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HomeMy WebLinkAboutMorana 14-03-21IN THE MATTER OF AN ARBITRATION BETWEEN: TERANET INC. AND: OPSEU, LOCAL 507 GRIEVANCE: GRIEVANCE OF DOROTA MORANA SOLE ARBITRATOR O.B. Shime, Q.C. APPEARANCES:JULIE O’DONNELL Counsel, and others, for the Employer TIM HANNIGAN Counsel, and others, for the Union Hearings in this matter were held at Toronto on January 10, 11 & 12, May29 & 30, June 28, July26 & 27, August 9, September 21 & 24, October 29, December 5 & 12, 2012 and February 12 & 13, April 4, June 19 and July 18, 2013. DATED at Toronto, this 21st day of March, 2014. -2- INDEX Page No. Evidence 3 Argument 90 Legal Analysis 120 Legal Analysis — Canadian Case Law 132 Legal Analysis — The Collective Agreement (i) Contract Principles 156 Legal Analysis — The Collective Agreement (ii) Remedial Authority of the Arbitrator 160 Evidentiary Analysis—Harassment 170 Medical Evidence 193 Compensation — Mitigation 206 conclusion 213 -2- INDEX Page No. Argument 90 Legal Analysis 120 Legal Analysis — Canadian Case Law 132 Legal Analysis — The Collective Agreement (i) Contract Principles 156 Legal Analysis — The Collective Agreement (ii) Remedial Authority of the Arbitrator 160 Evidentiary Analysis — Harassment 170 Medical Evidence 193 Compensation — Mitigation 206 Conclusion 213 -3- AWARD In this matter the Grievor, Dorota Morana, claims that Teranet Inc., the Employer, violated the collective agreement by intimidating her, discriminating against her, refusing her sick leave benefits and terminating her without just cause. She seeks reinstatement, payment of lost wages and benefits and transfer to another location. Since filing the grievance, the project for which the Grievor was employed has come to an end and therefore her claim is for compensation only. However, she also claims that she has been harassed and claims damages for mental distress and punitive damages. The facts leading up to the termination and the harassment claim are as follows. Elgin Farewell, the Vice-President of Electronic Search and Registration, testified that Teranet was responsible to automate and operate the land registry records under contract with the Province of Ontario and the Grievor, who was a Title Certification Analyst (TCA), was responsible for doing title searches and entering key information into the system. Both the productivity and quality of a TCA’s work is important. Mr. Farewell was contacted by Susan Steer, the Human Resources Manager, -4- shortly after Ms. Steer had a meeting with the Grievor to address some attendance issues. According to Ms. Steer, the Grievor became upset and subsequently left the workplace. Ms. Steer was concerned about the Grievor and she also had a discussion with Miles Argue, a Union representative, about her meeting with the Grievor. According to Mr. Farewell, the Grievor was on his radar because of concerns about her work performance. The Grievor had been on a performance plan from January 4, 2007 to January 7, 2008 because of her substandard performance which had previously come to Mr. Farewell’s attention as part of management’s review. Mr. Farewell stated that Teranet provides training and a great deal of support for employees and most employees were successful. However, the Grievor’s production results were not tracking well according to the standards that Teranet had in place for employee performance. Ms. Steer advised Mr. Farewell of her c6ncern that the Grievor was working in real estate which concerned Mr. Farewell because of a possible conflict of interest since employees could inappropriately access Teranet’s data. Teranet has a conflict of interest policy in place for an employee who -5- chooses to work for another organization, which requires the employee to provide a written declaration if the employee,”... is directly or indirectly involved in another business or employment which may give rise to a conflict, or appearance of conflict, or a potential conflict of interest .. . “. The Grievor had signed such a declaration on December 6, 2007 in which she stated that she was a real estate representative for Royal LePage and agreed to refrain from certain activities on Teranet’s time. Mr. Farewell was in the process of reviewing the Grievor’s performance and attendance/tardiness rate and was prepared to discipline her when she left the workplace on September 17, 2008 claiming that she was going on stress leave. Mr. Farewell had a number of concerns about the Grievor, including a second place of employment, working on company time for another employer, absenteeism, lateness, and performance quality issues. The Grievor had run out of vacation time and personal time. Also, because of the Grievor’s defensive and challenging attitude at her meeting with Susan Steer and because of the intervention df Miles Argue, the Union President after that meeting, Susan Steer refused to meet with the Grievor alone, which concerned Mr. Farewell. -6- Because of these various concerns, Mr. Farewell took the unusual step of requesting the Grievor’s emails be reviewed, which he did not do lightly. The emails demonstrated that prior to signing the December 6, 2007 declaration, the Grievor had been conducting business on company time which she claimed not to have done. Accordingly, Mr. Farewell arranged for a private investigation to conduct surveillance of the Grievor, between September 23, 2008 to September 27, 2008. It appeared from the surveillance that the Grievor was conducting other business while she purported to be on stress leave. The Grievor was observed attending the land registry office on September 23, 2008 and attending the offices of Royal LePage and talking to her husband, who is also a real estate representative at Royal LePage. She was carrying papers and subsequently attended at a printing shop. On September 27, 2008 the Grievor conducted an open house in connection with the sale of a property. On September 26, 2008, Mr. Farewell was advised of the following email from the Grievor to Susan Steer and an attachmnt. “Hi Susan.Please see the attached letter. Please be advised that Miles Argue will be my union representative in this matter. -7- Also, I went to my doctor last night for my follow up visit and he advised me to stay off work for another 2 weeks. At this point I was told to call his office on Monday to schedule the follow up appointment (I was advised to check with them because as of the week of October 5 there will be days when he may not be in the office). I will advise you and the HR department when this appointment is to take place.” “Teranet Inc. Attention: Susan Steer Please be advised that this letter will serve as a complaint against you resulting from the events that took place last week and which are outlined below: On Wednesday, September 10, 2008, I was absent from the office due to family emergency. My father in law was sick and I found out about it very early in the morning. At about 5:40 a.m., I left a message on Cheryl Bryant’s voice mail stating that I will not be coming in as I have an emergency situation to deal with in the family. At the end of the message, I left her my cell phone number, as this is something I habitually do when I leave a message for people. At 9:20 a.m., I received a voice mail message from you on my cell phone telling me to call you back at the office. I did not call back, as I was quite pre occupied with the emergency situation in my family. Then, at about 1:30 p.m., your phone number showed up on my cell phone’s call display ‘again. This time you left no message. Given the circumstances I was dealing with, I found this to be quite upsetting. I could not understand the purpose of your calls knowing very well that I left Cheryl a message explaining why I could not come to work that day and I was certainly not in a position to discuss my family circumstances with a non-family -8- member. In fact, I had no time to discuss the events of that day with anybody. Therefore, I found these calls to be totally inappropriate and harassing. This was just an unjustifiable intrusion into my personal life. On Thursday, September 11, I went back to work and Cheryl Bryant did not comment on the events of the previous day. As it turns out, you were not in the office that day. On Friday you were back on the office, but you did not make any contact with me regarding your Wednesday’s phone calls. You made no effort to come by my desk or email me to ask me if everything was okay with me. It was business as usual. On Monday, September 16, 2008, at around 8:40 a.m., I received an email message from you. It was a very short message with a subject line saying: please come see me. I decided to wait for the union rep, Scott Fergusson who comes in at 9 and let him know about it. Unfortunately, I did not get that chance. Within a couple of minutes of sending this email to me you were standing in front of my desk asking me to go to your office. I was quite shocked with your immediate visit to my desk but, I decided to cooperate and I followed you to the office without the union rep. Once in your office, you started telling me that as a result of my absence on Wednesday, I did not have enough hours accumulated in my time sheet to be paid for that whole day. I explained to you that as per my voice mail message to Cheryl, I had to deal with an unexpected family emergency. In response, you mentioned that you tried to call me. At this point, I told you that your phone calls did upset me a lot because of what I had to deal with and I did not want to be bothered with phone calls on that day from anybody. In fact, I repeated this to you many times during this meeting. I told you I did not -9- understand the purpose of your calling me twice. Your tone of voice changed drastically. From this moment your responses were very angry. You told me “that frankly, you do not understand why I am being so defensive about this whole situation”. You then reminded me that I don’t have enough time accumulated in my time sheet and I responded to you by saying I was aware of this. In fact, I reminded you that we had this conversation after I came back from my vacation in August. You stated that you think I have some issues going on and I seem to be very distracted at work all the time. This was very personal and very upsetting. At that point, I got up and told you that this conversation was over and if you wish to continue, it would have to be in the presence of the union representative. I told you I did not want this conversation to continue because of the tone of voice you were speaking to me with. Your behavior was very aggressive towards me. This was very intimidating and I did not feel comfortable with you in the office alone. Once this conversation ended, I headed back to my desk in tears.As you recall, in the past we had a meeting with a union representative regarding your investigation into my personal life and I trusted that that meeting resolved the problem and I was hoping to be left alone. I believe you are trying to find anything in my personal life (again) and link it to my work. It is intrusive and it contributes to my escalating stress at work. I always give 100% to my work, but I believe that your intntions here are leading to my constructive dismissal. I remain,” Mr. Farewell felt the letter was inconsistent and self-serving; it was the first -10- time that he heard that Ms. Steer was over-managing. Also, the description of Ms. Steer’s conduct was not in accord with Ms. Steer’s usual demeanor. When he discussed the matter with Ms. Steer, he was told that Miles Argue would support her and that Miles would confirm that when he spoke to her she was calm. Mr. Farewell was of the opinion that Ms. Steer did not mishandle the situation and decided to request the Grievor to attend a meeting to discuss the results of Teranet’s investigation, the Grievor’s emails, her letter to Ms. Steer and the reasons that Teranet was questioning her absence. On September 29, 2008, Susan Steer responded to the Grievor’s email as follows:“Thank you for your letter dated September 22, 2008, and I acknowledge receipt of the letter on September 26, 2008. I disagree with the contents of your letter. All and any actions I, and the company, have taken to date are in accordance with my rights as an employer. At thi& stage we question the bona fide nature of your current absence. We have therefore suspended sick leave benefit coverage and all payments effective immediately. I am requesting you to attend a meeting to provide the opportunity to discuss the situation on October 2 at 9 a.m. at I Adelaide Street, 6th Floor. Please ask for Chris Yankou at reception.” —11— Mr. Farewell testified that the Grievor’s sick leave benefits were suspended because of his belief that she was working at another job as a real estate agent and her absence was not bona fide. On September 30, 2008 the Grievor wrote the following letter to Susan Steer:“I am in receipt of your letter dated September 29, 2008.Please note that I went to my doctor on September 17, 2008, and subsequently my doctor advised me to stay off work due to stress and anxiety. At the time I was provided with a note and was advised to follow up with him the following week. The next day, Thursday, I left a message for Cheryl Bryant explaining my absence. I then communicated with Paul Cannis of Human Resources who advised me that all he required was to original note from my doctor and he asked that this form be mailed to him together with a note stating when my next appointment was going to take place. He reassured me that this is a sufficient proof for the H.R. department to pay me for my sick days. I informed him that my appointment was scheduled for Thursday, September 25 at 7 p.m. On Thursday, September 25, I went to my follow up appointment with my doctor and I was issued another note stating that I am to stay off work and that I am to follow up with him in 2 weeks’ time. On Friday, September 26, I received a call from you - 12 - in the morning asking for my email address. When asked why you would need it, you answered that you are sending me a form that I needed to fill out with respect to my sick leave. I mentioned to you that Paul Cannis had told me that all Human Resource needed was a doctor’s note. At that point you told me that I needed to fill out this form because I have now used up my sick days and my absence was extending into a short term disability. You asked me to complete it the same day and send it to Chris Yandou. I received your email later that day only to find out that it is to be completed by my physician, not myself. As my doctor’s office is always closed on Fridays, I left a message for both Chris Yankou and Paul Cannis asking for their instructions. Chris returned my all the same day and assured me that it is ok if the form is not received by Teranet on Friday and he asked me to go to my doctor on Monday. I followed up with Chris via email confirming that I will be going to my doctor on Monday with the form. Also, subsequently to our conversation, I sent you an email stating that I did go to my doctor the night before and I was advised by him to stay off work. I stated in my email that I would advise you of my next doctor’s appointment. On Monday, September 29, 2008, I went to my doctor to fill out the form. Shortly after I got home, a courier company arrived with your letter stating that you are terminating my sick leave benefits despite the fact that Chris Yankou advised me to go to my doctor on Monday. Given that I have complied with the HR advice and I did my best to get the form filled out on Monday (as indicated in my email to Chris). I cannot understand the justification of your decision t terminate my sick leave benefits and am requesting that they be restored immediately (including any back payments -13- owed between termination and restoration).” On October 1, 2008, Susan Steer sent the following email to the Grievor: “I acknowledge receipt of your email dated September 30, 2008. The timing of your sick notes is not the principal matter of concern. However, I would note that both Chris Yankou and Paul Cannis have a different recollection of their conversation with you and indicate that you were in fact asked to return the note as soon as possible. What is at issue is we believe you are able to work and that you should be at the office doing your job. I have indicated we will be flexible with the meeting date but the meeting is an opportunity for you to explain why it is you are not at work in light of why we think you are to be here. The conversation is with you and while you are fully entitled to union representation the conversation is not with the union. As such the meeting will only proceed if you are present, and if you are not, I will duly consider the situation without your input.” The Grievor replied on October 2, 2008, by email as follows: “I would like to reiterate what I mentioned in my September 30 message and that is I am not able to attend this meeting as I am following my doctor’s advice to stay off work.” On October 8, 2008, the Grievor sent the following email to Chris Yankou at Teranet: - 14 - “Hi Chris.Just wanted to let you know that I went for my follow up appointment with my doctor yesterday and he advised me to stay off work. At the same time I am to follow up with him once again next week. Thank you.” Mr. Farewell decided to terminate the Grievor because of her pattern of absenteeism and lateness which was documented, conducting business on Teranet’s time while claiming she had not done so, her poor performance, her wrongful allegations of harassment against Susan Steer which Mr. Farewell felt were inconsistent with his ten years of knowledge of and experience working with Ms. Steer, the input of other employees who were consulted and who had a different understanding from the Grievor about certain events that had transpired and the surveillance which indicated the Grievor appeared to be capable of working at another job while claiming sick leave benefits from Teranet. Mr. Farewell also questioned the integrity of theGrievor and sent the following letter of termination to her: “You have once again indicated that you are unable to work due to medical reasons. It appears obvious to us that you are capable of working yet you are choosing not to. - 15- We expect all Teranet employees to make Teranet their priority when it comes to employment commitments. As such, we are terminating your employment with Teranet effective immediately. Please see the attached letter.” “This letter will advise of the termination of your employment, effective immediately, for cause. As you know, there were serious concerns regarding your performance of your responsibilities. As these performance concerns were being addressed, you left our offices, removed all of your personal belongings and have subsequently advised us that you are on a medical leave of absence.During this absence, concerns have arisen regarding the legitimacy of your absence and your conduct during your absence. We asked to meet with you to discuss these concerns. You refused. You have not provided appropriate and satisfactory medical documentation. You have refused to respond to our inquiries. You have now delivered an email advising you will not be attending at work, again for medical reasons, and again without supporting medical documentation. You conduct is unacceptable and is cause for the termination of your employment. Your Record of Employment will be delivered to your home. We reserve our right to rely upon further instances of misconduct as they become known to us.” When cross-examined, Mr. Farewell agreed that he did not have direct interaction with the Grievor and relied on information he received - 16 - from Susan Steer and others. Mr. Farewell was cross-examined about the Grievor’s Personal Performance Review for the period January 4, 2007 to January 7, 2008 which was the Grievor’s last review prior to her termination in October of 2008. That review indicated the Grievor’s personal organization and time management were good. Mr. Farewell stated that time management did not include attendance. The review also stated the Grievor was diligent in informing management when she comes late. There was no direction to the Grievor to improve her attendance or lateness. Both her adaptability to change and her ability to learn were good. The Grievor had been off on maternity leave commencing in 2005 and continuing for most of 2006. On October 25, 2007 the Grievor had been placed on a performance plan because her performance was below the minimum requirement. The Grievor successfully completed the plan as of February 1, 2008. Between that date and her termination, the Grievor was not placed on a Performance 1Aanagement Plan which was the next step if her performance was below the minimum standard. Nor was the Grievor disciplined for lateness or absenteeism although she was spoken to. Mr. Farewell agreed that the Grievor on average had exceeded the Standard Measurement for -17- performance for the period January 2008 until August 2008. Mr. Farewell stated that employees are not required to disclose every type of outside employment but only those employment situations where there may be a potential conflict. The Grievor signed the required declaration on December 6, 2007 and there were no emails involving the Grievor’s real estate business after that date. Mr. Farewell conceded that the Grievor’s actual sick leave in 2008 did not exceed the collective agreement allowance. He also admitted that her email business activity was between her and her husband and did not involve clients. He was not able to say with certainty when the Grievor took her breaks. Mr. Farewell initiated the surveillance of the Grievor in September 2008. He was aware the Grievor was upset, then left the workplace and within a few days advised that she would be off work. He speculated that she was upset by the conversation and there was not a medical reason for her to be absent from work. He was not able to ascertain the nature of her illness from the doctor’s note nor was he aware of her medical restrictions. Mr. Farewell assumed that when the surveillance showed the Grievor -18- attending at Service Ontario he assumed she was going to the Registry Office, although there were other services at that location. Nor was he aware of what papers she was carrying. On September 26, 2008, the Grievor was at Peel Centre where the Grievor’s husband worked at a Royal LePage office and she had a conversation with him. Again, Mr. Farewell did not know the content of the papers she was carrying. Nor did he have any idea what she did inside the Color Tech Marketing Store although he admitted making an assumption it was related to fact sheets which the Grievor could use for an open house in connection with the real estate business. Mr. Farewell admitted that he took no steps to determine the Grievor’s medical restrictions before initiating surveillance. Teranet received a medical note from Dr. Jason Black dated September 25, 2008 which “advised an additional two (2) weeks off from work. She will follow up in another two (2) weeks”. Mr. Farewell believes he saw that note after September 25, 2008, but cannot remember exactly when. Teranet had also received an earlier note dated September 17, 2008, from Dr. Black indicating she was advised to take “a medical leave from work” and that “she will follow up in the office next week”. On September 26, 2008, Ms. Steer sent a sick leave form to the Grievor to be -19- completed that day and faxed to Teranet. The Grievor was under surveillance when the request was made. The form was completed by Dr. Black and returned to Teranet on September 30, 2008. The form indicated that the Grievor’s absence was due to anxiety and stress and that she had a “decreased concentration and ability to focus” and would be followed up prior to October 9, 2008. Any recommendations for maintaining regular attendance at work would “be decided in [the] follow up”. Mr. Farewell testified that Teranet sought information in order to understand what accommodation might be made for an employee who may be off for an extended period. The notes from Dr. Black were the only medical opinions that Teranet had concerning the Grievor’s ability to work at that time of her termination. Teranet made no effort to follow up with Dr. Black or to see a different doctor. There are collective agreement provisions in the collective agreement for a medical examination which includes a request by Teranet for a medical certificate from a doctor chosen by the Grievor and, as well, Teranet could request the Grievor be referred to a specialist to certify “the employee’s fitness for work or inability to return to work, as the case may be...”.Teranet in a letter to the Grievor dated September 29, 2008 from - 20 - Susan Steer questioned the bona fide nature of the Grievor’s current absence, suspended her sick leave benefits and requested the Grievor “attend a meeting to provide the opportunity to discuss the situation on October 2.” On September 30, 2008, the Grievor forwarded a letter to Teranet disagreeing with the decision to terminate her sick leave and on October 2, 2008, she advised Teranet that she was “not able to attend this meeting as I am following my doctor’s advice to stay off work”. Mr. Farewell stated there was no follow up with Dr. Black, nor was the Grievor referred to a specialist. On October 9, 2008, two letters were sent to the Grievor signed by Susan Steer, but approved by Mr. Farewell, terminating the Grievor’s employment. The letters of termination stated that in Teranet’s opinion the Grievor “was capable of working”, questioned the legitimacy of her absence and questioning the appropriateness of the Grievor’s medical documentation. When re-examined, Mr. Farewell stated that the Grievor’s work performance indicated that development was required according to Teranet’s standard ratings. The Grievor’s work was rechecked by quality control because the Grievor was deemed to be a high risk employee. Mr. Farewell also testified that although Teranet plans for employees being -21- absent for vacations and illness that intermittent absenteeism requires Teranet to move other resources so that deadlines are met. The Grievor in 2008 had utilized all her sick days and vacation days under the collective agreement. Mr. Farewell also confirmed that he checked the Grievor’s emails prior to her termination and found she had used Teranet’s facilities for non Teranet business. When he considered the surveillance reports, Mr. Farewell assumed that the Grievor had attended the registry office and Royal LePage offices for her own business, but would have questioned the Grievor about his concerns if she had come to the meeting when asked to do so by Teranet. He concluded that although the Grievor’s doctor had indicated that she needed a rest from work that she was working elsewhere.Mr. Kyle Hotham, a private investigator, licensed by the Province of Ontario, assisted in conducting the surveillance of the Grievor and documented her daily activities. He confirmed that he conducted sârveillance between September 23, 2008 and September 27, 2008, and prepared the report that was filed as an Exhibit in these proceedings. On Saturday, September 27, 2008, he attended an open house where he met the Grievor, who showed him the house and gave him the listing -22 - information and a mortgage sheet for that house. The Grievor informed him that she had another listing in Caledon. When cross-examined, he stated that he typed his surveillance reports daily. He had no idea of the Grievor’s medical condition and reported what he observed. He had no idea what she did when she entered the different buildings, nor did he have any idea what was in the papers she carried. When he attended the open house, the Grievor did not advise him who was responsible for selling the house. She showed him the house, discussed another listing in Caledon and provided him with information.When re-examined, Mr. Hotham stated he saw the Grievor enter a building at 7765 Hawthorne Street on September 23, 2008. It was agreed by the parties that at the open house at 9 Hawthorne there was a sign that had the name of the Grievor and her husband advertising the house for sale. Susan Steer had been employed by Teranet for over six years in various capacities. She had been a TCA and was promoted to successive - 23 - positions as a supervisor then manager and ultimately the Human Resources Project Manager. Teranet was automating and converting all of the land registry records in the Province. The TCA’s were responsible for analyzing and ensuring the ownership information was correct and that all relevant documents were recorded in the computer. Teranet worked toward a schedule of completion which was agreed upon with the Ministry of Government Services. There was a formal method of evaluation for employees called the Standard Measurement which assessed the available time for work completion, whether production was completed in that time and the quality of production. The formula provided a number of 3.4 which was the threshold for good performance. Employees who fell below that number required further development. There was also an error rate standard based on historical values of the site performance. Ms. Steer started to supervise the Grievor in 2006 and the error rate expectation for the Grievor was between nine and twelve percent. Teranet had a performance development plan for employees who fell below the standard, which provided support to the employee by a supervisor and in most cases, a senior TCA. If the employee was not successful he/she would be assigned to a performance management plan -24 - for two months to address their problems. If not successful in that plan, the employee would be assigned to a second performance management plan for one month and if this second plan was not successful, the employee would be terminated. It was the intention of all the plans to be supportive of the employees.The Grievor commenced her employment on January 4, 2005, and entered a six-month training program where she was not successful. The Grievor went on maternity leave in September 2005 and also took vacation time, returning in December 2006. Ms. Steer supervised the Grievor upon her return. The Grievor had not completed her training and was not certified and was given refresher training. She successfully completed that training in February 2007. Ms. Steer did not directly supervise the Grievor. There were three supervisors at the site, Cheryl Bryant, Michael Warner and Ken Spence, who supervised between 50 and 55 TCAs including the Grievor. Cheryl Bryant reported that the Grievor’s error rate was high and that she was not performing a number of the allotted tasks and Ms. Steer told Ms. Bryant to continue mentoring and supporting the Grievor. On October 25, 2007, the -25- Grievor was placed in a performance development plan. The Grievor’s minimum requirements for the previous six months as noted by the business analyst team had fallen below the 3.4 minimum requirement; she had not met expectations. The expectation for success in the plan, acknowledged by the Grievor, was to be above the 3.4 minimum requirement. The Grievor successfully completed the plan and was so notified on February 1, 2008. Prior to being put on the plan the Grievor was away from her desk a lot, was on the telephone and was making mistakes. Cheryl Bryant discussed her concerns with the Grievor on more than one occasion. On June, 2007, Cheryl Bryant advised Ms. Steer that the Grievor was working for another organization. The information was provided to Ms. Bryant by a supervisor at another site. Ms. Steer was also given a link to another web site which indicated the Grievor and her husband were working in real estate for Royal LePage. Ms. Steer was concerned and was of the view that because the Grievol was working elsewhere she was not focused on her work at Teranet which explained her substandard performance. Also, Teranet had a Code of Conduct in place that dealt with conflicts and potential conflicts when working for another organization. The Code -26 - prohibited working for another organization on Teranet’s time or premises and also prohibited the use of Teranet’s supplies, facilities or tools while working for another organization. Teranet does not prohibit employees working for another organization, but requests transparency about that relationship and asks employees to sign a declaration confirming their understanding of the Code of Conduct. Also, Teranet was concerned that a real estate broker may have access to information about properties not automated that might not be available otherwise and which might place the employee in a conflict situation. Ms. Steer asked the Grievor to attend a meeting with her and Ms. Bryant to discuss if she was working for another organization and if so, to talk about the Code of Conduct requirements. It was intended as a conversation to provide an opportunity for clarity. At the meeting, Ms. Steer asked the Grievor if she worked for a real estate organization and discussed signing the declaration and being aware of Teranet’s expectations. Ms. Steer voiced her concern about the Grievor’s performance plan and told the Grievor she needed her to be successful • and to ensure Teranet was her priority. The Grievor was upset with the conversation and stated it was confusing. She admitted to being involved with another organization, but it -27- was unclear to what extent she was involved in real estate. The Grievor was agitated that the issue was raised. Ms. Steer stated the meeting was calm from both her and Ms. Bryant’s perspective and she did not accuse the Grievor of breaching the policy. Ms. Steer wanted to be clear that it was airight to work for another organization, but needed to ensure the Grievor understood and agreed to the policy. When the meeting ended Ms. Steer considered the issue to be at an end but the Grievor did not and became fixated on how the information came to light and consulted Scott Ferguson, her union representative. Mr. Ferguson requested a follow-up meeting. Ms. Steer did not think that signing the declaration was an issue because others had signed it, including another TCA who was a mortgage broker in London, Ontario. Ms. Steer had a further meeting with the Grievor and Mr. Ferguson, her union representative; also in attendance was Michael Warner, a supervior. According to Ms. Steer the Grievor was concerned about her real estate title and how Ms. Steer found out she was working in real estate. The Grievor was aggressive towards Ms. Steer and claimed she had dug into her personal life. Ms. Steer informed her that the information was brought to her and it was not through her initiative. The Grievor signed the -28 - declaration. The Grievor also raised an unrelated issue about being phoned at home on a flexday and was told there had been a misunderstanding.There was an email to Ms. Steer from Mr. Warner outlining what had occurred at the meeting and there was a further email to Ms. Steer from the Grievor. Ms. Steer considered the matter closed and assumed that the Grievor did not work for another organization on Teranet’s time and did not use Teranet’s resources. Ms. Steer was also shown the notes taken by Ms. Bryant at the December 6, 2007 meeting and stated that nothing in those notes impacts her testimony. Nor did Ms. Steer search the computer records to see if the Grievor was working for another company on Teranet’s time. Ms. Steer reviewed the greivor’s emails in September 2008, after they had been requested by Mr. Farewell, and concluded that the Grievor had been conducting real estate business on Teranet’s time and on Teranet’s premises and had used Teranet’s computer. The last email was on November 9, 2007. At the December 2007 meeting the Grievor had stated she was not doing business unrelated to Teranet on Teranet premises and Ms. Steer had taken her at her word. When she reviewed the emails in September 2008 she concluded the Grievor had not been -29 - truthful.Ms. Steer closed the issue relating to another organization on January 3, 2008 and on February 1, 2008 advised the Grievor that she had successfully completed her performance development plan. She had no further interaction with the Grievor until August 11, 2008 when she had a conversation with the Grievor who had used up all her vacation time, personal time and floater time. Ms. Steer was concerned that if an unexpected event arose any time taken by the Grievor would be unpaid. The Grievor responded that she would look into it. The next interaction with the Grievor was on September 10, 2008, after the Grievor called Ms. Bryant to say she was taking a personal day and left her cell phone number. Ms. Steer called the Grievor to advise her that she did not have enough banked personal time to take and some of the time taken would be unpaid. It was usual for Ms. Steer to call employees who were not a work when expected or who were out of banked time. Ms. Steer left a message but the Grievor did not call back. Ms. Steer also called a second time but did not leave a message. Ms. Bryant was not in the office and returned on September 12. She did not approach the - 30 - Grievor, but since she had left the Grievor a message she provided the Grievor with an opportunity to approach her. The Grievor did not. On September 15, 2008 Ms. Steer sent the Grievor a message since the payroll was due and she wanted to inform the Grievor that some of the time taken September 10 would be unpaid. The Grievor did not respond and Ms. Steer went to her desk and asked to see her in her office where there was some privacy. In the office, Ms. Steer explained why the Grievor would not be fully paid. The Grievor had some paid hours banked. Ms. Steer also asked the Grievor why she had not returned her phone call. The Grievor became agitated and defensive. Ms. Steer told her she was not being accusatory and just wanted to have a conversation. The Grievor seemed more aggravated. Ms. Steer was surprised by the Grievor’s reaction. The Grievor stated she was busy dealing with something but Ms. Steer did not know what the issue was at the time. The Grievor stated that the conversation was over. She was upset to the point of acting in an insubordinate manner. 4s. Steer advised her to step back and calm down. The Grievor asked for a union representative and Ms. Steer said that was fine. The conversation concluded; it had lasted between five and ten minutes. - 31 - Ms. Steer was stunned by the Grievor’s tone, her defensiveness and aggressiveness. She did not know where the Grievor was coming from. Ms. Steer has had conversations with others about payroll shortages and not calling back. Such conversations are standard. Ms. Steer spoke to Cheryl Bryant who did not know what the Grievor was dealing with. The Grievor spoke to Scoft Ferguson, her union representative, and then told Michael Warner, her supervisor, that due to a personal crisis, she needed to get her stuff and leave work immediately. Mr. Warner was unaware of the conversation with Ms. Steer and asked the Grievor if she would be back tomorrow, to which she replied that she would. The Grievor did not tell Mr. Warner about a personal crisis. Ms. Steer found the Grievor’s conduct surprising, unwarranted and disappointing and felt there was no reason for that type of behavior and reported the Grievor’s conduct to Chris Yankou, Manager of Human Resources. On September 15, 2008, Mike Argue, the Local Union President, asked to meet with Ms. Steer. He indicated his concern and asked for Ms. Steer’s take on the situation. He said the Grievor was upset about being - 32 - called into the office and dressed down. Ms. Steer was shocked by his statement and asked if those were his words and he said yes. Mr. Argue did not provide any insight into what the Grievor was dealing with. He said “Can’t you cut her some slack?” Ms. Steer asked what he meant. Mr. Argue suggested there was a personality conflict but Ms. Steer did not believe there was because she did not cross paths with the Grievor very often and she did not feel there was an issue between them. Ms. Steer stated she would not meet with the Grievor alone based on the Grievor’s behavior in the meeting and the conversation with Mr. Argue. She wanted other people in the room because the Grievor’s characterization of the meeting was not factual and Ms. Steer did not want to be in the position of being falsely accused; she did not trust the Grievor. Ms. Steer made notes of her conversation with the Grievor and Mr. Argue, which were filed. The Grievor reported for work on September 16, 2008 and was late on September 17, 2008. Cheryl Bryant discussed the Grievor’s lateness with her but there was no interaction between the Grievor and Ms. Steer. On September 18, 2008, the Grievor called Ms. Bryant and told her that she was off on stress leave and had a doctor’s note. The Grievor was placed under surveillance; Ms. Steer did not have any involvement in that - 33 - decision. Ms. Steer read the surveillance report and was of the view that the Grievor was working for another organization while claiming sick leave benefits from Teranet. Mr. Farewell made the decision to terminate the Grievor’s sick leave benefits and to terminate her. The first indication that Ms. Steer had about what the Grievor had meant when she told her at the meeting that she was busy dealing with something was in the Grievor’s complaint about Ms. Steer which is outlined in the Grievor’s email of September 26, 2008. Ms. Steer at that point had not heard that the Grievor had a sick father-in-law and Cheryl Bryant confirmed that the Grievor’s voice message concerning her absence made no mention of either an emergency or a family situation. Ms. Steer was shocked and surprised by the contents of the letter and the Grievor’s characterization of the events, as well as being disappointed by the “untruths” in the letter. Ms. Steer stated in response to the Grievor’s email that she was not angry or defensive, that she did not raise her voice; that she did not say the GHevor had issues. Ms. Steer also denied that the meeting with Scott Ferguson and the Grievor on December 18, 2007 was an investigation into the Grievor’s personal life. The information about the Grievor’s involvement with her husband’s real estate business was - 34 - contained on a website and that information was conveyed to Ms. Steer by Cheryl Bryant. It was only at that point that Ms. Steer discussed the website. Ms. Steer gave the Grievor’s email and letter to Mr. Farewell for his review and had no further dealings with the Grievor other than the letters and emails which were referred to earlier in Mr. Farewell’s evidence. Ms. Steer confirmed that the Grievor was asked to attend a meeting on October 2, 2008 but declined to meet with the company based on her doctor’s instructions. Teranet had concerns about the validity of her medical condition and Mr. Farewell did not reinstate her benefits. The letters of termination were prepared by Human Resources and Ms. Steer signed them. Mr. Farewell did not ask Ms. Steer for her opinion before he made the decision to terminate. The Grievor had removed a number of personal belongings including family photos and personal mementos when she left the office and it did not appear she was returning. All remaining items were catalogued and sent to her. Ms. Steer testified that the Grievor’s performance at work had been quite poor for some time and was frequently checked by others as her error rate was extremely high and the intent of Teranet was to place the Grievor -35- into the next level of performance development. Ms. Steer denied the allegations against her contained in the Union’s particulars. She denied harassing the Grievor and specifically denied harassing her because of the Grievor’s allegation that Ms. Steer’s husband was a real estate agent in competition with her husband. Ms. Steer had no discussions with her husband about the Grievor’s involvement with her husband in real estate because it was irrelevant to her personal life and was a work issue which she considered resolved when the Grievor signed the declaration. Ms. Steer had no knowledge of work related stress or any stress until the Grievor walked off the job on September 17, 2008. The Union had never asked for medical leave for stress for the Grievor. When cross-examined, Ms. Steer stated the she was not the Grievor’s supervisor at the beginning of her employment, nor was she involved with the Grievor’s training. Ms. Steer became aware of the Grievor’s real estate involvement through Cheryl Bryant on November 30, 2007. Another supervisor independently noticed the Grievor frequently out in the hail and on the telephone and advised Ms. Bryant about the Grievor’s real estate involvement. Concerns were being raised about the Grievor’s - 36 - telephone activities and being away from her desk frequently, and also about her performance. Ms. Bryant sent an email to Ms. Steer with the Royal LePage website which contained the Grievor’s maiden name. The Grievor’s real estate activities became relevant in light of the Grievor’s performance issues and the Grievor’s lack of focus. As a result, it was determined by Ms. Steer, along with the Grievor’s supervisors, that a meeting be held. The matter was not investigated further. Ms. Steer admitted her spouse was involved in real estate along with about 5,000 others in the Brampton area which is a huge market with lots of agents. That her spouse was also in real estate was irrelevant and Ms. Steer was not involved in her spouse’s real estate business. At the December 6, 2007 meeting, the Grievor stated that she was a part-time real estate broker at Royal LePage. Ms. Steer questioned the Grievor about her phone calls and raised concerns about whether the calls were related to the Grievor’s real estate work. She had no knowledge as to what the calls were about. Ms. Steer admitted there was nothing wrong with making and receiving calls on an employee’s own time. There was no discussion concerning the Grievor’s email or computer use. The email use was discovered in the Fall of 2008. Working elsewhere was permitted and - 37 - the Grievor signed the declaration. At a follow-up meeting on December 18, 2007, the Grievor suggested that a specific time for lunch and breaks be agreed upon and Ms. Steer agreed and left it to the Grievor and Ms. Bryant to work out. On another occasion, Ms. Steer went to the washroom where she remained for a long time. Upon entering the washroom, she noticed the Grievor on her phone and when she left the Grievor was still on the phone. Ms. Steer tapped her watch as a reminder of the time. Ms. Steer conceded that if the Grievor was on a break she was free to use the phone but it appeared the Grievor was on the phone for a long time. There was no discussion and Ms. Steer continued on to the work floor. Ms. Steer could not say how long the Grievor was on the phone, although it felt longer than fifteen minutes which was the length of the Grievor’s break. At the December 6, 2007 meeting the Grievor was adamant that she was not conducting business on Teranet’s premises and during Teranet’s time. She also denied using Teranet’s equipment. Ms. Steer took the Grievor at her word and it was only in the Fall of 2008 prior to the Grievor’s termination that Teranet learned that she was conducting business on - 38 - Teranet time and on Teranet’s computer. Ms. Steer conceded that the minutes of the meeting do not reflect that the Grievor was adamant about the use of company equipment on company time. She admitted the statement may not have been made. Ms. Steer was not involved in the forensic analysis of the Grievor’s computer and agreed that all emails preceded the Grievor signing the declaration. Ms. Steer agreed that the Grievor had met the requirements of the performance development plan and there were no performance issues in the two month period after the plan’s completion on February 1, 2008. The Grievor was never placed on a performance management plan. Ms. Steer signed off on the Grievor’s performance review for the period January 4, 2007 to January 7, 2008. There were good comments as well as other comments stating she required improvement. Ms. Steer admitted she called the Grievor twice on September 10, 2008, when the Grievor was absent. It was not uncommon to call absent employees to see if they are airight. On that day, the Grievor did not have sufficient time in her personal bank to take a full paid day off. Ms. Steer called to see if the Grievor was airight and to let her know she would not be - 39 - fully paid. The following day Ms. Steer gave the Grievor an opportunity to respond to her telephone calls but the Grievor did not respond. On September 15, 2008, because she needed to submit the payroll and wanted to know how to characterize the Grievor’s day off, Ms. Steer asked the Grievor to come to her office. Ms. Steer was unaware that the Grievor was involved with a family emergency on September 10, 2008. The Grievor claimed the calls to her were upsetting. Ms. Steer denied that she was angry or that she spoke to the Grievor in an aggressive or intimidating tone. She asked the Grievor why she was being so defensive and did not understand why the Grievor was reacting so strongly. She did not refer to the Grievor as being paranoid but referred to her notes which stated, “I told her I was not being accusatory or aggressive in any form. I asked why she was being so defensive and reacting so strongly to the point of what may be described as paranoia.” Ms. Steer denied saying that the Grievor had issues and was not aware of any issues in her personal life. There were work issues with the Grievor concerning her performance. The Grievor was distracted at work. The Grievor raised concerns about the tone of Ms. Steer’s voice and became agitated. The conversation was fine until Ms. Steer asked the Grievor why she had not returned her phone calls and that is when the Grievor became physically agitated and very defensive. The Grievor stated that she knew -40 - what her time was and she was not a child and then stood up and said this conversation is over and left the office. Ms. Steer felt the Grievor’s actions led her to feel the Grievor was on the verge of being insubordinate. The Grievor requested a union representative and Ms. Steer told her that was fine. Ms. Steer denies being angry or raising her voice during the meeting and was taken aback by the Grievor’s reaction. Ms. Steer became aware later on that the Grievor had left the workplace. The Grievor returned to the workplace on September 16 and 17, 2008. Ms. Steer spoke to Human Resources about the situation but did not discipline the Grievor. Prior to her termination, the Grievor was not disciplined. Ms. Steer received the September 17 and September 25, 2008 medical notes from Dr. Black from the Human Resources Department or directly. She provided the Grievor with sick leave forms at the request of the Human Resources Department. It appeared the Grievor would be away for an extended period and Ms. Steer asked for more detailed information from her in accordance with the standard practice. On September 29, 2008, Teranet by letter suspended the Grievor’s sick benefits. The letter was prepared by Human Resources and signed by -41- Ms. Steer. Ms. Steer did not see the Physician’s statement dated September 29, 2008 which was sent to Teranet and she was not aware that the Grievor could not attend her doctor’s office on September 26, 2008, as requested. Teranet tried to meet with the Grievor but she declined based on her doctor’s advice. Teranet and Ms. Steer, being aware of the surveillance, believed the Grievor was able to work and did not ask for a second opinion. Ms. Steer had worked at the Land Registry Office as a law clerk and conveyancer and assumed from the surveillance report that the Grievor had attended that office on September 23, 2008. She admitted that she did not know what the Grievor did at the Royal LePage offices, nor did she know what papers the Grievor was carrying although she assumed they were related to the open house that the Grievor conducted. Also, there was nothing to indicate what the Grievor did at Colour Tech Marketing. Ms. Steer did not make the decision to terminate the Grievor and did not prepare the letter of termination. • When re-examined, Ms. Steer confirmed she tapped her watch after exiting the washroom and noticing the Grievor on the phone. The incident was not grieved, nor was the Grievor disciplined. Neither was the performance review of January 28, 2008, grieved, which showed the -42- Grievor required further development. Ms. Steer agreed that she did not use the term insubordinate in the September 15, 2008 performance log when referring to the Grievor’s conduct, but felt that what the Grievor said coupled with her standing up and stating that the conversation was over was insubordinate. The meeting was not a disciplinary meeting since there was no union steward present. Cheryl Bryant was a supervisor at Teranet from 1999 until 2011 and reported to Susan Steer. She was on a panel in 2004, which recommended hiring the Grievor, and she became the Grievor’s supervisor when the Grievor returned from her maternity leave. Ms. Bryant testified that for the period February 1, 2007 until September 2008, the Grievor’s work performance fell below the minimum requirements for ten of those months and her error rate was below standard for sixteen of the twenty months. She considered the Grievor’s performance to be poor and not of the required level which was concerning. In August of 2007, Ms. Bryant had emailed the Grievor requesting that she put her phone on vibrate so that it did not disrupt others. Ms. Bryant noticed and was concerned about the Grievor’s frequent phone calls -43 - because the Grievor’s output was decreasing. In August of 2007 she noticed the Grievor’s low productivity and spoke to Ms. Steer. She also met with the Grievor and raised concerns about her performance. The Grievor’s output improved but not the quality and the Grievor was notified on October 26, 2007 that she would be placed on a performance plan where she was provided assistance and support by Ms. Bryant and others. While on the plan, the Grievor told Ms. Bryant that the support she was receiving was good. When the performance plan concluded on December 31, 2007, Ms. Bryant commented that the Grievor needed improvement but also provided supportive comments to encourage improvement. The Grievor was not doing a good job and Ms. Bryant indicated that “further training and more experience was required, in order to meet the position requirements”.Following the performance plan the Grievor’s performance was inconsistent and her error rates were consistently above twenty percent. On September 3, 2008, Ms. Bryant sent an email to Ken Spence and Michael Warner, who were also supervisors, concerning work that the Grievor had performed where the error rate was exceptionally high. Because of the deadlines, it was decided that one block would be returned -44 - to the Grievor to be reworked which was not usual or common. The Grievor was never put on a performance management plan because her employment was terminated. In November of 2007, Ms. Bryant had a conversation with another supervisor who informed her the Grievor was spending a lot of time on personal phone calls and also told her the Grievor was a real estate agent. Ms. Bryant did an Internet search and found the Grievor was working for Royal LePage as a sales representative. Ms. Bryant was aware of the Code of Conduct concerning working for an outside organization and was concerned that the Grievor was conducting other business on Teranet’s time. There was also some concern about her working elsewhere because the Grievor had been put on a performance plan and Teranet was spending a lot of time and resources to support her. After speaking to Ms. Steer, it was decided to meet with the Grievor to have her sign a declaration. Ms. Bryant stated that the meeting was concerned about the Grievor’s telephone calls and that her performance was possibly being impaired by her telephone calls. At the meeting when the Grievor was asked about her real estate activities, she became angry, agitated and flustered and her face was flushed. Ms. Bryant was surprised by her reaction. The Grievor -45 - stated she would take her breaks and lunch at regulated times. The Grievor was given the declaration and took it away with her. Ms. Bryant denied that Ms. Steer was angry or displeased and stated that Ms. Steer was calm and professional which was not out of character for her. Ms. Bryant maintained that the Grievor had a strong reaction and was upset and she discussed the Grievor’s reaction which was surprising and unexpected with Ms. Steer. Ms. Bryant also denied that Ms. Steer accused, assumed or speculated about the Grievor’s conduct and claimed Ms. Steer brought forth the information they had, and discussed the Grievor’s phone calls, Teranet’s policy and the Grievor’s performance. After the meeting, the Grievor did not raise any concerns about Ms. Steer’s behavior, nor did she at any time raise such concerns while Ms. Bryant was her supervisor.Ms. Bryant also testified that the Grievor’s attendance was irregular — she was tardy and absent a lot but would notify Ms. Bryant by voice mail when she would be away from work. On November 30, 2007, the Grievor was away and there was no voice mail. Ms. Bryant informed Ms. Steer who contacted the Grievor and was told that the Grievor’s father-in-law was ill. On November 29, 2007, the Grievor had submitted a request to change -46 - her flex day to November 30, 2007. Ms. Bryant was absent on November 29 and was not aware of the Grievor’s request, otherwise she would not have spoken to Ms. Steer. Ms. Bryant checked and found the Grievor’s request which had not been processed due to an administrative error. On September 10, 2008, the Grievor was not at work and left a voice mail which stated that she would not be at work and was dealing with a personal matter. There was no indication that there was a family emergency. The voice mail also stated the following: “If you want to get hold of me you can all me at [number stated] — that is my cell phone number. Thank you so much. Bye”. Ms. Bryant informed Ms. Steer and they decided to contact the Grievor to ensure she was airight and to discuss how her time would be taken as the Grievor had run out of personal (discretionary) time. Ms. Bryant spoke to Ms. Steer later and asked if she had heard from the Grievor how her time was to be recorded. Ms. Steer had not heard from the Grievor so she and Ms. Bryant discussed calling the Grievor a second time. Ms. Steer called but left no message since she had left an earlier message. When the Grievor returned to work, Ms. Bryant did not speak to her. -47 - She spoke to Ms. Steer after Ms. Steer’s meeting with the Grievor on September 15, 2008. Ms. Steer was surprised by the Grievor’s reaction. The Grievor was at work on September 16 and September 17, 2008. On September 17, the Grievor was late and notified Ms. Bryant; there was nothing unusual about that day. On September 18, 2008, the Grievor left a message stating she was on stress leave and had a doctor’s note. Ms. Bryant had no further involvement with the surveillance or the Grievor’s termination. She stated that throughout her employment Ms. Steer was very professional and would not conduct herself otherwise. Also, the Grievor never complained about Ms. Steer. When cross-examined, Ms. Bryant stated she was one of the Grievor’s three supervisors from February 2007 until September 2008. The Grievor was not disciplined for her performance and the performance plan was not disciplinary. The Grievor was also not disciplined for attendance or phone use. Ms. Bryant confirmed that she signed off on the Grievor’s performance plan but based on the Grievor’s overall performance further development was required. Although the performance plan was completed the Grievor was not placed on another performance plan. -48 - In the Summer of 2007, the Grievor had a lot of phone calls, but Ms. Bryant did not know what the calls were about and did not assume they were related to real estate. After being informed by another supervisor about the Grievor’s real estate involvement, Ms. Bryant googled the Grievor’s name and checked her website and sought other information. Ms. Bryant was not aware how the other supervisors knew about the Grievor’s real estate involvement. Ms. Bryant agreed that when employees take a personal day they are not required to provide personal details. When the Grievor was contacted on September 10, 2008, it was to see if she was alright, which was standard practice, and to inform her she did not have enough banked time to account for the full day. Ms. Bryant had never googled another employee.When re-examined, Ms. Bryant stated she had no reason to google other employees because she had never . been told that any other employee worked for a real estate company. -49- The Grievor had previously been a law clerk and was also licensed as a real estate broker and mortgage broker. She was hired as a title certification analyst (TCA) in January 2005 and worked in that capacity until September 2005 when she left on maternity leave. After she was hired she received three weeks of classroom instruction related to title searching and then commenced working on site where senior TCA’s were available to assist her in her work. The Grievor was not certified as a TCA until she returned from her maternity leave on December 20, 2006. At that time she worked at the Atrium and Susan Steer was the manager; Cheryl Bryant, Mike Warner and Ken Spence were her supervisors. Upon her return from maternity leave, the Grievor received refresher training and became certified in February of 2007. The Grievor stated that there was nothing unusual in her contact with Cheryl Bryant and Susan Steer. Her first significant contact with Susan Steer was in November 2007 when she was put on a performance plan which she successfully completed ib January 2008. Cheryl Bryant oversaw her work and also met with Susan Steer bi-weekly to review the Grievor’s work. - 50 - On November 29, 2007, the Grievor submitted a form to have her flex day changed. The Grievor gave the form to an administrative assistant and claimed that Cheryl Bryant was standing next to the assistant’s desk when she spoke to the assistant. The next day while the Grievor was at home, she received a call from Ms. Steer asking why she was not at work. The Grievor explained that she had submitted a request form the day before and Ms. Steer said she was not aware of it and would look for the form, which she apparently did. When the Grievor returned to work everything was normal and she was not questioned about the matter. The Grievor also claimed that prior to a December 6, 2007 meeting with Susan Steer and Cheryl Bryant, she was on her break and while speaking on her cell phone to a friend, Ms. Steer saw her talking and when Ms. Steer came out of the bathroom, she gestured and tapped her watch to let her know her time was up. The Grievor testified that she was shocked as she had not exceeded her break and felt Susan’s gesture was uncalled for. On December 6, 2007, the Grievor was called to Susan Steer’s office. Cheryl Bryant was in attendance and Susan Steer asked the Grievor about -51- her real estate work and why she was spending so much time on the phone. The Grievor explained that the majority of calls were for personal reasons such as day care, doctor’s appointments and to her husband. The Grievor stated that she worked part time in real estate for Royal LePage and questioned how Ms. Steer and Ms. Bryant had become aware of it. The Grievor was told that they were informed of a website, but the person who informed them was not named. The Grievor was told the focus should be on her work at Teranet and she replied that Teranet was her priority. When asked if people had tried to contact her for real estate while at work, she stated she “kept this away from work”, and took the majority of calls during lunch or at break time. The Grievor was given a declaration to sign and said she would review the form and get back to them and the meeting ended. The Grievor claimed that she had no prior notice of what the meeting was about, had no union representation and was blindsided. The Grievor made notes of the meeting which were filed. The notes reflect that the Grievor was asked about doing real estate work on company premises and on company time, and the Grievor replied that she made calls on her personal cell phone and not on Teranet’s premises. The Grievor also noted that her phone calls were made at break time and the - 52 - majority of the calls were personal. Susan Steer told the Grievor that she needed to focus on her job and the Grievor replied that she was focused. The Grievor’s notes indicate she was upset with the way the meeting was going and it was “full of accusations/assumptions/speculations from Susan”. The Grievor felt Ms. Steer was very aggressive. The Grievor told Susan that she could have her break time and lunch time monitored and Susan Steer agreed. The Grievor noted that being monitored like a child was humiliating to her. She testified that she was shocked by the meeting. The Grievor and Scott Ferguson, her union representative, met with Susan Steer and Mike Warner, a supervisor, at the Grievor’s request. At this second meeting, the Grievor mentioned the phone tapping incident and told Ms. Steer that her behavior was excessive and uncalled for and that she had been upset by it. Ms. Steer replied that she was not aware the incident upset the Grievor and that the Grievor should have brought it to her attention. The Grievor stated that she chose not to because she was upset and might have said something inappropriate. Ms. Steer replied that maybe the Grievor had control issues which shocked the Grievor. - 53 - On January 3, 2008, the Grievor in an email to Susan Steer acknowledged receipt of the minutes of the meeting on December 6, 2007 and clarified that it was never mentioned that the Grievor’s outside activities were interfering with her focus on the job. She also mentioned that she was entitled to receive personal calls on her cell phone which she answers on her breaks and at lunch but she would answer calls of an urgent nature concerning her children. She stated that she trusted the assumptions that every call she received or made was of a business nature would end. The Grievor also signed the declaration and provided it to Ms. Steer. Susan Steer replied that there never was an assumption that every call made was of a business nature and that the expectations regarding such calls had been made clear and agreed to by the Grievor in the declaration.The Grievor received her personal performance review for the period January 4, 2007 until January 7, 2008 which indicated she had good interpersonal skills and was committed. When the Grievor read the review she felt the overall review of her skills was good. Her SM scores were 3.82 which met the requirements of the Performance Development Plan. Also, at -54- that time, the Grievor attempted to stay low key and focus on her work. She was aware of what had happened between herself and Susan Steer and went off the Teranet premises into the mall for any personal calls. On September 10, 2008, the Grievor had a family situation at home concerning her father-in-law and left a message for Cheryl Bryant stating that she would not be in as she had a personal situation to deal with, and left her cell phone number. She did not specify that there was an emergency even though it was; it was quite stressful at the time. Because her husband had to attend his father in Toronto, the Grievor found it necessary to stay at home with her three year old twins since the day care did not accept them until 11:30 a.m. On that day Susan Steer called the Grievor on her cell phone at 9:00 a.m. and left a message to call her at the office. Ms. Steer called again at 1:00 p.m., but the Grievor did not respond to either call. The Grievor was concerned with dealing with a serious situation and “the last thing anyone would want is a phone call as [she] did not know what it was about”. The Grievor had used up her vacation and her personal days prior to that day. She testified that Susan Steer had not called her when she was absent previously. Given the relationship with Susan Steer, the calls brought back memories of the November 29, 2007 - 55 - incident; the Grievor did not know what the call was about. She felt it was harassing and she did not know why Susan Steer had called her twice on that day. The Grievor claimed the call was harassing because of the November 29, 2007 incident and the meetings of December 6 and 18, 2007, and she did not see the need to call her twice. The Grievor returned to work on September 11, 2008 and Ms. Steer was not there, nor did the Grievor have any conversation with Cheryl Bryant. The Grievor felt it was unusual not to be asked what happened considering the calls from Susan Steer and felt if there had been something urgent, it could have been addressed by Ms. Bryant. The Grievor spoke to her union steward about her concerns and told him she did not have a good feeling about the silence. Ms. Steer returned to the office on September 12, 2008, and raised no concerns. On Monday, September 15, 2008, the Grievor received an email from Susan Steer asking to see her. She spoke to a co-worker for about five minutes and Susan Steer came to her desk and asked her to come to her office. The Grievor felt intimidated by the tone of Susan Steer’s voice, but followed her to her office. Ms. Steer asked the Grievor why she did not call - 56 - her back on September 10. Ms. Steer stated that she tried to call the Grievor to see if she was alright and to let her know that she did not have enough hours to get full pay for the day off on September 10. The Grievor responded that given the situation at home was very stressful, it did not matter that she was short of hours. Ms. Steer said that the Grievor seemed to be very defensive about the situation. The Grievor told her she did not feel comfortable discussing it as Susan Steer was not a family member and she did not want to get into details but it was an emergency and very stressful; being called twice made it more stressful and the Grievor did not see any reason for that. Ms. Steer maintained that the Grievor seemed to be paranoid and became more aggressive in her tone of voice. The Grievor was shocked by Ms. Steer’s choice of words and it made her uncomfortable; accusing her of being paranoid was not appropriate. The Grievor was not sure where it was coming from and told Ms. Steer she did not feel comfortable in the situation and did not appreciate her tone of voice. In response, Susan Steer leaned forward and asked “what kind of tone of voice would that be”? The Grievor testified that it was an angry voice and Ms. Steer mentioned she was paranoid which Ms. Steer denied. The Grievor asked that the meeting come to an end and wanted a union representative. Ms. Steer said the meeting was at an end and the Grievor - 57 - left the office crying because this was a stressful situation and Ms. Steer had insinuated she was paranoid. The Grievor felt intimidated and walked toward her desk where she encountered Mr. Ferguson and told him in detail what happened in the office. The Grievor filed notes that she made of the conversation in which she stated that “This person is going on a personal crusade against me”. The Grievor testified she felt this way because Ms. Steer said she was paranoid and had issues which was a strong personal opinion from a manager. The Grievor stated that she connected the conversation to the December 6, 2007 meeting because she had made it clear what were her personal priorities and did not want her manager digging into her personal life and making personal comments, assumptions, accusations and observations about her. Ms. Steer had assumed the Grievor was not focused and brought it up both on December 6, 2007 and also on September 15, 2008 in a private setting without witnesses. The Grievor returned to her desk very upset and told her supervisor, Mike Warner, that she was leaving. She returned the next day and felt stressed out, nervous and uncomfortable. - 58 - The Grievor saw her doctor on September 17, 2008 because of the stress and pressure of the situation and was given a note by her doctor to remain off work which she sent to the company after speaking to the Human Resources Department. The Grievor did not feel comfortable communicating with Ms. Steer and wanted to deal with someone who was more objective. On September 25, 2008, the Grievor saw her doctor who recommended she stay off work for another two weeks. On September 26, 2008, she sent an email to Susan Steer outlining a complaint against her concerning the harassing events that had taken place from September 10, 2008, onwards. Also, on Friday, September 26, 2008, the Grievor received an email from Ms. Steer enclosing a sick leave form to be completed by her doctor that day. The doctor’s office was closed that day and the Grievor informed Chris Yankou of the situation and stated she would attempt to have the doctor sign the form on Monday. The form was completed on September 29, 2008 and forwarded to the Company on September 30, 2008. On September 29, 2008, the Grievor received a letter form Susan Steer stating her benefits were terminated and requesting a meeting on October 2, 2008. Ms. Steer disagreed with the contents of the Grievor’s - 59 - complaint letter. The Grievor was shocked when she received the letter because she was doing everything asked of her and had sent in the doctor’s form that had been requested. The Grievor declined to attend the meeting because her doctor had advised her to stay off work after she explained her stressful situation. The Grievor did not attend any meetings with the Company prior to her termination because of her doctor’s advice. The Grievor saw the doctor on October 3 and October 7, 2008 and sent a doctor’s note dated October 7, 2008 to Teranet which stated that the doctor had advised her to remain off work. Prior to her termination on October 9, 2008, the Grievor claims she was stressed out and had advised her doctor of her stress and anxiety. She maintains she was sleep walking, had chest pains and headaches and the doctor had prescribed medications for her. When she received the letter of termination on October 9, 2008, she was shocked and the termination added to her stress and anxiety. She claimed to be unaware of Teranet’s “serious concerns regarding [her] performance or [her] responsibilities” as set out in the termination letter and felt all the performance issues had been resolved when she completed the performance plan. She also denied removing her personal items from the - 60 - office, with the exception of her children’s pictures. The Grievor maintained that no one from Teranet had disagreed with the contents of her email or medical notes and no one had asked for a second doctor’s opinion or an independent medical examination. The Grievor testified that she had not refused to respond to the Company’s inquiries as alleged, nor was her doctor contacted. The Grievor did not understand the basis for her termination.The Grievor testified that she refused to meet with the Company because she did not know what would be discussed and she was not physically or emotionally ready to deal with the situation. She was extremely overwhelmed and had followed her doctor’s advice. She was unaware when she would be ready to meet and was simply taking one day at a time. She would have gone to a meeting if the doctor said it was airight, since she trusted his medical advice. The Grievor on October 15, 2008, sent an email to Susan Steer strongly disagreeing with the decision to terminate he( and outlining her position. The Grievor testified that she was unaware of the surveillance and was shocked to learn of it. She acknowledged that on September 23, -61- 2008, she attended the Land Titles Office at Service Ontario on behalf of her husband to obtain an abstract. She stated that she did errands for her husband to get out of the house and to take her mind off of the stress that she went through at Teranet. The Grievor admitted that on September 26, 2008, she went to the Royal LePage office on an errand for her husband to pick up the mail and met her husband in the parking lot carrying the mail. She spoke to her husband about going to Colour Tech Marketing to pick up a sample brochure for him. She was not concerned that she was on sick leave because running errands was stress free and not labour intensive, nor did it take up much time. On September 27, 2008, the Grievor retrieved an open house sign from her vehicle and conducted an open house for approximately two hours where she greeted people, showed the house, answered questions and provided the people with information including a listing document. The sign at the house said Corrado Morana and Dorata Morana (her name) and the Grievor claimed that she decided to do the open house on that day as she wanted to get out of the house, and conducting the open house was stress - 62 - free. She was not paid for conducting the open house. Her husband was paid a commission by Royal LePage when the house was sold. The Grievor’s husband had been a full time real estate agent since 2000 and she had received a real estate license in 2001, but was not full time as she had other full time jobs in order to provide a more stable income. The Grievor admitted that her name is on all the real estate signs and used in advertising. Her husband uses their image on his website, his business cards and in newspaper ads, but that does not mean she is engaged in real estate. However, the Grievor pays dues and is an active member of the Real Estate Council of Ontario, but that does not mean she is selling real estate. She has not received a T4 for income tax from Royal LePage since 2004 or 2005, nor has she had any real estate income since then. The Grievor became aware in 2007 from a co-worker that Susan Steer’s husband was involved in real estate in Brampton where the Grievor’s husband practices and eventually found out that Ms. Steer’s husband was employed by Re Max which competed with Royal LePage. The Grievor is not familiar with Susan Steer’s spouse, but she became -63 - concerned because when Susan Steer found out the Grievor was a real estate agent her behavior toward the Grievor changed and she became suspicious of the Grievor’s calls which Ms. Steer brought up at the December 6, 2007 meeting on the assumption that the calls were of a real estate nature. The Grievor felt the tone of Susan Steer’s conversation with her changed and was suspicious and indifferent from time to time and made her feel uncomfortable after she returned from maternity leave. The Grievor testified that she did not act as a real estate representative in 2006 and 2007 and did not pay her monthly real estate agency fees in those years, but paid fees to the Toronto Real Estate Board and others in order to maintain her ilcense. She was required to pay her agency fees again in 2008 but delayed payment because she did not have the funds. She was not involved in any real estate deals for the period 2007 to 2012.The Grievor continued to see her doctor for stress in 2008, 2009 and 2010 because of stress and sleeping problems for which he prescribed drugs. She did not return to work right away and applied for and received Employment Insurance (E.l.) until February of 2009 when the doctor -64 - provided her with a letter stating she was airight. In order to receive El benefits, the Grievor submitted a doctor’s report from Doctor Jason Black dated November 19, 2008, which indicated that she had seen the doctor on September 17, 2008, and was advised to take a medical leave from the stressful environment at Teranet under the management of Susan Steer, but did not have to stop doing real estate broker and mortgage broker activities; and she was subsequently seen in October and continues to require treatment.Doctor Black also wrote a letter September 21, 2010, in which he indicated that he had advised the Grievor in 2008 that she could pursue various activities including real estate activities on behalf of her husband such as attending open houses but that it was not until the end of February 2009 that he consented to her seeking alternative work to that of Teranet, but in a limited capacity to avoid stress. He also stated that it was not until the end of February 2009 that he consented to the Grievor being able to seek alternative work. The Grievor also filed a series ofreports to El which indicate her lack of availability for work from November 24, 2008 until February 13, 2009. -65 - The Grievor testified that at the end of February 2009, she was paid for doing a freelance project which lasted about a month and that El was aware of it. Since then she has looked for work and had a temporary position which became full time on October 7, 2011 and was expected to last until January 2013. She has had no other employment since she was terminated other than helping her husband in a limited way, because lack of financial resources caused her to take her children out of day care requiring her to stay at home. In order to interview for a job she had to co ordinate with her husband to have him stay with the children. She has not received any payment for her real estate work other than $5,000.00 she received as a mortgage broker for work she did at the end of 2009. The Grievor filed her tax returns for the period 2007 until 2010 which reflected that her husband transferred a portion of his income to her in order to reduce his income tax. The Grievor did not earn the income that resulted from that practice, known as income splitting. The tax returns also showed other income the Grievor earned during that period. The Grievor testified that she regularly searched for employment and applied for a number of jobs and tried to get anything she could. She had a number of job interviews from February 2009 until October 2011, but had difficulty -66 - obtaining other employment and would have taken anything that came her way. She eventually obtained employment in 2011 with Peel Paramedia. Termination of her employment has impacted the Grievor financially and emotionally. She has received further treatment for stress from Dr. Black. When cross-examined, the Grievor admitted to signing an offer of employment on November 22, 2004, to commence employment as a TCA effective January 4, 2005. The Grievor also signed a confidentiality agreement on that date acknowledging that Teranet acquired and developed “confidential data” that, as an employee, the Grievor was prevented from disclosing “to any person, firm or corporation”. The Grievor went on maternity leave on September 5, 2005 and returned December 20, 2006. Upon her return she received additional training and support to assist her in integrating into the workplace and completing the TCA program requirements. Ms. Steer became her manager on December 20, 2006 when she returned from maternity leave. The only complaint the Grievor .made against Susan Steer was in a letter dated September 22, 2008 and delivered September 26, 2008, notwithstanding that the Grievor alleges continual harassment. The only grievance filed by the Grievor was on October 27, 2008 which led to this arbitration. -67 - The Grievor completed her training and was certified as a TCA as of March 2007. Some months later, on October 26, 2007, she was placed on a performance plan which ended on January 26, 2008. While on the performance plan the Grievor met regularly with Cheryl Bryant, her supervisor. Ms. Steer did not participate in those meetings. On February 1, 2008, in a memorandum to the Grievor, Susan Steer advised that she was pleased to advise that the Grievor had met all the requirements of the Performance Development Plan and that she would continue in her position as a TCA and would be required to meet the minimum standard requirements.In March of 2008, the Grievor received a Personal Performance Review for the period January 4, 2007 until January 7, 2008 which stated the Grievor’s standard measurement rate was 3.36 and that development was required and also that the Grievor had “struggled for most of the year with low production and a high error rate”. The acceptable SM range was between 3.40 and 6.09. In 2008, the Grievor continued to struggle with low production and a high error rate. She testified that “the numbers show what they show and the error rate is what it is”, but she stayed focused and -68 - worked hard. In January 2008, the Grievor’s SM level was 2.79 and her error rate was 29.5%. From February to August her error rate exceeded 24% each month, while her SM rate varied from month to month. For example, in February it was 5.06 and in March it was 2.9, while in April it was 3.23. The Grievor acknowledged that all of her work had to be reviewed by a Senior TCA and that Teranet was paying two people for 100% of the work. On May 20, 2008, a block of work that the Grievor had completed was returned in its entirety. The Grievor stated that she was focused and worked hard on the block, but admitted the error rate was unacceptable.The Grievor’s performance shows chronic but periodic lateness in 2008. On August 11, 2008, Ms. Steer spoke to the Grievor indicating she had used all of her vacation time and floaters and suggested she should bank some time if she wanted more time off. The Grievor stated that Ms. Steer was not harassing her when she spoke to her about her time. The Grievor admitted Teranet’s code of conduct entitled her to choose how to spend her non-working hours including choosing to work part time for another organization provided there was no conflict with -69 - Teranet. She understood she had to provide a written declaration if there was a conflict or potential conflict between Teranet and another business or employment. She also understood she was to use Teranet’s time for Teranet business and not to use Teranet’s computers for another business. On December 6, 2007, the Grievor met with Susan Steer and Cheryl Bryant to discuss her real estate activities. She admitted she was a real estate broker and her husband was in real estate, however, she stated that she had no real estate income since 2004. The Grievor was shown a bundle of documents outlining the real estate marketing activities of Corrado Morano, Broker and Dorota Morano, Broker. The documents contain pictures of both the Grievor and her husband, indicating that both are operating the business and show a contact sheet for the Grievor, as a mortgage broker. The Grievor admitted she was a mortgage broker for the company. The Grievor maintained that the documents were prepared by her husband who manages everything. In addition, the documents contain an advertisement from the Caledon Enterprise, a newspaper containing her picture and her husband’s advertising the real estate business. The advertisement also shows a sign that states ‘sold’ with the names on it of Corrado Morano and Dorota -70- Zmarlek, the Grievor’s maiden name. The Grievor stated her husband had permission to put her picture in the paper to keep his business as there is a general perception that a couple works better. She agreed that she and her husband hold themselves out to the world as being in business, but her husband is the one who is in business full time. The documents also refer to homes “listed with Corrado and Dorota” and also refers to them as a “husband and wife team”. There are three pages of pictures with sold signs showing the Grievor and her husband with happy clients and a further page in the Caledon Enterprise dated October 18, 2006, picturing the Grievor’s twins and the Grievor and her husband referring to a “family approach” and a “husband and wife team”. Also, there is a document showing the Grievor and her husband, which contains sales statistics in Vaughn. On March 5, 2008, there is a picture of the Grievor and her husband referring to them as brokers and stating “husband and wife teamwork” above their pictures. The Grievor claimed the sales were made by her husband and that she hasn’t made any money in real estate. She acknowledged that the advertisement looks like we are running the business together and indicates that “both he and I received the Director’s Platinum Award”. She -71- agreed the website holds out that they are clearly in business together. A further page showing the pictures of the Grievor and her husband contains a series of testimonials indicating “Our clients state their opinions of us”, which is supportive of the Grievor and her husband. Another page in the Caledon Enterprise dated November 14, 2007 has a picture of the Grievor standing beside a sold sign with both her name and her husband’s name and another picture of her and her husband with a reference to husband and wife teamwork.Also, on May 23, 2007, the Caledon Enterprise contains an advertisement for a charity barbeque and car wash where the Grievor admits to being present next to a picture of a Royal LePage real estate sign with her name and her husband’s name. There is a second picture of her and her husband and a real estate advertisement with their names again referring to “husband and wife teamwork”. On October 8, 2005, there is a Caledon Enterprise advertisement showing happy clients with sold signs containing the names .of the Grievor and her husband and a separate picture of the Grievor and her husband as sales representatives. In the same newspaper on July 19, 2006, there is an advertisement for world cup - 72 - soccer showing the Grievor, her husband and her twins and containing a real estate advertisement. The Grievor admitted that anyone looking at the documents could see that she was engaged in the real estate business but that she intended to help her husband’s real estate business by putting her face and her children’s face on the advertising and getting testimonials from people. She admitted she would be perceived as part of the business. She also admitted clients had met her during the course of her husband’s dealings with them and the testimonials suggest she was actively involved in the business and “state their opinion of us”. The Grievor admitted to being actively involved with the people who provided testimonials as part of her husband’s full-time business by helping her husband, however she made no income. She admitted to holding herself out as an active participant in the business. She is also described along with her husband as “awesome agents and negotiators”. The Grievor stated that she did not know what the meeting of December 6, 2007 was about and she was not told who was looking into the website; the information was personal to her. She acknowledged that - 73 - her Employer was entitled to be concerned about a potential conflict of interest. She did not inform Teranet of her situation because she focused on her job. She was upset because she was not told the purpose of the meeting but agreed that Teranet could be upset because she did not tell Teranet about her real estate business. The Grievor admitted she was not disciplined.The Grievor testified that while occasionally she made calls to her husband related to real estate, the majority of her calls were for personal reasons. She was only asked about her phone calls and Susan Steer and Cheryl Bryant took her at her word. She was not asked whether she used Teranet’s computer to assist her husband in his business. When shown a series of emails from 2007 recovered from her Teranet’ computer, which were dated prior to the December 6, 2007 meeting, the Grievor agreed that it was reasonable for Teranet (Elgin Farewell) to conclude that she and her husband had exchanged emails concerning the real estate business. At the December 6, 2007 meeting, the Grievor did not volunteer that she used Teranet’s computers in breach of the Code of Conduct because she was not asked and responded to specific questions. The meeting was concerned about the Grievor’s use of her cell phone. She was on a - 74 - V performance plan and admitted it was reasonable for Ms. Steer and Ms. Bryant to be concerned about her focus and attention to detail, since she was on a performance plan and had low productivity and it was also reasonable for them to be concerned about her involvement in the real estate business. The Grievor understood that under the Code of Conduct Teranet’s tools or assets could not be used while working for another organization, however, she used Teranet’s assets to assist her husband. The Grievor testified that on September 23, 2008, while on medical leave, she attended the Registry Office to get a printout for her husband’s real estate business. On September 26, 2008, she went to Colour Tech to get information for her husband to use in his real estate business and on September 27, 2008, she conducted an open house to help out her husband. She stated that Vt is necessary to be licensed to conduct an open house.On January 1, 2006, andJanuary 1, 2007, the Grievor informed Royal LePage that she would not continue as a real estate sales representative until December 31, 2007, which exempted her from paying fees to Royal LePage, but she kept her real estate license alive during that - 75 - period. The Grievor became active again on January 1, 2008 and did not tell Teranet. Accordingly, when she conducted the open house on September 27, 2008, she was active as a real estate agent. She agreed that it was reasonable for Elgin Farewell to conclude that she was engaged in the real estate business. However, her doctor had confirmed she was on stress leave from Teranet. The Grievor also agreed that it was reasonable for Elgin Farewell to conclude that she was violating the disability program by receiving disability benefits and working elsewhere. When Teranet asked to speak to her because it had doubts, her doctor said she could not meet with Teranet. The Grievor testified that she wasn’t sure if her doctor could decide whether she should receive benefits under the Teranet program. The Grievor stated that she did not talk to her doctor about benefits or entitlements but talked about the stress she was under at Teranet and he wanted her off work. When the Grievor was asked to come to a meeting because of her activities, she chose not to come because the doctor said it was work related to Teranet. She told the doctor what was happening and was aware by September 26, 2008, that her benefits might be suspended when Susan Steer called and asked her for a doctor’s sick leave statement, otherwise she would lose her benefits. The Grievor stated she was stressed out and did not have a conversation with the doctor about - 76 - her benefits being cut off. After she was asked to attend the meeting and her benefits were cut off, she told the doctor about the situation and also told him she did not want to go to the meeting. The Grievor claimed she was stressed out because of the harassment the previous year and not because of the manner in which she was performing her duties, since she was working hard and was under the impression she was doing a good job notwithstanding that between January 2008 and August 2008, her work was quality controlled and her monthly error rate was unacceptable. Her standard minimum requirements varied from month to month and a block she had done had to be returned to her. When it was pointed out that her work was a wholesale failure, the Grievor responded that she did not run from a challenge and had asked for help and faced the situation head on and was proactive while she was on the performance plan. She maintained that having a manager with whom she did not have a good relationship with did not make things easier and Susan Steer was harassing her. The Grievor admitted that she chose not to come in to speak to Teranet about her real estate activities and when Elgin Farewell concluded - 77 - that since she was well enough to work in real estate, she was well enough to work at Teranet he should have spoken to her doctor. The Grievor understood from her doctor’s notes that he wanted her to be away from Teranet on stress leave, but to get out of the house so as to help her get better. She stated that her doctor said it was atright to assist her husband by getting out of the house including doing daily errands like picking up the mail, going to the registry office, getting samples for her husband’s business and conducting open houses. She relied on her doctor and followed his orders. The Grievor maintained it was reasonable for her to get medical benefits from Teranet and her benefits should not have been suspended. She confirmed that her doctor said it was alright to work in the real estate business and she followed his advice. When cross-examined about the December 6, 2007 meeting with Teranet, the Grievor testified she wanted another meeting with Teranet to find out how management knew she was a real estate representative. She felt management did not want to disclose wtiere the information came from. She wanted to know why inquiries were initiated. She was of the view that the inquiries were made because Teranet assumed all the phone calls she made were for business purposes without considering her personal - 78 - situation as a mother or personal conversations with her husband. On January 3, 2008, the Grievor emailed Susan Steer stating that “there were numerous assumptions about the nature of the phone calls received and made by me” and went on to explain her position concerning the phone calls. Susan Steer responded that “there was never an assumption that every call you made was of a business nature”. The Grievor found it unusual that if someone made phone calls their name would be googled. She continued to pursue that issue by asking for the meeting of December 18, 2007 and sending the email. At the meeting on December 18, 2008, the Grievor raised a concern about management phoning her at home on a flex day that she had requested be changed one day prior. It was explained to her that there was a misunderstanding as to which day the Grievor would be at work and she was called at home because management thought she would be at work that day. The Grievor felt she was being harassed when Susan Steer called to ask why she was not at work since she submitted the form. The Grievor acknowledged that it was reasonable for the employer to call if an employee does not show up for work. After the Grievor explained that she - 79 - filled out the proper form and Susan Steer investigated, there were no further consequences to her nor was she disciplined. A record of voice messages to Cheryl Bryant from the Grievor and maintained by Teranet were reviewed with her on cross-examination. A number of those calls stated she would not be coming and informing Ms. Bryant of her telephone number and stating that Ms. Bryant could call her. On September 10, 2008, the Grievor left a voice message stating she was dealing with a personal matter and wouldn’t be coming in. The message, similar to others she had left, stated “If you want to get a hold of me, you can call me at [telephone number] — that is my cell phone number”. There was no mention of there being an emergency or of a sick father-in- law. The call to the Grievor by Susan Steer was to inform her that she had no time left and the time off would be unpaid and was consistent with a similar call on August 11, 2008. The Grievor was at home with her children while her husband was at the hospital and she did not answer Ms. Steer’s call. Ms. Steer called again and the Grievor did not answer. She testified that these two calls to her home were upsetting and harassing and she did not believe anyone should have called her. - 80 - On September 22, 2008, the Grievor made a complaint against Susan Steer which included allegations that the phone calls that Ms. Steer made were “inappropriate and harassing” and an “unjustifiable intrusion with her personal life”. The complaint states that the Grievor was dealing with a family emergency and her father-in-law was sick and stated that she would not be in. The Grievor admitted that her voice message on September 10, 2008 did not refer to an emergency family situation and that Ms. Steer would have no knowledge of her situation and would not have known why the Grievor had not returned .her call. Nor would Ms. Steer have known that the Grievor was not in a position to discuss her family circumstances with a non-family member as alleged in her complaint. The Grievor agreed that she left a message to call her but when she was called it was an intrusion into her personal life. When advised on cross examination that there was no way that Susan Steer could know the Grievor was dealing with a family situation, the Grievor refused to withdraw her allegation of harassment. Also, the Grievor did not know the purpose of Ms. Steer’s call until days later but held to her allegations that the calls were an unjustifiable intrusion into her personal life. - 81 - The Grievor returned to work on September 11, 2008, and expected Cheryl Bryant to comment; Susan Steer was not in the office that day. When Susan Steer returned to the office the following Friday, she did not talk to the Grievor about the phone calls. The Grievor was of the opinion that since she had been called at home, it was the employer’s obligation to follow-up. The Grievor expected Cheryl Bryant to ask if she was airight, but that did not happen. Ms. Bryant had no knowledge that there was a family emergency. When Ms. Steer did not talk to the Grievor, she found the silence to be intimidating and harassing. The Grievor could have asked Ms. Steer what the September 10 calls were about, but did not. When the Grievor met with Susan Steer on September 15, 2008, she was upset since she had concluded the two phone calls on September 10 were an unjustifiable intrusion into her family life and she expressed her displeasure to Ms. Steer. When the Grievor declined to discuss her delicate family situation, Susan Steer said that she seemed to be paranoid about something she was hiding. The Grievor asserted that, based on her voice message, Susan Steer should not have tried to contact her more than once and it had made the Grievor quite uncomfortable. - 82 - The Grievor claimed that because of her termination, her husband’s business was damaged to the advantage of Ms. Steer’s husband because her husband had to cover costs that he did not have to cover when the Grievor was working and had an income. As a result, her husband had less money to spend for his business. The Grievor also reviewed her income and stated that a significant portion of it was due to legitimate income splitting with her husband for tax purposes, but that she had not earned that income. When re-examined, the Grievor stated that subsequent to completing her performance plan she was not placed on another plan. Nor was she disciplined for lateness. She acknowledged that when she left the voice message on September 10, 2008, she was not aware of the full details of her father-in-law’s condition and could not elaborate. Dr. Jason Black has been a family practitioner since 1999 in private practice. The Grievor has been a patient of his since August 2001. Dr. Black filed excerpts from the Grievor’s chart which he referred to in his testimony. The chart for September 17, 2008, mentions that the Grievor awakened at 2:00 a.m. The chart also states “discussed with H.R. — - 83 - suggesting medical leave from work”. Dr. Black testified that the Grievor mentioned that she was quite stressed and was awakening in the middle of the night. Dr. Black gave the Grievor a note stating,”[the Grievor] was advised a medical leave from work. She will follow-up in the office next week”.Dr. Black saw the Grievor on September 25, 2008, and his chart states “she’ll get up in the middle of the night, fragmented sleep, not ready to RTW”. He testified that he prescribed orazapam at bedtime as needed and that he told the Grievor to take an additional two weeks off work and provided her with a note to that effect. The basis for the note is that the Grievor remained stressed and unable to sleep. Dr. Black could not recall how the Grievor appeared on September 17 or September 25. He also felt the Grievor was not coping well, which was stress related, and she needed assistance.On September 29, 2008, he received the Teranet form which he filled out. His chart noted that the Grievor remains anxious. He testified that she had “anxiety stress” and her symptoms exhibited decreased concentration and ability to focus. He advised the Grievor to rest for two weeks and -84- prescribed medication. He did not provide a return to work date because the Grievor was not ready to return which was his medical opinion. On October 3, 2008, Dr. Black’s chart stated that work was disputing the Grievor’s time off and wanted her to come in for a meeting. The Grievor was waking up at night and was taking medication and getting four or five hours of sleep. The chart also stated that the Grievor’s supervisor was tough on her and the supervisor’s husband was a real estate agent. Also the Grievor was a part time real estate agent. The chart states “no work activities at all” and Dr. Black testified that he recommended no work activities including meetings. Dr. Black met with the Grievor again on October 7, 2008. The chart reflected and the testimony confirmed that the Grievor had no contact with work and her benefits were cut off. The Grievor had frontal headaches, nausea and chest discomfort and “feels unable to return to work”. Dr. Black testified that the Grievor had tension headaches resulting from the stress at work and the cut off benefits. He provided the Grievor with a note which stated that the Grievor “is advised to remain off work and to avoid work activities. She will follow-up next week”. -85- Dr. Black saw the Grievor on October 15, 2008, and noted the Grievor had been terminated on October 8, 2008 by her manager and that she filed a complaint which may take six to eight months to resolve. The Grievor was still getting up at night, remained anxious and had seen a lawyer. He did not recall how the Grievor presented. On November 5, 2008, Dr. Black’s chart indicates that the Grievor remained stressed and awakens at night. It also notes her grievance was denied. He testified that his diagnosis was panic and anxiety. On November 10, 2008, Dr. Black saw the Grievor and noted that the Union had asked her to come in and that she was asking for reinstatement to another department. The chart also stated and he confirmed the Grievor remained stressed and he was aware of her job as a real estate agent. He noted and testified that the Grievor’s cough subsided when she was not at work. He stated that she requested he write a note for her Union. Dr. Black wrote the following note dated November 19, 2008. ‘This note is written at the request of my patient Dorota Morana. On September 17, 2008, Dorota expressed symptoms of a change in mood secondary to work stress from Teranet. I was aware that she also held a real estate agent license. She was advised to take a medical leave from the - 86 - stressful environment at Teranet. Dorota did not have to stop doing real estate work. Mrs. Morana was seen in follow up in the office on September 25, 2008. She required an additional medical leave from Teranet. On October 7, 2008, she described tension headaches secondary to Teranet as the work place continued to contact her. On October 15, 2008, Dorota explained she was terminated from Teranet. Dorota was last seen on November 5, 2008. She continued to require treatment for tension headaches. I trust this information is helpful.” On November 24, 2008, the Grievor saw Dr. Black who recorded that the Grievor “needs to alter note” and the “employment office needs note”. The chart also stated - advised time off work for medical reasons. Dr. Black testified that he kept the note vague because he did not know where it would end up. He was told to change the note and notify the Grievor. The note filed and signed by Dr. Black is as follow: “This note is written at the request of my patient Dorota Morana. On September 17, 2008, Dorota expressed symptoms of a change in mood secondary to work stress from Teranet. I was aware that she also held a real estate agent license. She was advised to take a medical leave from the stressful environment at Teranet, under the management of Susan Steer. Dorota did not have to stop doing real estate work. Mrs. Morana was seen in follow up in the office on September 25, 2008. She required an additional medical leave from Teranet. On October 7, 2008, - 87 - she described tension headaches secondary to Teranet as the work place continued to contact her. She also experienced problems with sleeping. Dorota has last seen on November 5, 2008. She continued to require treatment for tension headaches and for sleep. I trust this information is helpful.” Dr. Black testified that the letter contained his medical opinion. He testified that the Grievor did not have to stop her real estate work and that she was off on stress leave from her workplace. In Dr. Black’s opinion the Grievor could not work at that particular place, i.e., Teranet. Dr. Black could not recall his conversation but confirmed the letter reflected his medical opinion.On December 1, 2008, Dr. Black saw the Grievor. His chart indicates that the Grievor “spoke to a lawyer — adjustments made in letter” and that the Grievor was asking for reinstatement. The chart also states that Dr. Black revised the letter. That letter provided further that the Grievor did not have to stop her work as a mortgage broker. That letter represented Dr. Black’s medical opinion. -88- On September 21, 2010, Dr. Black wrote that the Grievor was able to return to work but he could not recall the basis for his opinion. That letter is as follows:To Whom It May Concern: “I saw Dorota on September 16, 2010, regarding her headaches, stress, and sleeping disorder related to her employer Teranet. Dorota to date has not fully recovered and requires ongoing treatment and medication when necessary. I have advised Dorota from the beginning of her diagnosis in 2008 to pursue activities that can help make her feel at ease. Getting out of the house, spending time with her twin children, helping her husband with his real estate activities such as attending open houses, were all positive activities that could help put her mind at ease and assist in her recovery. It was not until the end of February 2009 that I consented to her being able to seek alternative work to that of Teranet, but that the same must be conducted in a limited capacity so as to avoid stress.I continue to emphasize that employment Dorota is to attempt, must remain in a capacity in accordance with her medical condition and medical treatment. I also encourage her to continue doing activities that may assist her in putting her mind at ease.” - 89 - Dr. Black was not contacted directly by the employer. Also, the Grievor being engaged in real estate work did not change his opinion that the Grievor’s leave was for stress from her workplace at Teranet and did not mean she was unable to work elsewhere. When cross-examined, Dr. Black stated that he did not review the Grievor’s benefit coverage at Teranet or whether her ability to work would entitle her to receive benefits under the Teranet plan. Dr. Black deemed the request by Teranet to have the Grievor come in for a meeting on October 3, 2008 as work activity. Dr. Black wrote an initial letter on behalf of the Grievor on November 19, 2008 and was asked to change it on November 24, 2008 when he added that the stressful environment was “under the management of Susan Steer” and also that the Grievor “experienced problems with sleeping” and “sought assistance with this” Dr. Black’s chart on November 24, 2008 did not indicate that he made any medical diagnosis; the meeting was to re-draft the letter. Similarly on December 1, 2008, he added that the Grievor could work as a mortgage broker, that she had anxiety and difficulty sleeping and was prescribed medication. Dr. Black claimed that though the Grievor was on stress leave, she could work elsewhere and could work at any job for which she was - 90 - qualified, but could not work at Teranet. The particulars of stress provided to Dr. Black by the Grievor were related both to Susan Steer and to Susan Steer’s husband being a real estate agent. They did not talk about the Grievor’s performance at work. Dr. Black testified that he takes his patients, including the Grievor, at their word. When re-examined, Dr. Black testified that his notes are not verbatim and are sometimes interpretive. He maintained the Grievor continued to have anxieties and stress and the calls from her job was an additional stressor and could account for her subsequent headaches, chest pains and sleep problems.Scott Fergusson was employed at Teranet and had served as a union steward and on the union executive. On September 15, 2008, the Grievor came to his desk and was emotionally distraught and in tears and he accompanied her out of the office where she recounted the details of her meeting with Susan Steer. He stated the Grievor left work at 10:00 a:m. -91- Argument Teranet argues that the Grievor was a short term employee and it acted fairly, reasonably and in good faith in terminating her employment. Teranet further maintains there was no harassment of the Grievor by Susan Steer and Susan Steer did not participate in the decision to suspend the Grievor’s benefits or to terminate the Grievor. Teranet submits that the Grievor would have been laid off on March 28, 2011 and that her search for alternate employment was inadequate, that the income that she received from income splitting with her husband mitigated any loss she may have suffered and because of the delay in the arbitration proceedings from January 8, 2010 until April 4, 2011 caused by the Grievor’s failure to comply with the production orders, she should not receive compensation for that period.Teranet submits that the Grievor’s work was substandard and inconsistent and not only was her work sent back to be re-done but between August 2007 and September 2008, the Grievor’s error rate was higher than twenty percent (20%) and had to be double checked requiring both two people to do her work and also the reviewing of one hundred - 92 - percent (100%) of her work. When the Grievor went off on medical leave, she had no unpaid time left and since her work was substandard, a question arose as to whether her medical leave was legitimate. Teranet asserts that Susan Steer was a credible manager and the Grievor needed to be managed and Susan Steer did not harass her, nor was Susan Steer unfair. Moreover, the Grievor’s performance required that ninety-four percent (94%) of her work be sent to quality control when the standard was only thirty percent (30%) and thus her work did not warrant a second chance. In addition, both in May of 2008 and September of 2008 entire blocks of her work were returned to her to be re-done. In September of 2008, because of the deadlines set under Teranet’s outside contract, there were two unsatisfactory blocks done by the Grievor, but because of the deadline only one was returned to her. Turning to the actual termination, Teranet claims that when the Grievor met with Susan Steer on December 6, 2007, she had been using Teranet’s computers for the purpose of both her and her husband’s real estate business, but did not reveal it to Teranet because, according to her, she was not specifically asked about using emails for Teranet business. Moreover, the Grievor became indignant about an intrusion into her - 93 - personal life. The Grievor conceded that it was reasonable for Mr. Farewell to conclude that she was using the emails to perform personal work. When Mr. Farewell reviewed the surveillance, he concluded that the Grievor was conducting activities in support of another business and the Grievor again conceded that it was reasonable for Mr. Farewell to conclude from the surveillance that she was working in another business. Mr. Farewell after reviewing the Grievor’s complaint letter of September 26, 2008, concluded that the Grievor wasa short service employee, with integrity issues whose conduct was inappropriate and asked for a meeting with her. The Grievor claimed that her doctor advised her not to go to the meeting. Teranet submits there was no discussion between the Grievor and Dr. Black concerning the meeting and that the Grievor told Dr. Black that she did not want to come to the meeting. Her refusal to attend was not about whether she was medically capable. Teranet argues that after reviewing the totality of the Grievor’s situation including her substandard work performance, her untrustworthiness, her employment elsewhere and claiming disability benefits from Teranet, Mr. Farewell legitimately terminated her employment. - 94 - Teranet maintains that the medical notes suggested the Grievor was not able to work, but Dr. Black’s ex poste facto testimony that she could work elsewhere was not reasonable. Teranet also submits that Dr. Black changed his letters to Teranet on three different occasions based on the Grievor’s directions and she was in breach of her obligation to Teranet while she was available for and seeking work elsewhere while claiming disability benefits from Teranet. Teranet argues that Dr. Black was a biased advocate for the Grievor when he stated she could work elsewhere but not at Teranet and his opinion substantially changed and was an after the fact negotiated opinion and he did not investigate the Grievor’s situation; all of his opinions were based on the Grievor’s self-reporting. Accordingly, Teranet claims there is no basis for the Grievor’s claim for disability benefits and no basis for her absence from work. Teranet also claims that the Grievor’s allegations, first made on June 8, 2010, that she was terminated to advantage Ms. Steer’s husband who was a real estate agent are not supportable. There are 35,000 real estate agents in Ontario so that it is unlikely that terminating the Grievor would provide an advantage to Ms. Steer’s husband. Moreover, terminating the - 95 - Grievor would free her to work with her husband and would be advantageous to the Grievor’s husband. Teranet claims the Grievor’s allegations are bizarre. Teranet argues that it is inconsistent to have taken disability benefits from Teranet while working elsewhere. Teranet maintains the Grievor did not suffer any loss of income, since her income tax returns showed that she and her husband utilized the income splitting provisions of the Income Tax Act and, accordingly, she received income. However, in order to receive income under the Income Tax Act, the Grievor was required to work in the business.Teranet argues that Susan Steer at no time harassed the Grievor. Ms. Steer was employed for sixteen (16) years at Teranet and was the manager at the site where the Grievor worked and had limited interaction with the Grievor who was more directly supervised by others. The Grievor was on maternity leave until December 20, 2006 and was placed in a performance plan from October 25, 2007 until February 1, 2008, where she was supervised by Cheryl Bryant. She was placed in the performance plan because of her error rate and lack of focus. - 96 - When Ms. Steer met with the Grievor on December 6, 2007, it was not a disciplinary meeting but rather it was to discuss a potential conflict of interest contrary to Teranet’s Code of Conduct. The Grievor who was aware of the Code was asked to sign a declaration which she did. The Grievor was upset and angry at the meeting and was confrontational notwithstanding that she had been sending emails about her or her husband’s real estate business on company time and on company equipment. The Grievor was also adamant that her phone calls where personal, but said nothing about the emails which were discovered later. The Grievor conceded in cross-examination that it was reasonable for her employer to be concerned about her activities. The Grievor asked for another meeting which occurred on December 18, 2007, in order to find out how Susan Steer learned she was involved in real estate. Notwithstanding that the information was googled from a website, which was in the public domain, the Grievor maintained that obtaining the information was an unwarranted interference into her personal and private life. Teranet submits that the attack on both Susan Steer and the Company was an offensive defense. Also Teranet claims - 97 - that when the Grievor was asked whether her telephone calls were about her or her husband’s real estate business, she was not forthcoming about her emails which indicate the Grievor was deceptive about the truth and not credible.On November 7, 2007, the Grievor was not at work and had provided a form requesting the day off to an administrative assistant. According to the Grievor, Cheryl Bryant was in the vicinity when the Grievor provided the form and she assumed Cheryl Bryant was aware of her request for the day off. Accordingly, the Grievor claims that when Susan Steer called her at home, the call was unnecessary and constituted harassment even though the Grievor acknowledges that the Employer does call employees at home when they are absent. Cheryl Bryant has no recollection of overhearing the Grievor’s request for the day off and if she had, she would have informed Susan Steer of the absence which would have made Susan Steer’s call unnecessary.On August 11, 2008, Susan Steer called the Grievor at home to advise her that she had used all of her paid time off and she would not be paid for the full day. There is not complaint about that call. - 98 - On September 10, 2008, the Grievor left a message that she would not be in because of a personal matter and the message states “call me if you need to”. There is nothing in the message about personal stress or that the Grievor’s father-in-law was ill. Susan Steer called the Grievor to advise her that she had no personal time off left. The Grievor was at home and did not answer the phone. In her email complaint dated September 26, 2998, the Grievor claimed that on September 10, 2008, she left a message on Cheryl Bryant’s voice mail stating that “I will not be coming in as I have an emergency situation to deal with in the family”. Teranet submits that allegation is simply untrue. Not only was Susan Steer unaware of a family emergency, but the Grievor invited a call and did not pick up the phone when Susan Steer called. When the Grievor returned to work neither Cheryl Bryant nor Susan Steer initially spoke to her, which the Grievor claims she did not feel good about. However, Teranet claims that since Susan Steer had phoned the Grievor, it would have been reasonable to go to Susan Steer and ask why she had called. On September 15, 2008, Susan Steer met with the Grievor in her office to inform her that she would not be paid for the full day off on - 99 - September 10, 2008. Teranet maintains that the Grievor at the meeting was aggressive, defiant and confrontational and left the meeting. Teranet argues that all of the interactions between the Grievor and Susan Steer were for legitimate business purposes and Susan Steer was professional and courteous which is consistent with all the documentation filed. Teranet maintains that the Grievor over reacted, that she was unpredictable and her reactions were inappropriate and unacceptable and that her work and error rate were substandard. Teranet submits that there is no logical basis in fact or in law to find that Ms. Steer harassed the Grievor but rather it is the Grievor who harassed Ms. Steer. Teranet also requests that I draw an inference that Miles Argue, who had met with the Grievor and Ms. Steer, immediately after the meeting on September 10, 2008, did not testify and his evidence would have supported Ms. Steer’s version of the meeting. The Grievor was upset and angry before coming into Ms. Steer’s office and her allegations of harassment are not credible. - 100- Teranet submits that Susan Steer’s evidence about the contents of the meeting on December 6, 2007, are corroborated by Cheryl Bryant. Cheryl Bryant was the main supervisory person who dealt with the Grievor and she stated the Grievor’s performance was unsatisfactory. There are no allegations of harassment against Cheryl Bryant. The Grievor was made aware monthly how she was doing and was aware her performance was substandard. According to Teranet, it was her work performance that created the stress and not any harassment by Susan Steer. Turning to the Union’s evidence, Teranet argues that at the conflict meeting on December 6, 2007, the Grievor had used Teranet facilities for personal business purposes which she did not admit and, accordingly, her failure to do so reflects on her credibility. Teranet also maintains that Dr. Black’s medical opinion of the Grievor was inconsistent with his earlier opinion and was self-serving and the Grievor tailored her evidence accordingly. Teranet maintains that Dr. Black was an advocate for the Grievor, was not credible and did not testify as a licensed doctor. Also, Dr. Black did not put his medical mind to assess the Grievor’s situation and simply put her on leave when she expressed such a desire. Dr. Black trusted the Grievor and took her at her word; he did not explore the stress - 101 - factors and relied entirely on her self-reporting. He reported that Susan Steer was tough on her but did not explore that situation and he knew nothing of the Grievor’s performance issues. Dr. Black re-drafted his letter of opinion at the Grievor’s request, widened the medical issues and advised her she could work. Teranet claims the Grievor tailored her conduct and allegations to coincide with the advice of Dr. Black, to be used at the arbitration hearing. Dr. Black attempted to assist his private practice patient and stated that the Grievor could work but not at Teranet, and provided no objective medical opinion. Teranet argues that Dr. Black’s evidence cannot be relied upon as it is totally based on self-reporting. Teranet also asserts the Grievor’s claim was made in bad faith and there was no harassment.Teranet argues the Grievor is not entitled to damages, that the discharge was justified or alternatively, that there should be significant discipline without back pay. On September 15, 2008, the Grievor in the meeting with Susan Steer was insubordinate. She exhibited a lack of candour throughout all her dealings including her dealings with Dr. Black. Her complaints against Ms. Steer were patently unreasonable and she delayed the arbitration proceedings by not complying with the production - 102- orders that were made at the beginning of these proceedings. When the Grievor was shown the transcript of her call to the office which did not state there was a family emergency and in which she invited a call she persisted in maintaining the unanswered calls constituted harassment. Since a large part of the hearing was occupied with the unsubstantiated harassment allegations, Teranet submits that the Grievor should not be awarded damages.Teranet maintains the Grievor’s tax forms demonstrated she received income and that income should be set off against any damages. Moreover, the Grievor’s records demonstrate that she made little or no effort to mitigate her damages. Further, Teranet argues there is no clear and compelling evidence to suggest the Grievor suffered anything more than normal stress or hurt feelings. There is no specialist’s evidence to support mental stress and Dr. Black’s evidence demonstrated that he was an advocate. There is no evidence that any alleged mental stress experienced by the Grievor was foreseeable nor was the Grievor a vulnerable employee and Teranet did not act in bad faith. Nor is this a case where punitive damages are warranted. The termination resulted from the Grievor’s conduct when she went on medical leave and worked in - 103 - the family business. The Grievor had informed the world she was in business, but maintained she was not; the Grievor is not credible, nor was she candid. Her allegations of harassment were a smoke screen and a red herring and there is no basis for a finding of mental distress. Teranet maintains in all these circumstances there was just cause to dismiss the Grievor and that she suffered no damage. And finally Teranet argues that the Grievor is not entitled to punitive damages because there was not a separate actionable wrong and there was no bad faith. The discharge was not exceptional and Teranet properly exercised its discretion. The Union submits Teranet’s case relied on two issues, that of the Grievor’s performance and that she worked while off sick and claimed disability benefits thereby fraudulently deceiving Teranet. The Union claims that the Grievor’s performance was irrelevant because Teranet had clear policies to deal with substandard performance issues. Insofar as the Grievor’s sick leave is concerned, it was open to Teranet to have sought a second opinion and the Grievor could have been referred to a specialist; Teranet made no effort to obtain a second medical opinion and made a - 104 - decision which was contrary to the only medical evidence available which was from Dr. Black. The Union argues that the Grievor’s termination, which relied on the Grievor’s performance, was contrary to its policies and was in bad faith. Since Teranet lacked proper medical evidence, terminating the Grievor based on a medical issue is a further indication of bad faith. The Union submits that Teranet’s reliance on Article 11.09(d) of the collective agreement which provides that Teranet could terminate an employee who “gives false reasons for obtaining a leave of absence” did not apply because the Grievor claimed stress leave and was supported by Dr. Black, which was the only medical opinion that Teranet had at that time. Teranet could have sought another medical opinion by either a physician or a qualified specialist to determine the Grievor’s fitness for work pursuant to Article 23.03 of the collective agreement, but chose not to do so. The Union asserts that the Grievor took a leave of absence so as not to be exposed to the stress of working at Teranet and not for the purpose of working elsewhere.The Union claims the Grievor truly believed that she was harassed by Susan Steer and felt belittled and bullied by her which is clear evidence of - 105 - bad faith and which also motivated the Grievor’s termination. The Union argues that the cutting off of the Grievor’s disability benefits when she was absent due to illness is a further example of bad faith particularly when the Grievor had provided a medical certificate pursuant to Article 21.05, as she was required to do in order to obtain a leave of absence. The Union asserts that when Susan Steer met with the Grievor on December 6, 2007, she questioned the Grievor about her telephone usage and not about her emails and that the Grievor honestly answered Ms. Steer. The assertion that the Grievor was untruthful is an attempt to paint the Grievor in a bad light and reflects on Ms. Steer’s credibility. The Union argues, contrary to Teranet’s assertion that Dr. Black did not turn his medical mind to properly assessing the Grievor’s condition, that many medical conditions rely on a patient’s self-reporting and there is no evidence that the Grievor was fabricating her stress. Dr. Black prescribed medication and after discussing the Grievor’s concerns he believed she should be away from Teranet and provided a number of notes to that effect. The Union maintains Dr. Black was honest and forthright and not an advocate for the Grievor, and that producing more than one draft of his - 106- letter was merely an attempt to cover off all of the issues. If Teranet did not believe Dr. Black, it could have sought another medical opinion. Moreover, Scott Ferguson, who saw the Grievor on September 15, 2008, after her meeting with Susan Steer, stated the Grievor was upset and her reaction was consistent with anxiety and stress. The Union claims that the Grievor had successfully completed a performance development plan as of January 1, 2008, and it was open to Teranet to place her on a performance management plan which it never did. In accordance with management’s practice, there were other steps available other than termination if the Grievor’s performance required improvement. If Teranet had placed the Grievor in a performance management plan, it is most unlikely she would have been terminated. Teranet should have acted in accordance with its own policies and the failure to do so constituted bad faith. The Union claims the Grievor’s performance did not justify termination and the evidence relied upon was a ted herring.The Union submits that the meeting of September 15, 2008, was critical to both the claim of harassment and to the claim for sick leave. The - 107 - Grievor testified that Ms. Steer was very aggressive and the Grievor’s response was consistent with the Grievor’s evidence and not consistent with Ms. Steer’s evidence claiming she was calm. The Grievor left work on September 17, 2008 and supplied a medical note confirming her absence. She informed Teranet on September 18, 2008, that she was on stress leave. There was no challenge by Teranet to the doctor’s note and Teranet initiated surveillance. The Union maintains an employer acting in good faith would have sought further medical information and all of these facts support a bad faith motivation by Teranet. On September 26, 2008, the Grievor was requested to supply a further medical certificate that day, but because her doctor’s office was closed, she obtained a medical certificate on September 29, 2008 and provided that information to Teranet. However, on that same day, Teranet cut off her disability benefits without reviewing the medical information and never reinstated those benefits. The Union maintains if Teranet had required further medical information, it could have asked and if it had been acting in good faith, it would not have cut off her benefits, as it did. On October 1, 2008, Susan Steer requested a meeting with the Grievor and - 108- without a medical opinion of its own; Teranet believed the Grievor was “able to work”.On October 9, 2008, Ms. Steer wrote to the Grievor advising that she was “capable of working”, although the Union asserts she was medically unable to work. On the same day Teranet terminated the Grievor while questioning the appropriateness of her medical documentation, without ever advising her that her medical documentation was not satisfactory or was inappropriate. Again, the Union asserts the only available doctor’s opinion was that of Dr. Black and Teranet could have required further medical examinations pursuant to Article 23.03 of the collective agreement to establish the Grievor’s fitness for work. The Grievor’s benefits were cut off and she was terminated without any effort by Teranet to obtain further medical information.The Union argues that on September 23, 2008, while off work, the Grievor did a computer search for her husband which lasted for approximately twenty-one (21) minutes, but there was nothing further, of any note, on either September 24 or September 25, 2008. On September 26, 2008, she stopped at her husband’s office and walked out and - 109- conversed with him for a total of nineteen (19) minutes and then attended at the printing company for seven (7) minutes. The Union argues the Grievor was running brief errands for her husband. The Grievor conducted an open house on Saturday, September 27, 2008, which the Union maintains was not a work day for her at Teranet, and all she did was put up a sign and sit in the house while telling people about the property. There was no deliberate conduct by the Grievor to book off sick and work elsewhere. There is no evidence the Grievor was compensated for the computer search she did for her husband. The income contained in her income tax forms was the result of income splitting by her husband and did not reflect income she had earned. The Grievor did not deceive Teranet to gain a benefit and her leave was because of the stress she suffered at Teranet; there is no medical evidence to demonstrate that the Grievor’s activities were inconsistent with her leave. The Grievor was off sick until February of 2009. The Union argues there was a pattern of harassment by Susan Steer and cutting off her benefits and terminating her must be viewed in the light of the background history. The Union claims Susan Steer was monitoring -110- her breaks as is evident when Susan Steer tapped her watch while the Grievor was on her phone during her break. Her pre declaration emails were done on her break. When Teranet learned the Grievor was involved in real estate, she signed a declaration and Teranet took no further action. The Grievor feels that Teranet’s actions were unfair. The Union acknowledges that there is no evidence that Susan Steer was concerned about her husband’s real estate practice or as the Union puts it, “there is no smoking gun”, however, the Grievor speculates that both Teranet and Susan Steer’s conduct show their motivation and is indicative of bad faith and consistent with the allegations of harassment. The Grievor also maintains that when she was off for the day, she received calls at home which is a further indication of ill will by Teranet and Susan Steer. Insofar as the calls to her by Susan Steer on September 10, 2008, the Grievor now acknowledges she did not advise Teranet there was a family emergency and the Union agrees that this incident is difficult to deal with in light of the Grievor’s mistake. However, the Grievor claims Ms. Steer was aggressive when they met and the Union argues the Grievor’s evidence should be preferred. The Grievor asserts she was bullied by Susan Steer and was upset which is confirmed by Scott Ferguson. She —111— also states that Dr. Black put her on stress leave and while any animus by Susan Steer or Teranet is speculative, which the Union “can’t put to reason”, the evidence is suggestive of an improper animus or motivation. The Grievor was also denied an opportunity to provide additional medical information. Cutting the Grievor off sick leave constituted bad faith and was a continuation of the harassment that she alleges she suffered. By way of remedy, the Union agrees that the Grievor’s position was eliminated in March of 2011 and reinstatement is not possible, however, the Union’s claim is for loss of wages and all benefits to the date the Grievor’s position was eliminated. The Union also claims damages for mental distress and punitive damages. As a result of cutting off her sick benefits and terminating her employment and the continuing harassment, the Grievor who was a mother with two small children, suffered mental distress warranting both aggravated and punitive damages. The Union argues that the Grievor attempted to mitigate her loss and earned some money, but that much of the income recorded for tax purposes was not earned by her and was the result of income splitting with her husband. The income recorded for income splitting purposes resulted - 112 - from work performed by the Grievor’s husband and not her and in the context of mitigation the income should be considered as belonging to the person who earned it and not the Grievor. The Grievor should not be penalized if her husband split his income with her. Initially the Grievor received Employment Insurance and her efforts to find a job began in March of 2009. There were no job applications between November of 2009 and June of 2010. The Grievor continued her search for employment by downloading potential jobs on her computer. The Union submits that at the meeting of September 15, 2008, Ms. Steer harassed the Grievor and the harassment continued when Teranet and Ms. Steer cut off the Grievor’s benefits. The Union asserts that the Grievor and unionized employees are vulnerable and their position is different from non-unionized employees who may be terminated at any time. The key to a unionized position is job security and Teranet acted in bad faith. The Union claims Teranet made a medical determination about the Grievor withouf medical justification and its conduct was in breach of the collective agreement which constituted an independent actionable wrong. The Union relies on a number of authorities which it says support a claim for both mental distress and punitive damages. -113- The Union argues that there is a distinct difference between an individual contract of employment and a unionized position could be a position for life and that earlier cases require an independent actionable wrong are not applicable to collective agreements. The Union further maintains, in the alternative, if the Grievor’s conduct was inappropriate, she should have received a short suspension. By way of reply, Teranet maintains that the Grievor’s allegations of harassment and bad faith are speculative at best and there are no facts to support her claim. Teranet asserts that it is the Grievor who has harassed Ms. Steer. Teranet maintains the Grievor’s substandard performance reflected on her credibility and on her harassment claims. Teranet states that the Grievor’s performance, which it relied upon, was based on the totality of her work and compliance with Teranet’s policies including the Code of Conduct, as well as her insubordination and walking off the job. Also, Teranet submits the Grievor received disability benefits while working for another organization. She was not merely running errands for her husband; the marketing material demonstrates that the Grievor was involved with her husband in the real estate business. The Grievor -114- conceded in cross-examination that it was reasonable for Elgin Farewell to conclude that she was working for another organization and it was also reasonable for him to conclude that she and her husband were in business together. Teranet argues that the Grievor’s performance involved the totality of her conduct and should not be construed narrowly as only reflecting a lower score on the quality of her work. Her performance included her allegations of harassment and the medical information she provided while working elsewhere. Further, the Grievor walked off the job as a result of an unprovoked incident with Ms. Steer after making serious allegations about Ms. Steer. Mr. Farewell’s decision included her having been placed on a performance plan, her engaging in conduct which demonstrated a conflict of interest, her attendance records and her email records. After reviewing the totality of the Grievor’s conduct, Teranet’s decision to terminate the Grievor was not in bad faith. Teranet submits that when Susan Steer phoned the Grievor on September 10, 2008, she did not know why the Grievor was absent and when she me with the Grievor on September 15, 2008, the Grievor’s conduct towards Ms. Steer was unacceptable. When the contents of the meeting were explained to Miles Argue, her Union representative, he -115- backed off and Mr. Argue did not testify or contradict Susan Steer’s evidence. The totality of the Grievor’s conduct caused Mr. Farewell to place the Grievor under surveillance because he doubted the basis for her being on medical leave and thought she might be working for another organization.Teranet received medical notes from Dr. Black on September 17, September 25 and September 29, 2008. Teranet also received a letter of complaint from the Grievor on September 26, 2008, which Mr. Farewell did not feel was objectively reliable. He reviewed the complaint with Susan Steer and felt she had acted appropriately. Dr. Black’s statement of September 29, 2008, indicated the Grievor should rest for two weeks, however, the surveillance evidence demonstrated that the Grievor was working in real estate. Teranet asked the Grievor to come in and meet which she refused to do. The Doctor’s notes did not state the Grievor could work elsewhere. Ms. Steer’s email of October 7, 2008, stated that Teranet believed the Grievor could work and also stated the meeting would provide the Grievor an opportunity “to explain why it is you are not at work in light of why we think you are able to be here”. The Grievor refused to attend the meeting based on her doctor’s advice. When cross-examined, the Grievor - 116- stated that her doctor did not want her to attend a meeting. The Grievor confirmed under cross-examination that her doctor did not want her to go to the meeting, however, there is no evidence by Dr. Black that he advised the Grievor or prescribed that she should not go to a meeting. It was not the doctor’s decision that the Grievor not attend; it was the Grievor’s decision alone, because she knew that she was working for another organization and not entitled to disability benefits. Teranet maintains that in all these circumstances it was reasonable to suspend the Grievor’s benefits and not to reinstate them. Teranet maintains it was reasonable not to request a further medical opinion because the Grievor’s doctor had written that she could not work and the surveillance demonstrated she was working. None of the doctor’s notes indicated she could work in her husband’s business or do other work, but not work at Teranet. The Grievor conceded in cross-examination that anyone observing her situation could conclude she was working. Also, it is a conflict for a person on medical leave to work for another organization while receiving disability benefits which the Grievor did and, in all these circumstances, Teranet cannot be accused of acting in bad faith. - 117- Teranet also argues that Dr. Black was an advocate for the Grievor, went beyond his position as the Grievor’s doctor and lacked credibility. Dr. Black wrote a number of letters concerning the Grievor’s circumstances which he altered based on the Grievor’s instructions. On November 19, 2008, Dr. Black wrote that the Grievor “was advised to take a leave from the stressful environment at Teranet. Dorota did not have to stop doing real estate work”. At the request of the Grievor, Dr. Black wrote another letter on November 25, 2008, that the Grievor “... was advised to take a medical leave from the stressful environment at Teranet, under the management of Susan Steer. Dorota did not have to stop doing real estate work”. On December 1, 2008, he wrote a letter similar to the one on November 25, 2008, but changed it adding that the Grievor could also perform “mortgage broker activities” in addition to her work as a “real estate broker”. The letter of December 21, 2008, was the only letter forwarded to Teranet.However, Teranet argues that subsequently on September 21, 2010, notwithstanding that Dr. Black had earlier noted that the Grievor could work as a real estate broker and mortgage broker, he wrote that “it was not until the end of February 2009, that I consented to her being able to seek -118- alternative work to that of Teranet”. Teranet states the Grievor’s Employment Insurance benefits had run out at the end of February 2009, and Dr. Black’s letter was adjusted to coincide with the termination of those benefits. The letter also described the activities that the Grievor could pursue which are consistent with her testimony that she performed errands for her husband but did not work when she was under surveillance. Also, Teranet argues Dr. Black’s medical notes are not consistent with his letters. Based on the changing letters, Teranet argues that Dr. Black crossed the line from medical doctor to being an advocate for the Grievor and accordingly, he was not a credible medical witness. He readily changed his opinion at the Grievor’s request in order to assist the Grievor’s claim for medical benefits. Teranet submits that if the Grievor was on medical leave and receiving medical benefits, she could not work elsewhere as a real estate or mortgage broker and Dr. Black’s letters indicate she could work elsewhere and she did work. Teranet also claims that Susan Steer was a credible witness and the Grievor was not. At the meeting on December 7, 2007, the Grievor had been using Teranet’s resources for her real estate business and was not -119- candid when she did not admit what she had done. She did not state she had a conflict and it is splitting hairs to say she was only asked if she used the telephone. Susan Steer acknowledged that the Grievor had truthfully answered her questions at the meeting and did not portray the Grievor in a negative way. This should be compared to the Grievor who portrayed Susan Steer as terminating her employment to advantage Susan Steer’s husband. Further, the Grievor claimed that on September 10, 2008, she informed Cheryl Bryant in her voice mail that there was a family emergency which was untrue. Also, the Grievor’s refusal to meet with Teranet on September 30 and October 2, 2008, because her doctor had advised her not to was an untrue statement. Teranet maintains the Grievor has gone to great lengths to describe the real estate business that she carried on with her husband as being only her husband’s which was untrue. Further, the Grievor’s failure to comply with the production orders made during the initial stages of these proceedings is an indication of her lack of truthfulness. Teranet further argues that the Grievor’s claim to the income she received as not being earned by her, but as part of an arrangement under the Income Tax Act, which allowed her husband to split his income with her is not a valid claim. Teranet submits the Grievor was an active participant - 120 - in the real estate business and based on Dr. Black’s letters, the Grievor has, at least, been able to work since February of 2009. Counsel for Teranet also reviewed the case law concerning aggravated and punitive damages and argued that aggravated damages are only awarded for mental distress that goes beyond hurt feelings resulting from termination and there was not a factual underpinning for the Grievor’s claim that she suffered mental distress beyond hurt feelings. Nor was there bad faith in the manner of dismissal, nor were damages for mental distress within the contemplation of the parties at the time they entered into the collective agreement, nor is there evidence that the Grievor was particularly vulnerable. Also, the collective bargaining regime differs from the ordinary contract of employment because it permits reinstatement with compensation if there is not just cause for the dismissal. To sustain a finding of aggravated or punitive damages there must be outrageous behavior by the employer and the manner of dismissal must also be reprehensible. - 121 - Legal Analysis The broad remedial authority of an arbitrator is set out in Nor Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals 3 S.C.R. 616. In that case, the Court stated that arbitrators are not legally bound to apply equitable and common law principles in the same manner as courts of law. However, the Court also stated that the arbitral discretion is “by no means boundless” and that an arbitral award that flexes a common law or equitable principle in a manner that does not reasonably respond to the distinctive nature of labour relations is subject to judicial review for its reasonableness. Given that arbitral discretion is not boundless, I propose out of caution to review the common law of damages for breach of contract for both mental distress and also punitive damages and to consider its application to collective agreements and the remedial authority of an arbitrator. The first issue to be determined is whether there is a requirement for an independent actionable wrong, under a colleétive agreement, in order to sustain a recovery for damages for mental distress and punitive damages. For the reasons set out below, I find that in discharge and discipline cases when awarding damages for mental distress and punitive damages, a - 122 - finding that an independent actionable wrong for a number of reasons is not required. To the extent that requirement is derived from employment law it is not applicable to conduct under a collective agreement. Moreover, given the recent decisions of the Supreme Court of Canada, it is my view, that (i) collective agreements contemplate that such damages may be awarded where there is a breach of the collective agreement and (ii) that an arbitrator has a broad mandate under the collective agreement alone to develop doctrines and fashion remedies appropriate to the principles of labour relations and the nature of the collective bargaining process which includes awarding damages for mental distress and punitive damages. The distinction between individual contracts of employment and collective agreements was clearly stated in the decision of the Supreme Court of Canada in McGavin Toastmaster Ltd. v. Ainscough [1976], S.C.R. 718 by Chief Justice Laskin speaking for the majority where he stated as follows at p. 724 I 725: “I am of the same opinion as the majority of the British Columbia Court of Appeal, affirming the decision of the trial judge, that the plaintiffs should succeed, but I come to this conclusion on different grounds. I do not think that in the face of labour relations legislation it is possible to speak of individual contracts of employment and to treat -123- the collective agreement as a mere appendage of individual relationships. The reality is, and has been for many years now throughout Canada, that individual relationships as between employer and employee have meaning only at the hiring stage and even then there are qualifications which arise by reason of union security clauses in collective agreements. The common law as it applies to individual employment contracts is no longer relevant to employer-employee relations governed by a collective agreement which, as the one involved here, deals with discharge, termination of employment, severance pay and a host of other matters that have been negotiated between union and company as the principal parties thereto.”[emphasis added] In that case, the Court rejected the common law concepts of repudiation and fundamental breach as not being applicable to the collective agreement because of the legislation then in effect. The dissenting judgment in McGavin, stated that the contracts of employment of each of the respondent employees “derived from two sources a) the collective agreement b) the general law in all matters not covered by the agreement”, and found that under the general law that the employees were in breach of the most fundamental obligation of their contracts which justified the employer considering that the employees had - 124 - “definitely broken their contracts of employment”, and that the employer was no longer bound by any of the terms of those contracts including the benefits stipulated under the collective agreement. The McGavin case draws a clear distinction between collective agreements and individual contracts of employment and definitively states that the common law as it applies to individual employment contracts is not relevant to employer-employee relations governed by a collective agreement. Moreover, by specifically finding that the common law concepts such as repudiation and fundamental breach were inapplicable to collective agreements and could not be invoked in relation to collective agreements and rejecting the dissenting views as to the application of the general law, McGavin, in my respeciful opinion, requires careful consideration before imposing the common law on issues raised under collective agreements and not a reflexive superimposition of common law concepts derived from individual employment contracts on issues related to or relevant to collective agreements. It is with this in mind hat I now turn to consider the issue of independent actionable wrongs and whether that common law concept derived specifically from individual employment contracts should be applied to situations arising expressly or impliedly - 125- under a collective agreement when considering whether mental distress or punitive damages should be awarded. The source for the requirement of an independent actionable wrong is the well know and often criticized case of Addis v. Gramaphone Company Limited [1908-10] ALL E.R.1, decided in the British House of Lords long before collective bargaining became a part of employment life in Canada. Addis was a case of individual employment in which the plaintiff, who was a manger of a business in Calcutta, was dismissed with six months’ notice to which he was entitled. A jury found for the plaintiff awarding him 6OO in respect of his wrongful dismissal and 34O for excess commission. In the House of Lords there was a reference by Lord Loreburn L.C. to the “abrupt and oppressive way in which the plaintiff’s services were discontinued and the loss he sustained from the discredit that is thrown upon him”, while Lord Atkinson referred to “the harsh and humiliating way in which he was dismissed, including, presumably, the pain he experienced by reason, it is alleged, of the imputati9n upon him conveyed by the manner of his dismissal”. Lord Collins, in his dissent, referred to the “harshness and oppression accompanying the dismissal”. - 126 - Similar comments were made by the other Law Lords. Notwithstanding those remarks, the jury’s award of 600f was disallowed. In this context, it is important to determine the issue confronting the House of Lords. Lord Loreburn defined the issue in this way at p.3, ALL ER, “I cannot agree that the manner of dismissal affects these damages. Such considerations have never been allowed to influence damages in this kind of case”. Lord Gorrel stated at p. 9 ALL ER, “... I am unable to find either authority or principle for the contention that he is entitled to have damages for the manner in which his discharge took place”. Having regard to the various statements, it is my view, that Addis decided that a plaintiff in an action for breach of his/her employment contract is not entitled to recover exemplary damages for the manner in which his/her discharge took place, notwithstanding that the manner of dismissal was “harsh”, “humiliating”, or “sharp and oppressive”. To a great extent the decision in Addis has been repudiated both in the U.K. and in Canada. - 127- The decision in the Addis case was considered by the House of Lords in 1997. Malik v. Bank of Credit; Mahmud v. Bank of Credit [1998] A.C. 20; [1997] 3 All ER 1. Malik is a case that dealt with an employment contract, albeit, after Malik and others had left the bank’s employment. Mr. Malik and Mr. Mahmud were summarily dismissed on grounds of redundancy. Later it became public knowledge that the bank had been operating in a dishonest manner. The two employees alleged there was a breach of an implied obligation of mutual trust and confidence and claimed that despite their personal innocence they were unable to obtain employment in the financial services industry. They described their claims as being for stigma compensation. The issue eventually came to the House of Lords which discussed their claims and in so doing, made particular reference to Addis and also to the nature of the employment relationship, which I find instructive when considering employment relationships under collective agreements. The Malik case did not deal with injured feelings and anxiety but only with financial loss. Malik determined that there was an implied term of mutual trust and confidence in every contract of employment which allowed for damages for breach of contract. Lord Nicholls of Birkenhead - 128- after referring to the observations of the various Lords in Addis put it this way at p. 9, ALL ER, “In my view these observations cannot be read as precluding the recovery of damages where the manner of dismissal involved a breach of the trust and confidence term and this caused financial loss. Addis v. Gramophone Co. Ltd. was decided in days before this implied term was adumbrated. Now this term exists and is normally implied in every contract of employment, damages for its breach should be assessed in accordance with ordinary contractual principles.” “This is as much true if the breach occurs before or in connection with dismissal as at any other time.” But the manner and circumstances of the dismissal, as measured by the standards of conduct now identified in the implied trust and confidence term, may give rise to such a handicap. The law would be blemished if this were not recognized today. There now exists the separate cause of action whose absence Lord Shaw of Dunfernline noted with “a certain regret”: see Addis v. Gramphoe Co. Ltd. [1909] A.C. 488, 504. The trust and confidence term has removed the cause for his regret.”[emphasis added] Lord Nicholls of Birkenhead also stated at p. II, ALL ER “Unlike the courts below, this House is not bound by the observations in Addis v. Gramophone Co. Ltd. [1909] A.C. 488 regarding unrecoverability of loss flowing from the manner of dismissal ...“. - 129- Lord Steyn in a separate judgment stated at p. 19, ALL ER “The true ratio decidendi of the House of Lords’ decision in Addis v. Gramophone Co. Ltd. has long been debated. Some have understood it as authority for the proposition that an employee may not recover damages even for pecuniary loss caused by a breach of contract of the employer which damages the employment prospects of an employee. If Addis establishes such a rule it is an inroad on traditional principles of contract law. And any such restrictive rule has been criticized by distinguished writers: Treitel, The Law of Contract, gth ed. (1995) 893; Burrows, Remedies for Torts and Breach of Contract, 2 ed. 22 1-225. Moreover, it has been pointed out that Addis was decided in 1909 before the development of modern employment law, and long before the evolution of the implied mutual obligation of trust and confidence.” (emphasis added] Lord Steyn concluded his observations of Addis at p. 20, ALL ER “It is, however, far from clear how far the ratio of Addis extends. It certainly enunciated the principle that an employee cannot recover exemplary or aggravated damages for wrongful dismissal. That is still sound law. The actual decision is only concerned with wrongful dismissal. It is therefore arguable that as a matter of precedent the ratio is so restricted. But it seems to me unrealistic not to acknowledge that Addis is authority for a wider principle. There is a common proposition in the speeches of the majority. That proposition is that damages for breach of contract may only be awarded for breach of contract, and not for loss caused by the manner of the breach. No Law Lord - 130 - said that an employee may not recover financial loss for damages to his employment prospects caused by a breach of contract. And no Law Lord said that in breach of contract cases compensation for loss of reputation can never be awarded, or that it can only be awarded in cases falling in certain defined categories. Addis simply decided that the loss of reputation in that particular case could not be compensated because it was not caused by a breach of contract: Nelson Enonchong, “Contract Damages for Injury to Reputation” (1996), 59 M.L.R. 592, p. 596. So analyzed Addis does not bar the claims put forward in the present case.” Lord Steyn further discussed the evolution of the implied term of trust and confidence, which, in my view, has relevance to employment relationships under collective agreements, as follows at p. 15, ALL ER “The evolution of the term is a comparatively recent development. The obligation probably has its origin in the general duty of co-operation between contracting parties: B.A. Hepple, Employment Law, 4th ed. (1981), paras. 291-292, pp. 134-135. The reason for this development is part of the history of the development of employment law in this century. The notion of a “master and servant” relationship became obsolete. Lord Slynn of Hadley recently noted “changes which have taken place in the employment and employee relationship, with far greater duties imposed on the employer in the past, whether by statute or judicial decision, to care for the physical, financial and even psychological welfare of the employee”. Spring v. Guardian Assurance Plc. [1994] 3 ALL ER 129 at 161 [1995] 2 A.C. 296, at 335B.”[emphasis added] -131 - It is now apparent that in British law the principle enunciated in Addis is now restricted by Mailk to those employment cases where the loss was not caused by a breach of contract, and since a trust and confidence term is normally implied in every contract of employment damages for its breach should be assessed in accordance with ordinary contract principles, even if “the breach occurs in connection with the dismissal”. Lord Denning’s decision in Jarvis v. Swans Tours Ltd. [1973], All ER 71 (CA), if read alongside Malik also suggests that damages for mental distress may be awarded where there is a breach of contract. In the Court of Appeal, Lord Denning made the following comments at p. 74, “What is the right way of assessing damages? It has often been said that on a breach of contract damages cannot be given for mental distress. In a proper case damages for mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment. If the contacting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenities. (emphasis added) - 132 - It has been suggested that this case is limited to holiday or vacation cases, but that is not what Lord Denning said. He explicitly stated that “in a proper case damages for mental distress can be recovered in contract”, and then referred to a contract for a holiday as “one such case”. Lord Denning also explicitly found that damages for breach of contract can be given for “the disappointment, the distress, the upset and the frustration caused by the breach”. In the result the Court awarded the plaintiff a sum for general damages. I note that Lord Denning made no mention of Addis in his decision.It is now apparent in the U.K. that the decision in Addis is now limited to cases where there is not a breach of contract. The combination of Malik, which implies a trust and confidence term and Swans Tours, permits a claim for mental distress damages where there is a breach of a term of the contract. The decisions in Canada have, in my view, evolved to the point where the terms of the contract and/or the terms of the collective agreement must be properly considered when awarding damages for mental distress or punitive damages and I now turn to the Canadian cases. - 133- Leaal Analysis: Canadian Case Law Before reviewing the Canadian case law, I note that the Supreme Court of Canada has not as yet dealt with the issue as to whether damages for mental distress may be awarded where there is a breach of a collective agreement term. That Court has determined that damages may be awarded for financial loss for breach of a provision of a collective agreement. Imbleau eta! Laskin etal [1962] S.C.R. 338. All of the cases in the Supreme Court of Canada that touch on the matter are either insurance cases or employment cases and those cases must be considered bearing in mind the decision of the Supreme Court of Canada in the McGavin Toastmaster Ltd. case, which decided that the common law as it applies to individual contracts of employment is no longer relevant to employer-employee relations governed by a collective agreement. The first case of note is Vorvis v. Insurance Corporation of British Columbia [1989] 1 S.C.R. 1085; (1989) 58 D.L.R. (4th) 193 in which the Supreme Court dealt with the amount and nature of damages in an action for wrongful dismissal. That case was decided prior to the House of Lords judgment in the Malik case. In Vorvis the majority judgment was delivered - 134 - by Mcintyre J. who considered the claims by the plaintiff for aggravated and punitive damages. He determined that the case was not one in which aggravated damages should be awarded. His comments in that regard are of special interest since he relied on the Addis case (which is now limited, as I have noted) and Peso Silver Mines Ltd. (N.PL.) v. Cropper (1966) 58 D.L.R. (2d) 1, [1966] S.C.R. 673, but appears to have specifically eliminated collective agreements from his determination. His conclusions are as follows at p. 204, D.L.R., “... I would conclude that while aggravated damages may be awarded in actions for breach of contract in appropriate cases, this is not a case where they should be given. The role long established in the Addis and Peso Silver Mines cases has generally been applied to deny such damages and the employer/employee relationship (in the absence of collective agreements which involve consideration of the modern labour law regime) has always been one where either party could terminate the contract of employment by due notice, and therefore the only damage which could oust would result from a failure to give such notice. [emphasis added] In my view, Mcintyre J., in his bracketed reference, pointedly excluded collective agreements from his determination denying aggravated damages in the employer/employee relationship which requires an independent actionable wrong. Mcintyre J. would have been aware of the earlier - 135- decision in the McGavin Toastmaster case which separated considerations in common law employment contracts from collective agreement considerations. Moreover, Mcintyre J. was relying on the Addis case which was decided in 1909 as the seminal case considering damages for wrongful dismissal and therefore his reference to the “modern labour law regime” suggests that different considerations might apply to collective agreements which came into being long after Addis, and would not have been contemplated by Addis. Mcintyre J.’s comments are similar to the comments in Malik where Lord Steyn stated that Addis was decided before the development of modern employment law. Mcintyre J. also noted that aggravated damages, which include damages for mental distress, may be awarded in actions for breach of contract in appropriate cases.Mcintyre J. also dealt with punitive damages. He stated at p. 207, D.L.R. that, “punitive damages may be awarded in cases of breach of contract. It would seem to me, however, that it will be rare to find a contractual breach which would be appropriate for such an award”. He then went on to describe the kind of conduct that would characterize a punitive award and determined that the defendant’s conduct standing alone - 136 - was not sufficiently offensive to constitute an actionable wrong, suggesting that conduct deserving of an award for punitive damages must constitute an actionable wrong. I note also the comprehensive dissent by Wilson J., in which she disagreed with Mcintyre J’s disposition of the claim for punitive damages, and with his approach to the law of mental suffering as a recoverable head of damages in breach of contract cases. I refer to Wilson J’s dissent because her approach appears to have been adopted in later cases of the Supreme Court of Canada. Also, bearing in mind the distinction made in McGavin Toastmaster case between employment contracts and collective agreements it is my view that Wilson J.’s comments about employment generally, while in dissent, are relevant to issues which arise under collective agreements.Wilson J. agreed that in appropriate cases aggravated damages for mental suffering may be awarded in breach of contract cases, but took a different approach as to the test to be applied in determining whether to award them. Relying on Jarvis v. Swans Tours, she stated damages could be awarded where the parties could reasonably have foreseen -137- mental suffering as a consequence of a breach of the contract at the time the contract was entered into, and she made specific reference to awarding damages for mental distress in employment contracts as follows at p. 214, D.L.R. “Professor Fridman notes that the most important type of contract, in which damages for mental distress have been awarded, is the employment contract. He suggests that this is because of the nature of the relationship which it creates which is one of trust and confidence. I would add that it may also be because of the vulnerability of the employee to the superior authority of the employer.” Wilson J., then referred to a number of employment cases where damages for mental distress caused by breach of an employment contract had been awarded.Wilson J. disagreed with the majority’s view concerning the requirement for a separate actionable wrong. She stated at p. 215, DLR: :“l must respectfully disagree with my colleague’s view that conduct advanced in support of a claim for damages for mental suffering must constitute a separate “actionable wrong” from the breach itself’ Rather than relying on a characterization of the conduct as an independent wrong. I think the proper approach is to apply the basic principles of contract law relating to remoteness of damage. These were articulated by Baron Alderson ... in Hadley v. Baxendale (1854) 9 Ex. 341 at pp. 354- 5, 156 E.R. 145 at p. 151.” - 138- Wilson J. concluded that the established principles of contract law set out in Hadley v. Baxendale provide the proper test for the recovery of damages for mental suffering. That view was subsequently adopted by the Supreme Court.As to punitive damages, Wilson J. after referring to and approving the thoughtful decision of Linden J., in Brown v. Waterloo Regional Board of Com’rs of Police (1982), 136 D.L.R. (3d) 49, 37 O.R. (2d) 277, (Ont. H.C.) concluded that a broader approach to punitive damages in contract matters is appropriate and also approved Linden J.’s approach, at p. 222, D.L.R., “to the effect that punitive damages should be available in order to deter the strong from deliberately and callously disregarding the legal rights of the weak whenever it is in their economic interests to do so.” Wilson J. concluded at p. 224, D.L.R., “In my view the correct approach is to assess the conduct in the context of all the circumstances and determine whether it is deserving of punishment because of its shockingly harsh, vindictive, reprehensible and malicious nature. Undoubtedly, some conduct found to be deserving of punishment will constitute an actionable wrong but other conduct might not. I respectfully adopt the following statement made by Clement J.A. in Paragon Properties Ltd. (1972) 24 R.L.R. (3d) 156 at p. 67, [1972] 3 W.WR. 106. - 139- “It is the reprehensible conduct of the wrongdoer which attracts the principle not the legal category of the wrong out of which compensatory damages arise and in relation to which the conduct occurred. To place arbitrary limitations upon its application is to evade the underlying principle and replace it with an uncertain and debatable jurisdiction.” Wilson J. concluded by commenting on employment relationships as follows at p. 224, D.L.R.: “The very closeness engendered by some contractual relationships, particularly employer/employee relationships in which there is frequently a marked disparity of power between the parties, seems to me to give added point to the duty of civilized behavior.” The next case of note is also an employment case. I refer to Wallace v. United Grain Growers Ltd. (1998) 152 D.L.R. (4t1) I because of the observations made as to the nature of the employment relationship, The Supreme Court of Canada found that the Company fired the plaintiff/employee abruptly despite a good work record, maintained unfounded allegations of cause that resulted in word getting around and “removed in the trade that he had been involved in some wrongdoing”. The Supreme Court noted that the contract of employment has many characteristics that set it apart from ordinary commercial contracts, and -140- after referring to various texts, indicated that there is a power imbalance which is, “not limited to the employment contract itself rather it informs virtually all facets of the employment relationship”. The Court stated at p. 32, D.L.R.“This unequal balance of power led the majority of the Court in Slaight Communications, supra, to describe employees as a vulnerable group in society: see p. 1051. The vulnerability of employees is underscored by the level of importance which our society attaches to employment. As Dickson C.J. noted in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 368, 38 D.R.R. (4th) 161: “Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.” [emphases added] Thus, for most people, work is one of the defining features of their lives. Accordingly, any change in a person’s employment status is bound to have far-reaching repercussions. In “Aggravated Damages and the Employment Contract”, supra, Schai noted at p. 346 that, “when this change is involuntary, the extent of our ‘personal dislocation’ is even greater. The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal. In Machtinger, supra, it was noted that the manner in which - 141 - employment can be terminated is equally important to an individual’s identity as the work itself (at p. 1002). By way of expanding upon this statement, I note that the loss of one’s job is always a traumatic event. However, when termination is accompanied by acts of bad faith in the manner of discharge, the results can be especially devastating.”(emphasis added) The Court also found that for employees to “receive adequate protection employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal”. The Court defined the employer’s obligation as follows at p.34, D.L.R. “The obligation of good faith and fair dealing is incapable of precise definition. However, at a minimum, I believe that in the course of dismissal employees ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.” The Court concluded by finding that a breach of the obligation would be compensated for by adding to the length of notice. The ourt further considered the impact of losing one’s job and the conduct of the employer as follows at pps. 35, 36, D.L.R. “Thus, although the loss of a job is very often the cause of injured feelings and emotional upset, the law does not recognize these as compensable losses. However, where an employee can - 142 - establish that an employer engaged in bad faith conduct or unfair dealing in the case of dismissal, injuries such as humiliation, embarrassment and damages to one’s sense of self-worth and self-esteem might all be worthy of compensation depending upon the circumstances of the case. In these situations, compensation does not flow from the fact of dismissal itself, but rather from the manner which the dismissal was effected by the employer.”[emphasis added] I note that the loss becomes compensable both in the case of bad faith conduct and also in the case of “unfair dealing”. These same criteria were echoed by the Court where it stated as follows at p. 37, D.L.R. “The law should be mindful of the acute vulnerability of terminated employees and ensure their protection by encouraging proper conduct and preventing all injurious cases which might flow from acts of bad faith or unfair dealings on dismissal both tangible and intangible. I note that there may be those who would say that this approach imposes an onerous obligation on employers. I would respond simply by saying that I fail to see how it can be onerous to treat people fairly, reasonably, and decently at a time of trauma and despair. In my view, the reasonable person would expect such treatment. So should the law.”[emphasis added] McLachlin J., concurring and dissenting in part, on her own behalf and on behalf of La Forrest and L’Heureux - Dub J., while agreeing to extend the notice period, would also have upheld the trial judge’s award if - 143 - $15,000.00 for mental distress on the basis of breach of the contractual obligation of good faith in dismissing an employee. Wallace, by deciding that there are circumstances where damages may be awarded for the manner of dismissal, in my view, eroded the contrary principle enunciated in Addis. Wallace is also important because apart from its legal implications it refers to the nature of conduct (bad faith or unfair dealing) which may result in damages as well as the impact of dismissal on an employee which I find to be relevant considerations in unjust situations under a collective agreement. Fidler v. Sun Life Assurance Co. of Canada [2006] 2 S.C.R. 3 is the most comprehensive case setting out the evolving principles in dealing with damages for mental distress in cases of contract. In that case, Sun Life, the insurer, denied Ms. Fidler the long term disability benefits to which she was entitled. The trial judge awarded Ms. Fidler damages for mental distress resulting from Sun Life’s breach of the group disability insurance contract but refused to award punitive damages based on his conclusion there was no bad faith. The trial judge’s award for damages for mental -144- distress was upheld by both the Court of Appeal for British Columbia and the Supreme Court of Canada. However, the Supreme Court of Canada reversed the Court of Appeal’s order awarding punitive damages to Ms. Fidler. After reviewing the law concerning damages for metal distress for breach of contract, the Court concluded, (consistent with Wilson J’s. earlier views) as follows atp. 19, “We conclude that damages for mental distress for breach of a contract may, in appropriate cases, be awarded as an application of the principle in Hadley v. Baxendale: ... The aim of compensatory damages is to restore the wronged party to the position he or she would have been had the contract not been broken... There is no reason why this should not include damages for mental distress, where such damages were in the reasonable contemplation of the parties at the time the contract was made.” (emphasis added) The Court also established that damages for mental distress may be awarded where parties enter into a contact, the pbject of which is to secure a psychological benefit. The Court, after referring to commercial contracts where mental distress is not ordinarily within the contemplation of the parties, stated as follows at p. 20, - 145 - “The matter is otherwise, however, when the parties enter into a contract, an object of which is to secure a particular psychological benefit. In such a case, damages arising from such mental distress should in principle be recoverable where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made. The basic principles of contract damages do not cease to operate merely because what is promised is an intangible, like mental security.” [emphasis addedJ The Court determined that while mental distress must reasonably be contemplated by the parties to attract damages, it need not be “the dominant aspect or on the very essence of the bargain”. The Court stated at p 21, “The principle suggests that as long as the promise in relation to state of mind is part of the bargain in the reasonable contemplation of the contracting parties, mental distress damages arising from the breach are recoverable. This is to state neither more nor less than the rule in Hadley v. Baxendale.” The Court also distinguished the concept of “true aggravated damages” from damages resulting from breach of contract. Compensatory damages that are awarded as a result of a breach of contract where the object is to secure a “psychological benefit” are based on the reasonable contemplation of the parties at the time of the contract formation and are assessed based on the rule of Hadley v. Baxendale. As such “they are not true aggravated damage awards”. The Court noted that this particular - 146 - head of damages explained the extended period of notice in employment law which was awarded in the Wallace case. The Court pointed out that “true aggravated damages” may arise out of separate aggravating circumstances. “The award of damages in such a case arises from an independent cause of action and “has nothing to do with the contractual damages under the rule in Hadley v. Baxendale”. The Court stated at p. 23: “An independent cause of action will only need to be proved where damages are of a different sort entirely and where they are being sought on the basis of aggravating circumstances that extend beyond what the parties expected when they concluded the contract.” The Court also noted that the degree of mental suffering caused by the breach must be of a degree sufficient to warrant compensation. In Fidler, the Court also discussed when punitive damages could be awarded and stated that to attract punitive damages it requires impugned conduct that departs markedly from the ordinary standards of decency which can be described as malicious, oppressive or high handed; however punitive damages should only be resorted to in exceptional cases. The Court also indicated that the conduct must be independently actionable and - 147 - that a breach of a contractual duty to act in good faith will meet this requirement.The issue of punitive damages was more fully explored in the earlier case of Whiten v. Pilot Insurance Co. [2002] 1 S.C.R. 595. That case arose from an insurance claim as a result of a fire destroying the Whiten’s home and contents. Pilot Insurance not only denied the claim but alleged the Whitens had torched their own home in the face of cogent evidence which said there was no evidence whatsoever of arson. Pilot’s position was totally discredited at trial and the jury awarded compensating damages and one million dollars in punitive damages. The Supreme Court of Canada restored the jury award to one million dollars and allowed the appeal from the Court of Appeal which had reduced the punitive damage award to $100,000.The Court in Whiten stated that “punitive damages are awarded against a defendant for ‘malicious, oppressive and high handed’ misconduct that offends the Court’s sense of decency” and “represents a marked departure from ordinary standards of decent behavior”. The Court, after reviewing the nature of punitive damages in a number of jurisdictions, - 148 - concluded that limiting punitive damages by categories was rightly rejected in Canada. The Court required that a determination of the circumstances should be made to warrant the addition of punishment to compensation in a civil action. However, “it is in the nature of the remedy that punitive damages will largely be restricted to intentional torts ... or breach of fiduciary duty” and “as the exceptional case in contract”. Or more broadly speaking, punitive damages ought to be available where “the conduct of the defendant [was] such as to merit condemnation of the Court”. The Court explicitly stated that Pilot was under a duty of good faith and fair dealing and that breach of the duty of good faith is independent of and in addition to the breach of contractual duty to pay the loss. “It constitutes an ‘actionable wrong’ within the Vorvis rule, which does not require an independent tort”. The Court further stated at p. 640, “An independent actionable wrong is required, but it can be found in breach of a distinct and separate contractual provision or other duty such as a fiduciary obligation.” Further, the Court stated that “punitive damages can be awarded in the absence of an accompanying tort” and that as a procedural rule of fairness the facts said to justify punitive damages should be pleaded with some particularity. The Court indicated that when determining whether to award - 149 - punitive damages the degree of misconduct, the financial or other vulnerability of the plaintiff and the consequent abuse of power by a defendant where there is a power imbalance should be included among the various factors to be considered. In this context, I particularly note the comments of Wilson J. in Vorvis where she refers to the vulnerability of employees and the disparity of power between employers and employees. Also, an award of punitive damages should be rationally proportionate. The Court warned that punitive damages are not compensatory and stated at p. 653, “Aggravated damages are the proper vehicle to take into account the additional harm caused to the plaintiff’s feeling by reprehensible or outrageous conduct on the part of the defendant. Otherwise, there is a danger of “double recovery” for the plaintiff’s emotional stress, once under the heading of compensation and secondly under the heading of punishment.” Also, punitive damages are awarded if all other penalties are taken into account and found to be inadequate to accomplish the objectives of retribution, deterrence, and denunciation “and in this context the Court noted that compensatory damages also punish”. However, the Court, based on the facts of the case, concluded that the compensatory damages ($345,000.) were not sufficient to avoid a repetition of the offence and - 150- deterrence to others since it was not more than the respondent had contractually obligated itself to pay under the insurance policy. That finding is important in the collective bargaining context, because in my view, where there is a violation of the just cause provision and an employer is required to pay wages and the cost of other benefits, those are compensatory out of pocket or special damages and as in Pilot should not be considered when dealing with proportionality if it is also determined that punitive damages are warranted.The last relevant case dealing with both aggravated and punitive damages is the decision of the Supreme Court of Canada in Honda Canada Inc. v. Keays [2008] 2 S.C.R. 362. That case was an employment case in which Mr. Keays sued for wrongful dismissal. The trial judge held that the employer committed acts of discrimination, harassment and misconduct against Mr. Keays and increased the notice period from fifteen (15) months to twenty-four (24) months as an award for additional damages dependent on the manner of dismissal. He also awarded punitive damages against the employer in an amount of $500,000.00. The Supreme Court of Canada set aside both the award of aggravated damages for the manner of dismissal and also the award for punitive damages. -151 - The Supreme Court reviewed the various cases that had dealt with the propriety of damages for wrongful dismissal and relying on Fidler stated at p. 368, 369 “that it was no longer necessary that there be an independent actionable wrong before damages for mental distress can be awarded for breach of contract whether or not it is a ‘peace of mind’ contract.” The Court again concluded that damages are recoverable based on the principle articulated in Hadley v. Baxendale as follows at p. 389 “that damages are recoverable for a contractual breach if the damages are such as may fairly and reasonably be considered either arising naturally from such breach of contract itself, or such as may reasonably be supposed to be in the contemplation of both parties.” The Court determined that since a contract of employment is, by its very terms, subject to cancellation on notice or subject to payment of damages in lieu of notice, without regard to the ordinary psychological impact of that decision, the normal distress and hurt feelings resulting from dismissal are not compensable. I pause to note that the leeway given to an employer to dismiss an employee where there is an employment contract is completely different from an employer’s obligation under a collective - 152- agreement where an employer is subject to a just cause provision. The Court also concluded that as long as the promise in relation to state of mind is part of the bargain in the reasonable contemplation of the contracting parties damages for mental distress arising from its breach are recoverable.The Court determined that when dealing with punitive damages an independent tort is not required. The Court stated at p. 392, “‘that an actionable wrong’ within the Vorvis rule does not require an independent tort and that breach of the contractual duty of good faith can qualify as an independent wrong” and that “an independent actionable wrong is required, but it can be found in breach of separate contractual provision or other duty such as a fiduciary obligation.” (emphasis added) That comment raises the issue as to whether a breach of the separate “contractual provision” requiring an employer to discipline or dismiss under a collective agreement for just cause, in and of itself, constitutes an independent actionable wrong within the meaning of Honda Canada Inc.,. I also note that the Court made no mention of “unfair dealing” which is one of the wrongs referred to in Wallace. - 153- The Court dealt specifically with punitive damages and stated at p. 393’ “punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own.,’ And later, the Court stated at p. 396, “The independent actionable wrong requirement is but one of many factors that merit careful consideration by the Courts in allocating punitive damages. Another important thing to be considered is that conduct meriting punitive damages awards must be ‘harsh, vindictive, reprehensible and malicious’, as well as ‘extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment” (Von/is, at p. 1108)” Also, the Court stated at p. 396 that it is an “important principle that courts when allocating punitive damages must focus on the defendant’s misconduct, not on [page 397] the plaintiff’s loss.” (Whiten, at paragraph 73) The Court concluded that Honda’s conduct was not sufficiently egregious or outrageous to warrant an award of punitive damages. -154- While the better practice is to read the decisions of the Supreme Court of Canada in full the various principles enunciated by the Court may be briefly summarized as follows: 1) Damages for mental distress in contract cases are recoverable based on the principles articulated in Hadley v. Baxendale which contemplates that damages may be awarded (i) if they may fairly and reasonably be considered rising naturally from such breach of contact itself or, (ii) if they may reasonably be supposed to be in the contemplation of both parties at the time the contact was made. 2. Damages for mental distress may be recoverable where the parties enter into a contract the object of which is to secure a particular psychological benefit or an intangible benefit like mental security. 3. While mental distress as a consequence of the breach must reasonably be contemplated by the parties, it need not be the very essence or the dominant aspect of the bargain. -155- 4. True aggravated damages, which arise out of aggravating circumstances may be awarded as a result of an independent cause of action and has nothing to do with contractual damages under the Hadley v. Baxendale rule. An independent actionable wrong is not a pre-requisite for the recovery of mental distress damages. 5. The degree of mental suffering caused by the breach must be of a degree sufficient to warrant compensation. 6. Punitive damages should be resorted to only in exceptional cases and the required conduct should constitute a marked departure from the ordinary standards of decency and must be independently actionable. A breach of the contractual duty to act in good faith will meet this requirement. However, an award of punitive damages does not depend exclusively on the existence of an actionable wrong. An actionable wrong can be found in breach of a distinct and separate contractual provision or other duty such as a fiduciary obligation. - 156 - 7. Punitive damages are awarded for malicious, oppressive and high handed conduct that offends a sense of decency. See Whitten for a comprehensive statement. 8. The objectives of punitive damages are retribution, deterrence and denunciation. The aim is to punish the defendant. 9. The better practice is that a claim for punitive damages should be specifically pleaded. 10. Punitive damages must be proportionate to the blameworthy conduct, the vulnerability of the claimant, the need for deterrence, and the compensatory damages. - 157- Legal Analysis: The Collective Agreement (i) Contract Principles A board of arbitration under a collective agreement has the authority to award damages for mental distress and punitive damages under (i) the contract principles summarized above and (ii) by virtue of the remedial authority inherent in the just cause provisions found in collective agreements. I turn first to the contractual elements of a collective agreement and whether the principles enunciated in Fidler and Hadley v. Baxendale are applicable. Although collective agreements differ from employment contracts, there is a common human element that exists in both types of agreements. The incidents of employment which I have referred to above that both the Supreme Court of Canada and the House of Lords have enunciated in separate and isolated ways when woven together demonstrate the underlying human condition and human element that exists in employment. Thus, references such as “disparity of power”, “vuiherability of employees”, “sense of identity, self-worth and emotional well-being”, “loss of one’s job is always a traumatic event” and “psychological welfare of the employee” are phrases and epithets that reflect the emotional I psychological aspects of the employment - 158- relationship. This human element and condition inherent in employment motivates and influences the terms of a collective agreement so as to provide employees with what has commonly and historically been referred to as job security. These underlying human elements influence collective agreement language and provisions which provide for compensation; benefits such as, medical, dental, life insurance and pensions; working conditions including the regulation of seniority, layoffs recall and just cause provisions in the case of discipline and discharge. In my view, job security encompasses mental security within the meaning of Fidler and psychological welfare as described in Malik (which also dovetails neatly with the similar reference in Fidler). In short, while the parties to a collective agreement bargain about specific terms for inclusion in a collective agreement the psychological/emotional elements that I have referred to above are intangible benefits which are all part of both job security and mental security; simply put, having a job gives a person mental security There is, consistent with Fidler, a particular and intangible psychological berefit interwoven into the terms of a collective agreement and that is why, as Wallace stated, that the loss of one’s job is always a traumatic event no doubt because the loss, apart from the monetary benefits also includes the loss of the human elements or - 159 - emotional/psychological aspects of work which are referred to by the Supreme Court of Canada and the House of Lords. The emotional / psychological aspects of employment or the human condition and elements are within the contemplation of the parties at the time the contract was made, notwithstanding that these aspects may be intangible and not the dominant aspect of the negotiations; they may not be articulated but are ever present. Moreover, as Wallace puts it, parties to a collective agreement are aware that the loss of one’s job is a traumatic event and within the collective bargaining community discharge is often referred to as labour relations capital punishment. The loss may be more traumatic where the loss is the result of egregious breach of the just cause provision. Enhanced trauma may fairly and reasonably be considered to arise naturally from an egregious breach of the just cause provision within the meaning of Hadley v Baxendale. It is the rupture from the latent emotional/ psychological elements underlying employment which are interwoven with the loss of the patent monetary and other benefits of the collective agreement that are the cause of the trauma. The power imbalance, the vulnerability of employees, the sense of self-worth and emotional well-being and psychological welfare are the societal and human - 160 - elements that are the intangible weft that are woven through the language warp of the collective agreement and mental distress may reasonably be considered as arising naturally from the loss of those elements caused by an egregious breach of the collective agreement. AlternativeLy, since the loss of one’s job is a traumatic event, mental distress damages may reasonably have supposed to be in the contemplation of both parties at the time the contract was made. Or, to put the matter more simply, everyone involved in labour relations or collective bargaining knows and is aware that loss of one’s job is an obvious traumatic event and where egregious conduct violates the just cause provision, there is no legal basis for denying damages for mental distress or punitive damages. An egregious breach of the just cause provision, in my view, falls within the tests articulated in both Fidler and Hadley v. Baxendale enabling an arbitrator to award both damages for mental distress and punitive damages. - 161 - Legal Analysis: The Collective Agreement (ii) Remedial authority of the Arbitrator Nor-Man Regional Health Authority Inc., arose as a result of an arbitration decision where the arbitrator determined the Union was estopped from grieving a vacation bonus provision of a collective agreement. The issue before the Court concerned the nature of the remedy of estoppel imposed by the arbitrator and whether “he adapted and applied the equitable doctrine of estoppel in a manner reasonably consistent with the objectives and purposes of the [Labour Relations Act], the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of [the Grievor’s] grievance”. In concluding the arbitrator in that context had properly adapted and applied the equitable doctrine, the Court made a number of statements concerning the broad remedial authority of the arbitrator. In determining that the Court of Appeal erred in reviewing the arbitrator’s decision for correctness Fish J. speaking for the Court stated at p. 620, [5] Labour arbitrators are not legally bound to apply equitable and common law principles — including - 162 - estoppel — in the same manner as courts of law. Theirs is a different mission, informed by the particular context of labour relations. [6] To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevant to the grievances of which they are seized. They must, of course, exercise that mandate reasonably, in a manner that is consistent with the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance. The Court stated that an administrative tribunal’s decision will be reviewable for correctness if it raises a constitutional issue, a question of “general law” ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’ or a “true question of jurisdiction or vires”. However, the standard of reasonableness prevails where the arbitrator’s “decision raises issues of fact, discretion or policy: involves inextricably intertwined legal and factual issues; or relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have broad familiarity”. The Court concluded that the remedy imposed by the arbitrator was reasonable and not subject to review. - 163 - The Court also concluded that labour arbitrators have a broad statutory and contractual mandate. The Court stated at p. 629, 630 — [44] Common law and equitable doctrines emanate from the courts. But it hardly follows that arbitrators lack either the legal authority or the expertise required to adapt and apply them in a manner more appropriate to the arbitration of disputes and grievances in a labour relations context. [45] On the contrary, labour arbitrators are authorized by their broad statutory and contractual mandates — and well equipped by their expertise — to adapt the legal and equitable doctrines they find relevant within the contained sphere of develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the factual matrix of the grievances of which they are seized. [46] Thus flows from the broad grant of authority vested in labour arbitrators by collective agreements and by statutes such as the LRA, which governs here. Pursuant to s. 121 of the LRA, for example, arbitrators and arbitration boards must consider not only the collective agreement but also “the real substance of the matter in dispute between the parties”. They are “not bound by a strict legal interpretation of the matter in dispute”. And their awards “provide a final and conclusive settlement of the matter submitted to arbitration”. [47] The broad mandate of arbitrators flows as well from their distinctive role in fostering peace in industrial relations.********* - 164 - [49} Labour arbitrators are uniquely placed to respond to the exigencies of the employer- employee relationship. But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord. The Court did, however, impose some restraint on arbitrators who apply the common law or equitable principles as follows at p. 361, [52] But the domain reserved to arbitral discretion is by no means boundless. An arbitral award that flexes a common law or equitable principle in a manner that does not reasonably respond to the distinctive nature of labour relations necessarily remains subject to juridical review for its reasonableness. The remedial authority of a board of arbitration to award damages for mental distress as well as punitive damages and the impact of the general law or common law on the collective agreement must take into consideration the judgment in Nor-Man and the broad remedial authority given to arbitrators. In my view, both categories of damages fail within the purview of a collective agreement alone as well as the broad remedial authority of an arbitrator for the reasons which follow. An independent actionable wrong is not required. -165- I have indicated McGavin Toastmaster specifically states that the “common law as it applies to individual employment contracts is no longer relevant to employer- employee relationships governed by a collective agreement which ... deals with discharge termination of employment and a host of other matters.” Since, Addis was a common law matter that dealt with the termination of an individual employment contract, both Addis and its progeny should not be a consideration in matters covered by a collective agreement. McGavin Toastmaster simply pulls the rug out from under Addis and the cases that followed it (including Vorvis) insofar as those cases affect collective agreements. It also is a reasonable inference from Mcintyre J.’s bracketed comments in Vorvis about collective agreements and modern labour law which I have earlier referred to that the Court excluded collective agreements from its determination about mental distress damages and punitive damages. In short, any common law principles that flow from Addis are not relevant when considering remedies under the just cause provisions of a collective agreement. In the collective agreement in issue in this case, Article 3, the Management Rights clause and as well Article 8, provide that Teranet may - 166 - discharge and discipline employees “only for just cause”. At arbitration a determination of just cause is, in effect, an exercise in reviewing conduct. Initially a board of arbitration will consider the employee/grievor’s conduct which brought about the employer’s disciplinary response or decision to discharge. After reviewing the employee’s conduct the board of arbitration will review the employer’s conduct in reacting or responding to the employee’s conduct and determine the remedy of any. Under the rubric or principle of just cause arbitrators historically have examined both the employers and employees conduct. Just cause is a broad and generous term and to that end the arbitration cases have not only examined a wide array of conduct but have, commensurate with that conduct, provided a variety of appropriate relief. All of that is within the collective agreement framework, and, in my view, the concept of what is “just” lies particularly within the arbitrators mandate to determine. There is no reason to limit the arbitrator’s discretion under that term when assessing conduct to require the arbitrator to import common law concepts of independent actionable torts or wrongs into an arbitrator’s determination. The term just cause says it all and is a broad enough term to encompass all types of conduct and to provide an appropriate remedy where it is -167- warranted. Thus, the broad nature of an arbitrator’s remedial authority is governed by “the particular context of labour relations” and as the Court said in Nor-Man Regional Health “labour arbitrators are not legally bound to apply equitable and common law principles”. Moreover, the just cause provision is a contractual provision in which the parties have agreed to the authority of an arbitrator to interpret the conduct of the parties where an employee is disciplined or discharged and that delegation of that authority falls squarely within the principles enunciated in the decision of the Supreme Court in Fidler and/or the principles enunciated in Hadley v. Baxendale. If the employer unfairly or egregiously breaches the contractual just cause provision there is no reason not to award damages for mental distress or punitive damages based on the just cause provision alone, without requiring an independent actionable wrong, since the parties are aware that “loss of one’s job is always a traumatic event”. It is the reprehensible or egregious conduct which attracts the principle of mental distress or punitive damages and not the legal category of the wrong. Paragon Properties Ltd., supra. A breach of the just cause provision constitutes a “proper case” as Lord - 168 - Denning suggested in which mental distress damages and punitive damages may be awarded. Having outlined what I consider to be the broad authority of an arbitrator it is important to understand when such remedies for both mental distress and also punitive damages may be awarded. Here again there is a clear distinction between employment contacts and collective agreements. For the most part, the usual remedy for breach of an employment contract concerns the proper length of notice and the resulting compensation. But that is not the usual remedy for breach of the just cause provision in a collective agreement, particularly in discharge cases where the usual remedy is reinstatement to employment. The differing nature of the reinstatement remedy under a collective agreement underscores the importance of being gainfully employed for vulnerable employees who are covered by a collective agreement. However, the remedy of reinstatement, in my view, goes a long way to assuage any mental distress suffered by a grievor and reinstatement should be the primary redress for a discharged employee. It is only where the employer’s behavior is egregious, unfair, reprehensible or the like and - 169- the commensurate mental distress that arises is excessive that mental distress damages or punitive damages should be awarded. Both conditions must be present. Examples of egregious employer conduct include bad faith, unfair dealing, untruthful or misleading conduct or discrimination. In turn, the extent of the employee’s mental distress should be medically supported and of a degree sufficient to warrant compensation. Nor every unjust dismissal will result in an award of damages for mental distress or punitive damages. As to punitive damages, the test should be the same or similar to the type of conduct that merits punishment which is described in the Pilot case - that is, conduct which is “malicious, aggressive and high handed” and offends an arbitrator’s sense of decency. And finally, there is an issue of proportionality. None of the cases dealing with proportionality have dealt with the situation where an award has fully dealt with special damages such as wages and employment benefits as well as damages for mental distress and punitive damages. While I am in agreement with the decided cases that there should be proportionality between damages for mental distress and punitive damages — both are discretionary amounts, I would not include special damages such as wages or employment benefits when considering proportionality, -170- where there is a violation of the just cause provision. Both wages and benefits are non-discretionary and are amounts that were required to have been paid had the employer not unjustly terminated the employee. Special damages are not in the nature of an award that punishes the employer and should not be considered as part of a disproportionate award in the same manner that both compensatory and punitive damages are considered. Applying those considerations to the instant case, it is my view, that apart from the very specific findings concerning both just cause and the medical evidence, the conduct of Teranet was not so egregious to warrant damages for mental distress or punitive damages, nor was the trauma as alleged by the Grievor sufficient to warrant an award for mental distress or punitive damages based on the conduct of the parties as outlined below. -171 - Evidentiary AnalysisHarassment I now turn to the Grievor’s allegations of harassment. For the reasons that follow, I find neither Susan Steer nor anyone acting on behalf of Teranet harassed the Grievor. Indeed, there has been no harassment of the Grievor whatsoever. I further find that where there is any contradiction or conflict in the evidence that I prefer the evidence of Teranet’s witnesses to that of the Union’s witnesses and I particularly prefer the evidence of Susan Steer to that of the Grievor. The first allegation of harassment concerns the incident where Ms. Steer went to the washroom and noticed the Grievor on her phone. When Ms. Steer left the washroom, the Grievor was still on the phone and Ms. Steer tapped on her watch which suggested the Grievor might be taking too much time away from her work. At the time, the Grievor was on a performance plan because her work was below standard. There were concerns that the Grievor was not focused and that she was spending a lot of time on the phone. The Grievor admitted that her work performance was a legitimate concern for Teranet. The Grievor was on her break and the length of the call was for eleven minutes which did not exceed her break of - 172 - fifteen minutes. Ms. Steer did not speak to the Grievor about the call nor was the Grievor disciplined for the call. The Grievor, who claims to be shocked by the incident, did not speak to Ms. Steer about it. I find that the tap on the watch was a reminder by a manager to an under- performing employee to be careful about her time and was part of the normal give and take that occurs in the workplace. Ms. Steer had a legitimate concern about the Grievor’s substandard work performance and lack of focus and attempted to subtly remind her not to take undue time away from her work. There was no accusation that the Grievor was taking time beyond the allowed break time, nor was there any follow-up by speaking to or disciplining the Grievor about the call. This was not harassment.The next allegation concerns the Grievor being called by Ms. Steer in November of 2007, when she had legitimately taken a flex day. The Grievor surmised that Cheryl Bryant was aware of the Grievor’s request for a flex day and had told Ms. Steer about it. Cheryl Bryant testified that she was not aware of the Grievor’s request and had not said anything to Susan Steer. Susan Steer testified she knew nothing of the Grievor’s request for - 173- a flex day and admitted it was a mistake in those circumstances to call her. The Grievor’s allegation is based on mere conjecture; certainly Ms. Bryant had no reason to testify that she was unaware of the Grievor’s request. Also, the Grievor did not complain to her Union or file a grievance about the call, at the time. With respect to this allegation, I accept the evidence of Ms. Bryant and Ms. Steer that they knew nothing of the Grievor’s request for a flex day and the call was a simple mistake. This was not harassment. I determine that these two allegations which occurred approximately eleven months prior to the Grievor’s termination and not pursued by the Grievor or grieved at the time were incidents that normally occur in the work place and were part of the normal give and take and did not in any way constitute harassment. I further determine that these were stale incidents which were improperly raised in an attempt to buttress the Grievor’s claim of harassment. The next incident occurred in December 2007 when it was brought to Susan Steer’s attention that the Grievor might be engaged in the real estate business. Ms. Steer was concerned because of the Grievor’s seemingly lack of focus and substandard work performance that she might - 174 - be working for another organization on Teranet’s time. The Grievor was aware of Teranet’s policy which provides that “Employees have the right to choose how to spend their non-working hours. You may choose to work part-time for another organization in addition to Teranet. The work must not conflict, appear to conflict, or potentially conflict with your duty to Teranet nor with your ability to perform your duties as a Teranet employee. You must provide a written declaration if you are directly or indirectly involved in another business or employment, which may give rise to a conflict, an appearance of conflict, or a potential conflict of interest with the interests of Teranet.Should you choose to work for an organization other than Teranet, you will not: *********** work for another organization on Teranet’s time or premises, use Teranet’s supplies, facilities, tools, personnel, or intellectual property while working for another organization.” Ms. Steer testified that she was aware of another employee in the real estate business who had signed a declaration because of a potential conflict of interest. - 175- Because of the nature of Teranet’s work, Ms. Steer was legitimately concerned and met with the Grievor on December 6, 2008. In cross- examination, the Grievor acknowledged that Teranet was entitled to be concerned about a potential conflict of interest. At the meeting the Grievor’s use of her cell phone was discussed. The Grievor acknowledged that it was reasonable for Ms. Steer and Ms. Bryant to be concerned about her focus and lack of attention to detail, and her involvement in the real estate business because she was on a performance plan and had low productivity.The Grievor requested that she meet again with Susan Steer and her Union representative. A second meeting was held on December 18, 2007 and again, the Grievor’s phone use and her role in the real estate business was discussed. The Grievor eventually signed a declaration acknowledging she was a real estate representative of Royal LePage and admitted that “potential areas of conflict and how to avoid them” were discussed. The declaration provides as follows: “This letter is a declaration regarding Section 2.4.1. Working for Another Organization in the Teranet Employee Handbook. I am currently working as a representative of Royal LePage. I am completing this declaration following the said section and my conversation with Susan Steer and Cheryl Bryant - 176 - on Thursday, December 6, 2007. During this meeting, we discussed potential areas of conflict and how to avoid them. After the above-mentioned meeting, it was agreed, that I will adhere to section 2.4.1. of the employee guide. I will not advertise my real estate work at Teranet Inc. (i.e. lunchroom bulletin boards). It was agreed that during my break/lunch times, I will leave Teranet Inc.’s office to make or receive business related phone calls. All such matters will be on my personal cell phone. My regular work business hours will not be interrupted. I will not use Teranet Inc.’s tools while onsite to access Teranet Inc. products such as Teraview or Geowarehouse.” The Grievor testified she was upset about the December 6 meeting which was “full of accusations, assumptions and speculations from Susan” and that being monitored was demeaning to her. Not only did the Grievor agree to sign the declaration referred to above, but she also acknowledged receipt of the minutes of both meetings on December 6 and on December 18, 2008. She was represented by the Union at the December 18, 2008 meeting. While the Grievor responded to questions about the nature of her phone calls at work, she did not volunteer that she had used Teranet’s computers on Teranet’s time to communicate with her husband about various real estate matters, which was subsequently discovered by Mr. Farewell prior to her discharge when he investigated the Grievor’s activities. - 177- The Grievor agreed to the monitoring activities she now claims were demeaning and acknowledged receipt of a copy of the minutes of both meetings on January 3, 2008, but did not complain about the minutes nor did she complain about the monitoring or signing the declaration. In a lengthy email on that date she ended her remarks by stating “I trust the accusations that every call I receive/make is of a business nature will end”. Susan Steer responded in part as follows: “For the purpose of clarity, there was never an assumption that every call you made was of a business nature. I believe the expectations regarding such calls have been made clear and agreed to by you in the declaration re working for another organization. I trust this matter is now closed.” The Grievor, despite Union representation, did not complain about the nature of the meeting, the minutes of the meeting, the signing of the declaration or the monitoring, in her emails to Susan Steer. Nor did she at any time file a grievance concerning the meeting or the monitoring process to which she had agreed. Also her own notes, which were filed, state that “Susan mentioned to me that I seem to be doing my real estate work on company premises and company’s time. I told her that it not the case”. - 178- As it turned out, it was the case that the Grievor was engaged in real estate activities on company premises and using the company’s facilities or computers. She was not fully candid in her response to Susan Steer. I determine that the Grievor was aware of Teranet’s Code of Conduct and was in breach of it at the time of the December meetings. I further determine that given the nature of Teranet’s business, it was appropriate for Susan Steer to inquire into the Grievor’s real estate activities when it was brought to her attention. The Union does not claim that the Code of Conduct was in violation of the collective agreement, nor does it deny that the Grievor was in breach of the Code when she utilized Teranet’s computers for real estate purposes. I find Susan Steer’s meeting with the Grievor and her inquiries were both understandable and proper and that. the signing of the declaration by the Grievor as well as the monitoring of her activities in all the circumstances was appropriate and part of management’s responsibility. Given the appropriateness of the meeting and the inquiries, the agreement by the Grievor in both signing the declaration and agreeing to the monitoring, the presence of the Union representative at the December 18th meeting, the Grievor’s access to Union advice, the lack of complaint or grievance by the Grievor at the time - 179- coupled with her lack of candour and untruthfulness, I determine that the meetings with Susan Steer were part of the ordinary course of business and were necessary. This was not harassment and in all respects, I prefer Teranet’s and Ms. Steer’s evidence about the situation and the meeting to that of the Grievor.There are no allegations of harassment between the meetings of December 6 and 18, 2007, and the allegations surrounding the phone calls to the Grievor on September 10, 2008. Surely, if there had been an intent to harass the Grievor, it is likely that there would have been further incidents or a pattern of harassment in that period. However, to the contrary, on February 1, 2008, Susan Steer in a memorandum to the Grievor wrote — “I am pleased to advise you that you have met all the requirements of your Performance Development Plan. I confirm that you will continue in your position of TCA.” On August 11, 2008, Susan Steer noted that she spoke to the Grievor about her time and that she had “used all vacation floaters, etc.” and suggested she bank an upcoming flex day to ensure she had time for any unexpected events. Ms. Steer noted that the Grievor “ — was fine with this - 180- conversation and said she would look into it”. This latter incident is relevant because it demonstrates Ms. Steer’s practice concerning Teranet’s employees’ time and absences as part of management’s responsibilities and the acceptance by the Grievor of management’s phone call when absent. There is no allegation of harassment about the August 11, 2008 call. The most significant allegation of harassment concerns two phone calls made to the Grievor on September 10, 2008, by Susan Steer, both of which were unanswered, at a time when the Grievor was concerned about her father in law’s illness. On that day, the Grievor left a message for Cheryl Bryant which was recorded. That message is as follows: “Hi Cheryl. It’s Dorota calling. It’s 5:50 on Wednesday morning. Just wanted to let you know that I am dealing with some personal matter here today, and I won’t be — unfortunately I won’t be able to come in. If you want to get a hold of me you can call me at xxx xxx xxxx - that is my cell phone number. Thank you so much. Bye.” Particulars of her harassment allegations state that: “On Wednesday, September 10, 2008, the Grievor was absent from the workplace due to a family emergency. She learned early that morning that her father-in-law was ill. At approximately 5:40 a.m. the Grievor left a message for Ms. Bryant advising of the family emergency, and that she would not be - 181 - able to attend work. The Grievor also left her cell phone number, which is a habit when leaving messages on voicemail. At 9:20 a.m. the Grievor received a message from Ms. Steer advising the Grievor to call her back. The Grievor was pre occupied with the family emergency, and was not able to call Ms. Steer back at that time. At approximately 1:30 p.m., Ms. Steer’s phone number appeared on the Grievor’s cell phone gain, but no message was left. The Grievor found the phone calls very upsetting given that she had advised that she was dealing with a family emergency that day, and was not in a position to discuss the details of the emergency with Ms. Steer. The Grievor found the calls inappropriate and harassing, on a day where she was dealing with stressful issues.” The Grievor filed notes that she had made “regarding Susan’s behavior”. She testified they were made contemporaneously with the events to which she refers. The note from the September 10, 2008, incident is similar to her allegations. She wrote that she left a voice mail stating she would not be coming in as she had “an emergency situation to deal with in the family” and that she had left her cell phone number. Also in her note she stated that given the circumstances she was dealing with she found the calls quite upsetting and could not understand the purpose of the calls because she had left Cheryl a message explaining why she could not come to work. - 182- Although the Grievor claims that she advised Cheryl Bryant that she could not attend work, contrary to her written statement and allegations, the Grievor did not advise Ms. Bryant that there was a “family emergency”, rather she stated she was “dealing with some personal matter” and further stated that “If you want to get hold of me, you can call me at xxx xxx xxxx”, which is her cell phone number. Thus, not only did the Grievor not provide the reason for her absence as alleged, she also invited a call. The basis or foundation for her claim of harassment that she advised Teranet that she was experiencing a family emergency is not substantiated. Moreover, she invited a phone call. There is no basis as she claims for Susan Steer knowing she was upset by a family emergency. I further determine that two unanswered telephone calls do not constitute harassment. Susan Steer was not aware the Grievor was involved with a family emergency or dealing with stressful issues and based on the Grievor’s invitation to call proceeded in accordance with her practice as she had in the past (which is corroborated by her August 11, 2008 call and its acceptance by the Grievor) to contact the Grievor to discuss whether she would be paid for her absence. Ms. Steer was not in the office on September 11, 2008, when the Grievor returned, but was in on September - 183 - 12, 2008, and did not speak to the Grievor. I accept Ms. Steer’s evidence that she was engaged with other matters that day and therefore, did not speak to the Grievor. Not speaking to her is not harassment, as the Grievor alleges.The Grievor was asked to attend at Ms. Steer’s office on September 15, 2008. Both the Grievor’s notes and Ms. Steer’s notes indicate that the conversation in the office began with Ms. Steer informing the Grievor that she did not have enough hours in her time sheet to be paid for the entire day of her absence on September 10, 2008. The written evidence of both participants corroborates that Ms. Steer attempted to contact the Grievor to deal with payment for her absence, in accordance with her practice, which is corroborated by the call she had made to the Grievor on August 11, 2008, and was not made with any intent to harass the Grievor. At the point, as reflected in Ms. Steer’s notes, when she concluded informing the Grievor that she did not have enough hours to pay for her absence, Ms. Steer had ho knowledge the Grievor was involved in a family emergency. It was the Grievor who raised the issue of a family emergency. According to the Grievor’s notes, she told Ms. Steer that she had left a - 184 - voice message stating that she had to deal with an unexpected family emergency (which was not the case) and that Ms. Steer’s unanswered phone calls upset her a lot, that she did not want to be bothered with phone calls and that Ms. Steer was trying to chase her down. The Grievor had earlier mentioned to her co-workers that she had been upset by the phone calls and was “shocked” that Susan Steer had come to her desk to get her after emailing her. In all these circumstances, I prefer the evidence of Ms. Steer to the Grievor. Certainly, not knowing about the Grievor’s family emergency and being aware of the invitation to call on September O, I accept that Susan Steer was surprised by the Grievor’s accusations. I accept Ms. Steer’s evidence that she was not angry and did not speak to the Grievor in an aggressive or intimidating tone. Ms. Steer’s contemporaneous notes state she told the Grievor that she was not being accusing or aggressive and asked her “why she was being so defensive and reacting so strongly to the point of what may be described as paranoia”. In context, there was no doubt a difficult conversation, but it was not harassment. The Grievor’s comments to Ms. Steer were based on her wrongful impression that Ms. Steer was aware she was involved with a family emergency and should not - 185- have called her. The Grievor was upset going into the meeting and surprised Ms. Steer with her accusations when Ms. Steer knew nothing of a family emergency.The Grievor who was mistakenly upset when she first came to the meeting, reacted when Ms. Steer, who knew nothing about her family emergency, suggested she was being defensive and reacting strongly to the point of paranoia. It was the Grievor who, either mistakenly or wrongfully, accused Ms. Steer and Ms. Steer’s remarks were in response to the mistaken and wrongful accusations. In all these circumstances, I find that responding in the way Ms. Steer did when she was mistakenly or wrongfully accused was reasonable and did not constitute harassment. In all respects, I prefer Ms. Steer’s version of the meeting. Her surprised reaction to the wrongful or unjust accusations was within the realm of a reasonable response given the sudden and unwarranted attack on her by the Grievor. Ms. Steer was provoked by the Grievor’s unjustifiable accusations however, her response was not harassment. - 186 - The Grievor also claims that the termination of her sick benefits constituted harassment. The Grievor claims that she was sick and was merely running errands for her husband when she attended the Registry Office and the printing company and when she conducted an open house. The Grievor, who was a licensed real estate agent, also admitted that only licensed real estate agents could conduct an open house. When the Grievor was cross-examined, she acknowledged it was reasonable for Elgin Farewell to conclude she was engaged in the real estate business and also to conclude that she was violating the disability program by receiving disability benefits while working elsewhere. However, the Grievor also stated that Mr. Farewell was aware that her doctor confirmed that she was on stress leave and he could have contacted her doctor. After duly considering the evidence and the arguments with respect to the termination of disability benefits, I determine that the Grievor was indeed working and based on her own evidence it was reasonable for Mr. Farewell to conclude that she was working, which justified terminating her benefits. Further, based on Dr. Black’s medical opinion in which he wrote that he was aware that the Grievor held a real estate license but that she “did not have to stop doing real estate work”, I conclude that while the - 187- Grievor was in receipt of sick benefits, she was capable of working. In his testimony, Dr. Black confirmed that “the Grievor did not have to stop doing real estate work. She was off on stress leave from her workplace. In my opinion, she could not work there. She was not unable to work, she was on stress leave from that particular place.” He also confirmed in his testimony “that the Grievor did not have to stop working as a mortgage broker”. He also testified referring to the letters he wrote at the Grievor’s instance, “that it was stress from her workplace and not from work” and that the Grievor’s being engaged in real estate work does not change my opinion about the leave — it was a stress leave from her workplace not her inability to work in general.The Grievor had also testified that when she met with Ms. Steer in December 2007, that she was doing real estate work on a part time basis. Various advertisements including newspaper ads filed indicate that the Grievor participated in her husband’s real estate business. To conduct an open house, it was neoessary to have a real estate license as the Grievor acknowledged, that she had. At the open house, when questioned, she advised the investigator of other listings. She had been trained as a law clerk and also attended the Registry Office for real estate purposes. While - 188- she maintains that she was not paid for these alleged errands on behalf of her husband, she and her family would undoubtedly benefit from any potentially increased income the husband derived from her efforts. I am not satisfied with the Grievor’s explanation for her efforts at a time when she was receiving disability benefits. The tasks that she performed were work and were contrary to obtaining disability benefits while claiming that she was too ill to work. I find that in all the circumstances of this case, it was reasonable for Mr. Farewell to conclude, as the Grievor acknowledged, that she was working as a real estate agent. Moreover, Dr. Black’s testimony and letters confirms that the Grievor did not have to stop doing reasonable work and it is reasonable to conclude from Dr. Black’s letters and testimony that the Grievor could work and was not disabled from working in general. The termination of benefits in these circumstances was both justified and also reasonable and was not harassment. The Grievor asserts that Teranet could have contacted Dr. Black to verify her illness, Instead, Susan Steer wrote to her on September 29, 2008, and specifically told her that Teranet questioned the bona fide nature of her current absence and requested a meeting. The Grievor responded on September 30, 2008, that her doctor advised her not to attend work until -189- further notice and she understood the term “work” to include any meetings with management. Ms. Steer emailed the Grievor on October 1, 2008, saying that Teranet believes “you are able to work and that you should be at the office doing your job” and “meeting is an opportunity for you to explain why it is you are not at work in light of why we think you are able to be there” and also advised the Grievor she was entitled to have representation. On October 2, 2008, the Grievor responded by email that she was following her doctor’s advice to stay off work. While the Union argued that Teranet should have contacted the Grievor’s doctor or requested another medical opinion pursuant to the collective agreement, I am satisfied that the route Teranet chose to take, by requesting a meeting with the Grievor accompanied by a Union representative, to provide the Grievor with an opportunity to explain why she was not at work was reasonable in the circumstances. In order to directly contact the Grievor’s doctor it would have required the Grievor’s written consent which Teranét might have obtained at a meeting had the Grievor attended and explained her situation. Also, within the realm of labour management relations, matters are often resolved between parties as the result of discussions. When the Grievor was concerned about the - 190- declaration under the Code of Conduct in December of 2007, she asked for a meeting with her Union representative. When the Grievor, on September 15, 2008, complained to Miles Argue, her Union representative about Susan Steer’s conduct at the meeting, Mr. Argue met with Susan Steer and, it appears, according to Ms. Steer’s uncontradicted evidence, that her explanation of the meeting satisfied him. Thus, Teranet requesting a meeting to help resolve the absentee issues was not out of line or unreasonable. There was no reason for Teranet to leap to the expense of a medical examination before discussing the situation with the Grievor and her Union representative. A medical solution pursuant to Article 2.3 was still possible if matters were not resolved at the meeting. Accordingly, to the extent that the alleged termination of the disability benefits constituted harassment, I further determine that Teranet made reasonable efforts to provide the Grievor with an opportunity to explain her alleged disability and Teranet in these circumstances did not intend to harass the Grievor by terminating her sick benefits; it acted reasonably by attempting to meet with the Grievor and her Union representative. The failure to obtain a further medical examination, until the parties had an opportunity to meet and discuss the situation before moving to a medical examination, was reasonable in these circumstances. - 191 - There is one further issue related to the alleged harassment and that concerns the allegation that Ms. Steer was ill motivated towards the Grievor because her husband was a real estate competitor of the Grievor’s husband. There is not an iota of evidence to support that allegation. The mere fact that both Ms. Steer’s husband and the Grievor’s husband are engaged in real estate is not sufficient to support the allegations of improperly motivated harassment. That allegation, at best, is speculative as the Union submitted and I categorically reject the Grievor’s allegation that Ms. Steer was improperly motivated against the Grievor for that reason.Before turning to the medical evidence, it is necessary to comment on the Grievor’s allegations. What is particularly noticeable is the large gap of approximately ten months between Teranet’s justified Code of Conduct meeting in December 2007 and the Grievor’s allegations derived from her mistaken belief about her phone call to Cheryl Bryant on September 10, 2008. During most of that period, the Grievor’s performance was substandard making her an easy target if there was any intent by Susan Steer to harass her. There was no pattern of harassment in this case. The - 192 - Grievor’s evidence, in my view, having observed and listened to her testimony is exaggerated. The word shocking appears frequently concerning minor incidents such as the phone tapping incident in 2007. Also, both minor incidents such as a simple mistake and also stale instances where no grievances were filed are elevated to exaggerated allegations of harassment. When the Grievor was confronted in cross-examination with her mistaken phone call on September 10, 2008, when she clearly did not advise Teranet that there was a family emergency and also invited a call, she persisted in maintaining the two legitimate but unanswered telephone calls constituted harassment. She refused to withdraw the allegations after being confronted with her phone message inviting a call and not providing the information she claimed to have provided. She also falsely persisted in claiming that she was being harassed because Susan Steer’s husband was in the real estate business, but produced no evidence whatsoever to support that claim.Allegations of harassment tarnish a person’s reputation and become more serious in contained work places where people must work together. - 193- Allegations of harassment should not be lightly made. The Grievor’s allegations, particularly her mistaken belief and her persistent pursuit of the September 10th phone calls as harassment, coupled with her relentlessly pursued and unsubstantiated allegations about Ms. Steer’s motivation because of her husband’s business are not only baseless but they are mischievous, frivolous vexatious and unwarranted. The complaint about allegations of harassment do not fall within any definition whatsoever of harassment. - 194 - Medical Evidence However the finding that the Grievor was not harassed does not end the matter, because the interactions between the Grievor and Ms. Steer may have subjectively affected her health, even though there appears to be no objective basis for her claim. That requires an assessment of the medical evidence. After reviewing that evidence and bearing in mind that the Union and the Grievor bear the onus of adducing evidence to establish on the balance of probabilities that the Grievor’s health was negatively impacted by Ms. Steer, I find that the Union and the Grievor have not satisfied that onus. It is with some regret that I reject the evidence of Dr. Black. Dr. Black wrote three letters on behalf of the Grievor, and only one was presented to Teranet. On November 19, 2008, Dr. Black wrote that “Dorota expressed symptoms of a change in mood secondary to work stress from Teranet and was advised to take a medical leave from the stressful environment.” He also stated that the Grievor “described tension headaches secondary to Teranet”. He noted that she held a real estate agent’s license and unequivocally stated that “Dorota did not have to stop doing real estate - 195- work”. That letter apparently did not satisfy the Grievor because she had the doctor change the letter. Accordingly, on November 25, 2008, he made an additional change by referring to the Grievor’s “medical leave from the stressful environment at Teranet, under the management of Susan Steer”. He also added that in addition to requiring treatment for tension headaches, she also required treatment for “sleep”. Apparently, the November 25, 2008, letter again did not satisfy the Grievor and at her further request, Dr. Black wrote another letter which was the only one sent to Teranet, which added that in addition to a real estate license, she held a mortgage broker’s license and did not have to stop doing mortgage broker activities. He also added ‘anxiety’ to the list of ailments for which she required treatment. In summary, Dr. Black agreed that the Grievor could do both real estate work and mortgage broker activities in the period immediately leading up to and following her termination. He also confirmed in his testimony that she could do real estate and mortgage broker work and was only.required to stop work at Teranet because it was a stressful workplace and that she could do any job for which she was qualified except work at Teranet. Accordingly, I determine she was not fully disabled during that period.. - 196 - On September 10, 2010, approximately two years after his initial letters, Dr. Black wrote a fourth letter which differed from the others and appears to have been intended to be used in these proceedings to coincide with the Grievor’s testimony. That letter is as follows; “I saw Dorota on September 16, 2010 regarding her headaches, stress, and sleeping disorder related to her employer Teranet. Dorota to date, has not fully recovered and requires ongoing treatment and medication when necessary. I have advised Dorota from the beginning of her diagnosis in 2008 to pursue activities that can help make her feel at ease. Getting out of the house, spending time with her twin children, helping her husband with his real estate activities such as attending open houses, were all positive activities that could help put her mind at ease and assist in her recovery. It was not until the end of February 2009 that I consented to her bring able to seek alternative work to that of Teranet, but that the same must be conducted in a limited capacity so as to avoid stress. I continue to emphasize that employment Dorota is to attempt, must remain in a capacity in accordance with her medical condition and medical treatment. I also encourage her to continue doing activities that may assist her i&putting her mind at ease.” In his testimony and in two letters in 2008, Dr. Black unequivocally stated that the Grievor did not have to stop doing real estate work and then - 197 - in a third letter, added that she did not have to stop doing mortgage broker activities. His 2010 letter states that at the beginning of her diagnosis in 2008, he advised the Grievor that she could pursue certain “activities” which coincides with the Grievor’s evidence describing her activities as errands but not work. On September 2010, Dr. Black stated that it was not until the end of February 2009, (which is when the Grievor stopped receiving El payments) that he consented to the Grievor seeking alternative work to Teranet which is to be conducted in a limited way to avoid stress. That statement contradicts both his testimony and his letters of 2008 in which he unequivocally stated that the Grievor “did not have to stop doing real estate work” or work as a real estate broker and mortgage broker. I note that in the 2008 letters Dr. Black noted that the Grievor held real estate and mortgage broker licenses, but no mention is made of those licenses in the 2010 letter. Also, in the 2010 letter, Dr. Black stated that he advised the Grievor from the beginning of her diagnosis in 2008, to pursue activities that made her feel at ease and then enumerated those activities which included helping her husband with his real estate activities, such as attending open house. Given the reference to the Grievor’s real estate and mortgage broker licenses in the 2008 letters, coupled with his written comments that the Grievor did not have to stop doing real estate work and - 198- mortgage broker activities, and given the omission of any reference to the Grievor’s real estate license or mortgage broker license in the 2010 letter, I find that the nature and kind of work or activities referred to in 2008 are inconsistent with the nature and kind of work referred to in the 2010 letter. The reasonable inference from the 2008 letters is that Dr. Black consented to the Grievor doing work in 2008, which is contrary to his letter in 2010, which stated that it was not until the end of February 2009, that he consented to the Grievor seeking alternative work. At best, Dr. Black’s letters are inconsistent. Why mention her real estate and mortgage broker licenses in the 2008 letters if it was not intended the Grievor perform that work. The performance of limited helpful activities indicated in 2010 surely did not require a real estate or a mortgage broker license which were explicitly referred to in Dr. Black’s 2008 letters and which permitted her to work as distinct from performing “positive activities”. Also, in 2010, Dr. Black maintained that after February 2009, the Grievor could work in a limited capacity so as to avoid stress, however in 2008, notwithstanding he both wrote and testified that the Grievor should take a medical leave from the stressful environment at Teranet, he imposed - 199- no such limitations of the kind he imposed in 2010 when he permitted her to pursue real estate or mortgage broker work or activities. When cross-examined, Dr. Black acknowledged that he takes his patients, including the Grievor, at their word. Counsel for Teranet quite properly argued that Dr. Black’s testimony was unreliable because he had exceeded his medical role and became an advocate for the Grievor. I not only agree with Counsel, but in my view, I find that Dr. Black’s conduct, as revealed by both his letters and his testimony, went beyond mere advocacy.The next incident of medical consequences concerns the Grievor’s refusal to attend a meeting with Teranet on October 2, 2008, or at a further meeting after Teranet indicated it would be flexible with the meeting date. Teranet had requested a meeting because the surveillance tapes indicated the Grievor was working while she was receiving disability benefits. Teranet was quite clear in the October 1, 2008 email, that the purpose of the meeting was to provide the Grievor with an opportunity for her “to explain why it is you are not at work in light of why we think you are able to be here”. The Grievor testified that she did not know what would be -200- discussed although the email had made it quite clear. She testified she was not physically and emotionally ready to deal with the situation and, by not attending, was following her doctor’s advice and she would have gone to the meeting “if the doctor said it was alright, since I trusted his medical advice”.When cross-examined, the Grievor testified that after she was asked to attend the meeting and refused she told the doctor about the situation and also told him “she did not want to go to the meeting”. Dr. Black testified that he saw the Grievor on October 3, 2008, after she refused to attend the meeting; his chart on that date stated no work activities and also that he had recommended no work activities including meetings. The written documents are different from the Grievor’s testimony. In a letter to Susan Steer, dated September 30, 2008, disagreeing with Teranet’s decision to terminate her sick leave benefits, the Grievor referred to seeing the doctor on September 17 and September 25, 2008, and stated that at each appointment the doctor told her to stay off work. There is no mention on those dates in Dr. Black’s chart that he advised her not to attend any “meetings”. -201- The Grievor’s email to Susan Steer on October 2, 2008, stated that her doctor had advised her to stay off work and that “I understand the term ‘work’ to include any meetings with management”. On October 2, 2008, Susan Steer replied requesting the Grievor to attend for the purpose indicated above and the Grievor responded on October 2, 2008, that she was not able to attend this meeting as 1 am following my doctor’s advice to stay off work”. Dr. Black had not, as of October 2, 2008, advised the Grievor not to attend any meetings. The Grievor testified that she did not meet with the Company because she was not physically or emotionally ready to deal with the situation and also she was extremely overwhelmed and followed her doctor’s advice. Notwithstanding her physical and emotional state, the Grievor had on September 27, 2008, arranged and conducted an open house where she met with prospective clients. Dr. Black’s 2008 letters indicated, without any reasonable inquiry that Susan Steer was the source of her stress, however, the Grievor could have requested that SusanSteer be absent from any meeting she attended. - 202 - The Grievor’s testimony is also contradictory since she testified that she would have gone to the October 2, 2008, meeting “if the doctor said it was alright”. Her willingness to attend, but for her doctor’s advice, is contradicted by her cross-examination when she testified that after she was asked to attend the meeting, she told her doctor that “she did not want to go to the meeting”. Chronologically, that would have been at the October 3, 2008, appointment with her doctor. It is readily apparent that on September 30, 2008 and October 2, 2008, when the Grievor declined to attend the meeting that Dr. Black had not advised her not to attend a meeting, but had simply told her to stay off work. That is confirmed by the Grievor’s testimony and particularly by her letter of September 2gthi where she states that her doctor told her not to attend work but then qualified the term work by stating that she understood the term work to include any meetings with management. It is reasonable to infer from the Grievor’s testimony and the written documents that on September 30 and October 2, 2008, when the Grievor refused to attend the meetings because of Dr. Black’s advice that Dr. Black had not advised she not attend any meetings. I find the Grievor did not want to go to the meetings and wrongfully advised Teranet that she would not attend based - 203 - on her doctor’s advice about not attending meetings, which she did not obtain until October 3rd, after she had so advised Teranet. Dr. Black’s clinical notes indicate that he at no time prior to October 3, 2008, advised the Grievor not to attend any meetings. His clinical note of September 17, 2008, states “suggesting medical leave from work” while his clinical note of September 25, 2008, states “not ready to RTW [return to work]”. His notes of October 3, 2008, state “no work activities at all including meetings” and correspond precisely with the Grievor’s testimony that when she saw Dr. Black, she told him about the situation and that “... She did not want to go to the meetings”. The Grievor’s testimony also corresponds with Dr. Black’s charts, and with the note he sent to Teranet on October 3, 2008. That note departed from his earlier notes which stated the Grievor was to be off ‘work’ by expanding the concept of work to include “work activities” which presumably implied meetings. This is yet another instance of Dr. Black readily responding to the Grievor. When cross-examined, Dr. Black stated that “he takes his patients, including the Grievor, at their word”. Dr. Black was the treating doctor and I find that his assessment of the Grievor was based entirely on taking her -204- word. I further find that the Grievor’s testimony was inconsistent, unreliable and exaggerated. She used the term “shocked” on a number of occasions referring to her reaction to the various incidents regardless of the scale of the incident. Dr. Black merely accepted her view of the situation and readily reflected those views in his assessment of her both in the notes and also the letters he wrote on her behalf. Dr. Black’s letters also implicated Susan Steer in creating a stressful situation notwithstanding his testimony that the only thing he knew about Susan Steer was that her husband worked in real estate. One would have thought that before implicating Susan Steer as a source of stress that he would have made some inquiries about Ms. Steer’s conduct that provoked the Grievor’s stress. I find that Dr. Black’s conduct lacked that quality of independence that one usually finds from someone exercising professional judgment and I am reluctantly in agreement with Counsel for Teranet that Dr. Black shifted from a medical professional to patient’s advocate and tailored his conduct and testimony in such a manner that his medical assessment and testimony concerning the Grievor is not credible. I find that the medical evidence does not support the claims made by the Grievor both as to her fitness for work and her post discharge medical condition. The medical evidence for the reasons stated is lacking in professional judgement and independence and is unreliable. - 205 - I further determine that the Grievor was fully capable of meeting with Teranet on the dates scheduled or on any other date that Teranet was prepared to schedule. Contrary to her evidence, the Grievor both knew what the meeting was about and also that she was entitled to Union representation. The meeting was critical and would have provided her with a full and complete opportunity to explain why she was working while in receipt of sick leave benefits, but she chose not to attend, which justifiably resulted in a reasonable inference by Teranet that she did not wish to explain her situation and why it was she appeared to be working. Her failure to meet and explain the allegations contained in the emails to her, that she was capable of working was critical, and, accordingly, Teranet was justified in considering her refusal to meet and to respond to their inquiries as an important factor to be considered when terminating her. Teranet was entitled to draw an inference that the Grievor was working and that her refusal to meet was because she was hiding something and did not want to discuss her work activities while claiming disability benefits. By failing to meet with Teranet the Grievor pre-empted any opportunity for Teranet to make reasonable inquiries about her situation and for her to provide a reasonable explanation had there been one. - 206 - I conclude that both the Grievor’s evidence and the medical evidence do not support the Grievor’s absence from work or her claim for disability benefits. The Grievor was fully capable of working and chose not to attend at work or to attend at Teranet premises to explain her absence. I further determine that whether one applies an objective standard or a subjective standard, her absenting herself from work and refusing to meet with Teranet was not justified. - 207 - Compensation — Mitigation And finally, even assuming Teranet was not justified in terminating the Grievor, I determine both that she had income from employment and that she failed in other respects to take reasonable steps to mitigate her loss. As I indicated earlier, various documented real estate and mortgage broker advertisements were filed showing the Grievor in the real estate business with her husband. The records run from 2005 to 2010. There are advertisements from May 23, 2007 and November 14, 2007, the latter date being just prior to the meeting in December 2007 with Susan Steer to review the Code of Conduct, which the Grievor found objectionable. There are other advertisements to the same effect in 2008 and in 2009, including an undated advertisement which pictures the Grievor and her husband above a website listing, which refers to ““Team real estate”, and which contains statistics for January, February and March 2009. Another advertisement contains a picture of the Grievor and her husband and shows them receiving an award of excellence for 2008 and 2009, the Directors Platinum Award for 2007 and 2009 and what appears to be the President’s Gold Award for a number of years including 2008 and 2010. - 208 - The Grievor, reluctantly, and after several production orders were made, filed some income tax returns. Her June 9, 2008 filings include an addition to her employment income of business income of $15,750.56, which falls under the heading of self-employment. Her June 4, 2009 filing shows her total income for 2008 as $38,531.00, and a loss of $7,092.00 for business income which again falls under self-employment income. Her income for 2010 shows her total income as $62,533.00 and her self- employed business income of $40,993.95. The Grievor testified that she did not work after her termination but with the exception of certain small amounts to which she admits, claimed that she did no work and her income was the result of permissible income splitting between husband and wife under the Income Tax Act. In effect, she maintains that income attributed to her was earned by her husband only and credited to her. However, to the extent that her husband diverted income to her, he would have had to declare any diverted deduction he made as being reasonable pursuant to Section 67 of the Rules Relating to Computation of Income which provides as follows: “In computing income no deduction shall be made in respect of an outlay or expense in respect of which any amount is otherwise deductible under this Act, except to the extent that the outlay or -209- expense was reasonable in the circumstances.” [emphasis added] In addition, the Grievor’s husband could not have deducted the amount paid to the Grievor from his income tax unless it was an outlay or expense for the purpose of gaining or producing income from the business, because of Rule 18(1) under the heading of Deductions pursuant to the Income Tax Actwhich isasfollows:“In computing the income of a taxpayer from a business or property no deduction shall be made in respect of an outlay or expense except to the extent that it was made or incurred by the taxpayer for the purpose of gaining or producing income from the business or property.” In short, if the Grievor did not work or do anything deserving of the income declared on her income tax, she may be a party to income tax evasion. To be credited with income, while doing no work is not an outlay or expense that is reasonable, nor is it an outlay or expense incurred for the purpose of gaining or producing income. Alternatively, if the declared income was reasonable it would offset any loss that she claims. Also, the Grievor filed records headed Employment Insurance Report Record and Attestation for the following periods: November 23, 2008 to -210- November 29, 2008; December 21, 2008 to December 27, 2008; February 1, 2009 to February 7, 2009; February 8, 2009 to February 14, 2009. All of these reports have a paragraph in which the Grievor was required to indicate the reasons for not working and in each set of reports the reason given was because of “illness / injury”. She was also asked if she received any earnings for work for which she would be paid later, unpaid work or self-employment. In each case, the Grievor responded that she did not receive any such earnings. I note that for the period November 23, 2008 to November 29, 2008, while the Grievor declared her reason for not working was “illness / injury”, Dr. Black had stated that she did “not have to stop doing real estate broker and mortgage broker activities”. Thus, her attestation that the reasons for not working were because of illness or injury was contrary to Dr. Black’s letters for that period. Also, the Employment Insurance form refers to earnings from “unpaid work or self-employment”. Her Income Tax form return filed on June 4, 2009, presumably for 2008, shows a business income loss of $7,092.00 under the heading self-employment, It is clear that a portion of the income was for the period January 1, 2008 until October 9, 2008, when she was employed by Teranet. Assuming she did not work in real estate while at -211- Teranet, as she claims the $7,092.00 business loss, which she would have incurred to gain income, would have resulted after she left Teranet and within the period October 10, 2008 to December 31, 2008. It is reasonable to infer that while she told the Employment Insurance Commission that she could not work and was not earning any income, she was engaged in some form of business for which she claimed a deduction. The Grievor also filed an Income Tax return for 2009, on June 1, 2010. That return would have included the period January 1, 2009 until February 13, 2009 when the Grievor again advised the Employment Insurance Commission that she could not work and was not in receipt of any earnings. Her Income Tax return shows total income of $62,533.00 of which $40, 993.95 was from self-employed business income. While there is no exact correlation, it is reasonable to infer that the Grievor was earning income from self-employment at the same time that she was telling the Employment Insurance Commission that she did not have earnings for unpaid work and was incapable of working. I note also there is an overlap during these periods with the advertising documentation produced which suggests the Grievor was engaged in real estate. -212- And finally, there is a notation on the El report covering the period from February 1, 2009 to February 14, 2009 which says “Doctor’s note — saying I’m Q.” and then a claim to be discharged. Given that these documents emanated from the Grievor, it is reasonable to infer that the Grievor’s El report was also corroborated by Dr. Black in a similar manner to Dr. Black’s letter of September 21, 2010, in which he stated, contrary to his testimony and earlier 2008 letters, that the Grievor could engage in real estate and mortgage broker activities, and it was not until the end of February 2009 that he consented to her being able to seek alternative work to that of Teranet. I find the Grievor’s evidence as to her loss of income to be evasive and unsubstantiated. Nor am I satisfied based on her evidence and the written documentation that she made appropriate efforts to mitigate any loss. The documents suggest periods when she made no effort to mitigate her claimed loss. I do not find any of the Grievor’s evidence to be credible and I determine that the Grievor has failed to satisfy me, that she suffered any financial loss as a result of her termination. Given the advertising documentation I am not prepared to find the Grievor did not work. Alternatively, if she did not work her evidence about income splitting -213- appears to be in violation of the Income Tax Act. In summary, after reviewing the totality of her evidence, I do not find her testimony sufficiently credible so as to justify a claim for compensation. -214- Conclusion Based on the facts as outlined above, I determine that there has been no violation of the collective agreement by Teranet, and the Grievor was discharged for just cause. The Grievor was discharged because of the failure to properly perform her responsibilities, her conduct during her absence, her failure to provide appropriate and satisfactory medical documentation, her refusal to respond to Teranet’s inquiries, her failure to meet with Teranet and her refusal to work when she was able to do so, as well as other employment concerns. I am in agreement with Teranet’s submissions that the Grievor’s performance responsibilities and performance concerns, in context, included the totality of her conduct at Teranet and not just the mechanical title work that she performed. Her performance included the substandard quality and quantity of her work both before and after she received performance training. Included in her performance responsibilities was the proper use of computer equipment. However she abused that responsibility by engaging in real estate activity which she knew was inappropriate. Her performance as an employee included her conduct in -215- making unwarranted and frivolous accusations against a supervisor. Also, the Grievor’s absence from work and claim for disability benefits when she was perfectly capable of working were not legitimate. Her absence from work was not justified and the medical evidence as I have indicated lacked credibility and did not support her being disabled and/or not attending work. Her accusations about the unanswered telephone calls and her subsequent decision to leave work cannot withstand objective scrutiny; there is no basis for her not coming to work based on her evidence. Moreover, her exaggerated and evasive testimony coupled with the lack of credible medical evidence cannot withstand either objective or subjective scrutiny and I reject her evidence as the basis for not returning to work; she was not a credible witness. The Grievor refused to attend a meeting where her absence might have been explained, when she was able to do so. Had she legitimate concerns about Susan Steer, she could have agreed to a meeting and requested that Susan Steer not attend. Notwithstanding her refusal to meet with Teranet she conducted an open house as a real estate agent where she met with potential clients. I determine that if she was able to meet with people at an open house, she was capable of meeting with -216- Teranet as requested, but refused to do so. The Grievor, if she was concerned about harassment by Susan Steer could also have requested a transfer to another location, which she did not do; she was in the habit of emailing Teranet and could have requested a transfer by email but did not. She was also entitled to Union representation to any meeting which would have protected her interests as in the past. Instead she performed various real estate related tasks including conducting an open house which based on all the evidence confirms that she was capable of working and could have worked at Teranet. I further find that the Grievor’s expectation that she continue to be paid disability benefits, while refusing to meet with Teranet to discuss her absence, was misplaced and in all these circumstances Teranet was legitimately suspicious, as the Grievor conceded, particularly since Teranet had surveillance evidence that demonstrated she was working. By refusing to attend at work or to meet with Teranet and claiming disability/sick • benefits, notwithstanding Dr. Black’s opinion that she could perform other work, the Grievor foreclosed all possibility of resolving the situation or to effectuate any reasonable compromise with Teranet including transferring to another location. If she had done so, she might have returned to work at -217- a location and mitigated any loss that she now claims. By refusing to meet with Teranet or come to work, the Grievor also foreclosed any reasonable action by Teranet to resolve her complaints and to effectuate any reasonable compromise which might have mitigated any loss to her. Teranet was left with no alternative and in all the circumstances, it was reasonable to terminate her employment. I find that the totality of the Grievor’s conduct and her performance as an employee and lack of responsibility as an employee, prior to her dismissal, constituted just cause for dismissal. I further find that she has not satisfied me that she suffered a legitimate loss or that she mitigated any financial loss that she claimed. Also, there are gaps in her records when she claims to have been looking for work. For all these reasons, the grievance is dismissed.DATED at Toronto this 21st day of March, 2014. 1 Owen B. Shime, Q.C.