HomeMy WebLinkAbout1992-2690.Toplin.95-07-05
i
.
. ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DEL 'ONTARIO
GRIEVANCE COMMISSION DE
,
1111 SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMilE /TElECOPIE (416) 326-1396
GSB # 2690/92, 2787/92, 2785/92, 653/93, 1496/93, 1499/93,
1500/93, 1501/93, 1502/93, 1503/93, 45/94, 46/94
OPSEU # 92G744, 92G817, 92G819, 930897, 93F645, 93F648, 93F649,
93F650, 93F651, 93F652, 94A507, 94A508
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Toplin)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Correctional services)
Employer
BEFORE H Waisglass Vice-Chairperson
W Rannachan Member
M. O'Toole Member
FOR THE M Mazzuca
GRIEVOR Counsel
Koskie & Minsky
Barrister & Solicitor
FOR THE S_ Patterson & C Nikolich
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING September 20, 1993
April 18, 19, 20, 28, 29, 1994
July 28, 29, 1994
November 22, 30, 1994
December 1, 1994
April 10, 12, 19, 20, 1995
i
I
I
2
AWARD
ThlS panel commenced hearlngs September 20, 1993 On the basls of an agreement
between counsel, Mr Mazzuka and Mr Patterson, as set out In Exhlblt 1, we
proceeded on the following twelve grtevances of Mr R Topltn GSB hIe
numbers 2690/92, 2787/92, 2785/92, 1499/93, 1503/93, 1502/93, 1496/93,
1501/93, 1500/93, 46/94, 45/94, 653/93
The followlng ntne grlevances remaln to be scheduled for hearing at the
earllest possible date GSB flle numbers 2690/92-A, 2690/92-B, 2788/92,
2786/92, 1498/93, 1504/93, 1497/93, 47/94 44/94
Exhlblt 1 expresses the agreement of counsel
"All of the follow1ng grievances {which are now before us for dec1s1on} arise
out of the fact that Mr Topl1n, as agreed between the parties, has a
handicap, as defined under the Human Riahts Code As the result of a condit1on
known as pseudofollzculztis barbae Mr Toplin has been advlsed by hlS
physiclan that he should not shave It is alleged that because of his handtcap
the M1nistry entered into a course of harassing and discriminating conduct
which is summarized through the grievances set out below
" A) Gr1evance dated October 13, 1992 This grievance arises out of an alleged
conversat1on w1th Mr Ray Kalmns, a management employee of the Hamilton-
Wentworth Detention Centre Mr Kalnins 1S alleged to have threatened Mr
Toplln that he would lose hlS Job if he did not shave
" D) Gr1evance dated October 13, 1992 ThlS grlevance alleges that the
employer had an obligation to accommodate Mr Toplln as an employee wlth a
dlsabll1ty The allegatlon tS that the employer should have considered
alternative equlpment Wh1Ch could be used by an employee w1th factal hatr
" E) Grievance dated October 13, 1992 This gr1evance arlses out of the same
lnc1dent descrtbed 1n grievance A, above
" 3) Grievance dated September 21, 1993 Thts grievance alleges that as a
result of the course of harassment and dtscrimlnat10n set out 1n this letter I
that the gr1evor was forced to leave the workplace and go on short term 51Ck
beneflts As a result of thlS the grlevor was pald, as set out ln the
collectlve agreement, at 75% of his normal salary
!
I
I
.1
I, .
~
.
4
The grievor was the only witness heard Upon completlon of his re-examlnatlon
Union counsel declared hlS case closed, whereupon Employer counsel brought a
motlon for non-suit, without belng put to electlon We then heard arguments
on the question of non-electlon In accordance wlth the procedure of th1s
Board set out in Faler, GSB 218/89 (Flsher) we decided to hear arguments on
the non-suit motion without requiring the Employer to be put to the elect10n
whether or not to call evidence The Employer relied also on cases wh1ch
followed Faler Gibson/Patterson GSB 319,320/93 (Barrett), Jensen GSB 2511/90
(Gorsky), Santos GSB 974/92 (Waisglass)
b
It is our view that non-suit motions wlthout belng put to elect10n should be
permitted only in special C1rcumstances Further, we are m1ndful of
Ratushney's dectsion in Abarv 9 C H R R 0/4975, at para 38201
"I am of the view that an application in the nature of 'no case to meet'should be permitted
before administrative tribunals without requiring the respondent first to elect whether or
not to call evidence. The basic principle has been articulated by Mr Justice Lamer in
Dubois v The Queen [1985] 2S.C.R. 350 Essentially, it is that an accused should not be
required to present evidence unless the proponent has first presented evidence upon which an
adverse finding can be based. In other words, the principles of fairness should not require an
evidentiary response in the absence of a 'case to meet'
In the special circumstances of the instant case, we decided not to requlre
electton because we found, in balanclng the interests of costs and expeditlon
agalnst the duty of fairness, there tS the poSStblltty that, tf the Employer's
argument is correct on tts merits, considerable delay and expense can be
avotded without lmpatrtng fatrness If we had dismissed the non-suit motion we
would not have given the parti.es our reasons for d01ng so, orally or tn
wrltlng, at least not untll the final award is issued upon closure of the
case, and then only if requested by one of the parties
The Employer claims the Umon falled to establ ish a przma facze case that the
grtevor was harassed or discrtmtnated agatnst on the grounds of h1s hand1cap
Ca medical condit10n which necessttated h1s beard), and that h1s stress was
caused by the alleged harassment or dlsCrtmtnatton And further, there 1S no
eVldence of bad fatth
~
4
,I
3 I
" 4) & 9) Gr\evances dated September 21, 1993 Both of these gr\evances ar\se
out of the same inc\dent The gr\evor alleges that his shift was changed on
June 7, 1993 and th\s change \s a further example of harassment and
d\scr\m\nat\on wh\ch he was undergo\ng
" 5) Grievance dated September 21, 1993 "
{Th\s grtevance pertatns to the Mtnistry's alleged fatlure "to comply wlth the
terms of a Court Order regardtng the maktng of support payments from the
employee's wages" It was was withdrawn during the proceedlngs }
" 7) Grtevance dated September 21, 1993 This grtevance tS a further example .~,
of the harassment and dtscrtm\natlon which the grlevor was subJected to Whlle
the grlevor was absent on short term s\ck beneftts Mr Gary Hogarth, a
management employee of the Min\stry, contacted Mr Topl\n's physic\on to
request certain \nformat\on
" 8) Grievance dated September 21, 1993 The grtevor alleges that h1.s
reclassiftcatton to the status of Security Officer, effective June 17, 1993
was not a proper accomodation of hlS handicap and ts a further example of
harassment and d\scr\mtnation
" AA) SB) EE) Gr\evances dated June 3, 1993 In these grievances the grtevor
alleges that Mr FaJertag and Mr Thomas, management employees of the I
Mi.ni.stry, harassed and d'lscnmi.nated aga'lnst the gnevor The eV'ldence of such I
harassment and dtscrtmtnation tS set out in letters dated April 22 and May 11,
1993 and artses from a meettng among the parties on March 31 "
********************************
Union counsel assured the Employer that the Union and grievor would not be
seeking the remed\es set out \n the above-noted grievances "Instead. and
followina aareement Qy the Minlstrv that the arievor should be returned to ~
Dositton ~ ~ Correcttonal Officer ~ WhlCh does not reauire the wearina of MSA
eauloment". the arlevor cla\ms "damaaes for mental dtstress. lost waaes and
out of Docket eXDenses".
In addltion to Exh\bit 1, cited above, the panel rece\ved in eVldence many
documents on consent of the parties They are listed \n Appendix A to th\s
Award
--
I
I
I
II
...
.
6
. I conceive, therefore, that in judging whether there is any case evidence for a jury the
judge must weigh the evidence given, must assign what he conceives to be the most
favourable meaning which can reasonably be attributed to any ambiguous statements, and
determine on the whole what tendency the evidence has to establish the issue.
and:
From every fact that is proved, legitimate and reasonable inferences may of course be
drawn, and all that is fairly deductible from the evidence is as much proved, for the
purpose of a prima facie case, as if it had been proved directly I conceive, therefore,
that in discussing whether there is any case evidence to go to the jury, what the Court
has to consider is this, whether, assuming the evidence to be true, and adding to the
direct proof all such inferences of fact as in the exercise of reasonable intelligence the
jury would be warranted in drawing from it, there is sufficient to support the issue."
rOntarlo v. OPSEU (Calhoon), (1990), 37 0 A C 218J
We accept also as relevant Mr Mazzuca's reference to the Supreme Court of
Canada decislon under the Ontario Human Rights Code, O'Mallev [7 ( H R R
0/3102J which at para 24782 states the plaintlff bears the burden of proof
"He who alleges must prove. Therefore under the Etobicoke rule as to burden of proof, the
showing of a pn'ma facie case of discrimination, I see no reason why it should not apply in cases
of adverse effect discrimination. The complainant in proceedings before human rights tribunals
must show a prima facie case of discrimination. A prima facie case in this context is one which
covers the allegations made and which, if they are believed, is complete and sufficient to justify
a verdict in the grievor's favour in the absence of an answer from the respondent-employer
Where adverse effect discrimination on the basis of creed is shown and the offending rule is
rationally connected to the performance of the job, as in the case at bar, the employer is not
required to justify it but rather to show that he has taken such reasonable steps toward
accomodation of the employee's position as are open to him without undue hardship."
We accept as relevant also Ms Nikolich's reference to The Law of EVIdence In
Civil Cases (1974) by Sopinka and Lederman at pp 521-2, as cited in Re (aleary
Coooerative Assn & Caleo Club [McFetrldge24 LAC (4th) at p 316-7
"If such a [non-suit] motion is launched, it is the judge's function to determine whether any
facts have been established by the plaintiff from which liability, if it is in issue, may'be
inferred. It is the jury's duty to say whether, from those facts when submitted to it, liability
ought to be inferred The judge, in performing his function, does not decide whether in fact he
believes the evidence. He has to decide whether there is enough evidence, if left uncontradicted to
satisfy a reasonable man He must conclude whether a reasonable jury could find in the
plaintiff's favour if it believed the evidence given in trial up to that point The judge does not
decide whether the jury will accept the evidence, but whether the inference which the plaintiff
seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it The
decision of the judge on the sufficiency of evidence is a question of law; he is not ruling on the
weight or the believability of the evidence which is a question of fact Because it is a question of
.
5
The Employer's counsel, Ms N1kollch, sub/mts that the documentary eV1dence,
as well as the gr1evor's own test1mony, shows that the Employer made every
reasonable effort to accommodate the gnevor's beard, and that the gnevor
regularly responded to those legit1mate efforts w1th aggressive and
confrontat1onal actlons WhlCh seriously comprom1sed or underm1ned the
Employer's efforts to accommodate him She submits further that there 1S no
eV1dence that the Employer denied his hand1cap or refused to accommodate 1t,
that, to the contrary, the eV1dence establishes the Employer had accepted as
fact the grievor's hand1cap and tried to accommodate it, and that the grievor
denled that he had a handlcap and refused to cooperate with management's
efforts to accommodate hlS handlcap
Both counsel rely on the same cases which establlsh that in order to susta1n a
compla1nt of harassment under the Human Rights Code, such as the instant case,
1t 1S necessary to establish the following elements
[lJ The respondent engaged in a course of vexat10us comment or conduct,
[2J At the relevant tlmes the complainant was an employee and the respondent
was the employer or agent of the employer,
[3J That the comment or conduct complalned of was known, or ought reasonably
have been known to be unwelcome, and
[4J That the comment or conduct complained of was for the reason that the
complalnant has or 1S bel1eved to have a [handicapJ
fBoehm 8 C H R R 0/4121, see also Ghos~ 17 C H R R 0/216, Persaud 14
C H R R 0/23, Cuff 8 C H R R 0/3972J
The non-su1t motion rests on the ground that the Union failed to establish a
przma facie case In order to succeed, the Employer must show that there 1S
not sufficlent eV1dence for a prima facIe case, which means that there 1S no
eV1dence of probatlve value for the defendant, the Employer, to answer On the
standards for proof, counsel are on common ground, relYlng on the same cases
:'
In decid1ng a non-suit motion '[
l
1
"the issue is whether there is some evidence to support the claim. If there is some evidence a I
I
motion for non-suit must be dismissed. It there is none, it must be granted In performing I.
this function the judge must lean in favour of the respondent to the motion In Hall et al v I
Pemberton (1974), 5 0 R.(2d) 438 (C.A.) at pp438-9, Jessup J A., said for the court
"The principle which this Court must apply is stated by Lord Penzance in Parfitt v Lawless 1
I
(1872), 41 L.J P & M 68 at pp. 71-2 where he said I
I
I
! j
I
I
-
I .
8
The Employer SUbmlts that the Unton fat led tb provlde any or sufflctent
eVIdence to establ1sh the necessary elements of a prima fac1e case of
harassment, part1cularly, that the Unton failed to prov1de prIn~ facIe
eV1dence to establ1sh that the Employer "engaged 1n a course of vexat10us
comment or conduct", or that "the conduct complained of was for the reason
that" the grievor has a hand1cap (skIn dIsease) Further, Employer's counsel
subtmts that there 1S no eVIdence of a nexus between the alleged harassment
and the emotIonal stress WhICh required the grievor to go on sick leave when
he was offered a lower-paying job to accommodate his disabilIty
/, /
The parties agree that Mr Toplln's skin disease, pseudofolliculitzs barbae,
IS a handIcap as defIned under the Human Rzghts Code They agree that
harassment and dIscrimination on the ground of that handicap is prohIbited by
both the collective agreement and the Code They agree also that Section 17(2)
of the Code requIres the Employer to accommodate his handicap "wIthout undue
hardsh10 .... considerina the cost. outside sources of fundina. 1f anv. and
health and safetv reauIrements if anv"
Along WIth the above-noted duty to accommodate a hand1cap, the Min1stry and
its managers at the Hamilton-Wentworth Detention Centre [HWDC] have the
statutory responsibIlIty and duty, under the Occupatzonal Health and Safety
Act, to ensure the safety and health of employees Also, the provIsions of
Article 18 1 of the Collective Agreement require the Employer to ensure the
health and safety of the employees
The Ministry's "Respiratory Protection Program" [Exhibit 39J is not In
d1spute It is accepted in evidence on consent of the parties Exhibit 39
states that Its purpose IS "to ensure the safety and max1mize the potentIal
for the safe evacuat10n of all persons durIng a fire emergency", consIstent
WIth 1tS statutory and collective agreement obligations The relevant
paragraphs of ExhIb1t 39 indicates
[1] that the Ministry has provided MSA Pressure Demand Air Breathing Apparatus at strategic
locations 111 each instItution {para. 1}
-'
.
7
law, the judge's assessment of the probative sufficiency of the plamtlff's evidence, or the
defendant's evidence of a counter-claim for that matter, is subject to review by the Court of
Appeal"
On the question Wh1Ch the cha1rperson put to counsel, "what 1S eV1dence", he
refers to the cItation from Mr Justice Howland's dec1s1on in Re Bortolotti et
al and MinIstrv of Hous1na et al, 76 DLR (3rd) 408, 15 0 R (2d) 617 (C A ) at
623-4, 1n a decis10n of the Public Serv1ce Gr1evance Board, P-0004/85 Kashuba
[Surmons]
"As Cross points out in his text on Evidence: "The admissibility of evidence depends first on the
concept of relevancy to a sufficiently high degree, .and secondly, on the fact that the evidence
tendered does not infringe any of the exclusionary rules that may be applicable to it."
Mr Justice Howland continues
"In my opinion, any evidence should be admissable before the Commission which is reasonably
relevant to the subject matter of the inquiry and the only exclusionary rule which should be
applicable is that respecting privilege as required by Section 11 of the public Inquiries Act. The
requirement that the evidence be reasonably relevant was applied by this court in R. v Gaich.
Having determined that the test of reasonable relevance should be applied, it is necessary to
consider the meaning of the word 'reasonably relevant' In concluding what evidence is
admissable as reasonably relevant to a Commission of Inquiry, I would adopt the statement in
McCormick on Evidence.
'Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has
probative value. ' "
We adopt thIS same VIew The evidence must be relevant to the questions which
must be deCIded if the grievances are to succeed In the instant case, the
establIshment of a prima facie case requires evidence which has the mlnimum
necessary probat1ve value to require a response from the defendant, the
Employer, and wh1ch, in the absence of an acceptable defence, 1S suffiCIent
evidence for the grievance to succeed Clearly, the evidence requIred for a
prIma face case is not to be weighed on the balance of probabilItIes, but
rather the evidence 1S to be assessed to determine if tt has suffICIent
probative value to reqUIre an answer from the defence
We accept also the follOWIng comment whtch Professor SImmons made on thIS
Cl tab on "In our vIew, reasonably relevant cannot be determIned on a blanket
bas1s Instead, we w1ll have to rule what constItutes re-asonably relevant If, I
I
as and when the Issue arIses" Cop cit ] I'
I
I
I
I
lJ
.
10
The remalnder of Para 10 of Exhlblt 39 establlshes procedures for the
accommodatlon of an employee ln a deslanated cateaorv who lS reaulred to wear
the MSA eaU1Pment. but who is unable to comply wlth the faclal halr POllCV
due to a change ln personal circumstances b~yond the employee's control, such
as a medical condltion, inJury or a sltuatlon reaUlrlna posslble accommodation
under the Human Rzahts Code The policy dlstlnguishes between temporary and
permanent "change in personal circumstances"
Para 10 7 states the procedures to be followed ln case of a temporary change
"When such a circumstance occurs, options such as the following shall be considered: "
"a) contact the supplier to assess whether a different size or type of mask or a mask accessory
will provide the required fit; or
"b) accommodate the employee by means of a reassignment to a non-designated position or to
duties not requiring the wearing of the MSA breathing apparatus during an emergency ."espcnse.
"While accommodation within the institution may not be possible in every case, it shall be
undertaken to the extent that an institution's crisis response capability is not diminished
"The ability to accommodate an employee may depend on the nature, size and specific
characteristics of the institution, the human resources available and various other factors.
Therefore, accommodation decisions will always be made on a case-by-case basis after careful
consideration of all relevant factors."
Para 10 8 sets out dlfferent procedures to be followed in the case of
permanent non-compliance
"Where the reasons for non-compliance are health or injury-related and, ,after careful
consideration, the options described in procedure 7 above are not practicable, the employee
shall be declared medically unfit for duty and placed on Short Term Sickness Plan Benefits. If
the prognosis indicates that the non-compliance will be permanent, the employee shall be
provided with career counseling and assistance in security alternative employment within the
public service."
Para 10 concludes wlth thlS note, ln heavy type for emphasls
"To ensure fairness and consistency in the provision of personnel services and
tracking of ministry accommodation decisions, the Regional Personnel
Administrator and Human Resources Management Branch shall be consulted
about all decisions involving procedures 10 7, 10 8 and 10 9 above"
-
,
I
I
I
9
[2] that the Program administrator for HWDC IS the Staff Trainmg Officer who, among other
things, is required to "ensure that all employees who may be reauired to wear respirators are
provided with a coPY of the written operatina procedures for the proaram." {para 4}
[3] that all classified and unclassified correctional officers are amona the cateaones of
employees that limay be required to wear the MSA breathina apparatus and that shall receive
regular and ongoing training to provide for the safe and proficient use of the equipment during
an emergency" {para. 7}
(4] that "The CSA standard requires that under no circumstances shall an employee wear a
respirator for which a satisfactory facial fit has not been obtained." Three sizes of respirator
facepieces are available. Most persons "are able to obtain a satisfactory seal with the medium
size" "It is expected, therefore, that purchases of additional facepieces will be necessary only
in exceptional circumstances" "{para 8} ,
[5] that the MSA equipment may not provide a satisfactory face seal with certain physical
characteristics such as beards and gross sideburns, resulting in leakage which could result in
death or serious injury Consequently, the Policy declares that "no oerson who is desianated to
use the MSA breathina apparatus shall have facial hair. includina a beard. moustache or
sideburns. which has the potential to prevent the faceoiece from effectina a full facial seal
either dur'ina an emeraency or during practice use." {para. 9} {Emphasis 1S ours}
Further, Para 10 of Exhibit 39 states
"When the Superintendent or a supervisor believes that the facial hair of an employee
designated to wear the MSA breathing apparatus may contravene the ministry's facial hair
policy, the following procedures apply'
"10 1 The safety concern shall be brought verbally to the attention of the
employee by the Superintendent/supervisor
"10 2 If the employee agrees to trim or, if necessary, remove the excess facial hair in order to
comply with the ministry's policy, the employee shall be required to do so immediately
In exceptional and compelling circumstances, the Superintendent may extend this time
limit
"103 If the employee fails to trim or, if necessary, remove the excess facial hair within the
period of time established or dispute the need to trim or remove the hair in order to
comply with the ministry policy, the employee shall be required to submit to a mask
fitness test. "
{paras 10 4 and 10 5 set out the requ1rements and procedures for the test} I
I
"10 6 If the results of the mask fitness test indicate that the employee's facial hair does not I
conform to the ministry's facial hair policy, the employee shall be directed in writing to I
bring the facial hair into full compliance with the policy immediately In exceptional and I
compellmg circumstances, the Superintendent may extend this time limit The I
I
correspondence shall also inform the employee that failure to comply with the direction I
within the prescribed time limit may result in disciplinary proceedings. n
I
I
I
I I
I
i
I
.
12
i
I Toplin test1fied that some t1me between March and June, 1990, he told Len
I
Hardw1ck, Institut10nal Tra1n1ng Off1cer, that h1S family doctor recommended
he wear a beard and arranged an appo1ntment w1th a dermatologlst Hardw1ck
showed h1m and explained the policy(stand1ng order) on fac1al ha1r Among
other things, Hardw1ck expla1ned that if facial hair 1S necessary 1t must be
tr1mmed back 1n such a way as to make it poss1ble to ma1ntain the facial seal
w1th the mask on, and why that was 1mportant, because 1f the seal is broken,
smoke could get 1n and 1mpair the CO's abillty to respond to a fire dnll
There 1S no doubt he was 1nformed by the Employer and he understood that it
was among h1S dut1es as a CO to respond to fire calls and to part1c1pate in
per1od1c f1re dr1lls, Wh1Ch requ1red h1m to use MSA equ1pment
Topl1n testif1ed he received a letter dated July 5, 1990, from G Hogarth,
Sen10r Assistant Superintendent, w1th a copy and an explanation of the
Ministry's policy on facial hair We do not have this letter in evidence, but
1n the context of Toplin's evidence we infer that it was written in response
\
to his Occurrence Reoort [Exhibit 18J, cited above
Toplin replied promptly with his memo dated July 9, 1990, [Exhibit 19J "In
response to your request I respectfully ask perm1SS1on to grow facial hair in
accordance with Ministry Standards relating to MSA equ1pment " In th1S memo he
also quest10ned how the policy appl1ed, to him since he had not yet been
tra1ned on MSA equipment, and he pointed out that he will need 12 to 14 weeks
of fac1al hair growth Wh1Ch he belIeved "w1ll fac1l1tate a more accurate test
as prescribed by the Min1stry in compliance with operational character1st1cs/
standards wh1le 1n cOl'm1and of faClal hair"
Topl1n's request for more time was granted Hogarth told Toplin he had to
SUbm1t h1S beard to the MSA seal test Hardwick adm1n1stered the test on
August 9/90 The result was he was permitted to wear the beard and asked to
continue seeing his doctor
The gr1evor's test1mony ind1cates a fam1liarlty w1th the M1n1stry's
resp1ratory protect1on program and 1ts related pol1c1es and procedures We are
- --
I
I ~
.
11
BACKGROUND
Toplln commenced hlS employment wlth the Mlnlstry as a casual CO 1 on April
24, 1989 and became a full-tlme classifled employee Aprll 22, 1990 He had a
beard at the time he applled for the casual Job, but he had shaved it off when
he started on the Job in April, 1989, because he had been told lt was a
Minlstry requlrement for employment as a correctlonal offlcer He remalned
beardless for 14 months, until June, 1990
TODlln testlfied he flrst became aware of his severe skin Droblems with
,
inarown halrs.bleedlna and dlscomfort. when shavlna. commencing a few months
before that time, when he took the problem to his family physlclan, Dr Mazur,
in February or March/90 Dr Mazur referred him to a dermatologist Dr Murphy
H1S testlmony was that he saw Dr Murphy only once, on June 26, 1990
Topl in"s testimony that he hrst became aware of hts serious facial skin
condition in February or March/90 is contradicted by hts testimony in his
Occurrence ReDort [Exhlbit 18] to Mr R Vtlleneuve, Supertntendent, Hamilton-
Wentworth Detentton Centre, and dated 29 Ju~e 1990, in which he said
"I have recently been classified CO 1 on April 2, 1990 Prior to working for this Ministry I
was growing my beard. I have had a serious facial skin condition datina back to 1978. {Emphasis
ours] My shaving of my beard to enter this Ministry was not without conflict. I have had severe
rashes during the winter months and even bleeding periods during the more climatic times of
the year" Toplin concluded by saying, "It is my intent to follow my specialist's instructions
and grow my beard notwithstanding my daily functions as a Correctional Officer 1 "
He attached two notes to this Report, both from Dr Murphy, and both dated 27
June 1990, one for a preSCrtptlon for hts facial rashes/bleeding and one
stating "Randy has chronic pseudofolliculitis on his neck ThlS is incurable
but the problem can be solved by growlng a beard I have recommended this to
Randy " The eVldence is that the Employer had been lnformed at the tlme
Toplin deltvered his Report to the Superlntendent, with the dermato10gtst's
notes attached, that Mr Topltn's skin disease, pseudofollzculztzs barbae, is
a chronic and lncurable problem "which can be solved by groWlng a beard"
There is nothlng ln eVldence, however, that the Employer ever denled Toplln
the rlght to wear a beard, or refused to accomodate hlS medical condttlon
.
..
14
The arlevance dated Seotember 21/93 [ldentlfled ln Ex 1 as #81 alleges
that the grievor's "reclasslflcation to the status of a Securlty Cfflcer,
effectlve June 17, 1993, was not a proper accommodation of hlS handlcap and lS
a further example of harassment and discrimlnatlon For reasons set out
hereln, we flnd that the Unlon falled in 1tS onus to establlsh a prima facle
case, such that would requlre the Employer to refute these allegations
Union counsel argues there is no eV1dence that the Employer was willing to
accommodate the gr1evor w1th a comparable permanent position, before it had
~,
actually done so, pr10r to the f1rst day of hear1ng In support of his
argument that there lS a statutory obligatlon upon the Employer to accommodate
the gr1evor by placing him promptly in a permanent position that permitted h1m
to wear a beard, Un10n counsel rel1es on Re York Count v Hospital & C.N.A.
(Watters) 26 LAC (4th), 385, and Re Ontario & O.P.S.E.U.rK1mmel/Leafl
(Kaplan) 21 LAC (4th), 129 Kaplan, 1n Kimmel/Leaf. describes the
requuementsfor the discharge of the Employer's duty of reasonable
accommodat1on at p 159-60, as follows
"The duty, once adverse impact is established, is to accommodate to the point of undue hardship.
In our view, the employer was required to explore and then offer an accommodation to each of
the grievors. Put in another way, the initial obligation to accommodate rests with the employer
Had the Employer made a real effort to accommodate to the point of undue hardship, then our
disposition of the grievances would almost certainly have been different Once the employer
makes its offer of accommodation, again to the point of undue hardship, the employee has an
obligation to respond to the offer and to be reasonable in his or her response. In the instant case,
the parties never reached that point. The employee's obligation is to respond reasonably and
in good faith to a real offer of accommodation. but that, of course, presupposes the preexistence
of such an offer We find there was no such offer in the instant case."{Our emphas1s}
Union counsel argues that the Employer's offer to accommodate the gnevor with
a lower-paid job was not a real or reasonable offer of an accommodation "to
the point of undue hardsh1p", and that the grlevor was under no obl1gat1on to
respond to that offer Un10n counsel rel1es on the York County HosP1tal &
O.N.A. case and the rKlmmel/Leafl case [c1ted above], clalmlng, that they
stand for the propos1t1on that reasonable accommodation reqU1res the Employer
to offer the grlevor a new pos1t1on w1th comparable respons1billtles and the
same pay as he had 1n h1S preV10US pos1t1on
--.--- -------
.
.
13
satIsfIed that he knew, at all materIal tImes, that In hIS poslt~on as a
classIfIed correctIonal offIcer he was an emolovee In a deslanated cateaorv
who IS reauired to wear the MSA eauloment. as a condItion of emolovment In
that oosltion
The Unlon alleges that the Employer's failures to accommodate the grlevor's i
I
handlcap constltutes "a course of vexatious comment or conduct", involving "a
degree of repetltlon", WhlCh harassed the grievor, and which the Employer
knew, or ought reasonably have known, to be harassing The UnIon submits that
eVIdence of acts comprislng a course of "vexatious comment or conduct" IS /
found in Toplln's testImony on the Employer's failure to provIde hIm with
reasonable and timely accommodation to his disability, and in his evidence of
the Employer's repeated requests for MSA "seal tests" and for medical reports
on his skin disease, even after the Employer had been Informed that hIS
condItion was chronic
***************
DECISION
For the reasons given herein, we find the Union has failed to establish a
przma faeze case that the Employer had failed to provide the grievor with
reasonable and timely accommodation within the limits of undue hardship On II
the contrary, the eVldence is that the Employer never refused or failed to so
accommodate hIS handIcap The evidence is sufficient to establish also that
the Employer's requests for MSA tests and medical reports were, in each
Instance, legitimately required by the Employer for the purpose of assessing
the grIevor's handIcap and to assist in the process of determining an
approprIate accommodatIon, whether on a temporary or permanent baSIS In the
absence of any evidence that the Employer's requests for MSA tests and for
medIcal reports on hlS skin disease were improper, invalid, or made In bad
faIth or for an Improper motive, we fInd that the Unlon has falled to
establIsh a prZlna faeze case that the Employer's actIons comprIsed a course of
harassIng conduct
I
I I
I
~
,
16
" Mr Toplin's anxiety becomes so disruptive at times that he functions in a self-defeating way
He is irntable with his wife, demanding and distraught wIth his doctors and his lawyers, and
generally unable to bring a reasoned approach to his complex dealings with others."
"Mr Toplin frequently presents himself in an unfortunate way, swinging from being helpless
and overwhelmed to being hostile and threatening As a result, he precipitates a variety of
intense reactions in other people which frequently serve to only complicate his situation His
sense of personal worth and adequacy is very much tied up in his struggle with his employer,
and we can only hope he will begin to recover to a degree of autonomous function once the
grievance process has run its course. In the interim, I think on the medical side, all we can do
is treat him supportively and trust that the on-going stresses will not cause an even further
disability" [Exhibit 168J
;,
There is no eVldence to support the Union's claim that the accommodation
clalmed by the grlevor {a C02 posltion wlth a oermanent exemptlon from the
requlrement to wear MSA breathlng 9pparatus} was the only legitimate
accommodation which the Code required the Employer to offer, ln the particular
Clrcumstances of the tlme when he was offered a permanent security position
We have no evidence to support the allegation that the Employer's offer was
improper and failed to satisfy the requirements of the Code In the absence of
a prIma faCIe case, we can not accept the Union's claim that the onus is on
the Employer to prove his offer of accommodation was a real or proper one, and
made in good falth The onus of proof i.s wlth the one who alleges
Unlon counsel relies on the alternatlve argument that if the Employer 1S able
to make the proper accommodation [an equ1valent job with equivalent payJ and
refuses to do so, that thlS amounts to harassment He submits, as prima faCIe
evidence in support of this argument, the fact that ln the period from
December. 1991. to June 7. 1993 Taplin was ln a C02 positlon i.n which he was
exempted from the faclal hai.r pOllc1.eS, and that the Employer had agreed to
place him {upon his eventual return from slck leave} in a C02 positlon which
does not requlre the wearing of MSA equlpment, and thus, permittlng hlm to
wear a beard
The flaw ln thls argument is the assumptlon, without support1ng eVldence, that
the initial offer was not a real offer, made in good faith Furthermor,e, the
-
1
15
Our careful cons1derat1on of these cases do not lead to the same conclus1on
On the contrary, they support the propos1t1on that what could be a real or
reasonable accommodat1on "without undue hardsh1p" depends entlrely on the
particular factual circumstances at the time when "the employer was requIred
to explore and then offer an accommodation", in respect to each separate and
d1st1nct case of handicap Further, a orIma facIe case has not been
established on the Un1on's alleaation that the accommodat1on Wh1Ch was
ultimately made 1n the 1nstant case was the only real or reasonable
accommodat1on "w1thout undue hardsh1D"that could or should have been offered
by the Emoloyer in the 1nit1al C1rcumstances. /
/
There 1S no eV1dence of probatIve value that the Employer's 1nitial offer of
accommodation was not a real or proper offer, or that it was made in bad
faith We agree w1th Kaplan's Judgment that "the emoloyee's obliaat1on is to i
resoond reasonably and in aood faIth to a real offer of accommodat1on."
Cop cit ] We have no eVIdence that the grievor responded "reasonably and in
good fen th"
)'
On the contrary, the evidence indicates Taplin failed to respond reasonably
H1S 1nappropriate responses to the Employer's proposals were affected at the
t1me by the symptoms of his mental disorder, the history of Wh1Ch predates his
employment at MWDC [Exhibit 16B] Toplin required and obtained psychiatrIc
treatment of the d1sorder when he went on sick leave, upon his reJection of I,
the Employer's offer of a oermanent accommodation to the posItion of a
securi. ty offlcer His psychiatr1st did not express the opInion that Toplin's I
symptoms of stress were due to workplace harassment H1S psychIatrist's
letter states " he {TaplIn} attributes his symptoms to harassment at the
work place as well as ongoing confl1ct at home and w1th his extended fam1ly "
The following excerpts from his letter of December 21, 1993 [Exh1bIt 16BJ,
cast serIOUS doubt on the grIevor's evidence that his symptoms were due to
harassment at the workplace
"He comes from a dysfunctional family, has a background of alcohol and drug abuse, but states
he stopped all substance abuse in February of 1992 after a break-Up with his wife. His Wife and
her parents are physically handicapped with Mr Toplin perceiving himself as having to cope
with a multitude of other problems when he badly needs help himself"
-.---
-
~
18
unt1l January 27, 1992, when "a further med1cal note" 1S requ1red "In order
that a reV1ew of your status can be conducted The temporary accommodat1on
perm1tted h1m to wear a beard and 1nstructed h1m not to wear MSA equipment
Exh1b1t 22(AJ, dated February 7, 1992, conf1rms that on the recelpt of the
same medical lnstructions the Employer extended the temporary exemptlon to
March 2, 1992, when a further medlcal note lS requlred to reVlew hlS status
agaln Exhlblt 42, dated March 9, 1993, extended the exemption for a three-
month perlod to June 2, 1992, another medlcal note was requlred to reVlew hlS
status agaln Exhlbit 4, dated May 29, 1992, slmllarily extended the
accommodation for a four-month period to September 25, 1992, when lt was to be -',
reviewed again on medical evidence
Contrary to the Unlon's claims, the evidence indlcates the Employer, at all
materlal tlmes; made serious and reasonable efforts to accomodate the
grievor's handicap The Union has provided no evidence of probative value in
support of lts allegatlons that th~ Employer could have offered the grievor,
"without undue hardship", a permanent C02 position, one which did not require
the use of MSA equipment, at a much earlier date, and that thlS failure
constitutes harassment
The first incldent of alleged harassment arose in December, 1991, when Toplin
was required to take a "seal test" on the MSA equipment His testlmony is that
he felt harassed when he was forced to take these tests despite the fact
management already knew about hlS skln condltlon Unlon counsel SUbmlts that
the Mlnlstry's POllCY on "Respiratory Protectlon Program" [Exhlblt 39J is not
1n 1ssue, rather, the issues are the harassment of the grlevor, and the
fallure to accommodate his handicap, including the frequency of tests on MSA
gear which the grievor perceived as unnecessary and excessive, and thereby
harasslng However, there lS no eVldence of probatlVe value that the tests
were not requlred by the "Resplratory Protectlon Program" [Exhlblt 39J, or
that the managers dld not have the right to requlre the tests, or that they
vlolated the collective agreement or a statute, or that they acted ln bad
falth, or for lmproper motlve
....!
t'
17
Un1on's argument, that Topl1n had been exempted permanently 1n h1S pr10r
pos1t1on, 1S not supported by the facts The pnor exempt10ns were not
permanent exemptions Rather, they were temoorary exempt10ns from the MSA
requ1rements of h1S pos1tion and Wh1Ch were extended from t1me to t1me 1n the
course of treatment for hlS medlcal cond1t1on, unt1l such tlme as the Employer
came to conclude "the prognosis lndicates that the non-compliance wlll be
permanent" This is conslstent wlth the requirements of the POl1CY [See para
10 8 of Exhibit 39,supra]
There is nothing wrong or unfair about an employer glvlng an employee a / . I
a falr chance, some reasonoble t1me, to prove hlS medlcal condltlon cannot be ,I
"
treated and controlled, to the point it no longer dlsables him from performlng I
the requirements of his posit10n Such accommodat1ons do not imply or obligate
a permanent commltment The evidence that temporary accbmmodatlons were made
previously to Toplin's skin disease does not have any probative value on the
lssue of what accommodation is poss1ble or necessary, w1thin the llmits of
undue hardship, ln the face of a prognosis which indicates a permanent
lncaoac1ty to perform an essential duty The fact that the Employer knew at an
earlier date that Toplin had a chronic skln alIment, for which he was
receiving med1cal treatment, does not establish as fact that the Employer
thereby became aware 1nitially that the chron1c skin disease impaired
permanently his abil1ty to perform an essential duty
The eV1dence shows that the Employer had in fact accommodated the grievor's
medical condltion when lt granted the original exempt10n on a temporary bas1s
and extended it subsequently for periods of varying durahon
December 21. 1991, 15 the date of Topl1n's 1n1t1al temporary exemption from
wear1ng the MSA equipment, permitting him to wear fac1al hair due to his
med1cal conditlon [Exhlbit 21A] June 7. 1993 was his last day at work ln
h1S preV10US C02 pos1tion, before he went on slck leave I
I
Exh1bit 21CAJ, a memo dated December 24, 1991, confirms that the Employer I
accommodated Topl1n's medical cond1tion temporar1ly, on the basis of h1S I
"doctor's 1nstructlons that require you to wear a beard for medlcal reasons",
I
~
,.
20
would lose his Job tf he dtdn't shave off htS beard Thts conversatton
together wIth other events In the precedtng months, parttcularly the MSA test
requIrements and the repeated requests for medtcal notes, made htm feel that
"they [managersJ were trytng to get me out of the tnstttutton" "I felt they
were trying to get somethtng they could use against me, some reason to get me
out of the Instttution " He testified that he came to this concluston because
on many occastons he was told by managers, "Hardwick, Boychuk and others, that
if I don't comply with the requtrements, my job would be tn Jeopardy" He
testified also that he was warned by them often that if he did not comply with
the MSA tests and poltctes he could not keep his job in the instttution ,--
Toolin wrote Kalntns on October 1/92 [Exhibit 7J complainIng that he felt
threatened by what Kalmns had said to him Kalnins reolted promotlv on
October 9/92 [Exhibtt 26J, clartfying what he had told Toplin prevtously,
"that your accommodation (excused from wearing M S A equipment for medical
reasons) would have to be revtewed in light of new MIntstry policy "
In that same memo Kalnins tnformed Toplin
" Mr J Boychuk, I.T 0, had been instructed to share with you, in a more specific way, the
Ministry's direction in this area, attempt to ascertain whether your facial hair conforms with
the policy, and what your intentions were (e.g. to continue or discontinue wearing of facial
hair)." "Once Mr Boychuk's report is submitted, your status will be revied in the light of
this relatively new Ministry policy This may well require further discussion and consultation.
"At any rate, we are still in the information gathering phase and certainly no decision has been
made (or can be made) until all pertinent information is gathered. You will be advised
accordingly"
The memo concludes
"In short you were given advance notice of a review-out of professional courtesy There was
no Intention to alarm you needlessly Your response to a very brief and informal conversation
can only be considered an overreaction and premature given that no decision has yet been made
on the issue." [Exhl bi t 26J
Toplin testtfted that he as well as others opposed the poltcy because it
dlSCrtmtnated agatnst beards He tnststed that he had an uncondlttOnal rtght
to wear a beard tn his positton as a correctional officer Therefore, he
belIeved, tt was unnecessary for the Employer to exempt htm from tts factal
hatr poltcy, or to accommodate his disabiltty Topltn challenged the MSA
,
19
The arIevance dated October 13/92, GSB 2787/92-1dentlf1ed 1n Ex 1 as #0
Th1s gr1evance alleges that because 1t 1S oblIgated to accommodate the
grlevor's hand1cap, "the employer should have cons1dered alternatwe equ1pment
WhICh could be used by an employee wlth facial haIr" The Unlon alleges that
the M1nlstry had falled to comply with section 10 7(a), Exh1b1t 39 {op cit },
In that 1t falled "to contact the supplier to assess whether a dlfferent size
or type of mask or a mask accessory would provlde the requlred fit" There IS
no eV1dence to support thIS allegation The grievor's testimony clearly
Indlcates that he had no knowledge whether the Employer did or dld not
"contact the suppl1er", wh1ch was one of the optlons descrlbed In the policy ...'
/
On the contrary, however, his testimony supports the conclusion that the
Employer followed one of the alternat1ves provided for by that section,
insofar as 1t had implemented an alternatwe offered by option (b) of the
procedure, in that It had granted the grievor a serles of temporary
exemptions There 15 no evidence to support the allegat10n that the Employer's
acts or omisslons in the adm1nistration of its 'fac1al hair policy' were
1nvalid, or improperly motivated, or designed to harass or discrim1nate
agalnst the gr1evor
**************************
Among the managerial actions which the gr1evor perceived as threatening and
harassing were the 1nstructions and information, which managers gave him on
certain occasions, pursuant to the M1nistry's "Resp1ratory Protect1on Program"
and its "Facial Hair Policy"
*************************** I
I
Two arIevances dated October 13/92 [GSB 2690 & 2785/92J--1dentifled tn I
Ex 1 as #A & #E Both grievances arise out of a conversation with Mr Ray
Kalntns, a Senior Asststant Super1ntendent at HWDC The grIevance claIms "Mr
Kalnins is alleged to have threatened Mr Toplin that he would lose his Job If
he dId not shave "
Toplln's eV1dence 1n ch1ef [July 26/94J is that some t1me 1n September, 1992,
Kaln1ns had approached him and said "your conttnued employment depends on your
conformance to the MSA pOltCIes and gUIdelines" He took thIS to mean that he
.
f
22
At that same t1me, Top11n recelved a copy of Hogarth's memo of the same date
addressed to Mr W B Thomas, Reg10nal Personnel Adminlstrator wh1ch stated
"As you are aware, [Mr Randy Toplin], cannot, due to medical reasons, conform to current
Ministry policy on the use of MSA equipment for Correctional Officers. Mr Toplin has been
advised that the use of this equipment is a condition of employment for the current eosltion that
he holds.
"As a result of his inability to conform, I am formally requesting that Mr Toplin's status
within this institution and with the Ministry be reviewed by yourself with a view to an
appropriate resolution."
*****************************
Three anevances dated June 3/93 --Ident1fied tn Ex 1 as #AA. #BB & #EE /
"In these grievances the grievor alleges that Mr Fajertag and and Mr Thomas, management
employees of the Ministry, harassed and discriminated against the grievor The evidence of such
hara~sment and discrimination is set out in letters dated April 22 and May 11, 1 993, and
arises from a meeting among the parties on March 31 " [Exhibit lJ
We find no eV1dence of harassment or dIscr1mination in the letters dated April
22 and May 11, 1993 [Exhibits 11 and 12, respectivelyJ Notwithstanding
Toplin's testimony that he felt threatened and harassed by these letters, 1n
our Judgment no reasonable person would find any probat1ve eV1dence of
harassment or dts~rim1nation in those letters, which are c1ted below
The letter dated Aoril 22/93 from Thomas to Toplin [ExhibIt 11Jstates
"Further to my letter to you of April, 5 1993, and given the potential implications of your
current medical condition, I believe it is in your best interest, and that of the employer, that
you be referred for a second medical opinion.
"Therefore, in accordance with 52.9 of the Collective Agreement, the Ministry recommends that
you attend a medical appointment with Dr Shapiro at the Wilson Medical Centre in Hamilton
Moreover, via copy of this correspondence, I will be requesting that you meet with Mr M
Fajertag, Deputy Superintendent HWDC, in order to facilitate the necessary arrangements.
Consequently, the letter which I said would be forthcoming from the Regional Director will be
held in abeyance pending the outcome of the above mentioned medical examination.
"Your cooperation in this matter will be sincerely appreciated."
The memo dated Mav 11/93 from Fajertag to Topltn [Exhibtt 12J states
"On April 23, 1993, you received a letter dated April 22, 1993 authored by Regional
Personnel Administrator Mr W B. Thomas, recommending your referral for a second medical
opinion in accordance with Article 52 9 of the Collective Agreement. Until my call to you
yesterday, we had not received any communication from you in this regard Perhaps you were
anticipating my approaching you while I was expecting you to take the next step
" In any event, it would be appreciated if you could provide me with a suitable time for us to get
I .
~
21
POllCY requlrements WhlCh he percelved as a threat to hlS Job securlty It lS
clear Toplin felt threatened by the lnformatlon he recelved from Kalnlns about
the POllCY Topl in was famlllar with the pollcy's provlslons to accommodate
hlS medlcal condltlon He was aware that the POllCY dlstlngulshed between
temporal"Y and permanent accOO111odatlons We belleve lt is reasonable to lnfer
from hlS testtmony that hts fears and sense of insecurtty were founded tn hts
knowledge that tne Employer's policy did not assure him a permanent exemption
from MSA duttes in hts C02 posttton, and ln the light of hts own awareness of
hts personal need to wear a beard permanently, in order to live comfortably
with his chronic skin condttton
In essence, what the grtevor percetved subjectively as threats to his job
securtty were, objecttvely, legitimate instructions and valid warntngs glven
to htm by managers on hts need to comply wtth the requirements of hts position
as a correct tonal officer There tS no dou~t that Toplin felt threatened by
the tnformation Kalmns had given him However, it is not denied that Kalnins
had the managerial right and duty to gtve Topltti the lnformation beartng upon I
his duties as a C02, even if he knew that Toplin would feel dtspleased or I
threatened by the pol icy restrtctions on facial hatr There is no evtdence I
Kalntns had done anything wrong or improper in gtving him the information,
both verbally and tn writtng We can not charactertze his actions as "a course
of harassing conduct" There is no suggestion that the information was
delivered in bad faith or for an improper purpose Such legitimate managertal
actlons are not harassing The Unton has failed to make a prIma facie case
that what Kalnins said to Toplin was by itself, or ltnked with other actions,
a course of harasstng conduct
*****************************
Subsequently, by memo from Hogarth dated February 9/93, Topltn recetved the
last of a series of temporary exemptions from hts fire alarm response duttes
"As per our conversation of today's date, please be advised that due to your inability to conform
to Ministry standards regarding the use of MSA equipment, under no circumstances are you to
use this equipment.
"As discussed, your current position in the schedule does not require you to respond to fire
alarms As such, at least on a temporary basis, you Will remain in your current position on the
schedule." [Exhibt t 8J
-..
r
24
In h1S response to Topl1n's letter [Exh1b1t 9J, Thomas's letter of Apr1l 5/93
[Exh1b1t 10J states "I w1ll simply re-1terate my d1rect1on to you dur1ng our
meet1ng of Monday March 29, 1993 " It cont1nues as follows
"The Ministry of Correctional Services' directive #19/92 (Respiratory Protection Program)
describes mandatory standards for wearing breathing apparatus and states that "no employee
who is designated to wear the MSA breathing apparatus shall have facial hair, including a beard,
moustache or sideburns, which has the potential to prevent the facepiece from effecting a full
facial seal either during an emergency or during practice use"
Consequently, as you have indicated that your wearing of a beard is permanent we can no longer
continue to accommodate you in the position of correctional officer This time-limited
accommodation was offered in accordance with Dr Vender's medical report of September 23,
1 992. However, as you have a bonafide medical condition that necessitates the wearing of facial
hair, the ministry is prepared to attempt to accommodate you in an alternative position other
than correctional officer should one exist.
"As indicated a letter will be forthcoming to you from the Regional Director"
Union counsel submits that the grievor's evidence is that he had perce1ved
these communications from the Employer as threats to h1S cont1nued employment
and his job status There is no doubt that the grievor felt threatened by
them, but equally there are no doubts regarding the legitimacy or validity of
these communicat10ns by the Employer, and there is no proof of wrong-do1ng,
such as that the Employer's actions violated the collective agreement or a
statute, nor 1S there any proof that they were in bad faith or for an improper
mot1ve There 1S no evidence of probative value to support the allegations
Topl1n's subjective evidence, that he felt "harassed and d1scr1minated
aga1nst" 1S not sufficient to establish a prima facie case
********************************
Two arievances dated September 21/93 --ldent1f1ed 1n Ex 1 as #4 & #9
"Both of these grievances arise out of the same inCldent The grievor alleges
that h1S shift was changed on June 7, 1993, and th1S change lS a further
example of harassment and d1scrim1nation which he was underg01ng" There is no
evidence to support th1S allegat10n There 1S noth1ng to suggest that the
Employer d1d not make the Sh1ft changes 1n good fa1th Nor 1S there any
eV1dence to support the allegation that the changes were made for improper
motlves of harass1ng hlm and d1scr1mlnatlng agalnst h1m
,
i
I
23
together to make the necessary arrangements, Including your signing a release of information
form authorizing the physician, Dr F Shapiro. to provide a report on his findings to the
Ministry Due to the time frames Involved and the nature of your medical condition Impacting on
employment an expeditious meeting time is required."
Thomas's letter of Apr1l 22/93 refers to h1S earl1er letter of Apr1l 5/93
[Exh1b1t 10J, which responded to Toplin's letter dated March 31/93 [Exh1bit
9J, concerning a meet1ng he had w1th Un10h and Management off1c1als on March
29/93 on the subJect of a permanent accommodation to h1S medical condit10n
That meeting was arranged pursuant to the determinat10n that Toplin 1S
permanently unable to comply with the requirements of his pos1tion regard1ng
the MSA apparatus The purpose was to d1SCUSS an appropr1ate accommodation
Toplin's eV1dence is that at that meet1ng he objected to be1ng labeled
hand1capped and insisted on the right to continue working permanently in h1S
C02 position, with an extended exemption from the MSA requ1rements
Tool1n's letter dated March 31/93 (Exhibit 91 states that at the meeting of I
I
March 29, 1993 i
I
"Mr Thomas made it perfectly clear to Union that given a letter of notice from the Regional
Director by April 30th I will have been notified by then that I have only six months (from that
date), as a correctional officer anywhere in Ontario. He said there would be reasonable
accommodation under Section 24 of the Collective Agreement. We find this is not aoolicable to
me as mv scheduled position is not affected." [Emphasis ours]
Toplin's letter quest10ns "by what author1ty has my facial condition been
deemed a handicap?" and whether the MSA duties are an essential cond1tion of
employment for a CO Also, his letter cr1ticizes the policy, alleges that 1t
has been appl1ed at HWDC in an incompetent and discriminatory manner, and
claims the r1ght to a permanent exemption 1n his current position of a CO2
It should be noted, however, that his scheduled CO pos1tion, at that t1me, was
one 1n which he was temoorar1lv exempted from the MSA requ1rements It was a
temporary accommodat10n to what had been regarded previously as a chronic
medical condition which might be brought under sufficient control w1th med1cal
treatment, w1th1n a reasonable t1me, and to the extent that the gr1evor would
be enabled to perform the MSA dut1es of h1S pos1tion
I
~
r
26
A qrtevance dated September 21/93 [Identtfted tn Ex 1 as #31 alleges
"as as a result of the course of harassment and dtSCrlmlnattOn set out ln
thlS letter {Exhiblt 1} the grlevor was forced to leave the workplace and go
on short term sick beneflts As a result of thlS the grlevor was pald, as set
out ln the collectlve agreement, at 75% of hlS normal salctry "
Slnce the Unlon failed to establish a prima faCIe case of harassment or
dtscrtmination, tt fat led also to establtsh these allegattons as the cause of
the grtevor's medtcal conditions for which he went on stck leave
Topltn's testtmony and the documentary evidence of hts psychiatrtst [Exhtbtt
16B, op cit , supra] lndicate that hts emotional dtsorder, untreated at the
material ttmes, most likely caused much of his workplace problems We have no
doubt that his perceptions of his relattonships at work were affected
substanttally by hts psychiatric problems, as descrtbed by hts psychtatrtst
During the time frame of the grievances he had stress in his marttal relattons
as well as tn other relationshtps, both inside and outside the workplace
The Employer's offer of a lower-paid job to accommodate his handicap [beard]
brought htm to realtze he could remain no longer in his former C02 posttion,
which prectpitated his decision to leave the workplace and seek medical
treatment for the symptoms of his psychiatric disorder Although we recogntze
a nexus between Toplin's medical symptoms and and his reactions to the
Employer's offer to accommodate his beard with a lower-patd job, we find no
evidence that the Employer's actions were invalid, in bad faith, or intended
to serve an improper purpose In our judgment, the grievor's symptoms can not
. serve as the foundation for the monetary remedy clalmed solely on the baS1S
that they were precipitated by the legitimate, proper, and valid exerClse of
managerial rights
CONCLUSION
In an tndustrtal relations context, there are many thtngs whtch supertors must
say or do relattng to thetr subordtnates, not only in the exerctse of thetr
rlghts as managers to advance and protect the legittmate tnterests of the
4
25
To establtsh a orIma facIe case of harassment or dtscrtmtnatlOn on the basts
ofa course of comments or conduct of a manaaer whtch tS comortsed of act tons
taken tn the leatttmate exerctse of hts/her managertal resoonstbtltttes. the
sublecttVe evtdence of the artevor feeltna vexed or harassed bv those acttons.
bv ttself. tS not sufftctent. It tS necessary also to establtsh. on a prIma
faCIe base. that the alleaed course of conduct was in bad fatth or for an
tmprooer moti. ve.
****************************
A artevance dated Seotember 21/93 [Identified in Ex 1 as #71 alleges that
Hogarth's attempt to obtain personal informatton from hts physictan "is a
further example of the harassment and discriminati.on which the grievor was
subJected" It is established fact that while the grievor was absent on sick
leave for an extended period of time, after two and a half months, Mr Gary
Hogarth, Sentor Assistant Superintendent, wrote Dr Mazur, the grtevor's
family phystctan His letter of August 30/93 [Exhibit 29J asked for "an I
update" on the "medical certificate dated June 17, 1993 indicattng that Mr II
Topltn wtll be unable to attend to work for an tndefinite pertod", and
requested also
"Specifically, within that update could you please indicate the patient's prognosis for a return
to work and further indicate whether there could be any alternative duties that could be
performed by Mr Toplin pending his full recovery" [Exh1. bi t 29]
On September 10/93 Toplin filed a complaint with the Informatton and Privacy
COrTInlssioner/Ontano alleging that Hogarth's attempt to obtain personal
informatton from his physician was contrary to the Freedom of InformatIon and
ProtectIon of PrIvacy Act The Investtgatlon Report of the Asslstant
COrTInlsstoner [Exhibit 46J concludes that "this collectton of the complatnant' s
personal i.nformati.on was necessary to the proper administratton of the
lawfully authortzed acttvtttes of employee management and human resources
planntng", and that "the Mtnistry's collectton of the tnformation in questton
was tn accordance wtth section 38(2) of the Act"
We ftnd no evtdence to support the allegatton made tn thts grtevance
---.--
-
.
i
28
APPENDIX "A' TO THE AWARD
GSB 2690/92 ET AL. OPSEU fTOPLINl & MINISTRY OF CORRECTIONAL SERVICES
Exhlblt 2 Artlcle All of the collectlve agreement WhlCh prohlblts
discrlmlnatlon by reason of "handlcap", Inter alza
Exhlblt 3 Letter from Dr Frank Murphy, June 28/90, to Dr J Mazur
Exhlblt 4 Letter from Dr Ron Vender, Dec 2/91, to Dr J Mazur
Exhlblt 5 Medical note from Dr Ron Vender, dermatologlst, Oct 13/92
Exhlblt 6 Report, MSA OPERATIONAL DEMONSTRATION, Dec 20/91 & Sept 27/92
Exhi bit 7 Memo R Toplln to R Kalnlns Sr Asst Supt , Oct 1/92
Exhiblt 8 Memo G R Hogarth, Sr Asst Supt , to Toplin, Feb 9/93
Exhlbit 9 Memo Toplin to Hogarth March 31/93
Exhibit 10 Letter W B Thomas, Reg'l Personnel Adm, to Toplln, Apr 5/93
Exhibit 11 " " " " " " " Apr 22/93
Exhlbi t 12 Memo M Fajertag, Deputy Supt to Toplin May 11/93
Exhibit 13 Letter " " " " May 31/93
Exhibit 14 Medical note from Dr Vender, dermatologist, Sept 23/92
Exhibit 15 Minutes of settlement of Oct 10/91 re Toplin's Apr /91 grlevances
Exhlbit 16 2 letters from Dr R E Johnston, Chief Psychlatric Services,
St Catherines Gen Hosp , to Michael Mazzuca Dec 21 & Dee 23/93
Exhlbit 17 Med note from Dr Mazur, famlly physlcian, Sept 23/92
Exhibit 18 Occurrence Report Toplin to V Villeneuve, Supt ,June 29/90 with
two notes attached from Dr. F R Murphy, Dermatologist, June 27/90
Exh 1 bit 19 Memo Toplln to Hogarth, re penmission to grow beard, July 9/90
Exhlbit 20. Med note from Dr Vender, Dec 2/91
Exhlblt 21 Med note from Dr Vender, Jan 8/92
Exhlblt 21(A) Memo Kalnlns to Toplln, Dec 24/91
Exhibit 22 Med note from Dr Vender, Feb 26/92
Exhiblt 22(A) Memo Kalnins to Toplln, Feb 7/91
Exhlblt 23 Med note from Dr Vender, May 27/92
Exhlbit 24 Mlnistry of Lab Report on Toplln's complalnt Oct10 /92
Exhlblt 25 " " " " Dec 4/92
Exhlblt 26 Memo Kalnlns to Toplln, Oct /92, Response to Exhlblt 7
Ii
"
=
;
27
employer, but also as they may be requlred to say or do by the dutles and
responslbllitles of thelr posItIons, partIcularly those thIngs related to
dlsclpline, and WhlCh subordlnates may find vexlng and unwelcome, and which
may glve rtse to vartous negattve feellngs such as lnsecurlty, anxiety, fear
and anger [Such negattve emottonal reactions are usually more Intense, acute
and stressful for persons suffering a mental or emotional dIsorder ] In our
VIew, however, such lawful and legitImate actions by managers can not properly
be regarded as harass1ng, unless 1t can be proven that they are done in bad
fa1th or for improper motives
Clearlv. what the Union alleaes is not that the manaaers did anvthIna thev
were not entitled to do. Rather. it alleaes their act10ns were for an imoroper
motIve The grievor claimed that from the time he first started to work at the
HWDC he had the feel1ng and he bel1eved that his managers, supervisors, and
co-workers were trying to get rid of hIm because of his beard However, there
is no evidence to support this claim The Union failed to provide any evidence
of probatIve value that the Employer's act10ns were for improper motive
In conclusIon, we fInd the UnIon failed to establish a prima facie case on 1tS
allegation that the Employer had engaged in a course of vexatious comment or
conduct For the reasons given herein, the Employer's non-suit motion succeeds
and all of the grIevances which are the subject of this Award are consequently
denIed The Registrar 1S requested to arrange for hearings on the remaIning
outstandIng grievances at the earliest possible date
DATED AT HAMILTON, ONTARIO, THIS 5 TH DAY OF J u 1 y , 1995
~~ff~~---
H J WAISG(AS V1ce-Chalrperson
--J1l-5---Q~;l~~;; --------------
,{:S O'~ Emp 1 oyer Membe r
--~-~-~~-~--------------
W RANNACHAN Umon Member
.. ~
"
)
29
Exhlblt 27 Memo Hogarth to Thomas, Feb 9/93
Exhlblt 28/29 Letter Hogarth to Dr Mazur, Aug 30/93
Exhlblt 30 letter Hogarth to Toplln, Sept /14/93
Exhtbtt 31 Topltn's out-of-pocket expenses
Exhtbtt 32 Top1tn's addtttona1 notes re his expenses
Exht bl t 33 letter Dr E Kent Taylor, dermatologtst to Dr Vendor, May 28/93
Exhlbtt 34 Letter Dr Vender to Michael MAZZUCA, March 11/94
Exhtbtt 34(A) (ltnical Dermatology, Vol 3, on "Pseudofolliculitis Barbae"
Exhibi t 35 Med note from Dr Vender, Aprtl 8/94
Exhtbtt 36 Memo, l Hardwick, tratntng offtcer, to Top1tn, Nov 1/90
Exhibit 37 Memo, Top1tn to Kalnins, Nov 26/91
Exhtbtt 38 Mintstry of Correctional Servtces, Institutional Dtrective, on
"Factal Hair Policy with respect to MSA Breathing Apparatus",
tssued May 14, 1990
Exhibtt 39 Ministry of Correcttonal Services, Instituttonal Directive, on
"Respiratory Protection Program", tssued October 19, 1992
Exhibit 40 Memo, Kalnins to Toplin, Oct 9/92 [Same as Ex 26]
Exhtbit 41 Memo, Kalnins to Top1tn, May 29/92
Exhtbtt 42 Memo, Kalntns to Toplin, March 9/92
Exhibit 43 Letter, Dr R E Johnston to Toplin, March 10/94
Exhibtt 44 (a) & (b) Extract of informatlon on antidepressants
Exhtbtt 45 (a) & (b) Topltn's notes on dates of hlS V1SltS to doctors
Exhibi.t 46 Letter, Ann Cavouklan, Assistant Commi.ssi.oner, Information &
Privacy Com , to Topltn, Feb 18, 1994
Exhtblt 47 Memo, Toplln to Fajertag, May 28/93