Draper) ; O'Connor 1173/85 (Swan) Walker 1272/88 (Fisher) ; Nesbitt 577/89 (Epstein); and, Nicholson 1294/88
Mr. Paul argued that these cases, which he carefully reviewed and applied to the facts of the instant one, supported his position that the employer had not acted in good faith and that
the release should be set aside. Decision Having carefully considered the evidence and arguments of the parties, we find no basis to interfere with the decision to release the grievor.
In Shiralian 914/86 (Roberts) the Board stated: For a reasonable and good faith exercise of have occurred, there must have been authority to a rational relationship between the observations
made by management and the conclusion that was reached (at 12). In our view, this test was met in the instant case. We are of the view that the decisions of this Board dealing with release
because of excessive absenteeism are not helpful to the disposition of the matter before us. In the instant case, there is a connection between the grievor's absenteeism and the position
in question. Put another way, it was the uncontradicted evidence that
32 the grievor's absence from employment was the result of an illness contracted at work.. While. the evidence ,of a: dust 'problem is equivocal, at '.best it is nevertheless the case
that the grievor, s respiratory problems were related to working in the Vocational Centre. Had the grievor been released for absenteeism alone, we would have found that release to be
in bad faith and we would have made a reinstatement order. However, the evidence indicates that while absenteeism was a consideration in the decision to release Mr. McKnight, it was
not the only one. More important was the grievor's failure to accept or show any interest in the accommodation offer. In Abdulla the Board held that the employer is under no obligation
to complete the short, medium and long term goals in the event the employee fails to respond in a positive fashion" (at 10). We are also of the view that once the accommodation offer
was presented, the grievor was under some obligation to respond to the employer, if only to indicate acceptance in principle, or to suggest changes or improvements. The evidence indicates
that the employer made real efforts to assist Mr. McKnight, first by offering him the apple-picking assignment, and second, by seeking to accommodate the grievor's position to his health
requirements, by making modifications to that position. While the proffered accommodation may not have been perfect, it was certainly a first step, and the employer made it
i 'i I. 33 clear, in the meeting between the grievor and Ms. Eckert, the meeting between the grievor and Mr. Psescott, and in the accommodation letter itself, that the accommodation
would be monitored and that adjustments could be made. In cases of this kind, the employer bears the onus of accommodation, but once the employer has fulfilled its obligation, the employee
must positively respond, and be reasonable in his or her response. Certainly it would have been preferable i f the employer had invited the grievor to make suggestions with respect to
the accommodation arrangements. However, in the circumstances of this case, where the accommodation offered by the employer responded directly to the doctor's letter the grievor had
provided to it, we do not find that this failure to more directly involve the grievor in the consultative process necessary in accommodation cases constitutes an act of bad faith. Certainly
this omission does not provide a basis, in this case, for setting aside the release. Had the grievor responded in any positive way to the accommodation offer our disposition in this
case might have been different. Had he, for instance, phoned his supervisor or anyone else at the Hospital on Friday October 19th, or even on Monday October 22nd and said, "I want to
work this out with you, but you have misunderstood what is meant by 20%", we likely would have upheld the grievance. However, the grievor did not do this. All that he did w a s leave
a message that he was off s i c k until further notice, three days after
34 he provided the employer with a doctor's letter indicating that he was ready 'and able to return to: work. The employer then considered whether or not the grievor would be able to
meet the requirements of his position, As noted in many of the cases referred to the Board, the purpose of the probationary period is for the employer to have a proper opportunity to
observe the probationer in order to make the ultimate assessment of whether or not that person is suitable for the permanent position (Walker at 4). In our view, the decision to release
in the instant case was the result of the employer determining that the grievor was not suitable for a permanent position and, therefore, cannot be characterized as bad faith. Mr. McKnight
had very little seniority with this ministry. He had shown little interest in the accommodation offered to him, and when it was offered he responded by advising that he was off sick
until further notice. It can hardly be said in these circumstances that the decision to release was an act of bad faith. The employer's assessment flowed from the facts before it, and
cannot be described as an irrational act. Given that we find no bad faith, no unreasonableness, nothing irrational or half-baked in the conclusions the employer has reached in this case,
the grievance ! must be dismissed. Some findings with respect to credibility are necessary. On
35 balance it is our View that the evidence of Ms. Larmour-Trode, Mr. Prescott, Ms. Eckert and Mr. Lee should be preferred to that of the grievor. Simply put, where the evidence of these
individuals is in conflict with that of the grievor, we prefer the evidence of these individuals. We do not find, for example, that the job was misrepresented to the grievor, and we
do find that the employer communicated, both verbally and in writing, the accommodation offer to Mr. McKnight. Mr. McKnight's orientation may not have been perfect, but it was certainly
sufficient, and whatever its deficiencies may be, they do not provide a basis for us to interfere in the decision to release. In conclusion, we find that the employer has acted reasonably
and _-in good faith in determining to release the grievor. We find, moreover, no evidence of harassment of any kind, and no denial of benefit entitlement under the Collective Agreement.
Accordingly, the grievance is dismissed. I _-
36 DATED at Ottawa this 12th Day of November 1991. I dissent. Dissent Attached. I. Thomson Member R. Scott Member C hairperson's Addendum I have read Mr. Thomson's dissent, and while
I disagree with some of his findings of fact, I agree with him that the employer might have taken more time to consider its options and deliberate about its decision. Nevertheless, I
find that the employer decided in good faith that the grievor was not meeting the requirements of his position, and given his employment history, and his response to the accommodation
offer, that he was unlikely to begin to meet the requirements of his position. The evidence supports this conclusion. The employer might have done more, and it might have been better
if it had done things somewhat differently, but that is not the issue before us. There was a rational relationship between the observations made by management and the decision to release.
There is no evidence of bad faith on the part of the employer. Accordingly, this is not an appropriate case for the Board to set aside the release. William Kaplan November 2, 1991
I C . -DISSENT 2 0 2 2 /9 0 McKnight vs Ministry of Health I --i I I have read the Award and with all due respect to my fellow members on the Board, I am unable to agree with many of
their conclusions and with the Award itself. There is no doubt the Grievor was disappointed about the job he was offered. From the newspaper advertisement he thought the job was working
with people in the Community setting. He learned at the interview that most of the time would be spent in the Centre. However, because he had spent a great deal of time in helping and
working with people who had problems he accepted the job. On cross-examination the Employer witnesses admitted the grievor may have been led to believe the job was different from that
advertised. Ms. Amour-Trode who was his Supervisor told us how pleased she was that the grievor was coming on the Staff. She was anxious to have him as part of her Team since he was
so highly qualified. They worked well together and when he became ill and was off work from the dust problem in the workplace she called him on several occasions to inquire about his
health. unfortunate part of this whole matter is that she left on a vacation from October 2nd to the 17th. It was while she was absent that people in Human Resources and the Director
of Vocational Services took the whole matter over and the grievor was sent to the guillotine. The The grievor was off ill and testified that he made several phone calls over the period
of his illness to Calvin Prescott and Linda Eckert. None of these calls were returned. He was finally successful in setting up a meeting with Ms. Eckert for October 16th. This was the
day before his Supervisor Ms. Armour-Trode returned to work. He did not know this but certainly the Employer knew she would return on October 17th. The grievor went into Brockville from
Ottawa on the 15th on h i s own initiative to give Mr. Prescott the Doctor's certificate. On the morning of the 16th Ms. Eckert and Mr. Prescott met to discuss a work accommodation for
grievor.
-2-What seems very. strange and unreasonable to me is why would these two people who had nothing to do with the grievor, Ms. Eckert testified she had never met him, meet 'to decide on
an accommodation without consulting his immediate Supervisor who was aware of the grievors problem first hand. They both knew she would return to work the next day. At the meeting between
the grievor and Ms. Eckert on the 16th she testified he seemed more interested in discussing a job with the centre which was located in Ottawa than anything else. She explained Mr. Prescott
was going to offer him an accommodation and he would only be in the Workshop 20% of the time. She testified he kept returning to the issue of the job in Ottawa and couldn't see why she
would not give him this. would have difficulty understanding why this could not be. It was evident from the testimony of both of them that they were on different wave lengths during
these discussions. Frankly I don't see why Ms. Eckert was discussing the accommodation with him anyway since he was going to be meeting with Mr. Prescott immediately after. Mr. Prescott
said he discussed the accommodation orally with the grievor and told him he would receive the offer in writing. The grievor was not asked for any input into the accommodation but he
indicated he would accept. and he received it on October 19th, the same day the letter told him to report to work. The grievor testified that on October 19th he called Mr. Lane his Union
Representative and he was told to call Mr. Prescott. He called had made a call to Mr. Prescott and also to Ms. Eckert and neither one was available. Re then spoke to Ms. Drummond and
said he wouldn't be in on Monday the 22nd since he was still sick. She testified she certainly wasn't back and reminded him to secure another medical certificate. On the morning of October
22nd Ms. Drummond told Ms. Eckert about the call. Ms. Eckert testified Ms. Drummond advised her that the grievor had said "He would not accept the letter". Ms. Drummond testified she
never said any such thing. It is understandable that someone new to the Public Service The offer was sent to the grievor by courier on the 17th, A most difficult task to accomplish.
back several minutes after and said he under any impression he wouldn't be
-3 -Later that morning Mr. Prescott and Ms..Eckert met with Mr. Lee and she 'recommended the grievor be released. Mr. Prescott stated in cross examination that he never considered having
an Attendance Review meeting. This is a meeting set out in Collective Agreement to query reasons for absenteeism. I find this most unusual. I do not believe it is the function of Human
Resources to be making decision on the release of employees. Their job is to advise the people in charge of the options available to them. It is up to the to release and not the job
of people in Human Resources. I find this very disturbing. Human Resources personnel seldom know anything about the situation and are there only to give advise and not make decisions.
However, it seems to me in this case they were calling the shots. To me this whole matter seems to have been directed by Human people in charge to make the decision Resources and I don't
think that is proper. Ms. Armour-Trode was never consulted about the letter of accommodation and it was drawn up by people who had little or no knowledge of the problem. When she wanted
to call the grievor about the letter of accommodation she was told by Human Resources not to do so since it might be seen as harassment. Yet she testified she had called the grievor
several times before when he was off ill and he appreciated the concern. Mr, Prescott said he had never spoken about the grievors absenteeism and hadn't contemplated considering the
release of the grievor until the morning of October 22 after he had spoken to Ms. Eckert and she had advised on the release of the grievor to him and Mr. Lee. This termination is unjust,
unfair and unreasonable. The grievor was not given adequate opportunity to respond to the accommodation. He said he only wanted time to speak to his Specialist to see if 20% of time
in the Workshop would affect his health. Both Mr. Prescott, and Ms. Eckert said the time on the Workshop could be one or two days per week. Why the great rush to terminate the grievor?
It wasn't as if his probationary period was about to expire. The Employer had plenty of time to asses the grievor to see if he could "meet the requirements of the position".
-4-'Why wasn’t some attempt .made to discuss' the. accommodation with. him a f t e r . it was. put in writing.? Why wasn't his Supervisor consulted in this matter? Why did all these
events take place while she was absent? In my opinion this discharge is most unfair. In GSB 2492/86 vs Ministry of Government Services Vice Chair Slone at page 15 said If for example,
there was simply no evidence that a probationary employee has not fulfilled or could not fulfil the job requirements then no matter how well meaning were the actions of his superiors,
the release would have been an unreasonable expertise of authority. In GSB 914/86 Manson Shiralian vs Ministry of Government Services (Vice Chair R. J. Roberts) last sentence on page
12 said It is not appropriate for management to leap to a conclusion that an employee has failed to meet the requirements of his or her position. I say this employee was not given the
full opportunity to show he could meet the requirements of the position. In fact it is just the contrary according to the testimony of Ms. Amour-Trod@who said what a great asset he was
to the Facility. EX. 22 Ontario Manual of Administration-Release During First Year of Employment sets out how a release can be affected: Release may be affected during the first year
of employment for failure to meet the requirements of a position but should only be carried out after: * the employee has been given understand the requirements of the job and after
adequate opportunity has been provided for the employee to demonstrate compliance with those requirements: reasonable opportunity to
I' E -5-* periodic appraisals show that performance on the job has failed to improve to the level expected: * the Employee has been kept informed of his/her shortcomings and adequate
assistance. and opportunity has been given to overcome them. None of these procedures were followed in this case. I would have allowed the grievance and reinstated the grievor. T I.
Thomson, Member i