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Home My WebLink AboutP-2005-3536.Jones.13-10-16 DecisionPublic Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 P-2005-3536 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Marian Jones Complainant - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Deborah J.D. Leighton Vice-Chair FOR THE COMPLAINANT Richard L. Pollock Mousseau DeLuca McPherson Prince LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Lisa Compagnone Ministry of Government Services Legal Services Branch Counsel HEARING January 19, June 22, 23 & 24, July 13, 14 & 28 & 29, September 2 & 3, November 23, 2010, April 27, 2011 - 2 - Decision Introduction [1] Ms. Marian Ruth Jones applied to the Board under the Public Service of Ontario Act, S.O. 2006, c. 35, Sched. A, alleging that the employer breached Minutes of Settlement (MOS) dated February 20, 2007, when it offered her work as a Project Manager for a Pilot Project in the Western Regional Office of the ministry. The complainant takes the position that the employer’s offer of this work amounts to bad faith. The employer’s position is that there was no bad faith and no breach of the MOS. In a subsequent complaint, Ms. Jones alleges that her dismissal from employment on June 25, 2009 is without just cause. The employer terminated Ms. Jones for the following reasons. 1) Ms. Jones fraudulently received short-term sick benefits (STSB), when she attended a full- time college program in North Bay in the fall of 2008. 2) Ms. Jones made false statements to the investigator assigned under Section 22 of the of Correctional Services Act to look into the alleged abuse of sick leave; 3) Ms. Jones violated the ministry’s Statement of Ethical Principles by receiving STSB while attending college full time. 4) In doing the above, Ms. Jones breached the employer’s trust, irrevocably damaging the employment relationship. [2] The complainant alleges that the employer’s breach of the MOS led to a depression, which led to the alleged misconduct. The complainant was very ill from September to December 2008 and attended the college course on her doctor’s recommendation for treatment. - 3 - The grievances were consolidated for the convenience of the parties. I dismissed both grievances on March 27, 2013. These are the reasons for those decisions. EVIDENCE [3] The complainant sought to tender evidence about the events that led to the MOS signed in 2007. In an interim decision in July 2010, I denied the motion, stating as follows: “I am satisfied that there is no compelling reason in this case to justify an exception to the general principle of sanctity of settlements.” [4] Much of the evidence before me is not contentious. However, the interpretation of each side is vastly different. In addition, some of the evidence is highly contentious and I will assess it during the analysis of the issues before me. I begin with the evidence that is not contentious. Ms. Jones’ resume indicates that she worked for the ministry for approximately 25 years before the employer terminated her employment on June 25, 2009. She began her employment with the ministry as a Correctional Officer in 1984. She was promoted to an Operational Manager in 1989. In 1995, she became a Deputy Superintendent of Operations. Ms. Jones’ resume also indicates that she was a Superintendent at Brantford Jail from 1994 to 2001. In 2001, she won a competition for Superintendent of Sarnia Jail, her home position when the employer terminated her employment with the government. [5] Ms. Jones was working in a secondment at the Western Regional Office, and was supervised by the Director of Strategic and Operational Branch, Ms. Loretta Eley, when she went off sick on June 2, 2008. She attended Canadore College full time from September to the end of the term in December, while she received STSB. She applied to the college on May 6, 2008. The college accepted her application and offered her a spot in the newly created Crime Scene - 4 - Investigation program on May 30, 2008. The deadline for acceptance was July 15, 2008 and Ms. Jones confirmed her acceptance that day. She paid for her fall tuition on July 16, 2008. She paid for her winter term fees on November 14, 2008. [6] The employer learned on December 8, 2008 that the complainant had gone to college while receiving STSB and decided that the matter needed to be investigated. After the investigation, Ms. Eley considered the findings, the complainant’s record and her responses in the allegation meeting and decided to terminate her employment by letter dated June 25, 2009. Evidence on MOS Grievance The parties signed the MOS on February 20, 2007, which provided in part as follows: The parties agree and acknowledge that Ms. Jones will commence a six-month secondment out of the Western Regional Office as a Contracts Compliance Manager (AM20 classification). The position will report to Ms. Loretta Eley and Ms. Jones will report to work when advised by the employer, but no earlier than Monday February 26, 2007. At the conclusion of the aforementioned secondment, the parties will conduct a review of the secondment. Upon the consent and agreement of both parties, the employer will waive Ms. Jones into the Contracts Compliance Manager position on a permanent basis and the terms of the secondment will come to an end. However, failing the consent and agreement of both parties to make the secondment permanent, the employer will then either return Ms. Jones to her home position or determine a suitable alternative position for Ms. Jones. [7] At a meeting at the end of the first six months of the project, Ms. Jones testified that she told Ms. Eley that she did not want to stay in the Contract Compliance Manager position. She did not like the work and preferred to be in the operations (OPS) side of the Ministry. She wanted to return to her home position as Superintendent of Sarnia Jail. She described herself as teary during the meeting. She told Ms. Eley that she had had some trouble with Ms. Welch and - 5 - asked her if she could check to see if she was still “in the penalty box.” According to the complainant, Ms. Eley said she would try to find out. According to Ms. Eley she understood this comment to refer to being in the Contract Compliance Manager Position, which Ms. Jones was leaving. Ms. Jones continued to work in the position for a second six-month term in order to finish the project. Ms. Jones testified that she realized that the contract compliance was an important project and important to Ms. Eley. [8] The secondment was to finish in March. The complainant testified that as the secondment was nearing an end she became anxious and concerned about the future. She was having panic attacks and difficulty sleeping. She was taking her medication and seeing her psychiatrist. Her psychiatrist gave her a note to be away from work in February but she felt she could not use it. She testified that she thought it would be used against her. There was no evidence to support this belief other than the complainant’s view that she could not work with the Regional Director, Ms. Marg Welch. [9] Ms. Jones said she was also anxious about the report that was due at the end of the secondment. She had never written a report of this kind before. After a telephone conference call on March 20, 2008, Ms. Eley extended the secondment another two months so that Ms. Jones could finish the report. [10] Ms. Jones said that she had a good working relationship with Ms. Eley and felt supported by her. She said that she got along well with the co-worker assigned to the project. When she and her co-worker went into the field, the message that they heard from other employees was that it was a “nice to do project” but not likely ever to be implemented. She said she had heard rumours that the project would never come to fruition. - 6 - [11] In April of 2008, her co-worker was promoted. Ms. Jones no longer had assistance with the project. She testified that she felt that her employment was unstable. [12] The complainant met with Ms. Welch, and David Hatt, Deputy Regional Director on May 30, 2008. Ms. Welch offered Ms. Jones the Contract Compliance Manager position. When Ms. Jones declined this position, Ms. Welch offered Ms. Jones a newly approved position called Project Manager, Pilot Project (Project Manager). According to Ms. Jones’ evidence, the job description was not given to her at this meeting. Ms. Welch reviewed the document with her. She had no questions about the position. She did not ask whether there were other opportunities; she said she did not speak much because her emotions were very strong. There was no mention of returning to her home position as Superintendent of Sarnia Jail. [13] Ms. Jones described herself as being cautiously optimistic going into this meeting. However, she felt overwhelmed after Ms. Welch offered her the position. She said she could not even consider it. She knew that other regions had a Deputy Regional Director doing this work and it was her view that the work could not be successfully achieved without this higher rank in order to get compliance. It was also a temporary position and she had been hoping for something more permanent. She also stated that she had previously done the job of Acting Deputy Regional Director. [14] She went back to her office after this meeting and then shortly after went home. She called in sick on June 2, 2008. [15] Ms. Welch, who at the time of the hearing had twenty-seven years of experience with the ministry, also testified about the meeting on May 30, 2008. She stated that the purpose of the - 7 - meeting was to discuss “next steps” for Ms. Jones. Ms. Welch said the first point of business in the meeting was to confirm that the complainant did not want the Contract Compliance Manager position. The complainant had a right to the position under the MOS if she wanted it. Ms. Welch explained that the Contract Compliance Manager was an AM20 classification and therefore paid at a higher wage than the complainant’s home position, which was an AM19. Ms. Jones confirmed that she did not want the position. [16] Ms. Welch testified that the ministry had approved and funded the Project Manager Pilot Project position, at that time, until March 31, 2009. Ms. Welch had been seeking funding for a second Deputy Regional Director for some years, given the workload in the region. The ministry approved the Project Manager instead. Later she did get funding for a second Deputy Regional Director position. [17] Ms. Welch went on to describe the work of the Project Manager to Ms. Jones. She testified that given the workload in the area was heavy a new position was needed. The duties came out of a discussion with Deputy Regional Director Hatt and her knowledge of new ministry initiatives that would soon need to be implemented. She explained that the Western Region has four institutions built before 1867 and only three modern institutions built in the 1970s. A review of the regions facilities needed to be done. She testified that it was important work and she needed someone to be on site to look at the old buildings assess whether or not they were safe and how long they could be run. She also wanted a capacity study done. She testified that she needed someone with OPS experience to work with the Ontario Realty Corporation to do proper assessments of what would need to be done to meet their mandate. - 8 - [18] The purpose of the position listed in a document that Ms. Welch used to present the job to Ms. Jones provides the purpose of the position as follows: To coordinate region –wide strategic policy, planning and program initiatives To oversee and coordinate complex projects, policy and program development To oversee and coordinate Performance Management, Business Continuity Planning To oversee and coordinate a review/ audit of the Western Region Special Needs Units identifying gaps in mental health programming for special needs offenders To assist the Regional Director and the Deputy Regional Director in Contingency Planning To oversee special regional projects, including but not limited to decommissioning and planning studies in the Western Region at the following locations :Walkerton, Owen Sound, Stratford and Brantford to determine options on how to replace, rehabilitate for consolidate program requirements for these facilities; workplace first restoration activities, including stage two grievance hearings, WDHP Regional Fact Finding Reviews, Security Audit Coordination and review ; assisting with all regional strategic initiatives and providing support services on policy and procedures, providing advice on policy and the impacts for program and legislation for the core business area to the Regional Director and Deputy Regional Director AIS. Project Lead Western Region AIS on Intensive Supervision. [19] Ms. Welch considered that Ms. Jones was an excellent match for this job because she had broad work experience in the ministry. For example, Ms. Jones had run a cost center, worked on contingency planning, and been an inspector. She had also played a role in a committee entitled ‘Women in Corrections.’ Ms. Jones had the skills and experience for the job and it was classified as an AM19, the classification of her home position. She would report to Ms. Welch and she would work with the Deputy Regional Superintendent. [20] Ms. Welch testified that at the time of this meeting she had no idea that Ms. Jones would have a problem working with her. It was not until the hearing into this matter that she became aware that Ms. Jones did not want to work under her supervision. - 9 - [21] Ms. Welch described the tenor of the meeting on May 30 as congenial. Ms. Jones did not raise any concerns or have any questions about the job. The complainant did indicate to her that she needed to think about it and that she had two more weeks of work for Ms. Eley. Ms. Jones was to meet with Ms. Eley on the following Tuesday. She did not ask about being assigned to the Superintendent position at the Sarnia Jail. [22] Ms. Welch also said that because the Project Manager position was a temporary assignment Ms. Jones would retain her home position, Superintendent at the Sarnia Jail. This is standard procedure. If someone is in a temporary assignment, he or she always remains officially in his or her home position. [23] As part of the offer of this position to Ms. Jones, Ms. Welch included a fleet vehicle and flexible hours. She advised Ms. Jones that she could work from home or another government office closer to her home. Ms. Jones lunch expenses would be covered when she worked at the Regional office. On a temporary assignment, employees are entitled to mileage and meals in certain circumstances, Ms. Welch explained. [24] Ms. Welch said that she never heard back from the complainant as to whether she would accept the position. [25] On cross-examination, when questioned about whether Ms. Eley spoke to her about the complainant’s concerns for the future, she said Ms. Eley had indicated that the complainant was anxious about her future. That was all that she could recall. - 10 - [26] Ms. Welch had testified in examination-in-chief that there were reasons she decided not to put the complainant back into the Sarnia Superintendent position. There had been a lot of turnover in the position in the years before this meeting that had put a strain on the institution. The Superintendent that was in place at the time was dealing with many matters in a very positive way and she did not want to disrupt the process. The Superintendent of Sarnia Jail reports to her regularly on issues regarding inmates and staff at the jail. [27] Mr. Hatt was called to testify by the complainant. He testified that the meeting on May 30, 2008 lasted around twenty minutes. Ms. Welch confirmed that Ms. Jones did not want to take the Contract Compliance Manager position permanently. Ms. Welch went on to offer the Project Manager position to Ms. Jones. Ms. Welch described the position and said that it was a good opportunity for Ms. Jones. He testified further that Ms. Jones asked to have the weekend to think about it. He said that Ms. Welch encouraged her to consider it. [28] Mr. Hatt also testified that Ms. Welch offered the complainant a vehicle and flexible hours. Ms. Jones was told that if the weather was bad she could work remotely since she lives in Sarnia and Regional Office is in London. He noted Ms. Jones did not ask for any of this. The employer offered it to her. [29] Mr. Hatt testified that the tone of the meeting was cordial. He said that Ms. Jones appeared comfortable. She did not look angry, frustrated or upset. He testified that he observed no visible tension or working problems between the two women. [30] Mr. Hatt also testified that Ms. Jones had indicated to him on several occasions that she did not like working at the Regional Office and preferred OPS. He was aware that Ms. Jones - 11 - wanted to go back be Superintendent of the Sarnia Jail. He also said that some people have difficulty moving from the position of Superintendent to the Regional Office. The Regional Office oversees all the institutions of the region and reports to Corporate Office. [31] The Project Manager position was never filled. In October of 2008, approval came through for a second deputy Regional Director who has taken some of the duties of the Project Manager position. The Evidence on the Decision to Terminate Ms. Jones [32] Ms. Jones provided a doctor’s note on June 3, 2008, which stated ‘Marian needs to be off work for a month for medical reasons”. Her psychiatrist provided the note. A second note was given to the employer on July 7, 2008 with the exact wording. Three weeks later, on July 28, 2008, the doctor issued another note with the identical wording. Ms. Jones went on a holiday to England and France in August 2008. [33] The employer sent the complainant a ‘Request for Employee Health Information’ on August 21, 2008 to take to her doctor. The information provided in this form is useful to the employer to assess whether the employee could return to work with accommodation. The employer got the form back on September 11, 2008, signed by the doctor on August 29, 2008. It said, “Marian continues to be unable to work because I believe her current assignment would acutely aggravate her medical condition.” [34] The employer wrote to Ms. Jones again on October 31, 2008 asking her for further medical information. The letter from Ms. Eley stated as follows. - 12 - It is the Ministry’s policy to support employees whose injury, illness or disability is impacting on their ability to perform the duties of their job and to meet job related requirements. Thank you for your note of August 29, 2008, which stated you were unable to work because your current assignment would acutely aggravate your medical condition, however more information is required from your physician. Sufficient medical information is required in order to support and continue your short-term sickness benefits and information regarding your restrictions and prognosis is required to assist us in determining any workplace accommodation needs that you may have. Please take the enclosed letter to your physician and have it completed in full detail. This information is required by November 14, 2008 to avoid any disruptions to your benefits, including short-term sickness. Any charges for providing this information should be invoiced to my attention. If you have any questions about this request for information, please contact me. Thank you. [35] Ms. Eley signed this letter. Ms. Jones did not contact the employer regarding this letter or the request for health information. The form itself was not returned to the employer until December 22, 2008. [36] Ms. Jones’ STSB was going to run out around December 12, 2008. Thus, on October 8, 2008 a human resources advisor sent Ms. Jones information on her right to seek Long Term Income Protection (LTIP) and an application package. [37] Ms. Eley telephoned Ms. Jones on December 7, 2008 to follow up on the LTIP application. Ms. Jones returned the call on December 8. When asked about the LTIP application, Ms. Jones said that she was doing much better and she had no intention to seek LTIP. She told Ms. Eley that she had gone to Canadore College and done very well in the first term. She said that she intended to apply for an education leave to finish the program. - 13 - [38] Ms. Eley testified that she was surprised to learn that the complainant was attending school when she was collecting STSB. Ms. Jones’ evidence was that Ms. Eley sounded very surprised by the news that she had gone to college in the fall. Both women described the conversation as pleasant in tone. Ms. Eley advised the complainant on December 8 that it was very rare for the employer to grant an education leave with pay. [39] Ms. Eley said that she knew that she would not be able to get approval for a leave with pay quickly. Since Ms. Jones’ STSB was about to end, and in order to maintain the complainant’s status as an employee she arranged to have Ms. Jones put on a leave without pay in the interim. [40] Ms. Eley said that she had heard a rumour that the complainant was attending college but she did not believe it. She said she thought it was part of the “correction’s rumour mill—a story a minute.” When she got off the phone with the complainant, she says she was shocked. Her first thoughts were that if she was well enough to go to school then she should have been at work. She could not believe that the complainant would put her career in jeopardy. Ms. Eley said that there had been no discussion with her about going to school prior to her going or at any time during the term. Moreover, the complainant had never advised her that it was part of her doctor’s treatment plan. She said that the complainant knew how to seek a leave for educational purposes, and that she had done it in the past. She got a three-week leave education leave previously, but did not take it in the end. [41] The next day Ms. Eley spoke to her supervisor about the situation and consulted Human Resources. Legal Branch was also consulted because Ms. Jones was in the Contract Compliance Manager position because of the MOS signed in 2007. Ms. Eley decided that the matter should - 14 - be investigated. She stated that she hoped there would be some explanation for the complainant’s behaviour. [42] Ms. Eley informed Ms. Jones by email on January 4, 2009 that she had denied her leave with pay. She also advised her that an Inspector from the ministry would be contacting her to look into the issue of her going to college while receiving STSB. Ms. Jones was not happy about not getting the leave with pay. She was of the view that the ministry should have paid for the leave. [43] On cross-examination, Ms. Eley said that she did not contact Ms. Jones at home because she did not want to aggravate her illness. The August 29, 2008 medical note received in September indicated that notes were from a psychiatrist and the information from the first formal request for more information received in September 2008 stated the doctor’s view that returning to work would acutely aggravate her condition. This is not the usual practice but Ms. Eley said that she thought about it carefully and in her judgement, it seemed the best course to take. [44] Ms. Eley did not try to get the report that Ms. Jones was working on because she concluded there was no report to get. Because of not getting the report, she lost the funding position of Contract Compliance Manager and other positions that had been approved. The work had been done in response to criticism from the Provincial Auditor that the ministry needed better mechanisms to insure contact compliance. The Investigation Evidence [45] Inspector Bruce Graham testified that he was appointed to investigate the circumstances of Ms. Jones going to school while in the receipt of STSB, pursuant to section 22 of the Ministry - 15 - of Correctional Services Act, R.S.O. 1990 c.M 22. At the time of the investigation, he had been a ministry inspector since October 2002. He said that before the investigation he had no knowledge of the complainant. Section 22 of the Act requires that an employee cooperate with the investigation and provide everything asked for by the investigator. Ms. Jones was advised of the consequences of not cooperating in writing and again orally by him. Mr. Graham read the warning laid out in the Act and required the complainant to acknowledge in writing that she understood the investigation protocol and the consequences of failing to cooperate fully. Ms. Jones signed the acknowledgement. The investigator found in part as follows: The Ministry inspector determined that CCM Jones was argumentative, contradictory and at times emotional during her employer’s investigation interview. CCM Jones cited a history of employment problems and was unabashed in spite of her seeming blatant conduct. Subsequent to CCM Jones’ interview additional Canadore College student records were requested in order to determine her rationale for failing to notify employer that she was attending college full time while collecting sick benefits. CCM Jones confirmed her full time attendance and successful completion of her first semester within the Crime Scene Investigations (CSI) program offered by Canadore College in North Bay from September to December 8, 2008, and she was collecting sick benefits during that time. CCM Jones stated that she established a North Bay temporary residence in August 2008 and enrollment into the College Program on a full-time basis later that same month. CCM Jones confirmed that she did not advise her supervisor or employer of her intent to pursue enrollment and fulltime attendance in the CSI program that Canadore College. She confirmed that she first disclosed her full time student status to the employer in December 2008, when she received a telephone call from Director Eley who advised her that her short-term sick benefits were almost exhausted. CCM Jones confirmed that during this conversation, Director Eley suggested that CCM Jones apply for a leave of absence without pay. However, CCM Jones did point out to the Ministry Inspector that on October 31st, 2008 her psychiatrist Dr. Davies provided written notice to the Ministry that “Currently Ms. Jones is pursuing an educational leave and after the course - 16 - is completed in 2009, I believe she will be ready to return to work.” CCM Jones commented, “Unless they would like to return me to my job tomorrow and I will gladly do that.” CCM Jones confirmed that prior to the expiry of her short-term sick benefits, she had received documents to apply for Long Term Insurance Plan (LTIP) benefits but decided not to apply because “I didn't feel I was, I was ill in discussions with my psychiatrist going back to see her I felt you know, I was doing very well at school, my health improved greatly.” CCM Jones stated “I spoke to Loretta in December. In December I met back with my psychiatrist we reviewed all of, all of these things. Um, my marks for, for the semester were a barometer of my success as far as that goes. She assessed me for my health, which is why I disclosed to the Ministry that I am not – you know I'm not disabled. I'm not ah, I, I'm better.” Instead, CCM Jones disclosed her full time student status to Director Eley in December 2008, and subsequently applied for a leave of absence with pay to finish school. When asked by the Ministry Inspector whether she had any obligation to notify the employer of her intent to attend school on full time basis, CCM Jones stated “No. I don't believe I did.” CCM Jones held the view that she was entitled to sick benefits while attending school because it was part of her medical treatment plan designed to make her well. She equated these circumstances to an employee whose treatment plan included physiotherapy or rehabilitation. CCM Jones clarified when asked that she had not made a WSIB claim. In response to the Ministry Inspectors pursuit of CCM Jones’ understanding of what constitutes abuse of sick benefits considering her extensive experience as a correctional manager and Superintendent dealing with similar cases of employee abuse of sick leave, CCM Jones responded, “there’s a lot more grey area dealing with mental health issues.” CCM Jones confirmed that she is currently enrolled in the second semester of the CSI Program at Canadore College that is expected to conclude in May 2009. CCM Jones is of the view that the Ministry should pay for her educational pursuit in terms of a retraining obligation, “because what I would really like is to go back to my job as Superintendent Sarnia Jail,” and it is her further view that the Ministry is responsible for blocking the return to her home position. The Ministry Inspector then read from the November 1, 2008 North Bay Nugget news article regarding the Canadore College CSI course: “Marion Jones [sic] enrolled in the program hoping to start a new career after more than 20 years in corrections and she took a leave-of-absence from her job as a jail superintendent in Southern Ontario to complete a course.” Um and then it quotes yourself a saying, “I can't sit behind a desk pushing paper when there's fascinating stuff like this to do she said.” - 17 - CCM Jones was that asked, “Is that a true and accurate description of what was said?” CCM Jones responded, “That quote attributed to me yes I said that… I said I was on leave, that’s what I said.” The Ministry Inspector asked CCM Jones, “I don't know how we’ve arrived at where we are now in February 2009 with, with me sitting here and trying to, to understand how the Ministry finds out in December of 2008 when you're sick time is expiring as to, to the fact that you have now found something that, that's going to assist not only in – curing might be the wrong term but you found something that you really want to do and that, that you feel somehow the Ministry should pay for that?” CCM Jones responded, “That's right I do.” Subsequent to the MCS Act section 22 interview, additional Canadore College student records were requested in order to determine CCM Jones’ motivation and rationale for failing to notify the employer that she was attending college full time while collecting sick benefits. As requested, CCM Jones queried her Ontario College admissions process online portal and provided the requested Canadore College student information for the following basic categories: student application, offer of admission, student registration and Canadore College Course payment (not original documents or forms). A review of the student documents reveals that CCM Jones made her application for Canadore College through the ontariocolleges.ca process on May 6, 2008 when the $85.00 application fee was paid. It can be reasonably stated that the motivation results in purposeful behavior. The Ministry investigation determined it is reasonable to conclude that CCM Jones made a unilateral decision regardless of the then the existing PSGB MOS or input from the employer as she was motivated to become a fulltime student and that she had to purposefully booked off on paid sick leave for an extended period of time to accomplish it. The Ministry investigation determined that coincidentally or otherwise, on May 30, 2008 the day that the PSGB MOS was set to expire and that CCM Jones met with RD Welch, Canadore College made CCM Jones an Offer of Admission via the ontariocolleges.ca process. On June 15, 2008 student Jones verified and confirmed acceptance of the offered Canadore College Crime Scene Identification Course starting in September 2008. Student Jones paid the Canadore College Fall course fees of $1,980.16 on July 18, 2008 via online banking. Student Jones was required to make payment of the winter course fees of $1,894.04 by the due date of November 14, 2008 which were paid on November 3, 2008. The Ministry Investigation determined that when CCM Jones was contacted by Director Eley in December 2008 regarding her expiring sick leave CCM Jones had already enrolled and paid for the Canadore College Winter CSI course scheduled to commence on January 5, 2009 and conclude on April 24, 2009 - 18 - The Ministry investigation determined that the Canadore College student documentary evidence received after her demonstrated that CCM Jones was deceptive and deceitful with the Ministry Inspector. An example of the deceit is when CCM Jones was asked when she applied for her course in North Bay and she replied, “But I didn’t make my decision until I found a place to live which was the end of August. That’s when – because I inquired um, applied …” [46] Inspector Graham testified that after the interview with Ms. Jones on February 2, 2009, he had concluded from her answers that she had applied to the college in August 2008 after she had found a place to live in North Bay. He asked Ms. Jones directly when she had applied to the college, suggesting it could have been spring or late spring. Ms. Jones answered as follows: I think—I may have, I may have already—I know I had made enquiries before that um, with regards to going to school. But I did not make my decision until I found a place to live which was at the end of August. That’s when- I enquired um, applied but I mean that, I mean I, I applied for the year prior um, a course in photography in Massachusetts so I mean I, I like to learn ah….(Transcript p. 18) Mr. Graham requested that Ms. Jones provide college documents as to when she applied, accepted an offer of a position and paid fees. After receiving these documents, he concluded that she had applied on May 6, 2008, had confirmed her acceptance on July 15, 2008 and paid her fall tuition on July 16, 2008. This is what led him to conclude that Ms. Jones had not been truthful in her answers to him during the interview on February 2, 2009. With regard to the statements that the employer knew in October that she was going to school because of the doctor’s response, he said if not untruthful, it was at least misleading. Evidence on the Decision to Terminate for Just Cause [47] Ms. Eley testified that since Ms. Jones went on sick leave while she was still reporting to her, she was the manager charged with the responsibility to decide whether the complainant’s conduct warranted discipline and whether discharge was appropriate. Ms. Eley reviewed the - 19 - Investigation Report and decided that although the complainant said that she did not decide to go to school until August, the evidence was clear that she applied before she booked off sick. Ms. Jones accepted the position at the college and paid for her tuition the next day on July 16, 2008. She did not have to pay her tuition until sometime in August. Then she looked for housing in North Bay in August. Ms. Eley said that Ms. Jones discussed none of this with the employer. [48] Ms. Eley considered that Ms. Jones had been a cost centre manager and that she was well aware of the proper process to seek an education leave. She also considered the fiscal impact of Ms. Jones’ decision, that is, the paid leave to go to school. She considered whether this behaviour was consistent with being a manager in the Ontario Public Service. She also considered whether the complainant’s behaviour was correctable and a “one-off.” Taking all of these factors into consideration, she concluded that she could not trust the complainant. Ms. Eley testified that Ms. Jones could have sought a leave to go to college. She could have supported her application with her doctor’s recommendation, but there was no guarantee that she would get it, so in Ms. Eley’s view Ms. Jones took matters into her own hands and went to school while collecting sick benefits. [49] On May 8, 2009, Ms. Eley sent a letter to Ms. Jones notifying her that the employer wished to meet with her to discuss the investigation and the allegations that, inter alia, the complainant had fraudulently used STSB. The allegation meeting gives the person accused of wrongdoing an opportunity to point out errors in the investigation report and to present his or her view of the facts. The meeting occurred on June 11, 2009 in Windsor. [50] The complainant’s responses to each allegation are summarized in the letter of termination dated June 25, 2009. In sum, in her response to the allegation that she had - 20 - fraudulently used STSB, the complainant said that she was sick when she went on leave and she was not sure if she would be able to handle going to school. She also stated that she had to do what was necessary for her health. In response to the allegation that Ms. Jones provided false statements to the investigator as to when she applied to college, the complainant maintained that she had been truthful and forthcoming with documents and information. In response to the allegation that Ms. Jones had violated the Statement of Ethical Principles the complainant stated that she had not provided false statements nor had she collected STSB under false pretences. She stated further that she was just trying to deal with her illness and was entitled to take action to help her recovery. In response to the allegation that Ms. Jones had breached the employer’ trust and irrevocably damaged her employment relationship with the ministry, she said that she could not work with Ms. Welch in the new position offered to her on May 30, 2008. Ms. Eley considered this an odd position because the complainant wanted to return to her home position as Superintendent of Sarnia Jail and she would have reported directly to Ms. Welch. Ms. Eley could not understand why Ms. Jones made the decision to “opt out” in consultation with her doctor but not talk to the employer. [51] Ms. Eley testified that the complainant showed no remorse for her misconduct. She did not recognize any wrongdoing. She had been hoping that there would be some recognition of wrongdoing. Ms. Eley testified that she reviewed Ms. Jones employment record, which was positive, but given the nature of the breach, she decided termination of her employment was justified. Ms. Jones had failed to see that an employee cannot act unilaterally and must be honest and upfront with the employer. Ms. Jones did not need to share details of her medical condition but she should have advised the employer that she was going to Canadore College. Counsel for Ms. Jones said that a doctor’s opinion was almost finished and asked Ms. Eley to delay making - 21 - her decision on the discipline. Ms. Eley indicated that more medical information was not necessary. Ms. Eley testified that she was not prepared to wait for information that Ms. Jones could have provided during the investigation, months before the allegation meeting. Ms. Jones’ Evidence on Her Decision to go to College [52] Ms. Jones testified that after she went on sick leave no one from the ministry contacted her. She said no one seemed to be interested in the work that she had done. She said that she was too unwell to respond to the ministry about the Project Manager position. She also said that she felt isolated, alone and was not functioning well. At times, she was suicidal. Her spouse also testified that Ms. Jones was moody, hard to live with and withdrawn. She also said that she was worried about her doing something to hurt herself. [53] Ms. Jones does not dispute the facts as they relate to her application to college and her acceptance and payment of fees. She testified she consulted with her doctor about her plan to go to Canadore College and her doctor was supportive of the plan. She said that her doctor encouraged her to take the full time program in North Bay: she was confident that it would help Ms. Jones’ self-esteem. Ms. Jones said several times in her evidence that “rightly or wrongly” her first concern was her own health. She did not apply for an education leave because she considered going to college as a therapy. Ms. Jones was of the view that she did not have to inform the employer that she was going to college. She did not give it much thought. She was thinking about herself. Attending college was a way to get better, to keep her mind active. She also stated that it was not until she went to North Bay at the end of August that she decided to go forward with the program. Ms. Jones spouse also said that the decision to go to college was not made until the end of August. Ms. Jones was worried about doing well after such a long time - 22 - away from school but she did very well in the program. During a telephone consult with the doctor in October she said that she felt good, like her old self. However, she was not ready to go back to work because the semester was not over until December. [54] Ms. Jones testified about the June 11, 2009 allegation meeting. She said that she told Ms. Eley that she was very ill and under a doctor’s care. Her actions were self-centered but they were taken to get well. During this meeting, her counsel, at the time, advised Ms. Eley that additional medical information might help with the decision on discipline. [55] Ms. Jones testified that her “record of employment” records her termination date as June 8, 2009. Records from the Ontario Pension Board indicate that her membership in the plan ended June 11, 2009. Ms. Jones testified that she thinks the decision to terminate her employment was made before the allegation meeting. [56] On cross-examination, Ms. Jones agreed that the determining factor in turning down the Project Manager position offered to her on May 30 was that it was not what she wanted. What she wanted was to return to her home position as Superintendent of Sarnia Jail. She believed that Ms. Welch was preventing her return. She also acknowledged that she took an eight-day trip to London, England and Paris, France in mid-August. Initially she denied that she felt good when she returned from the trip. However, when counsel put the doctor’s note of a visit at the time to her indicating that her mood was good, she then agreed with that assessment. [57] Ms. Jones described the program at Canadore College. She attended class from 8 am to 4 pm with some breaks. There were lectures and laboratory work. She acknowledged that there was a lot of work outside the classes and labs. There was extensive reading and writing. There - 23 - were deadlines for papers and exams. She said concentration and a good memory were essential to do well. [58] Ms. Jones testified in examination-in-chief that at the allegation meeting she had told Ms. Eley “she had made a mistake.” However, on cross-examination she acknowledged that she did not say this to her in the allegation meeting. Ms. Jones admitted that the first time she had ever said that she made a mistake was in her evidence in examination-in-chief. She said, “I regretted what had occurred.” The Medical Evidence [59] Ms. Jones psychiatrist provided evidence about the complainant’s health. The complainant first raised the idea of going to Canadore College on June 3, 2008. Ms. Jones informed the doctor on June 16, 2008 that she had accepted the position in the program. Her report states as follows: Ms. Jones wanted to accept the place offered by Canadore College. She felt it would benefit her and saw it as making a positive move forward with her life. I shared her view and I believed that if she did well in the course it might bring about an improvement in her recurrent major depressive disorder and in her self esteem. I hoped that success in the course would prove to Ms. Jones that she could learn new skills which she could use in the future. I thought Ms. Jones’ attendance at school was reasonable even though she was on sick leave, as I still did not believe that she could return to work at that time. I was hopeful that attending Canadore College and successfully completing the Crime Scene Investigation course could improve Ms. Jones’ major depressive disorder and that she could ultimately return to work. I also thought that taking the Crime Scene Investigation course would give Ms. Jones new skills which might make her employable in a different area of the Ministry or related Ministry. - 24 - In her evidence in examination-in-chief the doctor said that she did not recommend that the complainant go to college but she did support it. She was of the view that Ms. Jones could not return to work under Ms. Welch without risking a significant decline in her health. [60] On cross-examination, the doctor acknowledged that she did not know that the ministry had two distinct working ‘silos.’ That Ms. Welch worked on the Adult Institutional side and Ms. Eley worked on the community side. She said that she was unaware that if Ms. Jones had stayed in the Contract Compliance position she would not have had to work under Ms. Welch. She did not know that this position was funded. Nor was she aware of the perquisites offered to Ms. Jones for the Project Manager position: a car, paid mileage and lunches and an office in Sarnia. The doctor testified that Ms. Jones told her it was a ‘gopher’ job and not functional. The doctor also acknowledged that she did not know that if Ms. Jones returned to her home position as Superintendent of the Sarnia Jail she would be reporting to Ms. Welch directly. [61] The doctor also testified about speaking with Ms. Jones about an application for LTIP in December 2008. She could not support an application for LTIP, based on her assessment of Ms. Jones in October of 2008: she was much improved in health. She stated that she could not fill out a form that indicated that Ms. Jones could not work, because she knew that she was doing better in October. When asked to explain why she stated on the employer’s request for additional health information, returned on December 22, 2008, that Ms. Jones could not return to work under Ms. Welch, she answered that she believed if Ms. Jones had to work under her she would have a recurrence. The doctor said that she thought that Ms. Jones’ only choice was to work under Ms. Welch. The doctor also spoke to Ms. Jones’ lawyer before returning the health form. She noted on the complainant’s chart that she had taken the lawyer’s advice in responding on the form. - 25 - [62] I will refer to more of the medical evidence in my reasons for the decision. Submission of the Complainant on the Breach of the MOS [63] Counsel for the complainant argued that the employer had breached the MOS and therefore I should order that Ms. Jones should be assigned to work as Superintendent of the Sarnia Jail. Counsel noted that Ms. Welch spoke highly of Ms. Jones skills in her evidence and that she had no problem with working with her. [64] Counsel argued that the employer has a duty to treat employees in good faith. Relying on Wallace, infra, he submitted that employers must be honest, candid and forthright in dealing with employees. Bad faith conduct includes being untruthful, misleading or unduly insensitive. Counsel argued that the employer was unfair and insensitive to the complainant for the following reasons. 1) for offering Ms. Jones a position that reported to Ms. Welch; 2) for not discussing the Superintendent position at Sarnia Jail with Ms. Jones at any time between the MOS and May 30 2008; and 3) because there is evidence to show that the Contract Compliance position was not going to be permanent and the employer may have declared it surplus in the future. [65] Counsel argued that Ms. Eley was aware that Ms. Jones did not want to work for Ms. Welch. Ms. Jones had been candid with Ms. Eley and asked her to find out whether she was still in the “penalty box”. The complainant describes being distraught about her future and unwell as the secondment is ending. She was afraid to reveal her condition to the employer so did not use a sick note given to her by her doctor in February 2008 because she thought it would end her career. The complainant did not believe that the Contract Compliance position would be permanent. She was afraid that the employer would declare the position surplus. Counsel argued - 26 - that since Ms. Eley did not try to get the report that Ms. Jones was writing that is proof that it was not important and not a real position. [66] Counsel argued that it was bad faith not to discuss Ms. Jones’ home position. It was not surprising that Ms. Jones did not raise the issue of returning to Sarnia Jail with Ms. Welch because she was in the “penalty box”. Ms. Welch described the meeting on May 30, 2008 as cordial. Mr. Hatt testified that Ms. Welch asked Ms. Jones to think about the Project Manager position. There was no evidence that the complainant said she would respond to Ms. Welch the next week. All of this shows bad faith in counsel’s submission. Thus, it was reasonable for Ms. Jones to decline this position. Submission of the Employer on the Breach of MOS [67] Counsel for the employer submitted that paragraph 7 of the MOS is at issue in this complaint. It provides that if Ms. Jones does not want to stay in the secondment the employer will return her either to her home position or to a suitable alternate position. She emphasized that the position was to be “determined” by the employer. Thus, counsel argued the only question for me is whether the Project Manager was a suitable alternate position. [68] Under the MOS there is no obligation to discuss a return to her home position, in counsel’s submission. Counsel argued that given the language of the MOS the employer could have assigned her directly into the Project Manager position. The May 30, 2008 meeting went beyond the requirements of the MOS, giving the complainant a chance to consider the job and shows that the employer was being sensitive and fair to Ms. Jones. - 27 - [69] Counsel also argued that trying to attack the secondment to the Contract Compliance position to argue a breach of the MOS is not supportable. First, Ms. Jones agreed to take the position as a secondment. She did not have to take it as a permanent position, although the employer offered it to her. Second, Ms. Eley testified that she had funding for this as a permanent position. Counsel emphasized that Ms. Jones does not rely on Ms. Eley. Instead she listens to rumours that contract compliance will not be implemented. [70] Counsel argued that the real issue here is whether the Project Manager position was a suitable alternative for the complainant. The only argument made by the complainant that it was not suitable was that she would have to report to Ms. Welch. Counsel for the complainant conceded that Ms. Welch had a rationale for the decisions she made in proposing the Project Manager position. Thus, the only bad faith argued was the failure to communicate about the complainant’s home position. However, counsel for the employer notes that there is no obligation in the MOS to do so. [71] Counsel also argued that the complainant’s request that I review the ‘pleadings’ of the original complaint to understand the context of the MOS fails to recognize that the settlement is final, the conflict resolved without findings of wrongdoing of either party. The MOS also makes it clear that Ms. Jones gave up any right that she had to the Superintendent position. Counsel submitted that the complainant’s position that she could not report to Ms. Welch is inconsistent with her wanting to go back to the Superintendent’s position, since that position also reports directly to Ms. Welch as the Regional Director. Ms. Eley’s evidence was that she knew the complainant wanted to return to her home position and since it reports to Ms.Welch, she had no idea that Ms. Jones had an issue with reporting to Ms. Welch. Ms. Welch likewise was - 28 - surprised to learn this. No one in senior management knew until the doctor reported that in December 2008. [72] Finally, counsel argued that I should dismiss the complaint, but if I disagreed, the remedy sought was not appropriate. Reply Argument for the Complainant on the Breach of the MOS [73] Counsel for Ms. Jones replied that he was not asking me to use the pleadings to interpret the MOS, but merely as context to explain why the complainant thought that she was in the “penalty box.” The message to her on May 30, 2008 was that she was still in it. Ms. Welch may not have intended bad faith, but the job offer to Ms. Jones was not made in good faith. It would be very different today now that Ms. Jones knows that she is not in the “penalty box.” He argued further that the Project Manager position was not suitable. He agreed that there was no bad faith in offering the Contract Compliance position but he argued the circumstances around the job made her feel unwanted. Reasons for the Decision on Breach of MOS Complaint [74] The language of the MOS is clear. It provides as follows: At the conclusion of the aforementioned secondment, the parties will conduct a review of the secondment. Upon the consent and agreement of both parties, the employer will waive Ms. Jones into the Contracts Compliance Manager position on a permanent basis and the terms of the secondment will come to an end. However, failing the consent and agreement of both parties to make the secondment permanent, the employer will then either return Ms. Jones to her home position or determine a suitable alternative position for Ms. Jones. [75] The complainant had the right to say no to the Contract Compliance Manager position. She let Ms. Eley know after six months that she did not want to continue in the position. The - 29 - evidence is clear that this was fine by the employer. The language of the MOS then requires the employer either to return Ms. Jones to her home position or to a suitable alternative. The employer was under no obligation to return Ms. Jones to Sarnia Jail. There was also no obligation to discuss the position with Ms. Jones. Ms. Jones could have raised it herself. The evidence that the tone of the meeting was cordial and that Ms. Jones looked calm and relaxed is more probable than her evidence that she was too upset to speak. However, it does not matter because I am not persuaded that Ms. Welch did something wrong by not discussing Ms. Jones’ home position. There is no evidence of bad faith. [76] The complainant’s counsel conceded that Ms. Welch had a rationale for her decisions in proposing the Project Manager position and not her home position to Ms. Jones on May 30, 2008. The allegation that it was not a suitable position rested squarely on the position that Ms. Welch should have known that Ms. Jones could not report to her. This is completely inconsistent with the complainant’s position that all she wanted was to return to Sarnia Jail, given that the position reports directly to Ms. Welch. The complainant’s evidence was clear that she did not like to work in the Regional Office. She liked OPS. I am persuaded that she just did not like the Project Manager position because she would have to continue in a policy/planning role in the Regional Office. [77] Counsel for the complainant argued in reply that if offering the Project Manager’s position to Ms. Jones was not bad faith, it was not done in good faith. There is no evidence to support this argument. However, there is ample evidence that the employer offered this job in good faith. There was care and consideration in identifying work that needed to be done. The work matched well to Ms. Jones’ skills and experience. The evidence on the actual job was - 30 - summarized in some detail above so I will not repeat it here. That Ms. Jones thought it ill- conceived and not workable shows little respect for upper management. This is partly why the employer argued that the employment relationship was irretrievably broken. I will address that issue when I come to the reasons on the dismissal complaint. [78] Further, at no time did the employer issue an ultimatum that Ms. Jones had to take the position. She was just asked to consider it. When she contacted her lawyer after the May 30 meeting, counsel advised that Ms. Jones could make a “counter offer.” The onus is on the complainant to prove a breach of the MOS. There is no evidence to support a breach of the MOS. Thus having carefully considered the evidence and the submissions of the parties I decided that the complaint must be dismissed. The Employer’s Submission on the Termination of Ms. Jones Employment [79] Counsel for the employer argued that the employer had just cause to terminate the complainant’s employment. She submitted that by the spring of 2008 the complainant was concerned about not being returned to her home position at Sarnia Jail. The evidence shows that before the May 30 meeting to discuss Ms. Jones’ future, she had applied to Canadore College. After the meeting, Ms. Jones booked off sick and went forward with her plan to go to college. The decisions taken after she applied on May 8 show that she systematically acted to effect the plan. She accepted the position at the college and paid her tuition well before the deadline for paying it. While Ms. Jones was attending college, she acknowledged that she used the same skills as she would have used at work. She did extensive reading and writing. She also analyzed data. She had to meet deadlines and use teamwork skills. Concentration and hard work were necessary for success. The record shows that she excelled in the program. - 31 - [80] Counsel argued that there is no evidence that Ms. Jones was sick from June to December and therefore was not entitled to collect sick benefits. She urged me to find that collecting STSB while attending school is inappropriate, dishonest and or fraudulent. In counsel`s submission such behaviour strikes at the core of the employment relationship. [81] Counsel argued further that during the investigation into the complainant`s use of STSB while going to school Ms. Jones responses to the investigator were at times misleading and evasive. Ms. Jones was not clear about when she applied to Canadore College. It was not until the investigator asked for college transcripts that he understood when she applied, accepted a place and paid her tuition. It was not in August as her answer during the interview in February suggested. [82] In counsel’s submission, Ms. Jones was also misleading about when the employer knew she was attending college. The investigator was left with the impression that the employer knew in October that she had been attending school the whole fall. However, the evidence is clear that it was not until December 8 that Ms. Jones told the employer that she had gone to school while collecting STSB. She knew that she was obliged to tell the investigator the whole truth and be straightforward in her responses. She was advised at the outset of the investigation of the consequences of not being truthful. [83] Counsel also argued that there is no evidence to support a link between her medical condition and her misconduct that excuses her responsibility for the behaviour. Thus, this is not a mitigating factor. Moreover there are aggravating factors that should be considered in counsel`s submission. The complainant failed to take any responsibility for her dishonest conduct, never - 32 - repaid monies unlawfully received and continued to blame the employer for her situation. The employer concluded that Ms. Jones` behaviour was inconsistent with the leadership role of a senior manager. The employer could not trust her; nor could it trust her to manage others. (The citations for counsel’s submission are included at the end of her reply submission.) The Complainant’s Submission on the Termination Grievance [84] Counsel for the complainant submitted that the employer had no just cause to terminate Ms. Jones’ employment. The complainant was too ill to work from June 2008 until December 2008. The medical evidence supports this finding in counsel’s submission. Ms. Jones’ doctor testified that she believed that if Ms. Jones were to return to her current position she would become ill again. She also said that she supported the complainant going to college. In her opinion, she believed that if the complainant were successful it would boost her self-esteem. She was also concerned that if Ms. Jones was not successful she could get worse. The doctor also testified that she would not put her name to an opinion that she could not substantiate. Therefore, there is no question that Ms. Jones could not be at work between June and December, in counsel’s submission. All that matters to this board is that the doctor said Ms. Jones could not work. [85] Counsel also argued that there was no medical evidence to contradict the medical evidence tendered by the complainant. The employer could have asked for an independent medical but did not do so. Counsel argued in reply to the employer’s submission that it would be a grave injustice not to accept the doctor’s evidence or to believe that she was influenced by her patient or by her patient’s lawyer, since she gave it in a clear and cogent manner. - 33 - [86] Counsel also urged me to consider the doctor’s evidence in the context of the complainant’s and her spouse. Loss of interest in life is a serious concern for a depressed patient in the doctor’s opinion. The ultimate concern for a depressed patient is suicide. Ms. Jones’ spouse was concerned about this. The complainant described herself as withdrawing and feeling isolated. Medication and psychotherapy are not always helpful according to counsel. Counsel stated that people with depression need to do something. If the employer had offered her some interesting work, it would have helped. Thus, he argued that in consultation with her doctor the complainant decided to go to college. Counsel argued further that the doctor recognized that going forward with a plan was a good indicator of improving health. In addition, he submitted that no one had testified that going to college was bad for Ms. Jones’ health. [87] Counsel made an extensive submission that the employer breached its statutory duty of fairness to Ms. Jones but subsequently conceded the issue after counsel for the employer presented Dunsmuir, infra. He argued nevertheless that the actions of the employer in terminating Ms. Jones’ employment show a precipitous rush to judgement. The evidence is pertinent to bias, credibility and to the lack of proof of just cause for the dismissal. [88] In response to the employer’s argument that if Ms. Jones was well enough to go to school she was fit for work, counsel argued that work was toxic for her. He emphasized that the doctor had said she could not go to work. Further, the doctor had advised her to go to college. In addition, counsel responded to the argument that Ms. Jones had been misleading and evasive during the investigation. He urged me to find that Ms. Jones had been cooperative and forthcoming with information and was not in any way misleading. When she was asked to provide college documents, she did so. - 34 - [89] Counsel submitted that when Ms. Jones was removed from the payroll, when her education leave with pay was denied, she was constructively dismissed. Thus he submitted that Ms. Jones should be awarded back pay to the date she was put on a leave without pay. He argued that this decision shows that the employer had already decided that Ms. Jones was not coming back to work. In addition, the investigation should not have been done under Section 22 of the Act. He argued that the employer did not inform the investigator about the complainant’s mental health issues and completely failed to accommodate her. Counsel conceded that there was no evidence that the complainant sought to return to work in January. [90] In sum, counsel argued that the employer had no grounds to terminate Ms. Jones’ employment on June 25, 2009. The decision was biased. The ministry rushed to judgement and failed to accommodate Ms. Jones’ illness. All of this constitutes bad faith. It was the employer’s lack of accommodation that led to Ms. Jones’ depression and subsequent events including going to college as a treatment. Further the investigation report was flawed. If the decision maker relies on a flawed report then the termination is wrong. [91] Counsel urged me to consider the complainant’s lengthy and good service to the employer. He argued that one act of dishonesty is not enough to support just cause for dismissal. Counsel asked that I set aside the discharge and reinstate the complainant. He submitted that I award back wages to the date she was constructively dismissed in December 2008. Alternatively, he asked that the complainant be reinstated as of the date of her termination. Counsel relied on the following cases: Winchester District Memorial Hospital v. ONA (1989), 8 L.A.C. (4th) 342 (O.L.A.); Ontario v. OPSEU (1994), 29 L.A.C. (4th) 205 (C.E.G.S.B.); Keating v. Ontario (2007), CanLH 24191 (PSGB); Thunder Bay (City) Centre for the Developmentally Challenged v. SEIU (1997), CarswellOnt 5671 (O.A.B.); Leamington Nursing Home v. SEIU (1993), - 35 - CarswellOnt 1211 (O.A.B.); Jones v. Ontario (Ministry of Community Safety and Correctional Services) 2010 (PSGB) P- 2005-3536; McDonald v. Anishinabek Police Service (2006) 83 O.R. (3d) 132 (Divisional Court); Wallace v. United Grain Growers Ltd. [1997] 3 S.C.R. 701; Hamilton-Wentworth Community Care Access Centre v. O.P.S.E.U., Local 274 (2004) 127 L.A.C. (4th) 129 (Ontario Arbitration Board); Hamilton (City) v. C.U.P.E., Local 104 (1998) 52 C.L.A.S. 89 (Ontario Arbitration Board); Ranger v. Ontario (Ministry of Community Safety and Correctional Services) 2010 (GSB) 2002-2375; Gallaghan v. Ontario (Ministry of Agriculture and Food) (1991) (PSGB); Mastrogiuseppe v. Bank of Nova Scotia, 2006 C.L.L.C. 210-006 (Ontario). The Employer’s Submission in Reply [92] Counsel for the employer made an extensive argument against the complainant’s submission that the ministry had breached a duty of procedural fairness in dismissing Ms. Jones before the complainant’s counsel conceded that there was no such duty in law. Thus, I will not summarize it here. However, the complainant also took the position that the evidence of procedural defects amounted to bad faith. [93] Counsel for the employer argued that there is no evidence before me to find that the ministry terminated the complainant in bad faith. She noted that the standard for proving bad faith in the manner of dismissal is high. Further, she urged that normal distress and hurt feelings resulting from the dismissal are not compensable. There must be evidence that the employer was untruthful, misleading or unduly insensitive. The record shows that the employer was truthful, straightforward and considerate in all its dealings with Ms. Jones. - 36 - [94] Counsel commented in her written submission that it was unclear how the arguments for procedural unfairness amounted to bad faith in the employer’s decision to terminate Ms. Jones’ employment. She replied to each argument used to support the bad faith allegations. I will address those submissions further in my reasons for upholding the termination. [95] In sum, counsel for the employer submitted that the complainant’s argument comes down to two positions: going to college while collecting STSB was not wrong because it was treatment ordered by her doctor. In the alternative, without any recognition that collecting STSB while going to school is wrong, Ms. Jones only did it because of her mental illness. Counsel argued that the doctor’s evidence does not support a finding that attending college was part of a medical treatment plan. Nor does it allow me to conclude that the complainant was incapable of understanding that what she did was wrong. [96] Counsel reminded me that the central issue before me is whether it was proper for Ms. Jones to collect STSB while going to college. She submitted that receiving STSB while going to college was dishonest. The complainant misled the investigator during her interview about when she applied to college and when the employer was informed of her attendance at school. She had breached ethical standards of the ministry. She could not be trusted. Therefore, counsel urged me to find that on a balance of probabilities the employer had proven just cause for the termination of Ms. Jones’ employment. [97] Counsel relied on the following cases in support of her submissions: Utilities Kingston v. International Brotherhood of Electrical Workers, Local 636 [Ont. Div. Ct. 2010]; Ford Motor Company of Canada Ltd and United Automobile Workers, Local 1520 8 L.A.C. (2d)149 ; Canada Post Corp. and A.P.O.C. 12 L.A.C. (4th ) 210 (Brown); Kennedy House Youth Services - 37 - and O.P.S.E.U., Local 585, 53 L.A.C. (4th ) 54 (M.Picher); Canada Post Corp. and C.U.P.W. (Harrison), 17 L.A.C. (4th ) 67 (Blasina); Caruso v. Northern Telecom Ltd. [1990] O.J. No. 2167 Ont.; Canada Post Corp. and C.P.A.A. 102 L.A.C. 4th 97 (Christie); Ridge v. Baldwin No. 1, [1963] UKHL 2 (March 14 1963); Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, [1979] 1 S.C.R. 311; Knight v. Indian Head School Division No. 19 [1990] 1 S.C.R. 653; Wells v. Newfoundland, [1999] 3 S.C.R. 199; Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Honda Canada v. Keays, [2009] 2 S.C.R. 362; Ontario Public Service Employees Union v. Ontario (Ministry of Revenue) (Alviani Grievance), GSB No. 2007-3700, Union No. 2008-0716-0002; Laidlaw Waste Systems Ltd. and Canadian Union of Public Employees, Local 1045, [2002] O.L.A.A. No. 573; Delta Catalytic Industrial Services and International Brotherhood of Electrical Workers, Local 105 (McCuen Grievance), [2002] O.L.A.A. No. 573; Miracle Food Mart of Canada and U.F.C.W., Locals 175/613, [1996] O.L.A.A. No. 779; Ministry of Community, Family and Children’s Services and O.P.S.E.U. (Balog) [2004] O.G.S.B.A. No. 73; Hendrickson Spring and U.S.W.A., Local 8773 [2009] O.L.A.A. No. 34 (Solomatenko); Hendrickson Spring and U.S.W.A., Local 8773 [2009] O.L.A.A. No. 648 (Solomatenko). Reasons for the Decision on the Termination Complaint [98] The central issue before me is whether the employer had just cause to terminate the complainant’s employment with the ministry on June 25, 2009. The first issue to address is whether Ms. Jones acted dishonestly when she collected STSB while going to school. The employer submits that the evidence shows that Ms. Jones collected STSB when she was not ill. The complainant admits that she collected STSB while going to school. However, she claims that her doctor had advised a treatment plan for her, which included going to Canadore College for a - 38 - full year course. Throughout the hearing, she maintained that she was too ill to attend at work from June until December 2008. Further, Ms. Jones could see nothing wrong with going to college while collecting STSB. [99] Having carefully reviewed the doctor’s evidence, I find that it does not support the complainant’s position that going to school was a medical treatment. The doctor testified that it was the complainant who brought the idea of going to college to her after Ms. Jones had applied. They discussed it and the doctor supported her going. The doctor said that she hoped gaining new skills might help the complainant find suitable work. The doctor knew that Ms. Jones was unhappy with her current work assignment. However, on cross the doctor was clear that going to school was not a medical treatment. She said medical treatment is something that she would prescribe. Ms. Jones also confirmed in her oral evidence that going to college was her plan. [100] More importantly, the doctor’s meticulous notes of Ms. Jones’ consultations with her show that she was very concerned about giving the complainant sick notes while she was going to college. On August 11, 2008, she raised her concern about providing sick notes and got Ms. Jones’ permission to consult the complainant’s counsel, who advised her to include a reference in the “Request for Employee Health Information” that the complainant could not return to her current assignment because it would “acutely aggravate her medical condition.” Moreover, the form did not provide an end date to Ms. Jones’ sick leave, which the doctor testified was not her normal practice. The doctor also provided a note to counsel on August 29, 2008 stating “…she is unable to work with Ms. Welch, as I believe this would acutely aggravate her medical condition.” The complainant never gave this note to the employer. It was provided in evidence at the hearing. The doctor accepted Ms. Jones’ view that she could not work with Ms. Welsh. The doctor was unaware at the time of providing the note that if Ms. Jones returned to her home - 39 - position, as she wanted to do, she would have reported directly to Ms. Welsh. The contradiction in Ms. Jones position was noted earlier in the decision to dismiss her first complaint alleging a breach of the MOS. [101] The doctor did not provide any additional notes after August 29, 2008, while Ms. Jones attended college. When the employer followed up with a request for further health information in October in an attempt to see if an accommodation would assist the complainant to return to work Ms. Jones ignored it. The request for health information dated October 31, 2008 was not returned to the employer until December 22, 2008. [102] The doctor’s written opinion provided in evidence does not state that Ms. Jones was too sick between September and December to attend at work. The opinion focuses on the spring of 2008 until around June when the complainant was first off on sick leave. The opinion does state that she supported the complainant’s plan to go to college. [103] Perhaps the most telling evidence before me is in another entry made by the doctor on her patient’s record. The notation was made after the employer had informed the complainant that an investigation had been ordered to look into the issue of her attending college while collecting STSB. After a telephone consultation with Ms. Jones on January 6, 2009, the doctor notes that she reminded her patient that she had never said that the complainant was unable to work. She said that she only thought “her depression would worsen if she had to go back to her current position.” [104] Counsel for the employer argued that the complainant unduly influenced the doctor’s response dated August 29, 2008. She urged me to find that the note was insufficient as an excuse - 40 - to be off work, citing Balog, supra, which held among other things that “not being able to work with management” was not a proper restriction that requires accommodation. I agree. It appears from the evidence that Ms. Jones convinced the doctor that she could not return to work with Ms. Welch, which the doctor understood as Ms. Jones’ “current position.” Moreover, as of August 29, 2008, I find that the medical note is insufficient to justify the complainant’s absence. [105] When considered as a whole there is no evidence except Ms. Jones’ that she was too sick to be at work while she was attending Canadore College. Her spouse testified about how ill Ms. Jones was in the spring and early summer of 2008. Ms. Jones was well enough by August to go on a holiday to London and Paris. Further, there is no evidence that the complainant made any effort to seek an accommodation in a position that would not aggravate her condition—that is one where she did not report to Ms. Welch. She actually ignored the employer’s efforts to return her to work in October, when it sought additional medical evidence from Ms. Jones’ doctor. [106] If there was any question that Ms. Jones was healthy when she went to school in early September, there is no doubt by October. The complainant herself testified that by October she felt good, back to her old self. Her doctor’s assessment in October is that she is much improved and based on that assessment the doctor would not sign a LTD application in December. The doctor said that the complainant was not disabled in October. Ms. Jones did nothing to inform her employer that she could have returned to work. [107] Thus, I must conclude that on a balance of probability Ms. Jones was not ill from September to December 2008 when she attended college and collected STSB. The medical evidence does not support a finding that the complainant was too ill to work from September to December 2008. Moreover, the complainant’s own evidence makes it clear that she was able to - 41 - concentrate, read and write, meet deadlines and work hard long hours to excel in her college program, all things that were consistent with her being able to work. [108] The complainant also argued that she was depressed and therefore had no idea that she was doing anything wrong when she attended college and collected STSB. The depression led to the misconduct. The complainant also suggests that lack of accommodation by the employer lead to the depression and subsequent events. [109] Counsel for the employer submitted that there was no breach of the duty to accommodate Ms. Jones either before she went on STSB or during the investigation. The complainant did not ask for an accommodation. Moreover, Ms. Jones testified in her examination- in-chief that she was not disabled and thus had no intention of applying for LTD when her STSB ran out in December 2008. Further counsel urged me to find that there was no evidence that Ms. Jones did not know what she was doing was wrong. [110] I agree with the employer’s submission here. There is no evidence to find that Ms. Jones was too ill to know what she was doing. Further, there is no evidence to support a finding that Ms. Jones ever asked for accommodation or that the employer did not accommodate her while she was employed. In contrast the record shows that the employer sought medical information in August and again in October to begin a return to work process. The employer sought information from Ms. Jones’ doctor to see if an accommodation would allow Ms. Jones to return to work. As noted earlier the complainant ignored it. [111] What emerges from all of the evidence is a picture of a senior manager in the ministry who decided that she was no longer going to put up with deskwork. She did not like the contract - 42 - compliance position and she thought that the new position offered to her on May 30 was an insult. She did not discuss the idea of going to school with her employer. She did not seek a leave with or without pay to do so in September. She just decided of her own volition to go to college. [112] The next issue is whether receiving STSB while not sick was dishonest or fraudulent. The label does not matter when considering allegations of fraud or deceit. It is the nature of the conduct that matters. Further ‘there is no requirement that dishonest conduct in a labour context meet the definition of fraud either civilly or criminally” (See Utilities Kingston, supra at para. 30). The Court found that making a forged receipt for an expense claim was dishonest and blameworthy. [113] Arbitrators have held that collecting sick term benefits, when not ill is abuse of sick leave and dishonest. In Canada Post Corp. (Gilbert), supra, the arbitrator held that the grievor committed a serious offense when he applied for sick leave benefits when he was not ill. On the four days he claimed to be sick, the grievor attended a real estate course. After considering mitigating factors and particularly the grievor’s lack of remorse, the arbitrator decided not to exercise his discretion to substitute a lesser penalty. The arbitrator upheld the discharge. [114] In Canada Post Corp (Harrison), supra, the arbitrator upheld the dismissal of an employee who called in sick for three days. The board found that he was not ill and booking off sick was part of a premeditated plan to leave early for his vacation. The arbitrator noted that the grievor had not applied for a leave without pay for these days. He concluded that the application for sick leave was fraudulent and the grievor had been dishonest. - 43 - [115] In Kennedy House, supra, the grievor was terminated for fraudulent misuse of sick leave. The employee called in sick for a day and then worked that day for another employer. The board found this to be fraudulent use of sick leave and dismissed the grievance. In all these cases, the decision makers found that collecting sick pay when not ill was dishonest. [116] When Ms. Jones collected STSB when she was not ill she acted dishonestly. However, dishonesty does not automatically lead to discharge. In McKinley v. BC Telephone, (2001) 200 D.L. R. (4th) 385 the Supreme Court held that a ‘contextual’ analysis is necessary to decide whether dismissal is appropriate when an employee has acted dishonestly. The court said that if the misconduct is proven, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship (at p. 404). McKinley also requires an analysis of the nature of the misconduct and the discipline imposed. [117] Arbitrators have held that abuse of sick leave is serious misconduct. In Kennedy, supra, the board held as follows: Where acts of fraud, theft or other dishonesty are at issue, it is incumbent upon a board of arbitration to consider whether they are uncharacteristic, spur-of-the- moment events. It is also important to consider whether there is a candid admission of wrongdoing and an indication of regret or remorse which would be a viable foundation for the re-establishment of the bonds of trust that would follow on the reinstatement of the employee. Needless to say, factors such as the length and quality of the employee’s prior service and his or her personal circumstances, including the likelihood of re-employment, may also be considered. It should be stressed, however, that in cases involving deliberate dishonesty, there is a natural onus which falls upon the employee to give a board of arbitration some responsible basis upon which to substitute a penalty less than discharge. That is particularly so in a case, such as this case, where the employee is himself a professional in rehabilitations, working in a setting which involves a relatively high degree of trust and personal integrity. (para. 16) [118] Applying this analysis to the facts before me, I have to conclude that Ms. Jones’ decision to attend college was a well thought out plan carried out over many months. She applied to - 44 - Canadore College on May 6, 2008. The college accepted her application and offered her a spot in the newly created Crime Scene Investigation program on May 30, 2008. The deadline for acceptance was July 15, 2008 and Ms. Jones confirmed her acceptance that day. She paid for her fall tuition on July 16, 2008. She paid for her winter term fees on November 14, 2008. None if this can be said to be a spur-of-the-moment event. [119] Moreover, Ms. Jones showed no remorse, nor did she ever make a candid admission that she had done something wrong. She has not offered to pay back the monies she received dishonestly. In fact, she maintained to the end of the hearing that it was the employer’s fault. The board in Kennedy, also emphasised that where the dishonesty is deliberate the onus falls on the employee to give the arbitrator some reason to substitute a lesser penalty than discharge. The board considered the grievor’s position of trust in deciding that it would uphold the termination. The board held: While it is important for boards of arbitration to understand the place of compassion in deserving cases, there is something decidedly uncompelling about an employee who admittedly engaged in a deliberate act of fraud, tantamount to theft, fails to repay the moneys wrongfully obtained, and then insists that he be given the benefit of the finer principles of progressive discipline. In the result, we are driven to the conclusion that there is no basis upon which the decision of the employer should be disturbed (para. 19). [120] Ms. Jones has not provided any plausible reason to explain why she collected STSB while she attended college. She, like the grievor in Kennedy, worked in a position of trust where a high degree of personal integrity was essential. It is difficult to fathom how as a senior manager she could not see, even by the end of the hearing, that she had done something seriously wrong. It is hard to believe that she thought she had every right to collect a benefit meant to support employees that are too sick to work. - 45 - [121] To return to the McKinley analysis I must balance the misconduct compared to the penalty. It is a serious case of dishonesty without any recognition of wrongdoing. It has attracted the most serious penalty, discharge. The next step is to ask whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. In this case, the evidence is clear that the abuse of sick leave led to a complete breach of the employment relationship. The employer reasonably, I believe, concluded that it could not trust Ms. Jones. As a manager, she would have had to manage her subordinates’ attendance and act in a leadership position. The fact that there was no recognition of wrongdoing reinforces the view that Ms. Jones could not be returned to a management position. [122] Moreover, the complainant compounded her initial misconduct when she misled and intentionally omitted information during the investigation into her use of STSB while attending college. A careful review of the evidence shows that she was not forthcoming when asked when she applied to Canadore College. A review of the transcript excerpt of her interview by the investigator indicates that she sat silently when her counsel wrongly answered a question about when the employer was informed that she was going to school. The counsel seemed to believe that the employer’s request for information dated October 31, 2008 was returned in a timely way and therefore the employer knew by October that Ms. Jones was going to school. Ms. Jones did nothing to correct this although she well knew that she had not returned this form to the employer until December 22, 2008. Further, she well knew that the employer had no idea that she was attending college until she told Ms. Eley in December 2008. [123] The investigator advised Ms. Jones of her obligation to be candid and forthright when answering his questions. Ms. Jones signed an acknowledgement that she understood the - 46 - consequences of not being truthful, including termination of her employment if she was not truthful. Ms. Jones nevertheless was not truthful. [124] Counsel for the complainant submitted that the employer rushed to judgement in deciding to terminate Ms. Jones’ employment. He also said that the investigation was improper and inappropriate. Since the investigation was done improperly, the decision to terminate Ms. Jones was improper in counsel’s submission. This demonstrates bad faith. For example, counsel argued that the employer should have waited for additional medical information when the complainant offered to provide it during the allegation meeting on June 11, 2009. Counsel also submitted that Ms. Eley made the decision to terminate Ms. Jones before the allegation meeting. He based this argument on two hearsay documents prepared by clerks after June 25, 2009, but dated before the termination letter. [125] This board has consistently held that a de novo hearing provides a complainant a full opportunity to present any and all relevant evidence to challenge the discharge and cures any procedural defects in the termination process. I am not persuaded that there have been procedural defects but even if there had been, a full hearing has been provided to the complainant. Even if the investigation was not proper, the decision of the board is based on all of the evidence presented by the parties, not on the investigator’s findings. [126] To be clear in considering the evidence and the submissions of the complainant I am not persuaded that the employer rushed to judgement or that the investigation was not proper. The employer learned that Ms. Jones was attending college while collecting STSB on December 8, 2008. The employer told the complainant on January 4, 2009 that it had decided to investigate the matter. The decision to terminate her employment was confirmed in a letter dated June 25, 2009. There was ample time during this period for the complainant to provide additional - 47 - medical information. The record shows that she did not ask her doctor for an opinion until June 5, 2009. In any case the medical opinion was tendered in evidence in this hearing. [127] Further, I am not persuaded that Ms. Eley made her decision to terminate Ms. Jones before the allegation meeting. Ms. Eley could not explain why the dates on the hearsay documents were wrong. She was adamant that she was the decision maker and that she made it after the allegation meeting. Her evidence was clear and forthright that she had hoped Ms. Jones would show some remorse and that might have affected the outcome of her decision. She said that it was a terrible thing to have to terminate Ms. Jones’ employment but she felt given all the circumstances she had no choice. [128] I have considered mitigating factors such as the good long-term good service of the complainant. However, the lack of remorse and insight into what is clearly dishonest behaviour and Ms. Jones’ attitude of entitlement – she thought that the employer should pay for an education leave for the second term of her program, lead me to conclude that the chance of her re-establishing the employer’s trust are nil. Long service is not enough to excuse such a serious breach of trust given all the circumstances. There is no reason to change the employer’s decision to discharge Ms. Jones from her employment with the ministry. The employer established just cause to discharge Ms. Jones. [129] For the reasons noted above, I dismissed both of the complainant’s grievances on March 27, 2013. Dated at Toronto, Ontario this 16th day of October 2013 Deborah J.D. Leighton, Vice-Chair