HomeMy WebLinkAbout1996-2567SLUSARCHUK98_08_10
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
,
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396
~ GSB #2567/96
~, OPSEU 97C045
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Mana Slusarchuk)
Grievor
- and -
The Crown m RIght of Ontano
(Mimstry of Commuruty and SOCial SefVlces)
Employer
BEFORE R.H. Abramsky Vice-Charr
FOR THE N Coleman
UNION Counsel
Gowlmg Strathy & Henderson
Bamsters & SoliCitors
FOR THE J Snuth
EMPLOYER Counsel, Legal SefVlces Branch
Mimstry of Commuruty & SOCial SefVlces
HEARING October 7,8,9,24, 1997, December 2, 1997
April 15, 16, 17,28,29,30, 1998
May 12, 13, 14, 26, 27, 1998
AWARD
On December 16, 1996, the gnevor, Mana Slusarchuk, was dIscharged from her
posItIon of Income Mamtenance Officer ("IMO") wIth the Mirustry of Commuruty &
SOCIal ServIces for bemg unable to meet the reqUirements of her pOSItIOn. At Issue IS
whether her dIscharge was for Just cause
FACTS
A. Background
The gnevor assumed the pOSItIOn of IMO at Fort Frances, Ontano on August 15,
1994 Pnor to that, she had been a VocatIOnal RehabilItatIOn ServIces ("VRS") Counselor
m Fort Frances and had held that pOSItIOn smce February 1981 In August 1993, however,
her pOSItIOn was declared redundant and she was surplused, The August 13, 1993 letter
adVlsmg her of the abolItIOn of her pOSItIOn also advised her that a vacancy eXIsted for an
Income Mamtenance Officer pOSItIOn m Fort Frances. The letter contmued
Pursuant to the Job secunty and redeployment nghts establIshed by ArtIcles
24 1 and 24 6 of the CollectIve Agreement, I am pleased to adVIse that I
am assIgrung you to thIS pOSItIOn.
Should you accept this aSSIgnment, you will commence your new
responsibilItieS effectIve August 30, 1993 Smce this aSSIgnment IS to a
pOSItIOn WIth a lower maXImum salary, you will retam your current salary
which is the maXImum of the VocatIOnal RehabilItatIOn ServIces Counselor
Please confirm your acceptance of these terms by sIgrung and returnmg a
copy of this letter Should you deCIde not to accept this aSSIgnment, then
m accordance WIth ArtIcle 248 1, you will be laid off on February 13,
1994
2
Ms. Slusarchuk dId not sIgn trus letter and mstead challenged the legItImacy of the
decIsIon to ehmInate her posItIon through the Miruster's Office and her local member of
the ProvmcIal Parhament Her challenge led to an mtemal reVIew of the decision wruch
took approXImately one year, dunng wruch she remamed a VRS Counselor The reVIew
supported the ongmal deCISIon, and on August 15, 1994, the gnevor began her new Job as
an lMO
EssentIally the lMO mtervIews applicants and reCIpIents of Family Benefits and
General Welfare ASSIstance to deternune IrutIal and ongomg ehgibihty for aSSIstance and
the ensure that the correct level of benefits are proVIded. The mformatlOn obtamed
(income, rent, bIrths, support payments, etc) must be venfied and then manually coded
onto a vanety of forms for entry by a clerk mto a computer program called ClMS -
ComprehensIve Income Mamtenance System, whIch IS then used to retneve up-to-date
mformatIOn regardmg benefits and payments. In addItion, an IMO is to proVIde practIcal
counselmg and guIdance to reCIpIents who are m need of other governmental and pnvate
resources. The tYPIcal caseload is 300+ cases, and m the Kenora Dlstnct of wruch Fort
Frances IS a part, the chents hve over a WIde geograpruc area.
Jim Fitzpatnck, then Manager of Human Resources for the Thunder Bay/Kenora
Dlstncts, testIfied about hIS declSlon to aSSIgn the gnevor to the lMO posItIOn. Under
ArtIcle 24 6 1 of the 1992-93 CollectIve Agreement, a surplused employee "shall be
assIgned on the baSIS of seruonty to a vacancy m hIS mmIstry wltrun a forty (40) kilometre
3
radIUs ofrus headquarters provIded he is quahfied to perform the work. "In hIS vIew, Ms.
Slusarchuk was more than quahfied to perform the essential duties of an IMO at the entry
level. She had a Bachelor of SCIence degree m SOCIal work and based on her expenence as
a VRS Counselor, he concluded that she could do the essential duties of the Job -
mtervIew apphcants for benefits, manage a caseload, mterpret legIslatIOn and counsel
chents, and that she had suffiCIent wntten and verbal skills for the pOSItIOn,
In rus VIew, the VRS counselor pOSItIon also mvolved these types of skills,
although at a "rugher" level. A VRS Counselor managed a caseload, albeIt a far smaller
one, and mtervIewed and counseled chents concernmg theIr nghts under the VocatIOnal
RehabihtatIOn Act as well as develop a vocatIOnal rehabIhtatIOn plan and ensure
appropnate trammg. Although the VRS Counselor pOSItIOn mvolved more of a true
counselmg role, he concluded that the baSIC skills were readily transferable to the IMO
pOSItIOn, and m hIS VIew, It was a good match.
Mr Pitzpatnck testIfied that after the August 13, 1993 notIce went out, he made
several attempts to dISCUSS thIS aSSIgnment and possible alternatIves WIth Ms. Slusarchuk
but receIved no cooperatIOn from her She wanted to remam a VRS Counselor but dId
not WIsh to relocate and dId not want to dISCUSS other optIons. Numerous attempts were
made by Mr Pitzpatnck and others to have the gnevor sIgn-off on the surplus notIce but
those attempts went unanswered. The deadlme for her to deCIde was repeatedly extended
and then, on November 19, 1993, she asked that her deCISIon be delayed until the reVIew
4
process concernmg her VRS posItIOn could be completed. That was agreed to, but even
after the reVIew process was completed and the gnevor accepted the IMO posItIOn, Mr
Fitzpatnck tned to get her to sIgn-off the form so the file could be closed, but she would
not return rus calls As a result, on December 21, 1995, he testified that he "would not
play that game anymore" and sIgned off the document rums elf so that the file could be
closed.
B. The Grievor's Work as an IMO
When the gnevor began workmg as an IMO at Fort Frances on August 15, 1994,
there were two other IMOs workmg there, and all of them reported to Income
Mamtenance SupervIsor June Calder m Kenora, a 2 1/2 to 3 hour dnve away Ms, Calder
also supervIsed three IMOs m Sault Look Out, whIch IS about the same dIstance from
Kenora. The posItIon filled by the gnevor had been vacant for more than a year, and m
her VIew, she expenenced some resentment from her co-workers that the delay m filhng it
was caused by her challenge of the ehnunatIOn of her VRS posItIOn.
Dunng her first week on the Job, Ms Slusarchuk was assigned to work wIth
Hayley Snuth, a Parental Support Worker (PSW), for tralrung m Kenora, From 1987 until
1993, Ms SmIth had worked as an IMO and, over a four year penod, had tramed SIX or
seven IMOs, usmg a traIrung package she had developed. The traIrung package consIsted
of the documents regularly used by IMOs - Chent InformatIOn Sheets (CIS),
Miscellaneous Financial TransactIOns (MFT), Family Benefits Allowance Profiles,
5
DeclaratIOns, Grant Packages, VenficatIOn ChecklIst, Consent forms, ClIent InformatIOn
Update Reports (CIURs), etc - wIth examples regardmg how and when to complete
them, i. e. how to code a new cltent, ternunate an eXlstmg one, change an entItlement,
make a retroactive change, add a dependent child, place a clIent on hold, release a hold
and so forth, usmg separate documents for each example and type of transactIOn. She
rughlIghted the "mandatory fields" - the boxes on the forms wruch had to be completed m
order for the ClMS program to accept the mformatIOn. She showed the gnevor the
paperwork needed for vanous types of applIcatIOns and update reports, what to do wIth
them and how they were used. She went over the Code GUide and how to use it, gomg
through exerCIses WIth the gnevor regardmg Its use She reVIewed "several tImes" how to
use the ClMS system to access cltent benefit and payment InformatIOn and how to get on-
Ime and how to use the mformatlon there They also spent a day domg home VISits, where
the gnevor was shown how to complete applIcatIOns wIth cltents and CIURs and how to
ensure that the Statutory DeclaratIon was understood and properly executed. They
reVIewed calculatIOns to deternune budgets for vanous eligibilIty categones and family
SIzes, usmg vanous examples The gnevor's bmders were also reorgaruzed.
Ms Snuth testIfied that she repeatedly asked Ms Slusarchuk dunng thIS week
whether she understood, whether she had any questIOns or wanted her to go over anythmg
and that she receIved "no response from Mana, none." As a result, approxImately a week
after the traIrung, she wrote a memo to June Calder explaIrung the content of the trammg
she had gIven to Ms. Slusarchuk m case any questIons arose She testIfied that she wrote
6
the memo not only to demonstrate what she had covered wIth her "but because of the air
of hostihty" She testIfied that she had never tramed anyone who was so
uncommurucatIve. In January or February 1995, when the ongmal could not be found,
she wrote another memo to Gayle Anderson, who had recently become the Actmg Income
Mamtenance SupervIsor, outhrung the traIrung she had gIven to Ms, Slusarchuk.
In November 1994, the gnevor, Ms Snuth and Ms Calder traveled to Atikokan to
meet wIth the clIents there and update theIr cases Because the IMO posItIon wruch the
gnevor had been filled had been vacant for so long, a consIderable backlog had developed
there, and the purpose of the tnp was to ehmmate that backlog, Appomtments were made
wIth the chents for all three of them, wIth the gnevor bemg assIgned one chent per hour
while Ms SmIth and Ms. Calder met wIth two chents per hour Dunng the week that they
were there the entIre backlog was ehmmated,
Followmg the traIrung she had proVIded to Ms. Slusarchuk m August 1994, Ms
SmIth was asked by SupervIsor Calder to serve as a reference person for the gnevor, as
she had done wIth the other IMOs whom she had tramed. Accordmg to Ms Snuth, a new
employee would normally call wIth questIOns frequently for a few weeks and then it would
taper-off, but wIth the gnevor the calls and e-mails contmued until December 1994 when
she requested that she no longer be aSSIgned to assIst her She testIfied that the calls were
contmuous dunng that four month penod although they mcreased after Atikokan. She
explained that the gnevor would repeatedly call wIth questIOns wIthout trymg to look up
7
the answers herself and that the gnevor would refer chents dIrectly to her, even though
she dId not have theIr files or have the mformatIOn they sought. Although Ms SmIth told
the gnevor that she could not and should not be answenng the chents' questIOns, the
gnevor contmued to refer chents to Ms. Snuth. The volume of calls was such she felt that
she felt that she dId not have sufficIent tIme to do her own work.
From September 12, 1994 through October 21, 1994, the gnevor receIved the
IMO Core Cumculum trmrung wIDch IS scheduled at vanous tImes dunng the year It
mvolves m-depth trmrung covenng the Family Benefits Act (FBA) and the responsibihtIes
of an IMO The tOpiCS mcluded, among others, an explanatIOn of the FBA, regulatIOns
and gUldehnes, the roles and responsibihtIes of an IMO, servIce dehvery pnncIples, chent
Issues and commuruty resources, mtegrated records, mtervlewmg skills, budget
calculatIons and retro budget calculatIOns, caseload management, enhanced venficatIOn,
and CIMS From May 15 -19, 1995 and May 29 - June 3, 1995, the gnevor receIved
trammg regardmg General Welfare benefits from the Ontano MurucIpal SocIal ServIces
AssocIatIOn, and receIved a 95% score on her final test.
There IS no mdlcatIOn m the record that the gnevor receIved any performance
reVIews from Ms. Calder dunng her first four months of employment. However, on
November 14, 1994, a meetmg was held WIth the employees m the Fort Frances office to
dISCUSS morale and, at that meetmg, the gnevor's lack of bemg a "team player" was
dIscussed. The two other IMOs m the office complamed that the gnevor was dIfficult to
8
work wIth, that she blamed them for errors she made and despIte mstruction from them,
repeatedly made the same errors. Office coverage dunng the lunch hour and telephone
procedures were also dIscussed.
In late January 1995, Gayle Anderson became Actmg Income Mamtenance
SupervIsor for the Kenora DIstnct, and thereafter dIrectly supervIsed the gnevor until her
ternunatIOn m December 1996 From the start, she found that the gnevor was
expenencmg difficultIes m perfornung the Job - dIfficultIes WIth the forms, chents calhng
about concerns and complamts from the other IMOs and clencals about the gnevor
The staff's unhappmess led to another staff meetmg on May 5, 1995 At that
meetmg, the staff members explamed their concerns - they felt that the gnevor had been
dIscourteous, complamed that her chents were callmg them and complamed about her lack
of team work as well as lunch hour coverage. Ms. Slusarchuk partIcipated m the meetmg
and expressed surpnse Accordmg to Ms. Anderson, Ms. Slusarchuk explamed that she
was not aware she had been dIscourteous, she dId not mean to be and that she found It
dIfficult to keep up WIth her dutIes and be pleasant. The staff agreed to work toward
stoppmg the problems and go on from there
On June 23, 1995, Ms Anderson met WIth the gnevor to dISCUSS her Job
performance The meetmg was prompted by staff and chent complamts From her start as
supervtsor through June, Ms. Anderson was receIvmg three or four calls per week from
9
the gnevor's chents A summary of what was dIscussed on that date was prepared by Ms
Anderson and sent to the gnevor Throughout the meetmg, the gnevor's response to Ms
Anderson's concerns was silence.
The Issues dIscussed on June 23, 1995 mclude the followmg.
1 mappropnate comments made to chents, such as "I'm new, I don't know how to do
that", "Don't tell me about It, I got dumped mto the posItIOn of field worker, and "I am
not a socIal worker" Ms. Slusarchuk was advIsed that tills was mappropnate behavIOur
and to refram from makmg negative comments to chents.
2 lack of good customer servIce Ms. Anderson mformed the gnevor that a sigruficant
number of chents had advIsed her that theIr calls were never returned, that they were bemg
nusmformed, they they were gIven the run around and when they came mto the office they
were not bemg seen. Ms. Slusarchuk was advIsed that chents are to be treated wIth
dIgmty and respect and that they are to be gIven accurate mformatlOn and prompt servIce
3 paper work not processed m a timely manner The gnevor had prevIously been
mstructed regardmg the deadhnes for Implementmg changes. If a chent reports a change
effectIve June 1, it must be processed by nud-June to make the change effectIve A nus sed
deadlIne results m eIther an underpayment or overpayment to the clIent. An example of a
nussed deadhne m regard to one of the gnevor's chents was dIscussed
4 clearung up her office In March 1995, the gnevor had been asked to clean up her
office. It had yet to be done, makmg It dIfficult to mtervIew chents.
10
5 treatment of other staff. Ms Anderson told the gnevor about mappropnate and
discourteous comments made to staff and advIsed her that staff are to be treated m a pohte
and courteous manner
6 accessmg On Lme Ms Anderson reviewed several tImes when the gnevor had been
unable to access On Lme when requested, notmg that on each occaSIOn, after 30 nunutes,
another staff member had to assIst, and that once she was m the system, she had dIfficulty
deternunmg what field she needed to obtam the mformatIon reqUired, She advIsed the
gnevor that knowmg how to use On Lme and actually usmg trus system was a reqUirement
of the IMO Job
7 processmg of paper work. Ms Anderson advIsed the gnevor that whIle the
apphcatlOns and update reports were bemg completed m an acceptable manner, the paper
work was not bemg processed. There were numerous documents m her m-box whIch
reqUired processmg. She mstructed the gnevor that these documents are to be pnontIzed
and actIOned and that documents were to be completed by the due dates.
Ms Anderson concluded her notes of the meetmg, whIch were sent to
Ms Slusarchuk, as follows
You have been m thIS pOSItIOn for almost a year You have had extensIve
traIrung and you have been provIded the necessary tools to aSSist you m
domg your work. It IS a requIrement of your Job to know how to use these
tools l.e , On Lme, GW A Manual, FBA Manual, CIS Examples, etc
It IS apparent that you are unhappy m the Income Mamtenance Officer
pOSItion. The Employee ASSIstance Program IS available to staff who are
expenencmg personal or work-related dIfficulties Perhaps It would be
helpful to dISCUSS your unhappmess WIth a thIrd party
What can I do to help you? Do you have any suggestIOns or Ideas?
11
You were not prepared to respond to these issues or concerns or to
prOVIde solutIOns.
In July 1995, Ms Anderson revIewed wIth the gnevor a group of 76 matters for
chents that requIred actIon from her to be processed, some datmg back to February and
March of 1995, and on July 21, 1995, Ms Anderson sent the followmg E-mail to the
gnevor
Re Outstandmg Work
As dIscussed wIth you on July 4/95 I have revIewed the bundle of paper
work from your desk that reqUires your attentIOn. I am returrung tills
paperwork to you WIth a record of the paper work requlnng actIOn
attached. You will note that the "actIOn reqUired" column on the attached
record, has dates as far back as February 20/95 WIth the most recent date
bemg June 27/95 All thIS paperwork reqUires your ImmedIate actIOn.
Your lack of actIOn m deahng WIth tills paper work m a timely manner has
resulted m lack of servIce to you chents, chent overpayments, chent
underpayments and unnecessary confuSIon. Your performance m managmg
your paperwork has been unsatIsfactory I reqUire you to proVIde me WIth
a timetable as to when you expect to complete/actIOn tills paper work and
at the same time keep up WIth your caseload You are to deal WIth chents
m a POSItIve manner, respond to chent quenes promptly, and deal dIrectly
WIth staff regardmg chent Issues and not dIrect the clIent to contact a staff
member
Ms. Anderson receIved no response from the gnevor
On September 5, 1995, the gnevor was Issued a wntten repnmand for her work
performance. The memo was issued by Rory McMillan, Program SupervIsor - Income
Mamtenance, Kenora DIstnct. The memo, m pertment part, states as follows
It has been brought to my attentIOn that you have not been provIdmg
adequate customer servIce to your chents, willch has resulted m frustration
and hardshIp to the clIents on your caseload.
12
Mrs Anderson, Income Mamtenance SupervIsor, has advIsed you that
paper work IS to be processed m a tImely manner and due dates are to be
comphed wIth m respect to changes m chent CIrcumstances
Mrs. Anderson has received two wntten and several verbal complamts
from your chents regardmg your negatIve attItude, poor treatment and
failure to process changes m theIr benefits m a tImely manner
Your competence and productIvIty has been substandard and careless, as
well, your behavlOur towards chents has been neghgent. You have clearly
vIolated the Mirustry Standards of Conduct, specIfically numbers three and
eIght. Tills wntten repnmand IS to adVIse you that failure to improve your
work performance and treatment of chents will subJect you to further
dlsclplmary actIOn, m accordance wIth the pnnclples of progressIve
dlscIphne, up to an mcludmg dIsnussal.
Ms. Slusarchuk filed a gnevance over thiS wntten repnmand, but there was no resolutIOn
of It.
On November 2, 1995, Ms, Anderson met wIth the gnevor to dISCUSS her growmg
backlog - now 106 chents - and her mabihty to learn the Job To assIst her, Ms Anderson
assIgned Gay DavIdson, a Parental Support Worker (PSW) who had prevIously been an
IMO, to mentor her, 1-1, for a penod of three months and to help her clear up the
backlog, To enable Ms. DavIdson to mentor the gnevor, Ms. Anderson assIgned most of
her PSW work to others dunng thIS time penod. Dunng thIS penod, all of the gnevor's
work was to be forwarded to Ms DavIdson to reVIew for appropnateness, correctness and
accuracy Ms. Davidson was to provIde directIOn and set due dates
Through Ms. DavIdson's efforts, the gnevor's backlog was completely cleared up,
but the mentonng process was apparently less effectIve In November 1995, the gnevor
13
was absent for SIX days, and she was absent almost all of December, but she was not
absent at all m January 1996 and she worked directly wIth Ms DavIdson dunng that
month. Pnor to November 1995, the gnevor expenenced very lIttle to almost no
absenteeIsm throughout her employment wIth the Mirustry
On January 10, 1996, the gnevor was issued a second wntten warrung for poor
performance as well as a three-day suspenSIOn. The discIplIne focused on her failure to
meet deadlInes and process paper work m a tImely fasruon, resultmg m frustratIon and
hardsrup to her clIents. Trus dIscIplIne was Issued to the gnevor at a meetmg on January
10, 1996, at wruch Rory McMillan, DIstnct Manager Emily Goss, Ms Anderson and Ms.
Slusarchuk attended, Both dIsciplInes were subsequently gneved by Ms Slusarchuk, but
were not resolved,
Dunng the January 10, 1996 meetmg, ways to Improve the gnevor's performance
were dIscussed. DIstnct Manager Goss suggested utilIzmg a performance contract and
Ms Slusarchuk agreed to thIS approach. At the tIme, the gnevor had an error rate of
98%, delays m processmg documents and clIent mail were m excess of three months, and
complamts from dIssatIsfied clIents were bemg receIved at the rate of 1 per day It was
agreed that Ms DavIdson would contmue to mentor the gnevor until February 2, 1996
and clear up any remammg the backlog, so that begmnmg m February, the gnevor could
start the performance contract With a "clean slate" Thereafter, the gnevor would work
dIrectly WIth Ms. Anderson.
14
,- Both the gnevor and Ms. Anderson were to develop a performance contract wruch
they would then reVIew and come up wIth one contract. Ms Slusarchuk was gIven a full
day on January 15, 1996 to prepare thIS document and she was to meet wIth Ms
Anderson on January 19, 1996 to dISCUSS it.
On January 19, 1996, Ms. Anderson met wIth Ms. Slusarchuk, but the gnevor
brought no proposed plan, Instead, they worked off the plan developed by Ms Anderson,
makmg changes to it. The gnevor, however, refused to SIgn the final performance
contract and offered no explanatIOn for her refusal, but she was mformed by Ms.
Anderson that she would still be expected to meet all of the standards set out m the
document. The performance contract lIsted rune tasks, along wIth the role and
responsibilItIes of the IMO, the role and responsibilItIes of the supervIsor, the due dates,
error rate and comments. The gnevor was to reduce her error rate from 98% to 45% by
the end of February and to 20% by the end of March, return phone calls wItrun 24 hours,
process the mail dally, treat clIents wIth digruty and respect, and reduce the number of
complamts by clIents from daily to 1 per month, The average for the other IMOs was one
complamt every three months, If that. Ms Anderson reViewed the performance contract
lme by lIne WIth the gnevor who responded, generally, WIth silence
The gnevor was absent for rune days m February, and then the OPSEU stnke took
place wruch lasted for apprmomately SIX weeks, from February 26 through March 31,
15
1996 As a result, the deadlmes on the performance contract were extended by three
months, except for the chent complamt reqUIrement It was Ms Anderson's VIew that
treatmg chents WIth respect and dIgruty could be done nght away
On May 31, 1996, Ms Anderson revIewed the gnevor's performance WIth her,
measunng It agamst Mirustry documents that she had received outlmmg IMO Performance
ObJectIves for employees WIth SIX to twelve months expenence and employees WIth less
than SIX months. These were revIewed Ime by lme WIth the gnevor, and m every area, the
gnevor failed to meet performance expectatIOns At the time, the gnevor had been m the
Job for almost two years yet she dId not meet the performance expectatIOns of an
employee m the Job for SIX to twelve months, nor even the performance standards of an
employee WIth less than SIX months expenence The gnevor's response to Ms. Anderson's
reVIew was silence Ms Anderson explamed to Ms. Slusarchuk that she had done a lot to
bnng her on stream, that she was not sure what else she could do and that she could not
contmue spendmg all her tIme and energy trymg to get the gnevor to perform. The
gnevor's response, agam, was silence
In early June, 1996, the gnevor received three days of addItIonal tralrung regardmg
the FBA, whIch she told Ms, Anderson and been good and that she had learned a lot. She
was absent for three days m June
16
On June 21, 1996, Ms Anderson agam met wIth the gnevor to reVIew her
performance under the performance contract. Ms, Anderson's conclusIOn was that the
ObjectIves were not met. The error rate was still 98%, chent complamts remamed an
almost daily occurrence, tImely subnussIOn of documents had not Improved, chent calls
were not bemg returned, questIOns regardmg FBA were not answered and changes to
reduce or mcrease chent entItlement were not bemg actIOned She went over numerous
examples of the gnevor's work that had not been done correctly, and revIewed them at
length at the arbItratIon heanng. Suffice It to say, the eVIdence of unsatIsfactory
performance was overwhelmmg. Once agam, Ms. Anderson's comments were met WIth
silence There were no deruals, no explanatIOns and no real commUnICatIOn. Her only
response was that Ms Anderson should provIde her WIth the answers rather than refer her
to the gUIdehnes In her summary of theIr meetmg whIch she sent to the gnevor, Ms
Anderson concluded
There has been no Improvement m your work smce the implementatIOn of
the Performance Contract. I have prOVIded you WIth supports and you
recently partICIpated, for a second tIme, m FBA traIrung, Can you suggest
other ways that I can help you,
Mana, It IS clear that you have been unable to meet any of the expectatIOns
and obJectIves estabhshed for you, Tills IS an extremely senous issue, gIven
the importance of the Income Mamtenance Officer work. You offered
httle comment dunng the course of our performance reView meetmg. In
order to aSSIst you and to correct thIS Issue, your mput IS reqUired.
Once I am back from vacatIOn, July 22/96, I would like to have a meetmg
WIth you to dISCUSS ideas willch would help improve your performance
Your current level of performance IS unacceptable and contmued
performance at tills level IS not an optIOn. I encourage your partICIpatIOn m
dIScussIon about Issues and proposed solutIOns and I am wilhng to conSIder
all optIOns. I must make you aware that failure to address and resolve
these work performance problems will ultImately lead to dIsnussal.
17
- -
Throughout the performance contract penod, Ms. Anderson had also daily
telephone contact and e-mail wIth the gnevor and had meetmgs wIth her There was
ongomg dIScussIon and mstructIOn about the gnevor's work and the contmumg chent
complamts receIved by Ms Anderson.
On June 24, 1996, a stage 2 gnevance meetmg was held between the partIes
concernmg the dIsclphne that the gnevor had been gIven. At that meetmg, Ms Slusarchuk
agreed to provIde suggestIOns about how her performance could be Improved. The
performance contract deadlmes were extended agam, until September 30, 1996 On
August 19, 1996, Ms Slusarchuk e-mailed her suggestIOns to Ms Anderson. They
mcluded, among others, reservmg the morrung hours for paperwork (no calls or
appomtments) and commg m 20 nunutes early each day, havmg chents schedule
appomtments (no drop-ms), havmg two monthly tnps to Atikokan (instead of one), further
extendmg the performance contract deadhnes, changmg supervIsors, workmg one
Saturday and one everung per week and a number of other suggestIOns, none of whIch
dealt wIth any health or medIcal issues.
On September 23, 1996, Ms. Anderson met wIth the gnevor to revIew her
suggestIOns Some were accepted, most were not. Some had already been tned or
suggested m the past. At that tIme, the gnevor had 404 items mvolvmg 243 chents on her
"bnng forward" hst, willch hsts the matters still needmg actIOn of some sort. When Ms
Anderson asked If there were any extenuatmg cIrcumstances as to why tills backlog had
18
not been done, the gnevor replIed "no" LikewIse, when asked If there were any
extenuatmg reasons for once agam extendmg the deadlInes, the gnevor also responded
"no "Ms Anderson asked Ms Slusarchuk If there was anythIng gomg on that she dId not
know about and the gnevor responded "no" Ms Slusarchuk dId not raise any medIcal
issues at all dunng thIs meetmg. Ms Anderson concluded her summary of the meetmg,
whIch was sent to the gnevor, as follows
There hasn't been much work accomplIshed m the past month. ThIs can't
go on, the clIent's are suffenng. I expect the September 30/96 deadlIne to
be met. I asked you If there IS any reason why you won't meet the deadhne
you stated, "I have no reasons and no excuses"
I suggested that If you can't do the work and aren't happy, you should
look at domg somethIng else. You feel that domg FBA work IS "okay" and
that you haven't thought of domg anythmg else
B. The medical issue.
Pnor to September 1995, the gnevor had an exemplary attendance record. Then,
m September 1995, the gnevor nussed one day of work. She had no absences m October
followed by SIX m November and all of December In January 1996, the gnevor was not
absent at all, then m February, she mIssed rune days of work before the OPSEU strike
started. After the strike, the gnevor was absent for nme days m April. ThIs led to an
attendance reVIew meetmg on May 8, 1996
On May 3, 1996, five days before that meetmg, Ms Slusarchuk mformed the
Mimstry, for the first tIme, that she had a medIcal condItIOn, the nature of whIch was
19
unknown, which nught reqUire accommodatIOn. That letter states m pertment part as
follows
RE. MEDICAL CONDITION
At this time, I would like to declare that I have a MedIcal CondItIOn not
fully dIagnosed yet, but IS causmg some problem m the workplace As you
know (SIC) doubt are aware, I have been Sick on several occaSIOns thIS past
year I am presently under PhYSICian'S care
Upon, dIagnosIs I will adVIse I will be seekmg aSSIstance from the
Employment AccommodatIOn ServIces for Employees With DIsabihtIes As
you know (SIC) doubt are aware, that under the Ontano Human Rights
Codes, Employers are oblIgated to make "AccommodatIOn" for Employees
WIth dIsabihtIes as well as Under the Health & Safety Act, there IS an
obhgatIOn.
At present tIme, I am under PhYSICian's care, and have been adVIsed that I
am not able to travel at this tIme (Restncted) I have a Doctor's
appomtment m the near future and will be dIscussmg thIS matter, further,
WIth my PhYSICIan and will adVise you accordmgly
As a result of this memo, the gnevor's travel was ImmedIately restncted, The only
pnor mdIcatIOn that there was a medIcal concern was m late November 1994, when the
gnevor mentIOned to SupervIsor Calder and Program SupervIsor Rory McMillan that she
was expenencmg some health problems On December 9, 1994, Ms Calder responded by
e-mail, statmg m pertment part as follows
I appreCIate the fact that you did share WIth Rory & I that you are
expenencmg some health problems, and as a result, are expenencmg stress
In the event that you feel you will be unable to carry a full IMO caseload
because of health reasons, please diSCUSS thIS WIth your Dr In the event
that you must be off work for a penod of time, I would arrange for
coverage of your caseload.
Mana, It IS my expectatIOn that your pOSition will carry a full caseload. I
am prepared to dISCUSS this WIth you further If you WIsh, and I want to
reIterate that your health IS a pnonty
20
I
Thank you agam for shanng the above wIth Rory & I.
On the same day, Ms Slusarchuk responded to tms note, as follows (emphasIs m
ongmal)
Good morrung June
With respect to your E-mail, Our conversatIOn on November 24, 1994 At
present tIme the health related Issue is not necessarily a "problem" yet
Out of common courtesy to you and Rory (because you are m
management) I decIded to bnng tms to your knowledge JUNE, I do not
fully agree wIth your statement "that you are expenencmg some health
problems (at tms tIme "possible concerns") and as a result, are expenencmg
stress" At present tIme I AM MANAGING well! I will advise
However, thank you for your concern and will keep you posted.
Mana
Thereafter, no mentIOn of a medical problem or potentIal disabilIty was mentIoned
by the gnevor to the Employer until May 3, 1996, seventeen months later When the
eXIstence of a medIcal condItIon was mentIoned then, the Employer ImmedIately sought
addItIOnal mformatIOn. At the May 8, 1996 attendance reVIew meetmg, at wmch the
gnevor was represented by the Uruon, the gnevor mformed the Employer that she had an
appomtment WIth her personal physIcIan, Dr Black, on May 10, 1996 for further
consultatIOn and dIrectIOn regardmg the travel restnctIOn. She agreed to have Dr Black
supply addItIonal mformatIon to the Employer about her prognosIs Ms Slusarchuk also
agreed to dISCUSS all concerns and Issues WIth SupervISor Anderson, At the meetmg, the
gnevor stated that she had been gIven two potential explanatIOns for her condItIOn - early
M.S or fibromyalgIa, and that she had dIfficulty remembenng tmngs. There was no
further clanficatIOn of her condItIOn or symptoms The meetmg concluded WIth all partIes
21
agreemg to aWait the results of the upcommg appomtment wIth Dr Black and the receipt
of IDS report
Program SupervIsor McMillan wrote to Dr Black, the gnevor's physIcIan,
requestmg "mformatIOn relevant to your patIent's abihty to perform her reqUired dutIes on
an ongomg and regular baSIS." SpecIf1cally, he requested the followmg mformatiOn
1 Your prognosIs as to when she will have recovered from her present
condItiOn.
2 Your profeSSiOnal opIruon regardmg contmumg hmItatiOns, if any, that
will affect her abihty to perform the dutIes of her pOSItIon.
3 Any accommodatiOns that you may suggest to facihtate her efforts to
perform her dutIes
4 Such other mformatIOn you would consIder relevant to her condition
and hmItatiOns as It apphes to her abihty to perform the dutIes of her
pOSItiOn.
Along WIth the letter, a consent to release mformatiOn was sent and a copy of the IMO
pOSItIOn specificatIon. Accordmg to Mr McMillan, the purpose of thIS letter was to try
and determme If there was any reason, medically, WhICh precluded the gnevor from bemg
able to do her Job and to see if any accommodatiOns could be made
On May 10, 1996, Dr Black wrote back to Mr McMillan, advismg that he was no
longer carmg for Ms. Slusarchuk and statmg that "[s]he recently has been a patIent of Dr
JablonskI." On the same date, Dr Jablonski wrote the followmg memo to the Mimstry'
RE MARIA SLUSARCHUK
943 ArmIt Avenue. Fort Frances. Ontano
22
Tills woman IS currently under my medIcal care and m the process of
mvestIgatIOns regardmg a dIagnosIs of her medical conditIOn. At the
present tIme, gIven her symptoms, It may be WIse to restnct excess stress
and travel until her condItIOn is further elucidated and controlled
In the Employer's VIew, tills response did not answer the questIOns posed
In June the gnevor nussed three days of work and m late July, mIssed seven days
willch was followed by more absences m August. On August 7, 1996, Ms Anderson sent
a letter to the gnevor, makmg "a formal request for medIcal documentatIOn addressmg
your absence", notmg that she had been off work smce July 18, 1996 The followmg day,
Program SupervIsor McMillan adVIsed the gnevor that a second attendance reVIew
meetmg was scheduled for August 14, 1996 The purpose of thIS second meetmg was to
access more medIcal mformatIon. Smce the May 8, 1996 letter from Dr JablonskI, the
Employer had not receIved any additIonal medIcal mformatIOn.
Earher, at the Stage 2 gnevance meetmg m late June 1996, management proposed,
at the Employer's expense, to arrange for the gnevor to undergo a medical assessment to
determme If there was an underlymg medical reason related to her work performance
problems and to proVIde a prognosIs of her abilIty to attend work on a regular basIs m the
future Ms, Slusarchuk agreed but then dId not follow through, promptmg a letter from
Mr McMillan on August 15, 1996 That letter, m part, states as follows
Dear Ms. Slusarchuk.
Tills IS to proVIde you WIth a wntten copy of the summary of dISCUSSIon we
have had to-date respectmg your attendance at work and of our efforts to
determme If there are any medIcal factors affectmg your work performance
23
Over the course of the past year you have been frequently absent from
work, 66 days from September 1995 to August 15, 1996, and you have
been expenencmg ongomg and senous work performance problems. Our
last attendance reVIew meetmg took place on Wednesday, May 14, 1996,
m an attempt to try and resolve these Issues There has been no subsequent
Improvement m eIther your regular attendance or your work performance
Your frequent absences and work performance Issues are cntIcal problems
As documented m your performance reVIew, the result IS your mabilIty to
manage the socIal assIstance caseload assIgned to you. Tills means socIal
assIstance clIents may not be recelVlng fair entItlement under the law; m
some cases It means the Mirustry IS m regular overpayment SituatIOns
NeIther of these are acceptable SItuatIOns
Management proposed, at the expense of the employer, to arrange for you
to undergo a medIcal assessment to IdentIfy any underlymg medical reasons
related to these problems and to provIde a prognosIs of your abilIty to
attend work on a regular baSIS m the future. Tills proposal was made to
you WIth uruon representatIon present You were consulted WIth regard to
the content of the letter and authonzatIons The employer understood that
you were willIng to attend tills appomtment subject to your physIcIan's
consent.
Dunng the ensumg two week penod you have been absent from work.
You provIded no medIcal documentatIOn to explam the absence or a return
date DespIte requests from your manager, you also dId not return sIgned
authonzatIons m order for the employer to proVIde mformatIOn to the
phYSICIan m advance of tills scheduled medIcal assessment appomtment
Two medIcal appomtments were scheduled for you, The employer was
oblIged to cancel both appomtments gIven your absence and failure to
consent to release mformatIOn.
GIven these CIrcumstances, I have no mformatIOn that your contmumg
performance problems are assocIated WIth an underlymg medical condItIOn
nor have we any prognOSIS respectmg your abilIty to attend to work on a
regular baSIS I will, therefore, assume that you are capable of performmg
your work aSSIgnments and attendmg work on a full-time and regular baSIS
Should you WIsh to reconsIder attendmg the medIcal reVIew, I would be
willIng to arrange another appomtment upon receIpt of sIgned
authonzatIOn from you.
Mana, your work performance and attendance problems will contmue to be
revIewed WIth you on a regular baSIS. Your contmued employment WIth
the Mimstry IS dependent upon resolutIOn of these problems Both your
24
supervIsor Gayle and myself will work wIth you to achieve the necessary
Improvements, and we expect your cooperatIOn and efforts m this process.
In September 1996, arrangements were agam made to have Ms Slusarchuk
exanuned by an mdependent doctor at the BehaVIOral SCience Centre m Thunder Bay, and
the appoIntment was set for October 8, 1996 To facilItate that exammatIOn, Mr
McMillan sent a letter to Margaret JurCIC, the Assistant DIrector of the BehaVIOral SCIence
Center, which states, m pertment part, as follows
Dear Ms JurcIc
I am wntmg concerrung one of our employees, Mana Slusarchuk. Ms
Slusarchuk IS currently expenence some work performance Issues, and has
been frequently absent from work for sick reasons over the last months. I
am requestmg a profeSSIOnal assessment m order to understand any medIcal
bamers whIch may be hampenng Mana's abilIty to perform the duties of
her pOSItion and any accommodatIons whIch the employer could make to
support thIS mdIvIdual.
F or your reference I have enclosed a copy of her pOSItion descnptIOn, a
PhYSIcal Demands AnalysIs, and most recent performance reVIew
document. From the employer's perspective, some of the difficultIes whIch
Mana seems to be expenencmg m this role are tImelmess m completmg
reqUired tasks, dlfliculty m orgamzmg and pnontlZlng her workload, a high
error rate, and poor attentIOn to detail. In addItIOn, Ms. Slusarchuk has
been frequently absent from work for medIcal reasons, whIch further
hampers her abilIty to complete work aSSIgnments.
In the report from the PhYSICIan please request her profeSSIOnal opmIOn as
to whether these current work performance Issues are related to a medIcal
condItIOn, If so, please proVIde
1) A prognosis as to when Ms, Slusarchuk will have recovered from her
present condItIOn,
2) A professIOnal opIruon as to the type of work that Mana can do
WIthout exacerbatmg her medIcal condItion,
3) Any suggestIOn or accommodatIOns which may resolve the work
performance issues Mana IS currently expenencmg;
25
4) Other mformatIOn you consIder relevant to her condItIOn as it apphes to
her abihty to perform the dutIes of the posItIOn.
In the mtenm, the only other medical mformatIOn proVided by the gnevor was a
note from Dr Black, dated August 28, 1996, whIch states as follows
TO WHOM IT MAY CONCERN
RE SLUSARCHUK, Mana
Ms. Slusarchuk has been unable to work from July 29 through August 19,
1996 because of neurologIcal symptoms and heanng loss.
Dunng thIS time she has had numerous medIcal consultatIOns and has been
referred for further specIahst assessment.
While Ms. Slusarchuk has returned to work at present, she will reqUire
further tIme off m future as we follow up on these specIahst consultatIOns
Tills note was preceded by several letters from the Employer requestmg medIcal
documentatIon for her absence m July and August. Accordmg to Ms Slusarchuk, her
absence at tills tIme was due to an ear mfectIOn.
The gnevor also proVided the BehaVIOral SCIences Centre WIth a letter from Dr
Jablonski and two letters from Dr McGUire, a chIropractor, but she dId not proVIde them
to the Employer The Employer dId not receive copIes of these documents until the Stage
2 gnevance meetmg m January 1997, after the gnevor's dIscharge
The gnevor attended the October 8, 1996 assessment WIth physiatnst Dr Pramila
Rao, a specIahst m phYSIcal medicme, rehabihtatIon and pam management. Dr Rao
testIfied at the heanng and her background clearly mdicates that she IS an expert m her
26
field of medIcme On October 8, 1996, pr Rao met wIth the gnevor for apprmQmately
one hour, takmg an oral hIstOry from her and performmg a physIcal exanunatIOn, Pnor to
the exammatIOn, she had revIewed the letter from the Employer and Its attachments and
the letter from Dr Jablonski.
Accordmg to Dr Rao's report, dated October 8, 1996, the gnevor stated that
"[s]he has developed vanous symptoms smce the fall of '95" mcludmg "mtermIttent
numbness m both hands and a tendency to drop thmgs, mternuttent pam the m the mId and
upper back, front of chest, upper extrenutIes mcludmg elbows and occasIOnally m the
lower back." She dId not mentIon groggmess from her medicatIOn, mabihty to
concentrate, dIflicultIes WIth her memory, or heanng problems. She stated that at the tIme,
her symptoms were m renussIOn, WIth her last flare-up occurnng m September
Dr Rao's phYSIcal exammatIOn found some decreased sensatIOn to pmpncks "m
her hand and m a patchy dIstributIOn m the lower extremetIes" and tenderness m a number
of muscles She determmed that "Ms, Slusarchuk has mternuttent, non-specIfic soft tIssue
pam" but was "unable to make a diagnosIs of fibromyalgIa gIven her current symptoms
and sIgns." Dr Rao explamed that "sIgns" are the phYSIcal exanunatIOn findmgs and that
under the standards set by the Amencan College of Rheumatology, a patient must exhibit
SIgns of pam m 11 of 18 tngger pomts as well as sleep dIsturbance, fatIgue and chroruc
pam for a diagnOSIS of fibromyalgIa, and although she dId not record the number of pomts
of pam expenenced by the gnevor, It was less than 11
27
As to the specIfic questIOns posed by Mr McMillan, Dr Rao answered as follows
1 Ms. Slusarchuk IS likely to have mternuttent flare-ups of her symptoms
wruch seem to be related to work-related stress as mdIcated by her
performance record and by her cruropractor and family physIcIan m the
past. PrognosIs, therefore, for her beconung asymptomatIc m the near
future IS poor
2 She should be able to contmue the type of work that she IS domg smce
It IS not physIcally demandmg. However, she would benefit from havmg an
OccupatIOnal Therapy ergonomIC assessment of her work place m order to
msure that the computer and the rest of the work statIOn IS optimally
placed. She would also benefit form bemg provIded WIth headsets If she
has to spend a lot of time on the phone
3 Please see above.
4 Ms, Slusarchuk may also benefit from a formal phYSIotherapy program
for a two to four week penod, where she can be taught speCIfic stretcrung
exerCises for the neck and shoulder gIrdle musculature I have adVised her
that utihzmg these when her symptoms begm to flare up at work nught
allow her to contmue workmg. She would also benefit from usmg the
Elavil on a regular baSIS for a week or two when she IS havmg an
exacerbatIOn of her symptoms
The Employer found the October 8, 1996 report from Dr Rao unclear and as a
result, on October 24, 1996, requested clanficatIOn, as follows
1 based on the findmgs of the exanunatIOn, IS there a dIrect co-relatIOn
between the "soft tIssue pam" and Mana's mabihty to do the Job,
2 would the eXlstmg medIcatIOn contribute to her mabihty to do the Job
l.e, Mana complamed of memory loss and an ear problem - wIll the
medIcatIOn cause some SIde effects,
3 IS there anythmg m the findmgs that would mdIcate that she cannot do
the Job, reference bemg made to the Job spec and phYSIcal demands
analysIs,
4 It may aSSIst to know whether or not [Ms Slusarchuk] does have
F.M.
28
On October 24, 1996, Dr Rao responded, m pertment part, as follows
To answer the questIOns specIfically,
1 Ms. Slusarchuk stated that her symptoms started after she SWItched Jobs,
from bemg a vocatIOnal rehab counselor to a welfare worker The latter
Job apparently mvolves sittmg at a desk for a long penod of tIme, workmg
on a computer for most of the day while talkmg on the telephone the same
tIme. The symptoms would flare up at work and would settle down when
she took a few days off, 1 would have to say, therefore, there IS a dIrect
correlatIOn between her soft tissue pam and her mabihty to do the Job
2 She told me that the only medIcatIon that she was on at the tIme that
she saw me was Elavil 10 mg. at rught on a p Ln. basIs I would not expect
that tms would contribute to her mabihty to do the Job Elavil does cause
mcreased groggmess or drowsmess on awakerung m the morrung m some
people, but if thIS IS the case, It can be substItuted wIth anyone of several
other medIcatIOns that have a lesser sedatmg effect.
3 Based on the medIcal findmgs, there is nothmg to suggest that she is
unable to contmue wIth her current Job As stated m my prevIous letter,
she would benefit from havmg an OccupatIOnal Therapy ergononuc
assessment of the workplace to make sure that the work statIOn IS
optImally arranged to decrease ergonomIC stress
4 At the tIme of seemg me she dId not have defimte eVIdence of
fibromyalgIa and 1 beheve 1 made tms clear m my prevIOUS letter as well.
To quote from It, "I am unable to make a diagnosIs of fibromyalgIa gIven
her current symptoms and SIgns"
Dr Rao testIfied that gIven the work-related stress connectIOn to the gnevor's
symptoms, the gnevor's problems at work would contmue smce she was still m the same
work enVIronment. She further testIfied that m a lot of patIents chrome pam affects they
way they functIOn - theIr orgaruzatlOnal abihty, short term memory, abihty to concentrate,
although there IS no clear SCIentIfic hnk. The chrome pam could be a causatIve or
perpetuatmg factor When asked on exammatlOn-m-chIef wmch would be the case, if,
29
pnor to the onset of pain, work complamts eXIsted, she rephed "then the pam didn't cause
the complamts but could be a perpetuatmg factor" She explamed that some patIents With
chroruc pam contmue to work and functlOn well, while others develop Job performance
Issues, most of whom will eventually stop workmg, and others stop workmg completely
In her opmlOn, Ms Slusarchuk was m the nuddle group with Job performance Issues She
could contmue to work, however, because the phYSIcal demands of her Job were not
excessive and gIven her paucity of SIgns and her phYSIcal condition, Dr Rao could not
dIagnose a phYSical dIsabihty or impaIrment wrnch would prevent her from domg her Job
Cathenne Dussault, Human Resources Manager - Northern RegIOn, testIfied that
based on Dr Rao' s ongmal report and clanficatlOn, management concluded there was no
medical condItion whIch contributed to the performance problems that the gnevor
expenenced and which were articulated by the Employer to Dr Rao The employer
mterpreted paragraph 1 of the October 24, 1996 report as mdlcatmg that the doctor
nusunderstood the nature of the IMO Job In Ms. Dussault's VIew, the office nature of the
IMO position was very similar to that of a VRS Counselor and mvolved slmtlar amounts
of slttmg and standmg and desk work. Consequently, m management's View, the doctor's
statement that there was a dIrect correlatlOn between the soft tissue pam and her mabihty
to the Job was based on an erroneous understandmg of the Job, wrnch, m fact, was no
different than the VRS position. Management mterpreted paragraph 2 as mdIcatmg that
her medIcatIOn should not affect her performance, paragraph 3 mdlcated that she was
medIcally able to contmue wIth her present Job and paragraph 4 mdIcated that there was
30
no defirute eVIdence of fibromyalgIa. Accordmgly, havmg ruled out a medIcal basIs for the
gnevor's poor performance, the decIsIon was made to dIscharge the gnevor for
mcompetence. No further clanficatIon was sought from Dr Rao
Upon the gnevor's receIpt of Dr Rao's October 8, 1996 report, she wrote to
AssIstant DIrector Jurcic of the BehaVIOral SCIences Centre In that letter, she wrote that
the report contamed "several maccurate facts whIch. .reqUIre clanficatIOn" and requested a
"re-assessment at a later date when [her] symptoms are more prevelent (SIC)" Among the
clanficatIOns was the fact that her "[m]edIcal absences surfaced m September 1995 (after
6 months under the present SupervIsor)" and that although she nussed a total of 10 weeks
from work due to her symptoms smce December 1995, "[t]hese symptoms have started m
September 1995 "
There was no other medical eVIdence presented at the heanng. As noted, there
were a few addItIonal medIcal notes from Dr JablonskI and Dr McGUIre whIch were
gIven to the BehaVIOral SCIences Centre, but were not provIded to the Employer
C. The Grievor's Testimony
The gnevor dId not refute any of the testImony and documentary eVidence
concerrung her work performance defiCIencIes, She testIfied that she found the irutIal
trammg provIded by Hayley Snuth to be overwhelmmg, and acknowledged that she dId
not ask questIOns because she thought she understood the matenal. She found the Job to
31
be very dIfferent from that of a VRS Counselor, mvolvmg sIgmficantly more clencal than
socIal work and more deadhne pressure
Ms. Slusarchuk testIfied that when SupervIsor Anderson became her supervIsor,
they would dialogue, but then thmgs started to detenorate partIcularly after the Summer
of 1995 In her VIew, Ms. Anderson would not hsten to her when she tned to talk to her
and so she reached a pomt where she dId not respond. In her VIew, Ms, Anderson acted
hke a "steamroller"
She testIfied that she began to expenence health problems begmnmg m the Fall of
1994, but basIcally brushed them aSIde smce she was m a new pOSItIOn and had to learn
the Job Over the year, the symptoms worsened - she would drop obJects, felt tmghng and
numbness m her hands and arms, have chest pam and tIghterung, upper and lower back
pam and a dull throb m her head. Later, she also had Jomt pam and fatIgue From
September 1995 forward, she testIfied that the symptoms mtensIfied, became more
numerous and were more conSIstent. Her fatIgue level also rose When asked how these
symptoms Impacted her abihty to do the Job, she testIfied that they caused her to spend
tIme away from the office and when she would return, It was like startmg the Job over
agam, She also testified that she found It dIfficult to SIt for long pen ods, that she had
dIfficulty concentratmg and sometimes lacked the manual dextenty needed to use the
computer
32
,.....---
There IS no eVIdence that any of these symptoms were conveyed by the gnevor to
the Employer To the extent that the gnevor testIfied that she spoke to Ms Anderson
about her illnesses dunng her absences, I do not credIt tms testimony The gnevor
provIded no dates or details and her recollectIOn of events and meetmgs was poor Nor
was the fact that any such mformatIOn was conveyed to Ms Anderson put to her on cross-
exanunatIon. In these cIrcumstances, I cannot credIt that testImony
Although the gnevor testIfied that her symptoms started m the Fall of 1994, she
advIsed Dr Rao that they had started m the September of 1995 When asked why she
told Dr Rao that her symptoms had started m the September 1995, she explamed that Dr
Rao never asked her about her condItion pnor to 1995 so she never conveyed that
mformatIOn. But Dr Rao never specIfied a year She Just asked the gnevor about the
mstory of her ailment. In addItion, the gnevor's own supplemental letter of October 24,
1996 to the BehavIOral SCIences Centre mdIcates that her symptoms started m the Fall of
1995, wmch also corresponds to the start of her absenteeIsm,
The gnevor's resume mdIcates that dunng the penod that she was expenencmg
chrome pam symptoms, she was takmg courses outSIde of work. Dunng the penod
September 1994 through April 1995, she took courses towards an AddictIOn Research
CertIficate and an Ontano Management CertIficate The Ontano Management CertIficate
course met one rught per week for three hours from September 1994 through April 1995
The AddictIOn Research course took place over twelve Saturdays, from 900 - 5 00, m
33
~..~-
September, October and November 1994 and then resumed for the same tIme penod m
January through March 1995 She receIved As and Bs for tills course work and had no
,r
trouble graspmg the matenal, even though some of It was new to her
In September 1995, Ms. Slusarchuk took other courses towards a certIficate m
Human Resources Management. One course dealIng With Labour RelatIOns started m
September and met for 1 1/2 to 3 hours per week. She dId not, however, do well m the
course, receIvmg a D In March 1996, she took another course, whIch met one rught per
week, 1 1/2 to 3 hours per mght, through May In tills course, she receIved a C She
credits her abilIty to understand the matenal, despIte her symptoms, to the qualIty of the
mstructIOn, partIcularly the clear explanatIOns provIded,
Finally, the gnevor claims that she currently has "no medIcal concerns" and has the
abilIty to return to work and learn the IMO pOSItIOn, proVIded there was a change m
supervISIon. If successful WIth thIS gnevance, she wants to be remstated to the IMO Job,
rather than alternate one, smce she feels her professIOnal reputatIOn and that of her family
has been shattered by her termmatIOn,
D The Ministry's Search for Alternative Work
Human Resources Manager Dussault testIfied that m the penod October-
December 1996, the Mirustry was domg no hmng and fillIng no vacanCIes m the Northern
area, WIth lImIted exceptIOns for french language pOSItIOns, temporary pOSItIOns and
34
posItIOns whIch would survIve the upcommg reorgaruzatIOn such as FinancIal Analysts and
Systems Operators Consequently, there were no alternate posItIOns m the Northern
regIOn mto wruch the gnevor could be placed, Ms Dussault only conSIdered pOSItIOns
WIth the Mimstry m the Northern regIOn, she dId not conSIder pOSItIons m other regIOns or
outSIde of the Mirustry There was no dIScussion WIth the gnevor or the Umon about
alternatIve employment.
The eVIdence showed that a vacancy for a VRS Counselor eXIsted m Chatam,
Ontano, wruch IS outSIde of the Nothern regIOn.
E. The Grievor's Discharge
On December 16, 1996, Ms Slusarchuk was presented WIth a dIscharge letter
wruch states, m pertment part, as follows
Mana, smce you assumed the pOSItIOn of Income Mamtenance Officer m
August of 1994, regular reVIews of your work performance have taken
place. I draw your attentIOn speCIfically to the meetmg of June 21, 1996
where you were warned that failure to Improve your performance would
lead to dIsnussal. A subsequent reVIew held on September 23, 1996
revealed that no improvement had occurred. You offered no reasons for
your contmued non-performance All of these problems contmue today
You have partICIpated m multIple traIrung seSSIOns and we have undertaken
Jomt efforts to address your work performance problems.
We have concluded that you are unable to meet the reqUirements of your
pOSitIon of Income MaIntenance officer m the Fort Frances office In
addItIOn, there are no alternate pOSItIOns available WhICh mIght better
match your skills and abilities Therefore, by the authonty delegated to me
by the Deputy Mimster under SectIOn 23 of the PublIc ServIce Act, you are
hereby notIfied of your dIsnussal from employment m accordance WIth
sectIOn 22(3) of the PublIc ServIce Act, effectIve ImmedIately
35
The delay m dIschargmg the gnevor resulted, m large part, from her absence from
work due to a fall down her basement staIrs m late November 1996
ARGUMENTSOFTHEPARTffiS
A. For the Employer
The Employer contends that the eVIdence clearly establIshes that the gnevor was
properly dIscharged for mabIlIty to perform her Job
In the Employer's VIew, It fully met the reqUirements to dismIss an employee for a
non-culpable defiCIency m Job performance as set out in Re Edith Cavell Private Hospital
and Hospital Employees' Union, Local 180 (1982), 6 L A.C (3d) 229 (Hope) and Re
DBLEU (Senia) and Liquor Control Board of Ontario, GSB No 248/85 (Samuels, Vice
ChaIr) Those reqUirements are as follows (6 L A.C (3d) at 233)
(a) The employer must define the level of Job performance reqUired,
(b) The employer must establIsh that the standard expected was
commurucated to the employee
(c) The employer must show It gave reasonable supervIsIOn and mstructIOn
to the employee and afforded the employee a reasonable opportumty to
meet the standard.
(d) The employer must establIsh an mabilIty on the part of the employee to
meet the reqUiSite standard to an extent that renders her mcapable of
performmg the Job and that reasonable efforts were made to find alternate
employment wIthm the competence of the employee
(e) The employer must disclose that reasonable warrungs were gIven to the
employee that a failure to meet the standard could result m dismIssal.
36
-
The Employer first subnuts that the Mimstry's IrutIal decisIon to place the gnevor
m the IMO posItion was proper and that the gnevor more than met the entry-level
standards for the posItIOn. It subnuts that It provIded the traIrung she needed to perform
the Job, Irutmlly through Hayley Snuth, who had successfully tramed SIX other IMOs, the
three-week IMO Core TraIrung provIded by the Mirustry as well as traIrung m General
Welfare benefits But from the outset, the Employer asserts that the gnevor failed to
master the Job, mstead dIrectly refemng chents and questIOns to Ms SmIth who, after four
months, had to ask that thIS be stopped. Later, the gnevor's traIrung was supplemented by
1 1 mentonng by Gay DavIdson, mstructlOn from Ms Anderson, and addItIonal FBA
traIrung, wIthout any show of Improvement by the gnevor
The Mimstry asserts that it clearly defined the level of Job performance reqUired
and that the standards expected were repeatedly commurucated to the gnevor- through the
performance contract, performance reVIews, the two repnmands and suspenSIon,
dISCUSSIons WIth Ms Anderson and the Mimstry's Performance Objectives for IMO
employees WIth 6 months to12 months expenence m the Job as well as less than SIX month
m the Job, both ofwruch were fully revIewed WIth Ms Slusarchuk.
The Mirustry asserts that it provIded the gnevor WIth reasonable supervIsIon and
mstructIOn and afforded her WIth numerous opportumtIes to meet the standard. Indeed,
the Employer contends that It gave the gnevor many chances to Improve her performance,
from June 1995, the first performance appraIsal, onward. It notes that m November 1995,
37
It provIded her wIth a mentor to work wIth her and to correct the backlog that she had
developed. It then entered mto a performance contract specIfymg what was reqUired,
whIch was tWIce extended to accommodate her absences from work and the OPSEU
strike All of these efforts, it submIts, were met WIth silent reSIstance and a lack of effort
or cooperatIOn from the gnevor In its VIew, It had sufficIent grounds to terrnmate the
gnevor for mabihty to perform the Job m June of 1996, or before, but gave her still
addItIOnal time to Improve WIthout success The Employer argues that the gnevor was
clearly and repeatedly warned that failure to meet the standards could result m dIsnussal,
and that contmued unsatIsfactory performance could not and would not be tolerated,
The Mirustry argues that the eVIdence clearly estabhshed that the gnevor was
completely unable to meet the reqUISIte standards of the Job It argues that the gnevor
made the same mIstakes and demonstrated the same performance problems over and over
agam - untimely paperwork, numerous errors, mappropnate comments to chents and staff,
mabihty to access On Lme, all of whIch caused underpayments, overpayments and
confuSIOn, It subnuts that the eVIdence It presented of the gnevor's mabihty to perform
the Job went completely unchallenged by the Umon or the gnevor
Finally, the Employer asserts that It made reasonable efforts to find alternate
employment wIthm the competence of the employee. Unfortunately, it subnuts that there
were no claSSIfied vacanCIes m the Northern regIOn to whIch the gnevor could be
transferred,
38
As to the gnevor's claIm of disabilIty, the Mimstry argues that there was no such
claIm until May 1996, when the gnevor was at senous nsk of ternunatIon, nor was there
ever any mdIcatIOn of her symptoms to the Employer The Mimstry asserts that while
there had been absences for sIckness, the reason for those absences was not conveyed
Further, the Mimstry argues that even after the gnevor alerted the Employer to a potentIal
medIcal Issue, no details of that condItIOn came forward from the gnevor The only
mformatIOn that the Employer receIved from the gnevor was the May 8, 1996 letter from
Dr JablonskI wmch stated that the gnevor's medIcal condItion was under mvestIgatIOn,
and an August 27, 1996 letter from Dr Black that the gnevor's absence m late July and
August was due to unspecIfied neurologIcal symptoms and heanng loss, both of whIch are
hearsay documents wmch cannot stand for the truth of the matters asserted. It argues that
no other medIcal mformatIOn from the gnevor was forthcommg, despIte repeated requests
for specIfic mformatIOn by the Employer about her condItIOn and what accommodatIOns, If
any, were needed. Further, the Employer submIts that the gnevor should have adVIsed the
employer of her symptoms that she now claims to have expenenced m 1994, 1995 and
1996 and that she clearly had an oblIgation to do so It also questIOns the affect of those
symptoms on her abilIty to learn m lIght of the fact that dunng the same time she took
several contmumg educatIOn courses and, except for one, dId reasonably well. It subnuts
that if she could learn her coursework, she could have also learned the Job and,
consequently, her failure to do so means that she was unsUited to the IMO pOSItIOn,
39
The Employer argues that the only medical eVIdence m the record are the two
October 1996 reports and the testImony of Dr Rao, who concluded that the gnevor had
"mterrmttent, non-specIfic soft tissue pam" but not fibromyalgm, The physIcal
exanunatIon revealed only decreased sensatIOn to pmpncks "m her hand and m a patchy
dIstributIOn m the lower extrenutIes" and tenderness m a number of muscles. The
Employer subnuts that there IS no medIcal eVIdence to corroborate the gnevor's symptoms
from the penod August 1994 through October 1996, and no medIcal eVIdence tymg her
symptoms to her performance problems at work.
The Employer sub nuts that the medIcal eVIdence fails to establIsh a clear lmk
between the gnevor's unsatIsfactory performance and her medIcal condItIOn. It notes that
the performance problems long preceded the onset of any medIcal condItIon and
consequently, her mabihty to perform the Job was not caused by the dIsabilIty While it
may have perpetuated the SItuatIOn, It subnuts that It dId not cause it and therefore her
dIscharge for nonperformance cannot be vIewed as dIscnnunatIOn due to dIsabilIty
Further, It subnuts that there is no eVIdence that accommodatIOn could have made a
dIfference m enablIng the gnevor to be able to perform the essentIal dutIes of her Job In
support of itS pOSItIon, the Employer CItes to Douglas Bonner v Ontario Ministry of
Health, Insurance Systems Branch (1992), 16 C H.R.R. D/485 (Ont. B 0 I )
Accordmgly, the Employer asserts that all the standards set forth m Re Edith
Cavell were met and that It estabhshed Just cause to dIscharge the gnevor for mabilIty to
40
perform her Job In the alternative, the Employer argues that should I conclude that it dId
not sustam Its onus, the Board should nonetheless not remstate her to the IMO positIOn
gIven the overwhelnung eVIdence that the grievor is unsUitable for the pOSItIOn. Instead, It
suggests that the gnevor be placed on a leave of absence WIthout pay to allow the
Employer to meet any cntena of the Re Edith Cavell Private Hospital case wruch had not
been met. If remstatement to the IMO pOSItIOn IS ordered, the Employer asserts that it
should be under stnct condItions and Without back pay smce the gnevor dId not aSSist the
MinIstry m Its efforts to help the gnevor retam her Job
B. For the Union
The Uruon takes the pOSitIOn that the gnevor was discharged WIthout Just cause
and should be remstated WIth full compensatIOn. It asserts that the same result should
apply regardless of whether one VIews thIS case as a non-culpable dIscharge for deficIent
work performance or dIscharged due to a dIsabihty
Like the Employer, the UnIon relIes on the standards set forth m Re Edith Cavell
Private Hospital, supra, but contends that the gnevor was never gIven a reasonable
opportUnIty to meet the reqUired standards due to her medIcal condItIOn and the OPSEU
strike It further contends that the eVIdence estabhshes that she was dIscharged on the
baSIS of her dIsabihty
41
The Uruon subnuts that the gnevor came to the IMO posItIOn m less than ideal
circumstances - WIth the ehnunatIOn of her pnor posItIOn and her mvoluntary reassIgnment
to the IMO Job whIch she dId not want, the resentment caused by her challenge to the
ehnunatIOn of her pOSItIOn, the dramatic dIfferences between the IMO and VRS Counselor
Jobs whIch added to the dIfficulty of the tranSItIOn, all of wruch were compounded by her
medIcal condItIOn wruch first appeared m the Fall of 1994 The Umon subnuts that while
the gnevor was very reluctant to embrace a medical explanatIOn for her dIfficulties -
hence, what was described by Umon counsel as the "I am't got no medIcal condItIOn"
memo of December 1994 - It IS clear that her first symptoms began m the Fall of 1994
wruch prompted her to mentIOn them to SupervIsor Calder While It asserts that the
gnevor coped WIth It and brushed It off, there were health problems whIch affected her
abilIty to do the Job Later, It was dIagnosed by Dr Rao as "mtemllttent soft tIssue pam"
or chrome pam syndrome, but she had the symptoms throughout her employment as an
IMO
The Umon asserts that the medIcal eVIdence presented by Dr Rao clearly
estabhshed that the gnevor was suffenng a dIsabihty and that It directly affected her work
performance Although the Uruon acknowledges that Dr Rao's reports are not a model
of clanty, It argues that the Mimstry's conclusIOn that there was no medIcal condItion that
affected her work performance, that her conditIOn was melevant, was a gross, perhaps
willful, nusreadmg of Dr Rao's report. Nor, m ItS VIew, was It a smgle "snap shot" of the
gnevor's condItion solely on October 8, 1996, but mstead revealed an ongomg dIsabihty
42
It further argues that the Impact of her dIsabihty was also seen m her coursework In wmch
she receIved a D and C It subnuts that mstead of dIscussmg these medIcal reports and
possible accommodation wIth the gnevor and the Uruon as it was reqUIred to do, the
Employer mstead Improperly moved to discharge the gnevor
In support of Its pOSItion, the Uruon cItes to Calgary Co-operative Association
and Ca/co Club (1992), 24 L.AC (4th) 308 (McFetndge) Calgary Co-operative
Association and Calco Club (1992) 28 C.L AS 466 (McFetndge), Boucher v Canada
(Correctional Service)(1988),9 C.H.R.R. D/4910 (C.H.R.C), Chipper field v British
Columbia (Ministry of Social Services)(1997), 30 c.H.R.R. D/262 (B C.H.R.C), and
Barrett et al. v Champaigne et al (1996),28 Q,R. (3d) 2205 (0 C G.D )
The Uruon argues that because of her dIsabilIty and the QPSEU strike, the gnevor
never receIved the "fresh start" enVISIOned by the performance contract, and that she dId
not have a proper opporturuty to meet the expectatIOns set by the Employer It submIts
that when the gnevor returned to work after illness and the strike, there was a fresh
backlog from which she could not recover because of her dlsabihty In ItS VIew, even
though the deadhnes were tWIce extended, the gnevor did not have a sufficIent, illness-free
penod WIthout a backlog to meet the Employer's expectatIOns before her final
performance review m September 1996
43
The Druon further argues that the Mirustry dId not conduct an adequate search for
alternatIve employment for the gnevor Indeed, it submIts that no efforts were made to
find her another Job smce there was a hmng freeze and no vacanCIes m the Northern
RegIOn. It contends that no thought was gIven to whether an exceptIon should be made
or whether she should be surplused or whether a sUitable Job eXisted m other regIOns In
support of Its posItIon, the Druon Cites to Re Edith Cavell Private Hospital, supra and Re
McKellar General Hospital and C. UP.E. Local 1409(1986), 24 L AC (3d) 69 (Joyce)
The Uruon also contends that there was no failure to cooperate by the gnevor as
asserted by the Employer It argues that any madequacy of the reports by the gnevor's
doctors IS not Ms Slusarchuk's fault, and that she agreed to sub nut to the mdependent
evaluatIOn by Dr Rao and fully cooperated m that process It also subnuts that once she
agreed to be evaluated by Dr Rao It was appropnate for her doctors' assessments to be
dIrected to her, rather than to the Employer It contends that her silence and reluctance to
accept her medIcal condItion should not be construed as a failure to cooperate
Accordmgly, the Uruon subnuts that the gnevor IS entItled to remstatement to the
IMO pOSItIon and full back pay It acknowledges, however, that it may be appropnate to
order condItions, such as a change m supervIsIon, addItIOnal trammg, an ergonomIc reVIew
and a tnal penod, faihng whIch the gnevor should be reassIgned, or m the alternatIve
surplused,
44
DECISION
Tills IS a very dIfficult and, m many ways, tragIc case Ms Slusarchuk IS a long
servIce employee wIth the Mirustry and enJoyed a successful career as a VRS Counselor
until her posItIon was declared redundant and she was surplused m August 1993, at willch
tIme she was gIven the optIOn of Income Mamtenance Officer or layoff The Mirustry's
deternunatIOn that she more than met the quahficatIOns for the IMO posItIOn, at the entry
level, cannot be faulted. On paper, It was, as Mr Fitzpatnck deternuned, seenungly a
"good match" While other options were discussed wIth her about positIOns mother
locatIOns, the gnevor was adamant that she wanted to remam a VRS Counselor m Fort
Frances. After unsuccessfully challengmg the decIsIOn to ehmmate her ongmal posItion,
however, that choIce was no longer an optIOn and the gnevor reluctantly accepted the
IMO posItIOn, It was, m reahty and m her perceptIOn, a demotIOn for her, and clearly she
had a great deal of difficulty adJustmg to the new posItion.
Her lll1tlal approach to her new Job can only be seen as embodymg passive resistance.
She was completely uncommurucatlve throughout her traIrung wIth Hayley Snuth, exhibItmg,
as described by Ms. Snuth, an "air of hostihty" Her demeanor was such that Ms, Snuth
wrote a memo to SupefVlsor Calder outhmng the trammg that had been provIded should any
questIOns later anse Counsel for the Umon called tlus an "extraordmary response" and
mdeed, It was, but It reveals the extent ofMs Smith's concern and the extent of Slusarchuk's
resIstance to learrung the Job from the outset.
45
The traIrung proVided by Ms Snuth, however, was very thorough and complete
While It covered a great deal of mformatIOn, whIch perhaps was overwhelnung to Ms
Slusarchuk, examples of every kmd of possible kmd were provIded for her to refer to
later Ms SmIth was also available for reference m the months that followed. But the
gnevor demonstrated no mclinatIOn to learn the matenal herself, mstead seekmg the
answers dIrectly from Ms. Snuth, or worse, refemng her chents to Ms. Snuth. Tms
contmued even after the gnevor receIved the three-week IMO Core Trammg m
September/October 1994, wmch also was qUite extensIve and covered all aspects of the
IMO pOSItIOn.
The time penod mvolved was August 15, 1994 through December 1994, a penod
m wmch the gnevor mIssed no work. Thus, even I accept the gnevor's assertIOn that her
symptoms began to appear m the Fall of 1994, there IS no mdlcatIon that they m any way
mterfered WIth her abihty to learn the Job Her abihty to learn was further demonstrated by
the fact that she receIved As and Bs m the contmumg educatIOn courses that she took on
her own time dunng tms penod.
Consequently, the eVIdence demonstrates that the gnevor receIved appropnate
trammg and mstructIOn m her new pOSItion and, at the outset, there was no medIcal
condItIOn wmch mterfered WIth her abihty to learn and perform the Job Yet she clearly
dId not learn the Job The eVIdence of her mabihty to perform the Job, mdeed, to perform
any aspect of the Job, was overwhelnung, Although the gnevor dId not receive any
46
.
performance appraIsals from SupervIsor Calder, she subsequently dId from SupervIsor
Anderson, startmg m June 1995
From June 1995 forward, Ms. Anderson clearly commurucated the standards of
performance expected of the gnevor, the nature of her shortconungs and the Importance
of meetmg performance standards. The general response from the gnevor was silence,
and It appears, resentment towards Ms Anderson. ThIs is demonstrated by Ms
Slusarchuk's testimony about Ms Anderson and her VieW of her as a "steamroller" The
eVIdence does not support the Druon's assertIOn that Ms Slusarchuk fully cooperated wIth
the Employer's efforts to Improve her performance
While the Employer 11l1tlally adopted a progressIve dlsclphne approach to the
gnevor's performance wIth a wntten repnmand m September 1995 followed by a second
wntten repnmand and three-day suspenSIOn m January 1996, It made numerous efforts to
assIst her m learrung the Job The November 1995 assignment of Gay DaVIdson as 1 1
mentor for three months was a smcere effort to assIst the gnevor At thIS tIme, although
the gnevor had been m the Job for 15 months, the gnevor had an error rate of 98%, delays
m processmg documents and chent mail exceeded three months, and complamts from
dIssatIsfied chents were bemg receIved at the rate of one per day While the gnevor,
because of absences m November and December, was not able to work dIrectly wIth Ms.
DavIdson for the full three months, they still had more than SIX weeks of workmg together
dunng wruch Ms Slusarchuk receIved her assIstance and guIdance Furthermore, dunng
47
thIS penod, Ms. DavIdson successfully ehnunated the gnevor's backlog and kept her
caseload current, so that when the performance contract started m early February 1996,
the gnevor truly was gIven a "fresh start."
In my VIew, the performance contract was another smcere effort to assIst the
gnevor Although Ms Slusarchuk agreed to thIS approach, she dId not follow through.
She dId not bnng her own plan to the dIScussIon as promIsed, nor dId she agree to the final
plan, Her response, agam, was silence.
The performance contract clearly set out the standards expected of the gnevor and
they were more than reasonable The gnevor was to reduce her error rate from 98% to
45% by the end of February and to 20% by the end of March, return phone calls wlthm 24
hours, process the mail daily, treat chents wIth dlgruty and respect, and reduce the number
of complamts by chents from daily to one per month.
It is true, as the Umon asserts, that subsequent events lrutIally conspIred to defeat the
fresh start, namely, the gnevor's rune days of absence m February followed by the SIX week
OPSEU strike, dunng whIch a backlog agam developed. But the Mimstry agreed to extend
the performance contract by three months, mdeed, It dId so tWIce, glvmg the gnevor ample
tIme to catch-up After the strike, while the gnevor was off for mne days m April, she had
only one sIck day m May and three m June These absences were not so numerous as to
prevent the gnevor from meetmg the standards Imposed.
48
Nor, m my VIew, IS there suffiCIent medIcal eVIdence that the gnevor was suffenng
from a medIcal condItIon at tms tIme sufficIent to prevent her from learnmg and
performmg her Job to the extent that she was unable to do so I have carefully revIewed
the medIcal eVIdence contamed m Dr Rao's two reports and her testImony, and what It
reveals IS that at the tIme of dIagnosIs m October 1996, and obvIously for some tIme
before, the gnevor was suffenng from "mtermIttent non-specIfic soft tIssue pam" and that
tms dId, partIcularly dunng flare-ups wmch appeared to be related to work-related stress,
affect her abihty to do the Job There was, as she clanfied m her October 24, 1996 report,
"a dIrect correlatIOn between her soft tIssue pam and her mabihty to do the Job" Further,
she testIfied that although there IS no sCIentIfic hnk between soft tIssue pam and the type
of work performance problems that the gnevor expenenced - tImehness m completmg
reqUIred tasks, dIfficulty m orgamzmg and pnontlZlng her workload, a hIgh error rate and
poor attentIOn to detail - Dr Rao testIfied that m a lot of patIents chromc pam tends to
make them more dIstracted and affects the way they functIOn, theIr orgamzatIOnal ablhty,
short term memory, error rate and so forth. Further, she noted that frequent absences
would cause an adverse Impact on work performance, although, m her VIew, the gnevor
was managmg qUIte well, mIssmg only 10 weeks of work. But she stated that as here,
where the performance problems preceded the onset of pam, the pam dId not cause the
performance problems, although they "could be a perpetuatmg factor" She concluded m
her report that "[b lased on the medIcal findmgs, there IS notmng to suggest that she IS
unable to contmue wIth her current Job" In her testImony, she explamed that gIVen the
49
"paucIty of sIgns and her overall physIcal conditIon", there was "no physical disablhty or
Impairment wmch would prevent her from dOIng the Job" The physIcal demands of the
Job were not such that she could not contInue to do the work.
Thus, taken In Its entIrety, the medIcal eVIdence estabhshes that there was a dIrect
correlatIOn between the gnevor's soft tIssue paIn and her Inabihty to do the Job, but It does
not explaIn the gnevor's complete Inabihty to learn and perform the work of an IMO over
the extended tIme that she held the positIOn. Even if I accept the gnevor's testImony that
her symptoms began In the Fall of 1994, they certaInly were not sufficIent to Impact her
abihty to learn or functIOn at work until, at the earliest, late 1995 She was In the Job
more than fourteen months before the symptoms became sufficIent for her to mISS more
than even one day from work.
Further, the paIn was not constant; there were IntermIttent flare-ups, whIch IS
supported by her attendance record. Her attendance record reveals that she was off for
five days In November 1995, all of December, but then had no absences In January 1996
She mIssed nIne days of work In February, followed by the OPSEU strike (dunng wmch
she was able to serve pIcket hne dutIes), and then was absent for nIne days In April, one
day In May, three In June, seven m July and twelve In August (whIch were, m part, related
to an ear InfectIOn), followed by no absences m September or October 1996 Her
subsequent absences In November and December were due to a fall down her staIrs All m
all, dunng the 26 months she was In the IMO posItIon from August 1994 though October
50
1996, she rrussed only about 10 weeks of work due to SIckness That is not the attendance
record of someone who dId not have an opportumty to learn the Job Further, even
assurrung that the gnevor's abihty to do the Job was affected while she was at work, the
medIcal eVIdence does not explain her absolute and complete mabihty to learn the Job for
the more than two years she worked as an IMO Sometillng more was gOIng on, and that
was eIther her resIstance to the Job or a more general Inabihty and unsUItablhty for the
posItIOn.
Of all the human nghts cases cIted by the partIes, it is the Douglas Bonner v
Ontario Ministry of Health, Insurance Systems Branch, supra, that IS most InstructIve
given the facts of both cases. In Bonner, the complamant alleged that he suffered from
depressIOn and anXiety amountmg to a handIcap under the Ontano Human Rights Code,
whIch affected hIS abilIty to perform the work for WhICh he was employed and played a
part m the decisIon to release hIm from ills employment at the end of hIS probatIOnary
penod. It was further asserted that the complaInant's handIcap could have been
accommodated wIthout undue hardshIp on the employer The employer, m turn, asserted
that Mr Bonner was released because he failed to meet the reqUIrements of ills posItIOn.
It further argued that if hIS unsatIsfactory performance was the result of InCapacIty caused
by hIS handIcap, there was nothmg It could have done to accommodate that handIcap so as
to render the complaInant capable offulfilhng the reqUIrements of hIS Job
The relevant provIsIons of the Ontano Human Rights Code were as follows
51
4(1) [now 5(1)] Employment. Every person has a TIght to equal treatment
wIth respect to employment wIthout dISCTIrrunatIOn because of handIcap
8 [now 9] Infrmgement ProhibIted. No person shall InfTInge or do, dIrectly
or IndIrectly, anytillng that mfrInges a TIght under tills Part.
16(1) [now 17(1)] HandIcap A TIght of a person under tills Act IS not
InfrInged for the reason only that the person IS Incapable of performIng or
fulfilhng the essentIal dutIes or reqUIrements attendmg the exerCIse of the
TIght because of handIcap
Although SectIOn 17(2), willch specIfically deals wIth the duty to accommodate, dId not
eXist at the tIme, SectIon 17(1) was mterpreted to mclude a reqUIrement of reasonable
accommodatIOn. SectIOn 17(2) provIdes
(2) AccommodatIOn. The ComrrussIOn, a board of mqUIry, or a court shall
not find a person Incapable unless It IS satisfied that the needs of the person
cannot be accommodated wIthout undue hardsillp on the person
responsible for accommodatIng those needs, consideTIng the cost, outsIde
sources of fundmg, If any, and health and safety reqUIrements, if any
In the Bonner case, the complamant was aware of but dId not dIsclose hIS mental
handIcap at the tIme of hIS illre In June 1986, and ills handicap was not self-evIdent. The
employer had no Idea that the complamant suffered a handicap untIl he had been workmg
for almost nIne months when hIS condItIon and ItS effect on ills abihty to work were
described to the employer
The board of InqUIry found that the complaInant's performance was unsatisfactory,
that he failed to grasp the obJectives of the vaTIOUS operatIOns and programs, persIstmg In
USIng technIques and approaches that he was adVIsed were mappropTIate, took too long
with ills assIgnments and made a number of mistakes m carryIng them out The eVIdence
52
further showed that the complaInant became depressed shortly after beIng illred, that he
could not concentrate and made "stupId rrustakes", that he entered a maJor depressIve
epIsode by the fall of 1986 willch lasted until mId-February 1987 when he returned to
work, but he was then devastated by a negatIve performance evaluatIOn and letter and
became senously depressed until he was released from employment.
The board of InqUIry found no vIOlatIOn of the Code It determIned that while the
eVIdence estabhshed that the complaInant's performance was not satIsfactory and that hIS
handIcap had an adverse effect on ills performance, "It IS certmnly not clear that 'but for'
ills handIcap he would have performed satIsfactorily" (D/494) The complamant's
testImony mdIcated that he dId not fully grasp what It was that the employer was tryIng to
accomphsh and that he still lacked that understandmg and persIsted In ills dIsagreement as
to how the work was to be done The board found that there was no IndIrect
dlscnrrunatIon because of handIcap smce the "weIght of the eVIdence [dId] not suggest that
the complaInant would have performed satIsfactorily had It not been for the affect (SIC) of
hIS handIcap" (D/498) Or, m other words, on the balance of probabihties, It was not
estabhshed that the "dIrect cause for ills release (unsatIsfactory performance) was itself m
fact caused by hIS handicap " (D/494)
In tills case, the gnevor's soft tIssue paIn may well be consIdered a disabihty wIthIn
the meanIng of the Code See, Barrett et al. v Champagne supra, Chipperfield v British
Columbia (A1inistry of Social Services), supra Yet the gnevor's Inabihty to learn and
53
p
perform the IMO work preceded the onset of any sIgmficant symptoms from that dlsabIhty
for over 14 months That IS a very sIgmficant amount of tIme, and as a result, It IS
"certainly not clear that 'but for" [her] handIcap [s]he would have performed
satIsfactorily" Rather, the gnevor eIther resIsted learmng the Job or was unable to learn
the Job, despIte all of the attempts made to train her m the pOSItIOn and to aSSIst her m that
process BaSIcally, It appears that mltIally she eIther would not or could not learn the Job
and later, possibly, she could not do so because of her "mterrruttent, non-specIfic soft
tIssue pam." The extent to willch that pam prevented her from learmng and performIng the
Job, however, IS not at all clear Dr Rao's report mdicates that there IS a "dIrect
correlatIOn between her soft tIssue pam and her mabIhty to do the Job" but does not
mdIcate the extent to willch it mIght, or more Importantly, dId mterfere Her testImony
mdIcated that the soft tIssue pam dId not cause the poor performance but "It could
perpetuate It." That certamly does not estabhsh, on the balance of probabihtIes, that the
gnevor's unsatIsfactory performance over a 26 month penod was caused by her soft tIssue
pain.
The deCISIon m Re Calgary Co-Operative Association and Calco Club, supra,
CIted by the Umon, is dlstmgUIshable on tills baSIS. There, there was a dIrect and clear
connectIOn between the employee's disabihty and hiS mabihty to do the Job He had qUIte
successfully performed the Job for a number of years before ills dIsabihty rendered hIm
unable to do so AccordIngly, when he was termmated for poor performance willch was
54
dIrectly related to hIS dIsabihty, it was found that the employer dlscnrrunated agaInst illm
because of ills dIsabihty
In Bonner, the board also ruled that accommodatIOn would not have been of
aSsistance It stated "Indeed, there does not seem to have been any way In willch the
complmnant's handicap could have been accommodated In the sense of enabhng illm to do
the work competently when subJect to ItS symptoms. "(D/494) Although ills symptoms
rrught fluctuate so that there rrught be occaSIOns when ills abihty was not notably impaIred,
cIrcumstances could cause a "flare up at any tIme, once agaIn Impedmg ills abihty to
functIOn properly for an unpredIctable penod of tIme." (D/494) In so rulmg, the board
deterrruned that It was not necessary for the employer to show that It took actIve measures
to accommodate hiS handIcap to dIscharge the burden of proVIng that the complaInant was
mcapable of performIng the dutIes of ills positIOn. Instead, "[i]t would be sufficient to
show on a balance of probabihtIes that the handIcap could not have been accommodated
Without undue hardsillp" (D/494) Consequently, the board concluded that even If the
decIsIOn to release illm for faihng to meet the reqUIrements of the positIOn amounted to
IndIrect dIscnrrunatIOn, the complaInant's nghts were not Infnnged "because he was
Incapable of fulfilhng those reqUIrements and no need of ills could have been
accommodated so as to enable hIm to do so " (D/498)
The same conclusIOn IS apphcable here If the gnevor was so debihtated by the
soft tIssue paIn that she could not learn or perform her Job at all, even when present at
55
work, "there does not seem to have been any way In willch the [gnevor' s] handIcap could
have been accommodated In the sense of enabhng [her] to do the work competently when
subJect to Its symptoms." Clearly, the Mimstry could not lower Its standards, nor should it
be reqUIred to do so The nature of the IMO positIOn reqUIres accuracy and timehness m
the completIOn of work so that recipients receive the pubhc assistance they are entitled to
by law Nor IS there any IndIcatIOn that addItIOnal time or traImng would have been of
assIstance The Mimstry proVided the gnevor wIth a great deal of traInIng and assIstance
and a great deal of tIme to learn the Job, and there is no reason to beheve that more would
enable the gnevor to do the work competently Nor would modIfyIng her workload be of
aSSIstance. The problem was not SImply too much work, but the nearly complete mabihty
to do any work correctly While the Employer could have undertaken an ergonorruc
assessment of the workplace, as suggested by Dr Rao, I conclude that itS failure to do so
it not determInatIve That assessment would have only addressed, possibly, any phySical
problems at the workplace, it would not have addressed what Dr Rao called the
"psychosocIal" problems assocIated WIth soft tIssue paIn. Neither the Employer nor the
gnevor or her doctors IdentIfied any measures that mIght have been taken to enable the
gnevor to raise her performance to a satIsfactory level.
The Bonner case is also mstructive on the gnevor's silence about her medical
condItIOn. Although Ms. Slusarchuk testIfied at the heanng about the symptoms she was
expenencIng from the Fall of 1994 onward, she did not dIsclose those symptoms to the
Employer At no tIme did she ever tell Ms Anderson or anyone else In management that
56
she had dIfficulty concentratIng and SIttIng for long penods, that she felt numbness In her
hand, had chest pain or upper and lower back paIn, dIfficulty sleepIng or a dull throb m her
head. Not once The gnevor kept the Employer completely In the dark about the reasons
for her absences until her first Attendance ReVIew meetIng m early May 1996, at wruch
she announced that she had a "MedIcal CondItIon not fully dIagnosed yet, but [wruch] IS
caUSIng some problem In the workplace." By that tIme, however, she was In senous
Jeopardy of dlsrrussal.
Although the grievor IS not dIrectly responsible for the Inadequacy of the medIcal
InfOrmatIOn supphed by her doctors to the Employer's InItial request for mformatIOn m
May, she nonetheless had m her possessIOn addItIonal InfOrmatIOn from them In July and
October wruch she dId not pass on to the Employer, even though she had agreed to do so
In my VIew, gIven the Employer's efforts to obtaIn more specIfic medIcal InfOrmatIOn, It
was not reasonable for the gnevor to supply that mformatIOn only to Dr Rao and not the
Employer As stated In Bonner at D/492
[S]urely an employee who returns to work despIte a contInuIng but rudden
Inabihty to perform In the manner expected has a responsibihty to Inform
the employer, partIcularly If specIal accommodatIOn or treatment IS deSIred.
And surely a doctor whose patIent's condItIOn renders rum Incapable of
performIng rus work properly ought not to wnte a letter to the employer
ImplYIng that the patIent IS ready to return and resume a normal workload.
Yet, m my opmIOn, that IS what happened here
As the partIes' collectIve agreement precludes "dISCnmInatIOn practIsed by reason
of handIcap, as defined In sectIOn 10(1) of the OntarIO Human Rights Code (OHRC)", I
conclude that the reasonIng of the Bonner case should be followed here. There IS
57
InSUffiCIent eVIdence to conclude, on the balance of probabihtIes, that the gnevor's
complete Inabihty to learn and perform the IMO Job for the penod August 1994 through
October 1996 was caused by her dIsabihty, when her symptoms dId not become
pronounced until late 1995, some fourteen months after she started the Job, and she was
able to learn new matenals In courses taken outsIde of work dunng the same tIme penod.
Whether It was plaIn old InabilIty to learn the reqUIrements of the Job, unsUItabilIty for the
posItIon or unwilhngness, the gnevor dId not learn the Job Further, the Mimstry's
assessment of the gnevor was made m good faith and It genuInely tned to assIst the
gnevor learn the IMO posItIOn. Consequently, I cannot conclude, on the balance of
probabihtIes, that the Mimstry's decIsIon to termInate the gnevor because she was unable
to meet the reqUIrements of her posItIOn dIscnrrunated agaInst her because of her
handIcap
I now turn my attentIOn to the Employer's contentIon that It fulfilled all of the
reqUIrements to dIsrruss an employee for non-culpable defiCIency m Job performance under
the standards set out m Re Edith Cavell Private Hospital, supra The eVIdence
demonstrates that the Employer defined the level of Job performance reqUIred and
commumcated those standards to the employee It provIded the gnevor wIth reasonable
supervIsIon and mstructIOn and afforded the employee a reasonable opportumty to meet
the standard The obJectIve eVIdence of the gnevor's mabihty to meet the reqUIsIte
standard was amply demonstrated and the Employer proVIded warmngs to the employee
that a failure to meet the standards would result In dIsrrussal.
58
The only Issue for consIderatIon is whether the Mimstry met itS obhgatIOn to make
reasonable efforts to find alternate employment wItrun the competence of the employee
BasIcally, the Employer looked for alternate employment opportumtIes m the Northern
regIOn but no hmng was beIng done and vacanCIes were not bemg filled, mstead, vacant
posItIOns were beIng ehmInated. No other regIOns of the Employer were consIdered, and
the gnevor was not asked whether she would consIder relocatIng.
Under all of the facts In trus case, and hmlted to the facts of trus case, I conclude
that the Employer's search m the Northern regIOn was reasonable Had It hrruted ItS
efforts to Fort Frances or the Kenora Dlstnct, the outcome rrught well be dIfferent, but the
Northern area encompasses a wIde geographIc area and It was a reasonable area m wruch
to search for alternatIve employment.
In so ruhng I find the declSlon m Re McKellar General Hospital and C. UP.E.
Local 1409, supra, to be Inapphcable There, the arbItrator ruled that whIle the
employer's decIsIOn to remove the gnevor from hIS posItIOn for mcompetence was
JustIfied, allowmg the employee to remam on the Job for seven years reqUIred "takIng
extraordInary steps to find alternate employment." That SItuatIon IS qUIte different than
what occurred here
Moreover, it is not at all clear that a SUItable alternative positIon wlthm the
competence of the gnevor could have been found even had a broader search been
59
undertaken. It IS not clear whether the gnevor would have accepted relocatIng. The
gnevor was not wilhng to relocate when she was surplused m 1993, and the record reveals
that she has a very strong attachment to Fort Frances There is also an issue about the
gnevor's ability to work at the time In any other Job due to her soft tIssue paIn.
Therefore, under all of the facts In trus case, I conclude that the standards set forth
for a dIsrrussal for mabilIty to perform a posItIon in Re Edith Cavell Private Hospital,
supra, have been met. AccordIngly, the gnevance must be dIsrrussed.
As I stated before, trus IS a very dIfficult and sad case Ms Slusarchuk gave many
years of fine servIce to the Mimstry and the commumty for wruch she may be JustIfiably
proud. She sImply could not adJust to the new sItuatIOn m wruch she found herself,
leadIng ultImately to her terrrunatIOn of employment. I sIncerely hope that Ms Slusarchuk
will be able to overcome these events and move on wIth her hfe and career
CONCLUSION
For the reasons set forth above, I conclude as follows
1 The Employer had Just cause to termInate the gnevor from her posItIOn as an IMO for
beIng unable to meet the reqUIrements of her pOSItIon.
2 The Employer dId not dlscnrrunate agaInst the gnevor on the baSIS of handIcap, as
defined m the OntarIo Human Rights Code and mcorporated Into the collectIve agreement
under ArtIcle 3 1
60
3 The gnevance IS therefore dIsrrussed.
10th
Issued trus _ day of August, 1998 In Toronto
~tlu1c p ;f/J h 111 ?(fa
Ran& Hammer Abramsky, Vice-C l air
\
.-../
61
3 The gnevance IS therefore disrrussed.
Issued tills 10th
_ day of August, 1998 m Toronto
~tluk- !-!- 7117 h m ?(fa
Ran& Hammer Abramsky, Vice-C air
!
\ .-../.
61