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HomeMy WebLinkAbout1998-1972.Balog.04-04-21 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1998-1972, 1999-0068 1999-0271 1999-0272, 1999-0273 1999-0759 1999-1475 1999-1845 1999-2084 2000-0013 2000-0014 2000-0333 2000-0334 2000-0454 2001-0590 UNION# 99B316 99B393 99B489 99B490 99B491 99D068 99DI72'99DI73 99D174 99D17S 00B069 00BI07 00E066 00E067 00B19S 00B196 00B222,01F469 01F470 01F471 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Balog) Grievor - and - The Crown m RIght of Ontano (Mimstry of Commumty FamIly and ChIldren's ServIces) Employer BEFORE RandI Abramsky Vice-Chair FOR THE UNION Ed Holmes Ryder Wnght, Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Lucy SIraco and Kelly Burke Counsel Management Board Secretanat HEARING May 1 & 2 July 7 September 20 & 21 Oct. 3 4 10 11 Nov 14 & 21 2000 Jan. 10 11 23 24 2001 March 12 May 9 11 June 19 20 26 27 July 18 August 9 & 10 Oct. 2, 3 Nov 1 Dec 7 & 19 2001 Jan. 16 & 17 Aug. 22 & 23 2002 Jan 27 & 28 May 29 & 30 July 21 2003 2 DeCISIon There are 31 gnevances before the Board, all of whIch ongmally stem from an mJury that the gnevor Mr Gary Balog, suffered at work on January 23 1996 Many of the gnevances mvolve Mr Balog's search for accommodatIOn under the Ontano Human Rights Code and the collectIve agreement. Many mvolve allegatIOns of harassment and dIscnmmatIOn that allegedly occurred to hIm dunng thIS tIme Pnmanly at Issue IS whether the Employer satIsfied ItS duty to accommodate Mr Balog. The heanng revealed the story of a proud, very athletIC man dealIng WIth the loss of hIS abIlIty to engage m phYSIcal actIvIty It mvolves an able man who became dIsabled, m chromc pam, and eventually depressed. It IS the story of mI sunderstandmgs, mIstrust, mIscommumcatIOn, unrealIzed expectatIOns, and fear It IS also the story of dIvestment and the shadow It cast on the accommodatIOn process The heanng m thIS case spanned 39 days m a penod of over three years There are more than a thousand pages of exhIbIts Dunng the heanng, the nature of Mr Balog's dIsabIlIty changed from stnctly a knee mJury to mclude back problems and depressIOn. Facts A. Phase I - The January 23, 1996 Injury Through August 1998 On January 23 1996 Mr Balog mJured hIS nght knee whIle restrammg a resIdent. At the tIme, Mr Balog worked as a RecreatIOn Officer at Syl Apps Youth Centre a resIdentIal 3 facIlIty for young offenders He had worked m that capacIty for SIX years, and had worked wIth the Mimstry smce July 12, 1974 The posItIOn specIficatIOn for the RecreatIOn Officer posItIOn states that the purpose of the Job IS to "plan, develop and Implement a balanced recreatIOn program" for "Young Offenders and psychIatncally dIsturbed adolescents who exhIbIt aggressIve and/or VIOlent behavIOr " SIxty percent of the Job IS to proVIde "leadershIp gUIdance and mstructIOn m the ImplementatIOn of the centres' recreatIOnal program" by ImtIatmg and orgamzmg athletIc actIvItIes such as baseball, basketball, soccer badmmton, etc It mcludes "ensunng the contmued presence, control and safety of reSIdents dunng recreatIOnal penods" and supervIsmg the proper use and care of eqUIpment. ThIrty percent of the Job mvolves conductmg recreatIOnal leIsure assessments on mdIvIdual reSIdents and prepanng and presentmg reports at resIdent's Plan of Care meetmgs It also mvolves developmg, Implementmg and provIdmg leadershIp m non-athletIc type leIsure actIvIty such as hobby handIcraft and lIfe-skIlls programs Mr Balog went to see hIS famIly doctor Dr DavId Reynolds, about hIS knee mJury on January 25 1996 He was referred to Dr Victor Naumetz, an orthopaedIc surgeon. On Apnl 9 1996 Mr Balog was cleared to return to work, wIthout restnctIOns In the two years that followed, Mr Balog went through pen ods where he returned to work wIthout restnctIOns followed by recurrences of pam and further treatments for hIS nght knee He went off work on June 12, 1996 and on July 8 1996 Dr Naumetz recommended an arthroscopIc debndement. The operatIOn took place on August 6 1996 whIch was followed by 4 physIOtherapy On October 21 1996 Dr Naumetz cleared Mr Balog to return to hIS usual dutIes as of October 23 1996 Mr Balog dId not VISIt Dr Naumetz agam untIl September 5 1997 Mr Balog appears to have functIOned reasonably well m the months that followed the debndement, wIth occasIOnal swellIng and pam after work. On July 16 1997 Mr Balog mJured hIS knee agam, playmg badmmton, and was off work untIl July 21 1997 at whIch tIme he agam returned to work wIthout restnctIOns In September 1997 Mr Balog's knee became swollen agam, and Dr Naumetz recommended another debndement as well as the use of a brace and possIble synvIsc (synthetIc Jomt flUId) mJectIOns An ex-ray showed a progressIve loss of Jomt space on the medIal sIde The arthroscopIc debndement took place on September 9 1997 On September 17 1997 Dr Naumetz adVIsed that Mr Balog "wIll be off work for 6 weeks" The followmg day September 18 1997 the gnevor's supervIsor Program Manager Steve Johnston, wrote to Dr Naumetz The letter noted the Mimstry's commItment "to makmg every reasonable effort to provIde accommodatIOns for employees, If deemed necessary for medIcal reasons" and asked hIm to reVIew the Job specIficatIOn of the RecreatIOn Officer posItIOn and the phYSIcal demands of the Job and then IdentIfy "any specIfic restnctIOns and/or lImItatIOns Gary may have" The record IS unclear If Dr Naumetz responded to thIS request. There IS no document m response, yet m hIS testImony at the heanng, hIS records showed that he bIlled for It on October 10 1997 and the amount of the bIllIng mdIcated that It was not a Workplace Safety & Insurance Board (WSIB) mVOIce The record, however contams an October 10 1997 letter to WSIB whIch outlInes the recent treatments proVIded to Mr Balog and hIS dIagnOSIS, along WIth recommendatIOns regardmg treatment - mJectIOn of artIfiCIal Jomt flUId 5 weekly for three weeks, phYSIOtherapy and use of an arthntIs brace He was hopeful that Mr Balog could return to work m SIX weeks On November 3 1997 Dr Naumetz extended Mr Balog's tIme off work for another SIX weeks, and on December 19 1997 he cleared hIm to return to work on January 12, 1998 wIthout restnctIOns, although he was reqUIred to wear hIS brace for work and all sports actIvItIes Accordmgly Mr Balog was off work between September 5 1997 and January 11 1998 Mr Balog testIfied that hIS contmumg knee problems and the brace Impacted hIm emotIOnally He dIscussed how he felt wIth hIS manager Steve Johnston, explammg how hIS mJury was a struggle for hIm as an actIve man, proud of hIS work, yet feelIng that he was no longer capable They dIscussed that he had to do all that he could to return to work and do the RecreatIOn Officer Job as It was meant to be done On February 5 1998 the Mimstry announced plans to transfer the operatIOn of ItS remammg seven dIrectly operated young offender facIlItIes to new operators by the spnng of 1999 Included m the announcement was Syl Apps Youth Centre The ongmal target date for the transfer was the Spnng of 1999 That date subsequently got postponed a number of tImes Syl Apps finally was pnvatIzed on November 30 2000 In May 1998 Mr Balog testIfied that he met wIth Steve Johnston to dISCUSS hIS future work optIOns He stated that Dr Naumetz had adVIsed hIm that he would not be able to contmue mdefimtely as a RecreatIOn Officer and he dIscussed accommodatIOn and other optIOns WIth Mr Johnston on May 8 1998 Included m the dIscussIOns were the pOSItIOns of Dnver Escort, Control and ReceptIOn. At the tIme, Mr Balog testIfied that Mr Johnston felt that the Dnver 6 Escort posItIOn would be perfect and It was avaIlable If he could get It cleared by hIS doctor He stated that Mr Johnston told hIm he would need to have the posItIOn specIficatIOn and Job demands analysIs revIewed by Dr Naumetz Mr Balog thought that was great smce It was a posItIOn that matched hIS skIlls and abIlItIes and mvolved workmg wIth the reSIdents At thIS tIme It should be noted, there were no restnctIOns or lImItatIOns on Mr Balog m regard to hIS home posItIOn of RecreatIOn Officer nor had Dr Naumetz adVIsed the Employer that Mr Balog could not contmue m hIS home posItIOn. On May 11 1998 Mr Balog asked Dr Naumetz about the dnver posItIOn. He verbally descnbed It to hIm, and receIved a note cleanng hIm to perform the Job The May 11 1998 handwntten note states "To Whom It May Concern, Mr Balog would be SUItable for a dnver's pOSItIOn." Dr Naumetz testIfied that he wrote thIS because Mr Balog requested It. The "gISt" he said was that Mr Balog came to hIm and said "I don't thmk I can go back to myoid Job There mIght be a dnver's Job avaIlable If! get a note "Dr Naumetz's understandmg of the Job IS that It mvolved dnvmg people around. There IS some dIspute between the partIes regardmg what was said dunng a May 21 1998 meetmg attended by Mr Balog, Human Resources Consultant Beth BaIley and Manager Steve Johnston. Accordmg to Mr Balog, ImmedIately pnor to thIS meetmg, he met WIth Mr Johnston and showed hIm the May 11 1998 note from Dr Naumetz. Mr Johnston responded that the process was to get a Job demands analysIs and go from there At the meetmg WIth Ms BaIley accordmg to Mr Balog, Ms BaIley dIscussed the process for accommodatIOn - that Job speCIficatIOns would go to the doctor and they would have to be approved. In hIS VIew they were talkmg about one Job - the dnver escort pOSItIOn. His understandmg was that he would take the Job speCIficatIOn to Dr Naumetz who would then make the determmatIOn If he could do 7 It. He testIfied that Ms BaIley stated that there was no Job specIficatIOn for the dnver-escort posItIOn, smce It was a new Job and Mr Johnston agreed that they would need to make one up He testIfied that no other Jobs were dIscussed wIth Ms BaIley at the meetmg. Ms BaIley had a dIfferent recollectIOn of what occurred, based on her notes of the meetmg. Accordmg to Ms BaIley's notes, Mr Balog was told, at thIS meetmg, by Steve Johnston that he would not be accommodated mto the dnver-escort pOSItIOn as he could not do restramts It should be noted, however that no restnctIOns had yet been IdentIfied by Dr Naumetz. Her notes further mdIcate that m regard to the pOSItIOns of Control and ReceptIOn, "Gary doesn't want to go mto ReceptIOn and Control as he would feel he was a caged ammal " Her notes mdIcate that Mr Johnston told Mr Balog that "If hIS restnctIOns allow hIm he would temporanly move mto probably control or receptIOn untIl a permanent pOSItIOn could be found for hIm." Mr Johnston dId not testIfy at the heanng. Mr Balog stated that receptIOn and control were dIscussed bnefly m the May 8 1998 meetmg WIth Mr Johnston, but "not m a senous way" The focus, m hIS VIew was on the dnver- escort J ob The documentatIOn proVIded by the Mimstry on May 22, 1998 addressed to Mr Balog and Dr Naumetz IS lImIted to Mr Balog's home pOSItIOn of RecreatIOn Officer Accordmg to Mr Balog, he took the envelope WIth the documents to Dr Naumetz's clImc smce he could not get a tImely appomtment, but he dId not open the envelope untIl he had Waited many hours to see the doctor When he opened It, he was shocked. It only contamed Job specIficatIOns for Control and ReceptIOn, not the Dnver-Escort Job He dId not belIeve that It contamed the RecreatIOn Officer pOSItIOn specIficatIOn, but acknowledged, on cross-exammatIOn, that It may have He 8 said he told Dr Naumetz that one of the Job descnptIOns was mIssmg, but he left the other mformatIOn wIth hIm On cross-exammatIOn, he testIfied that once he saw that the dnver-escort Job was not there, he left, and dId not leave the documents wIth the doctor The next day he asked Mr Johnston about the mIssmg Job specIficatIOn and was told that the manager for that posItIOn, Ron LIster wanted to have a competItIOn for the Job and deCIde who gets It. In hIS testImony Dr Naumetz dId not recall seemg the May 22, 1998 letter addressed to hIm, nor dId he bIll for completmg It. The forms were not returned to the Mimstry Mr Balog testIfied that he was "scared" by what occurred, and It IS clear that It left hIm frustrated and dISIllusIOned. He stated that he became fearful of bemg abused. In pnor conversatIOns, he said that Mr Johnston had told hIm that the Employer could do anythmg It wanted m regard to accommodatIOn. He stated that no one had told hIm about the process of accommodatIOn - that the Mimstry first tnes to accommodate an employee m theIr home posItIOn, followed by another posItIOn wIthm the Mimstry and then other posItIOns wIthm the government. At the heanng, the process followed m regard to accommodatIOn was outhned by Employee RelatIOns AdVISor Debra Metracas, who adVIsed the Mimstry about Mr Balog's accommodatIOn begmnmg m November 1998 She testIfied that upon an employee's request for accommodatIOn, the Mimstry seeks medIcal mformatIOn about an employee's restnctIOns and lImItatIOns It then IdentIfies the essentIal and non-essentIal functIOns of the employee's home posItIOn and reVIews the medIcal documentatIOn. It develops an accommodatIOn plan, whIch may mvolve among other thmgs, modIficatIOn of dutIes, provIdmg techmcal or phYSIcal 9 supports, or bundlIng of dutIes The plan IS attempted by the employee and revIsed as needed. As new restnctIOns come m, or are revIsed, the process repeats Itself If an employee cannot be accommodated m hIS or her home posItIOn, short of undue hardshIp the employee IS not termmated but IS reassIgned for health reasons, pursuant to ArtIcle 7 5 of the collectIve agreement. In terms of other posItIOns, the Employer first looks to other posItIOns wIthm the Mimstry focussmg on the employee's worksIte m the VIew that It IS "least dIsruptIve" to the employee and the Mimstry She explamed that an employee's worksIte IS famIlIar The employee knows the SIte, the people, and the work. If no sUItable vacancy eXIsts there, the search IS expanded to other locatIOns wIthm the Mimstry followed by other mImstnes m the Ontano publIc servIce Once a potentIally sUItable vacancy IS IdentIfied, a "matchmg" process IS then undertaken, matchmg the employee's skIlls, abIlItIes and medIcal restnctIOns to the essentIal dutIes of the vacancy AccommodatIOn needs m the new posItIOn are IdentIfied and an accommodatIOn plan developed. Ms Metracas explamed that the accommodatIOn process must be thorough and ensure that the Employer has all of the necessary medIcal mformatIOn. It takes tIme to secure the mformatIOn and develop the plan, but the Employer must ensure that the mdIvIdual's nghts are protected, along WIth the nghts of other employees under the collectIve agreement and ensure that operatIOnal needs are met. Ms Matracas testIfied that process was evolvmg dunng thIS penod, 1998-1999 Mr Balog testIfied that he dId not apply for the competItIOn for the dnver-escort pOSItIOn. What occurred, he Said, "burst a bubble" "set me back" and "knocked the wmd out of my salls" He dId not recover m tIme to apply for the pOSItIOn. 10 Mr Balog went off work at the end of May 1998 due to nght knee pam and swellIng. Dr Reynolds agam referred hIm to Dr Naumetz, who cleared hIm to return to work wIthout restnctIOns on June 8 1998 On July 17 1998 however Mr Balog agam had problems wIth hIS knee, and Dr Naumetz wrote a note that Mr Balog "should be off work for 6 weeks" On August 28 1998 for the first tIme, Dr Naumetz authonzed the gnevor to return to work wIth restnctIOns B. Phase 2 - The Attempt to Accommodate Mr Balog in his Home Position (August 1998- July 1999). ThIS second penod predommantly mvolves a dIspute between Mr Balog and the Mimstry concernmg whether or not Mr Balog could be accommodated m the RecreatIOn Officer posItIOn. The Mimstry belIeved that Mr Balog could perform the Job wIth modIficatIOns, whIle Mr Balog belIeved that a permanent accommodatIOn m another posItIOn was reqUIred. ThIS IS also a penod of mcreasmg frustratIOn on the part of Mr Balog and the filIng of hIS first gnevances regardmg accommodatIOn and harassment. As noted above, Dr Naumetz set forth a number of restnctIOns m a letter dated August 28 1998 whIch Mr Balog proVIded to the Mimstry on September 3 1998 The restnctIOns were to wear hIS knee brace, no runmng or Jumpmg, no sudden tWIstmg mvolvmg the lower extremItIes (basketball) no walkmg on uneven ground, lIftmg to a maXImum of 35 kg wIth hIS knee brace and 15 kg wIthout It, no kneelIng, lImIted stairs (4 flIghts) and no phYSIcal restramts These restnctIOns were proVIded after Mr Balog had two dIscussIOns wIth hIS new manager Charles Rice, who took over responsIbIlIty for recreatIOn actIvItIes dunng the summer of 1998 11 There IS no dIspute that these two conversatIOns took place, but exactly what was said IS very much m dIspute Accordmg to Mr Balog, m mId-August he called m to update Mr Johnston and learned that Mr RIce had become Program Manager He testIfied that he told Mr Rice that he would be returmng to work on September 1 but that he was at the stage where he needed accommodatIOn. He explamed to hIm that he was finally commg to gnps wIth the fact that the RecreatIOn Officer posItIOn was no longer possIble and he would be requestmg full-tIme accommodatIOn. He testIfied that thIS was a bIg-step for hIm, partIcularly m lIght of hIS prevIOus expenence m May wIth the escort-dnver posItIOn, and Mr Rice reassured hIm that he was expenenced wIth accommodatIOn, that he would be up-front wIth hIm and there would be no "smoke and mIrrors" Mr Balog testIfied that the conversatIOn was very pOSItIve, and he felt at ease WIth Mr Rice Mr Rice's recollectIOn of theIr conversatIOn was somewhat dIfferent. He also took notes of theIr dIscussIOn. He testIfied that Mr Balog called hIm to dISCUSS hIS return to work and he asked hIm whether he would be returmng to full or modIfied dutIes Mr Balog told hIm that he could not SIt or stand for prolonged pen ods, and that the court escort would be a better fit for hIm. Mr Rice said he responded by saymg that a key reqUIrement of an escort was the abIlIty to restram and hIS restnctIOns would cause a problem WIth that. He then revIewed the "grab bag" or "package of Jobs" avaIlable at the faCIlIty for employees m Mr Balog's pOSItIOn Control, Mamtenance Escort and ReceptIOn. He explamed at the heanng that most of the Jobs at Syl Apps mvolved workmg WIth the resIdents, and very few dId not reqUIre the abIlIty to restram. Accordmg to Mr Rice, Mr Balog told hIm that he dId not want those Jobs, and was aware of a dnver pOSItIOn at ThIstletown and asked whether or not the Mimstry would tram hIm for It. Mr Balog then mdIcated he would return to work WIth full-dutIes because he had gotten the run- 12 around m regard to accommodatIOn before, but that If he dId so hIS leg would only last so long and he would be off on W S.I.B agam. Dunng thIS conversatIOn, Mr RIce advIsed Mr Balog that he would need a doctor's note outlImng what he could and could not do Mr Balog, on cross-exammatIOn, demed that any mentIOn was made of Control, Mamtenance Escort or ReceptIOn dunng thIS conversatIOn, or that he told Mr Rice that he dId not want those pOSItIOns He agreed that he mentIOned the dnver's pOSItIOn at ThIstletown, although he dId not agree that It was on August 12 He agreed that Mr Rice asked hIm for mformatIOn from hIS doctor about what he could and could not do A second conversatIOn took place on August 20 1998 Accordmg to Mr Rice, thIS conversatIOn had a "dIfferent tone" than the earlIer one In thIS conversatIOn, he stated that Mr Balog told hIm that he had worked for 25 years m the Ontano pubhc servIce and he wanted secunty m lIght of the Impendmg dIvestment of the faCIlIty - that was hIS key concern. He testIfied that he had a VIVId recollectIOn of thIS dIscussIOn WIthout hIS notes Mr Rice stated that he told Mr Balog about the need to document hIS need for accommodatIOn, that hIS doctor would have to reVIew the phYSIcal demands analysIs as a startmg pomt. He stated that Mr Balog had some Idea about the restnctIOns he would have, and that he had made an appomtment WIth hIS doctor to obtam them Mr Rice told hIm that m the mean tIme he should look at one of the potentIal accommodated pOSItIOns avaIlable at the faCIlIty - Control, Mamtenance Escort and ReceptIOn. He testIfied that Mr Balog was clear - he wanted a permanent accommodatIOn outsIde of the faCIlIty Mr Rice responded that he could be accommodated permanently but certamly not outsIde the faCIlIty at thIS pomt. Mr Balog then told hIm about another employee who had gone through accommodatIOn at Syl Apps and that the Mimstry faIled to accommodate hIm m a meamngful way untIl the eleventh hour at the Gnevance Settlement Board where they 13 found hIm a permanent accommodatIOn. He dId not want to go that route He wanted to work wIth the Mimstry to find a permanent accommodatIOn that met hIS needs But he wanted no temporary posItIOns, he wanted a permanent accommodatIOn. Mr RIce's ImpreSSIOn was that Mr Balog was prepared to stay m the RecreatIOn Officer posItIOn, wIth modIficatIOns, on a temporary basIs untIl the Mimstry prepared the necessary documentatIOn for a more permanent accommodatIOn. He stated that Mr Balog also mentIOned that he had spoken wIth the Staff Trammg Coordmator and learned that money was avaIlable to tram hIm for the dnver's Job at ThIstletown Mr Balog demed that he told Mr Rice that he was concerned about dIvestment or that he wanted secunty He agreed that he sought a permanent accommodatIOn. In Mr RIce's VIew all of the Jobs that he proposed to Mr Balog - Control, Mamtenance Escort (whIch mvolves escortmg outsIde contractors) and ReceptIOn were all SUItable accommodated posItIOns, as was the RecreatIOn Officer posItIOn, If hIS restnctIOns could be met. In Mr Balog's VIew they were not SUItable On a number of occaSIOns dunng hIS testImony both on exammatIOn-m-chIef and cross-exammatIOn, Mr Balog dIscussed hIS feelIngs about those posItIOns Mr Balog testIfied that he felt that they were mappropnate Jobs m lIght of hIS educatIOn, background and years of expenence They were not meamngful work to hIm. He had no mterest m them. They presented no mental challenge He testIfied that males m those posItIOns took a lot of abuse because Control and ReceptIOn were consIdered the safe place for female workers who were pregnant. He vIewed bemg placed there as management "dumpmg" hIm, Just to proVIde a place for hIm to go He vIewed It as a "pumshment posItIOn." 14 As noted, on August 28 1998 Mr Balog met wIth Dr Naumetz who cleared hIm to return to work wIth restnctIOns Accordmg to Mr Rice, he met wIth Mr Balog on August 28 1998 and Mr Balog lIsted hIS restnctIOns but dId not provIde the August 28 note from Dr Naumetz untIl September 3 Mr Rice testIfied that he told Mr Balog that he eIther had to return to full dutIes or return wIth a clear accommodatIOn, and Mr Balog told hIm he would come back wIth clear accommodatIOn needs as he wanted the dnver's posItIOn at ThIstletown whIch was commg up Mr Balog dId not recall a meetmg on August 28 1998 Mr Rice testIfied that Mr Balog called hIm on September 2 to tell hIm that he dId not want to pursue the dnver's Job at ThIstletown m lIght of the fact that hIS partner worked there He testIfied that Mr Balog added that he had 25 years m and needed to get another four years to get to Factor 80 and he was open to domg a number of thmgs but not Control as he would VIew that as a pumshment. Mr Balog demed that thIS was Said, although he agreed that he told Mr Rice that he was no longer mterested m the ThIstletownJob On September 3 1998 Mr Balog met wIth Mr RIce, even though he was off on vacatIOn on that day He presented the August 28 1998 medIcal note to Mr Rice Accordmg to Mr Rice Mr Balog agam mentIOned hIS desIre to find a permanent accommodatIOn to reach Factor 80 whIch would not happen If he were accommodated wIthm Syl Apps Mr Rice responded that accommodatIOn was a cumbersome process whIch reqUIred the nght documents at the nght tImes to move forward, and Mr Balog stated that he was prepared to work through that process Agam, Mr Balog demed makmg any mentIOn of Factor 80 At thIS September 3 1998 meetmg, Mr Rice agreed to prepare a ModIfied Work Plan mcorporatmg Mr Balog's medIcal restnctIOns by September 8 1998 the date of Mr Balog's 15 return to work. Dunng the meetmg, they dIscussed the types of thmgs that Mr Balog could do such as program planmng, e-maIl, attendance, programs wIth resIdents on escort-status, eqUIpment repair ordenng supplIes, commumty program acqUIsItIOn (i e sWlmmmg, parks and recreatIOn department m OakvIlle) therapy dog program, and dnvmg. Mr Balog's notes of the meetmg outlIne these actIvItIes Accordmg to Mr Rice, he prepared the ModIfied Work Plan on September 4 1998 and called Mr Balog on September 4 to advIse hIm that he could see It that day or pIck It up first thmg Tuesday Imtlally Mr Balog testIfied (and hIS dIary notes of September 8 and 9 confirm) that Mr Rice had not prepared anythmg for hIm upon hIS return to work on September 8 1998 and that Mr Rice had told hIm he was "too busy" to prepare anythmg. He testIfied that he was basIcally told to have no contact wIth reSIdents and was left sIttmg m the RecreatIOn Office wIth nothmg to do The documents show however that Mr Rice prepared an Imtlal ModIfied Work Plan on September 4 1998 On cross-exammatIOn, although Mr Balog at first mSlsted he dId not receIve thIS document, he later acknowledged that he dId receIve It on September 8 when he returned to work. In fact, there IS an e-maIl dated September 8 1998 from Mr Balog to Mr Rice m whIch he refers to "the document that I receIved Sept. 8 1998" and asks some questIOns about It. Shortly after Mr Balog presented hIS own verSIOn of the ModIfied Work Plan to Mr Rice and Mr Rice agreed to the plan drafted by Mr Balog on September 17 1998 He also agreed to Mr Balog's request to reVIew the plan weekly whIch was not the norm Mr RIce had sought monthly reVIews A senes of ModIfied Work Program agreements were sIgned by Mr Balog and Mr Rice between September 18 1998 and November 5 1998 It was Mr Balog's 16 eVIdence that he prepared them because Mr Rice "had no tIme or forgot" and that Mr Rice showed no mterest m the matter He testIfied that he would meet wIth Mr Rice who would ask If anythmg had changed, he would respond "no" and the updated plan would be sIgned. He acknowledged, on cross-exammatIOn, that he dId not raise any concerns about thIS process to Mr Rice at the tIme Accordmg to Mr Rice, at theIr meetmg on September 17 1998 Mr Balog mentIOned hIS concerns about the detenoratIOn of hIS knee and mqUIred about gomg to the Q C.I.C a skIlls- bUIldmg centre for all employees Impacted by pnvatIzatIOn. He testIfied that Mr Balog complamed that havmg put 25 years mto servIce should count for somethmg, but that wIth accommodatIOn havmg served 25 years or two years made no dIfference It was Mr Balog's VIew that dunng thIS penod, he was basIcally domg nothmg and receIved no dIrectIOn about what to do from Mr Rice On cross-exammatIOn, he stated that most of the dutIes dIscussed on September 3 could be performed "m one day" Although he acknowledged that Mr Rice had dIscussed performmg an mventory and other actIvItIes, he stated that such "may have been mentIOned but It was not a dIrectIve" Accordmg to Mr Rice, Mr Balog was to focus on the admmIstratIve aspects of the Job He was not made aware that Mr Balog felt that he was "domg nothmg" dunng thIS tIme On October 23 1998 Mr Balog wrote a letter to Human Resources Consultant Beth BaIley advIsmg her that he had a November 5 1998 appomtment wIth Dr Naumetz and that "[t]here IS a posSIbIlIty that Dr Naumetz wIll recommend a change of my present work assIgnment to assIst m the mamtenance of my knee" He requested "m wntmg the optIOns that wIll become avaIlable to me should thIS occur" mcludmg "all optIOns, nghts, legIslatIOn and 17 processes that are avaIlable should the need anse (e g. accommodatIOn)" CopIed on thIS letter were Syl Apps DIrector Donna Hansplant, Charles RIce and Local Umon PresIdent, VivIan Van Wagner The letter states that he wants the mformatIOn to "allow me to make decIsIOns wIth full knowledge of the optIOns and nghts avaIlable to me " Ms BaIley testIfied that she thought that Mr Balog's request was premature - that "we were not there yet." She responded to hIm by letter on October 30 1998 as follows Dear Gary ThIS IS m response to your letter dated October 23 1998 regardmg mformatIOn regardmg your optIOns, nghts, legIslatIOn and processes m the event that you reqUIre permanent accommodatIOn. It IS the polIcy of the Ontano PublIc ServIce to ensure that all employees WIth dIsabIlItIes are provIded WIth accommodatIOn m employment, m accordance WIth the Ontano Human RIghts Code and the OPSEU Managmg InJUry Illness and Employment AccommodatIOn Program Currently you are bemg accommodated wIthm your own pOSItIOn based on medIcal documentatIOn dated August 28 1998 In the event that further medIcal documentatIOn IS forthcommg whIch precludes you from performmg the dutIes and responsIbIhtIes of your home pOSItIOn, RecreatIOnal TherapIst, every effort wIll be made to aSSIgn you to a pOSItIOn m accordance WIth the medIcal mformatIOn. In order to address your accommodatIOn needs, we would ask you to provIde your Doctor WIth the attached forms for completIOn. If you have any further questIOns, please contact me or your supervIsor No copIes of the legIslatIOn or the Employer's polICIes were proVIded WIth thIS response Mr Balog belIeved that the response was madequate, and on November 9 1998 he wrote to DIrector Hansplant that the mformatIOn he requested was not mcluded. He contmued The deCISIOn to request AccommodatIOn was a stressful process for me personally Faced WIth makmg deCISIOns WIth out mformatIOn has mcreased that 18 stress, as I am aware that the decIsIOns I make carry the potentIal to change my career and effect all facets of my personal and famIly lIfe I decIded to attempt to research thIS mformatIOn myself I am provIdmg copy's [sIc]of the mformatIOn I have located. I agam request mformatIOn m wntmg on the accommodatIOn process, nghts, legIslatIOn, and local agreements and forward thIS request to your attentIOn. I would also respectfully request a meetmg wIth you to dISCUSS these Issues Mr Balog dId not receIve a wntten response to thIS letter but he dId meet wIth DIrector Hansplant concermng the accommodatIOn process The date of thIS meetmg IS not clear m the record although Mr Balog's dIary mdIcates a meetmg WIth Ms Hansplant on October 23 1998 His testImony was that thIS was an emotIOnal meetmg. He told her that, m hIS VIew the "process was crumblIng, that It was not movmg forward." There were "rumours about pnvatIzatIOn" and "my concern - what happens to me')" He told her that he was fearful because there were a lot of healthy employees, WIth both legs, whIle he was not m that pOSItIOn. He stated that he was fearful of the process, the lack of mvolvement and the lack of mformatIOn. He testIfied that they talked about the process of accommodatIOn, whIch led hIm to make a wntten request for accommodatIOn on November 5 1998 followmg hIS appomtment WIth Dr Naumetz on the same date Accordmg to Mr Balog, Dr Naumetz adVIsed hIm on November 5 1998 that contmumg m the RecreatIOn Officer pOSItIOn was damagmg hIS knee and he should be lookmg for another pOSItIOn. A Health InformatIOn Form, lIstmg restnctIOns, was completed by the gnevor at Dr Naumetz's dIrectIOn. It mcluded the restnctIOns noted m the August 28 1998 letter on lIftmg, standmg, bendmg (knees, Waist) walkmg, runmng, pushmg/pullIng, restramts and partIcIpatIOn m sports actIvItIes It added a restnctIOn of 8 hours of work per day 5 days per week, smce "extended hrs/week weakens condI tI on of J omt." 19 What IS not clear m the record IS whether Dr Naumetz was referrIng to the RecreatIOn Officer pOSItIOn as set out m the pOSItIOn descnptIOn or as modIfied by Mr Rice The form sent to Dr Naumetz states "Please reVIew the attached letter and Job descnptIOn, as well as the dutIes lIsted below" In terms of dutIes and responsIbIlItIes, It states "To proVIde care, supervIsIOn and gUIdance to Young Offenders age 12 to 16 years, and to psychIatncally dIsturbed adolescents who exhibIt aggressIve and/or vIOlent behavIOur The abIlIty to take part m the phYSIcal restramt of reSIdents IS an essentIal duty of the pOSItIOn. The partIcIpatIOn m sports IS not an essentIal duty" It IS unclear whether the regular pOSItIOn specIficatIOn for RecreatIOn Officer or the ModIfied Work Plan was attached. In a letter also dated November 5 1998 however Mr Balog wrote to Dr Naumetz m whIch he proVIded "a copy of the Job ModIficatIOns that have been mtroduced to my RecreatIOn Officer pOSItIOn" smce hIS return to work m September 1998 He stated that the modIficatIOns "have eased some of the phYSIcal demands on the mJured nght Jomt however a notIceable declIne and change m condItIOn IS occurrIng." One of the changes noted was an affect "on my nght hIp and low back lImItmg the abIlIty to SIt upnght for any length of tIme" Dr Naumetz testIfied, however that he was not aware of any back Issues and he dId not recall If he receIved thIS letter There IS also no eVIdence that thIS letter was proVIded to the Employer Mr Balog concluded the letter as follows I have attempted smce the date of my mJury m 1996 to contmue my dutIes as a RecreatIOn Officer The demands of thIS pOSItIOn are phYSIcal m nature and reqUIres abIlItIes that I cannot proVIde WIthout causmg harm to myself or nsk to others safety (i e can no longer restram clIents) I feel that a change m employment m the form of an AccommodatIOn may aSSIst m the mamtenance and longeVIty of my condItIOn. Your OpmIOn, EvaluatIOn, RecommendatIOns of thIS optIOn IS reqUIred before any formal actIOns can take place I submIt thIS mformatIOn to you as part of the consultatIve process 20 Dr Naumetz testIfied that he thmks that he agreed at the tIme (Fall 1998) that Mr Balog could not do the Job of RecreatIOn Officer even wIth modIficatIOns He could not, however IdentIfy the modIficatIOns made by the Mimstry It was hIS "ImpressIOn" from Mr Balog, that even though there were alternatIve Jobs avaIlable, the Mimstry was mSIstmg on hIS remammg as RecreatIOn Officer Later that same day November 5 1998 Mr Balog wrote the followmg letter to DIrector Hansplant, requestmg an accommodatIOn to a full tIme classIfied posItIOn wIth the Government of Ontano I have attended the appomtment wIth Dr V Naumetz on November 5 1998 at 10 15 a.m Dr Naumetz has IdentIfied my RecreatIOn Officer II posItIOn and modIficatIOns as not appropnate to mamtam medIcally or physIcally my damaged nght knee Jomt. ThIS permanent dIsabIlIty occurred dunng a restramt of a vIOlent young offender m the gymnaSIUm at Syl Apps Youth Center It IS WIth thIS mformatIOn that I formally Request An AccommodatIOn to a Full Time ClaSSIfied POSItIOn WIth the Government of Ontano I would ask that any pOSItIOns that I have qualIficatIOns for be consIdered. I have 24 years of servIce workmg WIth young offenders m a vanety of dIfferent pOSItIOns Attached I have provIded a resume outlImng my profeSSIOnal qualIficatIOns and expenence Please adVIse me m wntmg If I wIll be accepted mto thIS program and the mformatIOn, process and dIrectIOn that I must follow to find productIve, meamngful employment WIth the Government of Ontano I would respectfully request a tIme that we could formally meet to dISCUSS the AccommodatIOn process Mr Balog also had a number of dIscussIOns WIth Program Manager Charles Rice at thIS tIme mcludmg a meetmg on November 9 1998 Mr Balog testIfied that he told Mr RIce about hIS mcreasmg frustratIOn WIth the accommodatIOn process, partIcularly the lack of mformatIOn and consultatIOn. Mr Balog told hIm that he felt that he was domg the maJonty of the work m regard to hIS accommodatIOn, and Mr RIce responded that he stIll needed to gather more mformatIOn. 21 On November 11 1998 Mr Balog sent a letter to Mr Rice suggestmg a number of open full-tIme classIfied posItIOns that would address hIS accommodatIOn needs "[a]s I have not been made aware of any full tIme classIfied posItIOns that would address my accommodatIOn needs at Syl Apps Youth Center" He sent another letter on November 12, 1998 outlImng a "LISt of Employer's ResponsIbIlItIes" m relatIOn to the accommodatIOn process and work-related Issues, mcludmg a postmg for an Employment Support SpecIalIst posItIOn. On November 13 1998 Mr RIce responded to Mr Balog's letter as follows SubJ ect Permanent AccommodatIOn Request I am wntmg m response to your letters of the past week. At thIS tIme I acknowledge receIpt of your letter of the 5/11 mdIcatmg to Donna Hansplant that you are unable to contmue m your current modIfied work program as per your dIscussIOn wIth Dr Naumetz. At thIS tIme I have asked that you contmue to come to work, however ref ram from workmg wIth the resIdents and any other dutIes that you belIeve would put you at nsk of further mJury Although not on paper It IS my understandmg that you are m agreement. ThIS IS a temporary measure untIl we can come to agreement regardmg the modIfied work program If thIS IS not the case please let me know ImmedIately Please remember that It IS my first responsIbIlIty to accommodate you m your home posItIOn. At thIS tIme I wIsh to be sure that we are clear as to why you cannot contmue m the current modIfied program I belIeve we can meet the accommodatIOn needs by contmumg wIth these aspects of the last modIfied work program we had agreed to We wIll (1) ensure you do not have to 11ft 30 or more kIlo's, (2) ensure you do not have to stand 7 or more hours (3) ensure you do not need to run, (4) ensure that you do not need to push or pull more than 30 kIlos m force (5) ensure that you do not have to restram actmg out reSIdents and (6) ensure that you do not have to partIcIpate m sports actIvItIes In regard to bendmg at the knees, Waist and neck and walkmg I am seekmg clanficatIOn of the restnctIOns If there are any other aspects to your pOSItIOn that I am mIssmg that may reqUIre modIficatIOn please let me know As you mdIcate m your letter of the 5/11 thIS current mJury IS related to the WSIB claim For that reason, I belIeve that It wIll be the deCISIOn of the WSIB m consultatIOn WIth your/theIr doctors to make the determmatIOn that you are unable 22 to contmue m the posItIOn of RecreatIOn TherapIst, not mme or the facIlItIes I wIll take the necessary measures to set up a meetmg mvolvmg yourself, you may bnng a Umon representatIve, a WSIB representatIve, a Human Resources representatIve and myself to clanfy your sItuatIOn, the accommodatIOn process and Human RIghts ImplIcatIOns I hope thIS wIll address concerns raised m your letters of 5 and 9/11 In regard to your letter of 11/11 I suggest at thIS pomt that you apply to each of the posItIOns that are posted so that you may at the very least have an opportumty to compete for the posItIOn. If It IS determmed that you are not able to perform the dutIes and responsIbIhtIes of your pOSItIOn, every attempt wIll be made by myself and Human Resources to find another pOSItIOn m accordance WIth your medIcal documentatIOn and skIlls The completIOn of an employee portfolIo attached, IS the first step m the process In regard to your letter of 12/11 I belIeve most of the Issues raised have been dealt WIth above or through other processes Fmally I WIsh to acknowledge your efforts m lookmg for a SUItable accommodatIOn yourself I do recogmze your bUIldmg frustratIOn WIth the process and by pushmg the process It IS clearly not my mtentIOn to mfnnge on your dIgmty as [a] dIsabled person. I belIeve we have had a healthy dIalogue untIl thIS pomt and It IS my deSIre to have It contmue rather than polanze If there are questIOns or Items I have not addressed please let me know Mr RIce stIll belIeved that he could accommodate Mr Balog m hIS home pOSItIOn, WIth modIficatIOns In hIS VIew the Mimstry had not receIved any medIcal documentatIOn to mdIcate that Mr Balog could not be accommodated, or medIcal documentatIOn to support placmg hIm m a dIfferent pOSItIOn. ThIS remamed Mr Rice's pOSItIOn even after a second letter from Dr Naumetz dated November 25 1998 The November 25 1998 letter outlInes the specIfic phYSIcal lImItatIOns Imposed by Dr Naumetz and addresses Mr Balog's "abIlIty to fulfill the functIOns of a RecreatIOn Officer as you have descnbed." The restnctIOns mcluded the followmg LIftmg - maXImum 5 kIlos Standmg - maXImum 30 mmutes WIth leg movement Bendmg - Knees, Waist - lower extremItIes - no clImbmg, sudden tWIstmg movements, Jumpmg squattmg, runmng or fast walkmg 23 Walkmg - slow walkmg only no longer than 40 mmutes, no walkmg on uneven ground Runmng - absolutely no runmng allowed PushmgIPullIng - 5 kIlos of force (maxImum) PhysIcal Restramts - no restramts of any kmd allowed PartIcIpatIOn m Sports - no partIcIpatIOn m athletIc actIvItIes Hours of Work - 8 hours per day/S day work week The letter contmues Mr Balog has been under my care for the mJury he sustamed to hIS nght knee at Syl Apps Youth Center The mJury has caused IrreversIble damage and has left Mr Balog wIth a permanent dIsabIlIty From the date of mJury to present, Mr Balog has had two debndements (surgIcal procedures) of hIS nght knee Jomt, three extensIve programs of phYSIOtherapy must wear a Brace, IS takmg Motnn (an antI-mflammatory medIcatIOn), Tylenol #3 (pam relIef), had had three courses of Syn Visc InJ ectIOns (artIficIal synvIal flUId) and uses a Tens Umt on a regular basIs These measures have all been taken to mImmIze the contmumg degeneratIOn of hIS nght knee and to assIst Mr Balog m copmg wIth the pam assocIated wIth thIS type of permanent condItIOn. I have dIscussed wIth Mr Balog the demands of hIS present posItIOn. His work as a RecreatIOn Officer has been detnmental to hIS dIsabIlIty If contmued. In addItIOn, the emotIOnal components of these phYSIcal lImItatIOns are Important factors to Mr Balog's well bemg. It IS my professIOnal opmIOn that Mr Balog IS not phYSIcally able to contmue m the assIgned posItIOn of RecreatIOn Officer as descnbed m the mformatIOn you have proVIded for my analysIs Mr Rice testIfied that he read thIS letter to mean that Mr Balog could not contmue m the RecreatIOn Officer Job as It normally IS performed, not as modIfied. He was confused because on the one hand, Dr Naumetz lIsted speCIfic restnctIOns, and on the other hand, Said he cannot contmue m the pOSItIOn. He therefore wanted WSIB to determme whether he could or could not do the Job WIth modIficatIOns He dId not seek clanficatIOn from Dr Naumetz, but mstead turned to Human Resources and WSIB Human Resources suggested a functIOnal abIlItIes evaluatIOn (FAE) There was no follow-up meetmg WIth WSIB as outlIned m the November 13th letter 24 Mr Rice testIfied that relatIOns were becommg somewhat tense at thIS tIme Both he and Mr Balog were frustrated wIth the accommodatIOn process, whIch he descnbed as "cumbersome and slow" The sItuatIOn worsened further after a meetmg held on December 18 1998 Mr Balog testIfied that he was lookmg forward to hIS meetmg wIth Mr Rice to dISCUSS accommodatIOn. In hIS VIew he had provIded the medIcal mformatIOn reqUIred and It was tIme for a resolutIOn. Mr Balog testIfied that Mr Rice began the meetmg by saymg that he was gomg to have to make Mr Balog "Jump through hoops, and he wasn't gomg to lIke It." He stated that he had to be clear why Mr Balog could not do the RecreatIOn Officer posItIOn, as modIfied. At that pomt, Mr Balog asked for a umon representatIve to attend, and Mr Mohar Budhram, an employee of Syl Apps and RegIOnal Chair Human Rights CommIttee, was mVIted m. Mr Balog testIfied that he could not belIeve the "hoops" comment smce he had done all the work regardmg accommodatIOn and was ready to move forward, not backward. He testIfied that Mr Rice asked hIm why he could not do the Job from a wheelchair why he could not referee a basketball game from a wheelchair Mr Balog felt that Mr Rice knew the answers smce he had worked there He knew the clIentele and knew It wasn't safe Mr Balog testIfied that Mr Budhram told Mr Rice that It was not appropnate to ask a walkmg person to work from a wheelchair Dunng the meetmg, Mr Balog also told Mr RIce about comments that co-workers and reSIdents were makmg, callIng hIm "Mr WCB" that he "used to be a RecreatIOn Officer" but now was "always on vacatIOn." He dId not want to reveal names when Mr Rice asked hIm who was makmg these comments, smce he was concerned about a backlash If he reported specIfic mdIvIduals 25 Mr Balog further testIfied that at the December 18 1998 meetmg Mr Rice told hIm that he could not accommodate hIm, and could not address hIS request for full-tIme accommodatIOn at Syl Apps, and that If Mr Balog wanted anythmg done, he should gneve He then told hIm to go home because he had nothmg for hIm there Mr Balog asked If he meant paid leave, and Mr Rice told hIm that because there was no sUItable accommodatIOn at Syl Apps for hIm he was sendmg hIm home wIth pay and would contact hIm Mr RIce, accordmg to Mr Balog, agreed to put thIS m wntmg, but never dId. Mr Rice had a dIfferent VIew of what occurred m the meetmg. He agreed he used the term "wheelchair" m the meetmg but said he was refernng to wheelchair athletes, and he felt that even If Mr Balog was m a wheelchair If hIS restnctIOns put hIm m a wheelchair he could accommodate hIm m the RecreatIOn Officer pOSItIOn. He felt that he could referee the game WIth the support of the extra staff member He testIfied that he was not trymg to be derogatory when he said It, although he agreed that Mr Balog dId not apprecIate the comment. He testIfied that Mr Balog stated that he would be filIng a gnevance smce he was frustrated WIth the process Mr Balog told hIm that after 2 1Iz months, he was stIll a RecreatIOn Officer and that was not where he expected to be Mr Rice said he told hIm that If a gnevance would advance hIS pOSItIOn, he should do It. He demed that he told hIm that he would have to gneve to get anythmg done Mr Rice testIfied that they both agreed that there were no mternal accommodated pOSItIOns that were sUItable In Mr RIce's VIew Mr Balog had already reJected the potentIal avaIlable pOSItIOns - Control, Mamtenance Escort and ReceptIOn. He felt that he could have pushed Mr Balog to do those Jobs, whIch Mr Balog dIdn't want to do or the RecreatIOn Officer 26 posItIOn (whIch Mr Balog felt he couldn't do) but Mr RIce dId not want to do that. He testIfied "I dIdn't want to force hIm to do what he dIdn't want." Instead, he chose to send hIm home wIth full pay and credIts "m the spmt of the season." It was shortly before Chnstmas The functIOnal assessment evaluatIOn (F AE) could not be done before then. There would be no answers for the next few weeks He stated that Mr Balog asked hIm If gomg home was an order and he responded "If that's what It takes, It'S an order" He testIfied that other employees who sought accommodatIOn were also at home, WIth full pay and benefits, not Just Mr Balog, although he agreed that It was unusual Mr Rice acknowledged that Mr Balog had requested at the tIme, and agam m a letter dated January 5 1999 that he put hIS order m wntmg but he never followed through. Mr Rice's notes of the December 18 1998 conversatIOn mdIcate that Mr Balog complamed that he was hIred to do the phYSIcal aspects of the RecreatIOn Job and that what he was able to do had gotten smaller and smaller He wanted dIgmty and respect and hoped that management would recogmze the emotIOnal aspects of hIS pOSItIOn, not Just the phYSIcal In lIght of hIS phYSIcal lImItatIOns, he dId not feel lIke a whole person. His doctor wanted hIm to reduce or elImmate the nsk of further mJury and the chances of gettmg hurt at a desk Job were much less He was frustrated that he had to prove he could not do the Job Mr RIce's notes mdIcate that he responded that hIS doctor needed to clearly explam the phYSIcal hmItatIOns and he would arrange to have a functIOnal assessment done Mr Balog questIOned the valIdIty of the assessment and wanted to know the assessor's quahficatIOns He reIterated that he wanted a full-tIme accommodatIOn, not "left overs" 27 In terms of the "gomg through the hoops" comment, Mr RIce explamed that It was hIS way of saymg that Mr Balog would have to go through the accommodatIOn process Mr Mohar Budhram testIfied that dunng the December 18 1998 conversatIOn, Mr RIce stated that he dId not see any reason that Mr Balog could not SIt m a wheelchair to do hIS Job He stated that he told Mr Rice that hIS comment was mappropnate - that you don't put a walkmg dIsabled person m a wheelchair He also referred Mr Rice to the documents regardmg accommodatIOn prepared by the Ontano Human Rights CommIssIOn, whIch Mr Rice had m a bmder m hIS office At the end of the meetmg, he confirmed that Mr Rice stated that there was "nothmg avaIlable" for Mr Balog and ordered Mr Balog home He confirmed that Mr Rice agreed to put the order m wntmg. On cross-exammatIOn, Mr Budrham stated that he, personally had provIded mformatIOn to Mr Balog about accommodatIOn. He gave hIm a copy of the Ontano Human Rights Code ItS accommodatIOn standards, precedent settmg cases and referred hIm to the CommIssIOn's web sIte He agreed that the process was to first look at the employee's home posItIOn, then accommodatIOn wIthm Syl Apps, then wIthm the Mimstry He testIfied that, m hIS VIew Syl Apps had a good track record m accommodatmg employees WIth dIsabIlItIes, but that somethmg went wrong m Mr Balog's case The eVIdence further showed that Human Resources Consultant Marg Connelly proVIded Mr Balog WIth the Employer's ILLEA polIcy although It IS not clear when. Mr Balog stayed home on full pay and benefits, as dIrected on December 18 1998 but he was very unhappy about It. The clImcal notes of hIS famIly doctor Dr Reynolds, show that Mr Balog went to see hIm on January 11 1999 and was "angry anxIOUS, depressed" and "not 28 sleepmg" because he was sent home and could not be accommodated. On February 2, 1999 Mr Balog asked Dr Reynolds to be referred to Dr LewIs for hIS emotIOnal dIfficultIes Dr LewIs IS a famIly physIcIan wIth trammg and expenence m psychology He IS not a psychIatnst or a psychologISt. Mr Balog had met hIm at Syl Apps where he had consulted on the resIdents, two days per week, for approxImately fifteen years On February 2, 1999 Mr Balog filed eleven gnevances [GSB#1998-1972, OPSEU# 99B316-1A, 99B316-1B 99B316-1C 99B316-1D 99B316-1E, 99B316-1F 99B316-1G 99B316-2A, 99B316-2B 99B316-3A, 99B316-3B] FIve of the gnevances assert that the mformatIOn he had requested about accommodatIOn had not been provIded. The others mvolve the December 18 1998 conversatIOn wIth Mr Rice SpecIfically they protest Mr Rice's comment that "he could see no reason why I could not be accommodated as a RecreatIOn Officer m a wheelchair" and that he "further humIlIated me and destroyed me emotIOnally by askmg me to JustIfy why I could not work m a wheel chair at thIS tIme" They protest Mr Rice's saymg "you're gomg to have to Jump through hoops and you're not gomg to lIke It." They protest Mr Rice's sendmg hIm home from work and advIsmg hIm "to submIt a gnevance If I wanted to obtam a permanent accommodatIOn " He alleged that Mr Rice "dIscnmmated agamst me and mtImated me as a dIsabled person by mformmg me that a group of people would be lookmg at my Job and would provIde advIce as to what components of my Job I could or could not do" even though he had the November 25 1998 letter from Dr Naumetz. The remedIes sought mcluded "a full-tIme classIfied permanent accommodatIOn that recogmzes my mherent nghts to dIgmty & respect and further recogmzes my worth as a dIsabled person wIthout dIscnmmatIOn" wIth no loss of pay and "that any accommodated posItIOn provIded be a challenge to me and any trammg or trammg costs be fully paid by the Employer" In addItIOn, he requested damages rangmg from 29 $20 000 to $150 000 be paid to hIm for "emotIOnal stress, emotIOnal humIlIatIOn, loss of dIgmty respect and self-worth, a loss of self-esteem and equalIty and demal of nghts " A few weeks before these gnevances were filed, on January 18 1999 Human Resources Consultant Marg Connelly was assIgned to Syl Apps to take the lead on a number of accommodatIOn matters, mcludmg Mr Balog's She testIfied that there had been an mcrease m the number of employees requestmg accommodatIOn after the dIvestment announcement. She stated that ongmally there were between seven to ten employees out of 200 seekmg accommodatIOn. The number subsequently tnpled. When she arnved at Syl Apps, there were three employees off work WIth full pay and benefits, mcludmg Mr Balog. She testIfied that they were her "pnonty" for determmmg the next step m the process On January 28 1999 Ms Connelly sent Mr RIce an e-maIl askmg whether or not he had "a pOSItIOn that he [Mr Balog] could come back to work m')" She noted that the Job mIght reqUIre modIficatIOn or "faIlmg havmg a pOSItIOn, do you have extra work that can be done by hIm, gIven hIS lImItatIOns')" She asked hIm to gIve the matter thought and get back to her as soon as he could. Mr RIce responded later the same day His e-maIl states In terms of Gary hIS doctor says that he cannot do the Job anymore I mdIcated to Gary he mIght state that, however the documentatIOn dId not support It. The last meetmg I told hIm he could do hIS Job from a wheel chair from what I understood. Gary dIdn't fully agree WIth that pOSItIOn and pomted out that If he was put m a pOSItIOn of domg that he would not be bemg treated WIth the dIgmty and respect that a dIsabled person should be Smce I dIdn't have any pOSItIOn to accommodate hIm m I told hIm to go home on full pay and when I got It sorted out further I would call hIm A letter to the Dr such as the one your domg for [another employee] would be of great benefit m thIS case also Bottom Ime here he wants a new Job so he gets another 4 years m WIth the OPS and gets hIS penSIOn, If factor 80 IS stIll around. 30 Beth was gomg to make arrangements for a functIOnal assessment for both. ThIS hasn't occurred as yet. When questIOned about hIS Factor 80 notatIOn at the heanng, Mr Rice testIfied that "there's no doubt m my mmd, It was a huge Issue" for Mr Balog and, m Mr Rice's VIew "It was not unreasonable" smce he had 25 years of servIce WIth the government. In early February (between January 29 and February 4), Ms Connelly met WIth Mr Rice, DIrector Hansplant and Employee RelatIOns AdVISor Debra Metracas concermng Mr Balog. At that meetmg, a deCISIOn was made to bnng Mr Balog back to work m a temporary accommodatIOn, coordmate the functIOnal abIlItIes evaluatIOn (F AE) and complete the WSIB forms for Mr Balog's absence smce December 18 1998 The pOSItIOns IdentIfied for the temporary accommodatIOn were Control, School Control and ReceptIOn. Mr Rice testIfied that Ms Connelly was not comfortable WIth Mr Balog bemg off work and was pushmg hIm to find somethmg for Mr Balog to do He was aware of how Mr Balog felt about Control and ReceptIOn but It was "dIfficult to create work and these were real Jobs" He also felt that they proVIded "meamngful" work -" absolutely" As noted, on February 2, 1999 Mr Balog filed hIS eleven gnevances On February 5 1999 Mr RIce sent a letter to Mr Balog about hIS return to work. The letter states ThIS letter IS mtended to clanfy your SItuatIOn at thIS tIme In revIewmg your medIcal documentatIOn from Dr Naumetz dated November 25 1998 It appears that your current dIsabIlIty IS a result of a workplace mJury We have therefore alerted WSIB and submItted the reqUIred forms It IS lIkely that you wIll be asked for further clanficatIOn regardmg the medIcal condItIOn. 31 Weare revIewmg the mformatIOn and seekmg ways to permanently accommodate you m your home posItIOn. As I mdIcated at our last meetmg I am endeavonng to have a functIOnal assessment completed however I have not been able to coordmate thIS task to date At thIS tIme I am requestmg that you report for work at 0830 Monday February 15 1999 at whIch tIme we wIll provIde temporary work untIl we can determme what modIficatIOns are reqUIred to accommodate you permanently m your home posItIOn ImtIally thIS temporary work wIll mvolve trammg you m the posItIOns of ReceptIOn, Control, School Control and Mamtenance Secunty As other work becomes avaIlable from other areas we wIll look at you pIckmg up dutIes from those areas also It IS my mtent to proVIde you wIth meamngful work that recogmzes your mherent nght to dIgmty and respect. If there are speCIfic concerns please address them wIth me ImmedIately I realIze that thIS process If stressful and hope we can come to a satIsfactory resolutIOn to thIS SItuatIOn m the very near future From Mr Balog's perspectIve, the February 5 1999 letter requestmg hIS return to work was a dIrect result of hIS submIttmg eleven gnevances There was no contact from the Employer between December 18 1998 and the February 5 19991etter Mr Balog reported to work on February 15 1999 as dIrected. He was met by Local Umon PreSIdent, ViVIan Van Wagner and he wanted to first meet WIth Mr Rice to dISCUSS the matter He had questIOns to ask Mr RIce who was talkmg WIth another employee They Waited for hIm m the mam vIsItmg area. Mr Balog testIfied that Mr RIce told hIm that he would be trammg m Control and ReceptIOn and other thmgs that came along. Mr Balog Said that he asked to meet WIth hIm, saymg that they needed to talk about how thIS aSSIgnment was deCIded, but not there Mr Rice dIsagreed that they needed to meet smce everythmg had been spelled out, and he asked Mr Balog what he needed to know Mr Balog agam Said that he dId not want to dISCUSS It there but m a more pnvate place He Said he asked hIm three tImes to meet m pnvate, and finally Mr Rice agreed to meet but he could not do It then, and added that If he dId not agree 32 wIth the reasons for the meetmg he would be gomg after hIm for credIts - for the tIme not worked. Mr Balog testIfied that he checked m for Mr Rice every half-hour that mornmg, but Mr Rice was busy and dId not meet wIth hIm untIl 12 00 noon. With Ms Van Wagner m attendance he asked Mr RIce questIOns about accommodatIOn, trammg, pay and hours of work. Mr RIce answered the questIOns Accordmg to Mr Balog, Mr Rice told hIm that he had an oblIgatIOn to provIde meamngful work, and that he replIed that It was Mr RIce's defimtIOn of meamngful work because ReceptIOn and Control were "not meamngful for me" m lIght of hIS educatIOn, background and years of expenence He felt that they were "mappropnate Jobs" wIth "no mental challenge" and that he had "no mterest m these posItIOns" He told Mr Rice that he was also concerned about harassment. He told hIm that males m these posItIOns took a lot of abuse and that the posItIOns were a "catch-all for pregnant female workers" Mr RIce had detaIled notes about hIS dISCUSSIOn wIth Mr Balog on February 15 1999 Also mtroduced mto the record were the notes of Ms Van Wagner although she was not called to testIfy and the Employer raised a hearsay obJectIOn. There IS a lot of sImIlanty between the two sets of notes They mdIcate that Mr Balog had a number of concerns He complamed that he stIll had no mformatIOn about the accommodatIOn process and asked whether or not he was stIll a RecreatIOn Officer He asked why pOSItIOn specIficatIOns for the temporary pOSItIOns had not been sent to hIS doctor for approval, and stated that the phYSIcal and emotIOnal needs had to be balanced. He also raised concern about demeamng comments bemg dIrected to accommodated staff m those pOSItIOns Mr Balog also asked why there had been no response to hIS January 5 19991etter 33 Mr Rice confirmed that Mr Balog was stIll a RecreatIOn Officer and that hIS responsIbIhty was to accommodate hIm m hIS home posItIOn. Although hIS doctor said that he could not do the RecreatIOn Officer posItIOn, Mr RIce belIeved he could accommodate hIm wIthm the prescnbed specIficatIOns Because there was a dIsagreement, a functIOnal assessment would be arranged through WSIB and Human Resources He thought It would be arranged m the next few weeks If the results confirmed the doctor he would proceed wIth the permanent accommodatIOn. Mr RIce told Mr Balog that smce he had an oblIgatIOn to proVIde Gary wIth work, trammg m the temporary posItIOns would be take place as set out m the February 5 letter and that the trammg was to ensure that he could do meamngful work. He agreed that the process was to send documentatIOn on each Job to the doctor for approval but he had revIewed the Job spec agamst the doctor's restnctIOns and had wntten the accommodatIOn plan wIthm the restnctIOns If that was cIrcumventmg the process, he had done so He stated that he had conSIdered the emotIOnal component and felt that he could do all of the pOSItIOns WIth dIgmty and respect. If Mr Balog came to be harassed he needed to mform hIm Although there had been problems m the past, management and the umon had addressed them. Both males and females had been workmg m the pOSItIOns WIth no concerns or complamts In terms of documentatIOn, Mr Rice told Mr Balog that he was not aware of any mformatIOn m wntmg to outlIne the process for accommodatIOn beyond what Beth BaIley had mdIcated m the October 30 1998 letter and that Mr Balog had not receIved anythmg m wntmg from hIm regardmg the January 5 letter as he had not followed through. He would have a wntten response before the end of the day Further he adVIsed Mr Balog that he would be reportmg to Mike MagUIre for general supervIsIOn, but accommodatIOn Issues would rem am WIth hIm. He also adVIsed that he had re-engaged WSIB for decIsIOn-makmg, and asked If Mr Balog was 34 aware of any aspects of the posItIOns that were beyond the doctor's lImItatIOns Mr Balog responded that would be the doctor's decIsIOn. Later that day Mr Rice sent the followmg letter to Mr Balog Dear Gary ThIS acknowledges your requests for 1 Permanent accommodatIOn 2 All mformatIOn m wntmg regardmg all optIOns that are avaIlable to you should the need for permanent accommodatIOn anse Further to our conversatIOn thIS mormng your schedule wIll be Monday to Fnday 8 30- 430 and wIll remam so untIl mformed otherwIse by myself Your ImmedIate supervIsor wIll be Mike MagUIre, however accommodatIOn Issues wIll stIll remam WIth me Please remember If you are the subJ ect of harassment or dIscnmmatIOn It IS to be IdentIfied to both Mike and myself ImmedIately If we are not present IdentIfy It WIth the ShIft Coordmator Please find attached the mformatIOn you also requested thIS mornmg. On March 5 1999 Mr Balog filed several more gnevances [GSB#1999-0068 OPSEU# 99B393-ER-23-99 99B393-ER-24-99 99B393-ER-2S-99] These related to hIS meetmg wIth Mr RIce on February 15 1999 He gneved that Mr RIce VIOlated hIS nghts by refusmg to meet wIth hIm m a pnvate locatIOn, and dIscussed "confidentIal mformatIOn m an open workplace locatIOn." He gneved Mr RIce's comment that "I wIll be lookmg for credIts" If he dId not feel that Mr Balog's request to meet first was JustIfied, whIch he felt was a "threat of repnsal" for pursumg hIS nghts The thIrd gnevance alleges that what occurred was m repnsal for hIS filIng the earlIer gnevances He requested a cessatIOn of the Employer's conduct and compensatIOn of $350000 $300000 and $250000 respectIvely for loss of dIgmty breach of confidentIalIty stress, pam and suffenng. 35 Accordmg to Mr Rice Mr Balog made no obJectIOn to the temporary assIgnments based on the fact that he could not perform the work m ReceptIOn or Control Instead, the obJ ectIOn was that he dId not want to do the work. In terms of an employee's emotIOnal reactIOn to a proposed accommodatIOn, Employee RelatIOns AdVISor Debra Metracas testIfied, on cross- exammatIOn, that an employee's emotIOnal response to an accommodatIOn plan may vary and that there was no duty to accommodate an employee's emotIOnal response An employee's "WIshes and wants" were not a factor Employment AccommodatIOn Consultant Terry Homgsberg, who became mvolved m Mr Balog's case m March 1999 also testIfied that unfortunately a lot of accommodatIOns mIght mvolve a J ob that IS less mterestmg to an mdIvIdual and cause stress In her VIew however that was not relevant. She testIfied that It IS "not relevant whether Mr Balog found the accommodated posItIOn mterestmg or not." An accommodatIOn, she stated, must meet an employee's phYSIcal abIlItIes and skIlls, but not theIr aptItudes or mterests For the next several weeks, Mr Balog tramed m ReceptIOn, School Control and Control In regard to the Control posItIOn, Mr Balog "Job-shadowed" another employee (a cook who was bemg accommodated m Control) for two or three weeks He also took Mimstry vehIcles to the Dnve Clean program. After trammg, he was assIgned to work m these areas, although the pnmary assIgnment was m ReceptIOn. There IS no mdIcatIOn that Mr Balog was unable to perform these posItIOns due to phYSIcal problems or suffered any kmd of pam m performmg them On March 3 1999 Mr Balog and Mr Budhram met wIth Mr Rice concermng an assIgnment to School Control In thIS meetmg, Mr Balog complamed that the posItIOn dId not proVIde hIm wIth dIgmty or respect and was not meamngful work to hIm, nor dId It conSIder hIS 36 qualIficatIOns or years of servIce m dIverse posItIOns He wanted to know why these posItIOns - Control, School Control and ReceptIOn - were now deemed appropnate He also told Mr Rice that staff members contmue to make derogatory comments to hIm even though all staff had receIved dIscnmmatIOn/harassment trammg, but he would not advIse who smce he was concerned about a backlash If he reported specIfic mdIvIduals Mr RIce responded that he was not assIgned to these posItIOns m December because he had prevIOusly mdIcated that these posItIOns were unacceptable and because Mr Rice felt that the F AE was Immment, so there was no sense m forcmg an Issue when resolutIOn mIght occur soon. He told Mr Balog that smce completmg the F AE was protracted, he had a responsIbIlIty to get Mr Balog workmg. Mr Balog then asked whether functIOnal assessments had been done on anyone at Syl Apps and whether he would get a copy of It. Mr RIce told hIm that he would get an answer to that, and that he should get a copy of It. Accordmg to Mr RIce, Mr Balog was not happy and he felt that Mr RIce was forcmg hIm to work. Mr Rice mdIcated that the pOSItIOn was only temporary and Mr Balog responded that whether It was one day or ten, It dId not respect hIS dIgmty Followmg thIS meetmg, a letter was Issued to all staff by DIrector Hansplant concernmg DIscnmmatIOn and Harassment. It was at Mr Rice's suggestIOn that thIS memo was sent. He testIfied that he mformed the DIrector that Mr Balog was saymg that staff was harassmg hIm but would not gIve names so he could not check It out, but It would not hurt to Issue a memo on dIscnmmatIOn and harassment to all staff He felt "It mIght stop It." Mr Rice prepared ModIfied Work Agreements for thIS trammg penod, and a temporary aSSIgnment to ReceptIOn. The first one, for the penod February 15 1999 to Apnl 2, 1999 as 37 well as the second one, March 15 1999 to Apnl 30 1999 state m part that "[d]unng thIS tIme It IS antIcIpated there wIll be resolutIOn to the current dIspute regardmg the employer's abIlIty to adequately accommodate Gary m hIS RecreatIOn Officer posItIOn." Mr Balog refused to SIgn these documents because he dId not agree to the assIgnments Instead, he was dIrected to work m these posItIOns A few mCIdents occurred dunng thIS tIme penod whIch lead to a number of gnevances and mcreased tenSIOn. On March 4 1999 Mr Balog told Rob JamIeson, a manager that a second staff person to cover hIm was not always present m School Control, and Mr JamIeson responded that If he "looked more lIke Tammy they would always be hangmg around." Mr Balog reported thIS to Mr Rice the followmg day Mr Balog's notes mdIcate that "the comment referred to my gender m a vexatIOus manner" Later that same day March 5 1999 Mr Rice spoke to Mr JamIeson about hIS comment. On March 11 1999 Mr Balog gneved that although he reported an act of harassment to Mr RIce, "Mr Rice has not responded to me m any form " [GSB#1999-0272, OPSEU# 99B490] He alleges that hIS "mactIOn serves to support thIS form of VIctImIzatIOn/harassment and sex gender dIscnmmatIOn stnppmg me of dIgmty and respect and a POSItIve work enVIronment to work m" As a remedy he sought trammg for management regardmg dIscnmmatIOn and harassment, a full wntten acknowledgement of the mCIdent and $500 000 for loss of dIgmty respect, stress, humIhatIOn and pam and suffenng. Mr Balog's notes mdIcate that he followed up WIth Mr Rice about thIS mCIdent on March 16 1999 and on March 23 Mr RIce mformed hIm that he had dealt WIth the mCIdent but that he was not allowed to provIde any further mformatIOn. In Mr Balog's VIew management 38 had done nothmg and theIr mtentIOn to deal wIth these Issues was mere "rhetonc" His notes state "[A]ny further acts ofDIscnmmatIOn or Harassment dIrected at me wIll not be reported to any of the management at Syl Apps Youth Centre As to date I feel that they have made a Mockery of the Harassment and DIscnmmatIOn PolIcIes, and the mCIdent that was dIrected at me by a Manager of thIS FacIlIty " A medIatIOn seSSIOn between Mr Balog and Mr JamIeson took place on Apnl 20 1999 under the auspIces of the Mimstry's Workplace Harassment and DIscnmmatIOn Coordmator ThIS led to a resolutIOn of the gnevance Mr JamIeson agreed that hIS comment was mappropnate and apologIzed to Mr Balog, who accepted the apology Another matter mvolved a change m Mr Balog's hours of work. Mr Balog's work schedule changed from an 8-hour day (hIS hours as a RecreatIOn Officer) to an 8 5 hour day wIth a half-hour for lunch. In hIS VIew all other accommodated staff worked 8-hour ShIftS Accordmg to Mr Rice, Mr Balog's former manager Mr Johnston, had Improperly allowed recreatIOn staff to mclude lunch m an eIght hour schedule The RecreatIOn Officer Job IS m Schedule 4 7 whIch has a schedule of 40 hours per week, eIght hours per day On Apnl13 1999 Mr Balog filed a gnevance [GSB#1999-0273 OPSEU# 99B491] that Mr Rice dIscnmmated agamst hIm "by applymg repnsals (hours of work) because of my dIsabIlIty " He sought rem statement of hIS hours of work (8 30 to 4 30), that all extra work be compensated per the collectIve agreement, and $100 000 for contmumg dIscnmmatIOn. Apnl2, 1999 was Good Fnday a statutory holIday Mr Balog reported to work at 8 30 a.m. and after lunch he was mformed by the In Charge Manager that he had spoken to Mr Rice 39 who mformed hIm that "I was workmg for nothmg." Mr Rice was not questIOned about thIS alleged comment. Mr Balog then spoke dIrectly wIth Mr RIce who had called mto the facIlIty Mr RIce told hIm that there must have been a mIsunderstandmg, and Mr Balog told hIm that there was no mIsunderstandmg. His schedule was Monday to Fnday 8 30 to 5 00 and Mr Rice told hIm to leave Mr Balog asked hIm If that was an order and Mr Rice responded "yes" and that he was also ordenng hIm not to report to work on Easter Monday Apnl 5 2000 another holIday Mr Balog then left. The followmg day Mr Balog put m a claim for overtIme for the two statutory holIdays ThIS was demed by Mr Rice On Apnl 14 1999 Mr Balog gneved the comment "he IS workmg for nothmg" and the fact that he was ordered not to work on Apnl 2 and Apnl 5 [GSB#1999-0271 OPSEU# 99B489] The gnevance alleges that" [t]hese humIlIatmg statement made by Mr Rice are both msensItIve, dIscnmmatmg and unwanted, because I am a person wIth a dIsabIlIty" He asserted that "thIS partIcular manager contmues to Impose subtle repnsals agamst me because of my dIsabIlIty" In terms of remedy he sought to have Mr Rice termmated ImmedIately that all managers be educated m the Workplace DIscnmmatIOn and Harassment polIcy and $500 000 for stress, pam and suffenng and dIscnmmatIOn. Subsequently Mr Balog was paid for workmg the two statutory hohdays m questIOn. On March 8 1999 the Mimstry prepared another letter for Dr Naumetz, seekmg clanficatIOn smce "some of the medIcal mformatIOn prevIOusly proVIded IS mIssmg or unclear" The letter to Dr Naumetz mdIcated that the RecreatIOn Officer posItIOn mvolved both athletIc actIvItIes and leIsure actIvItIes and that m "thIS accommodatIOn we wIll severely curtaIl partIcIpatIOn m the athletIc areas and mcrease mvolvement m the leIsure actIvItIes" It outlIned 40 the proposed modIficatIOns and attached the accommodatIOn plan, whIch was, m part, handwntten. The letter also asked a number of specIfic questIOns On March 11 1999 Mr Balog sent an e-maIl to Mr RIce concermng the March 8 1999 letter for Dr Naumetz It states that the document provIded was not clear and that the handwntten accommodatIOn plan was hard to read. He adVIsed that he was able to obtam an appomtment wIth Dr Naumetz for Apnl 23 1999 The e-maIl states, m part "As you have repeatedly sent me back to Dr Naumetz for mformatIOn clanty m your questIOns wIll assIst Dr Naumetz m provIdmg you the mformatIOn you are requestmg." Mr Rice then typed up the accommodatIOn plan for Mr Balog to gIve to Dr Naumetz on Apnl 23 At about thIS same tIme m March 1999 the Mimstry hIred Employment AccommodatIOn SpecIalIst Terry Homgsberg to aSSIst m regard to Mr Balog's accommodatIOn, among others Ms Homgsberg was hIred on a fee-for-servIce baSIS, ten hours per week, to consult WIth management Her role was to consult and adVIse - define the steps, help prepare letters to doctors, mterpret medIcal mformatIOn, reVIew the accommodatIOn plan, and make referrals Ms Homgsberg testIfied that she ImtIally met WIth Mr Rice and Marg Connelly and on March 29 1999 she met WIth Mr Rice and Mr Balog, as well as Mr Balog alone The focus was on accommodatmg Mr Balog m hIS home pOSItIOn. In theIr pnvate meetmg, Ms Homgsberg testIfied that Mr Balog stated that he felt that the plan to accommodate hIm m the RecreatIOn Officer pOSItIOn was unreasonable He felt It was msultmg to not perform the phYSIcal component of the Job and he was concerned about the nsk of a re-mJury His doctor dId not want hIm to contmue m the Job She testIfied that thIS led to a dIscussIOn about the need for an F AE She stated that she explamed that an F AE was an obJ ectIve assessment of an 41 mdIvIdual's abIlItIes and tolerances They dIscussed the nature of the test m a general way - that he would be asked to hft, carry push, and pull over a two-day penod. She told hIm that she would find a faCIlIty that would also do a Job match, not Just an FAE She then asked hIm to complete a perceIved abIlItIes questIOnnaire and pOSItIOn demands analysIs He told her that he would get an opmIOn about that and forward the documents to her but he never sent the documents to her Ms Homgsberg testIfied that Mr Balog dId not obJect to attendmg an FAE, nor was he ordered to go She told hIm that an F AE was part of the accommodatIOn process and that It would be m hIS best mterests to go She dIsagreed that she told hIm that he had "no chOIce" about attendmg. Ms Homgsberg also testIfied that they dIscussed hIS temporary accommodatIOn on March 29 He told her that he felt that the pOSItIOn was an "msult" that It dId not match hIS skIlls or expenence When questIOned at the heanng, she stated that he dId not tell her that he could not do the temporary Job because of pam, but stated that It dId not match hIS abIlIty and skIlls Ms Homgsberg testIfied that there was a tIme constramt m regard to settmg up the F AE Mr Balog's next appomtment WIth Dr Naumetz was scheduled for Apnl 23 1999 and she wanted to have the F AE report for hIm to take to Dr Naumetz on that date She also wanted a faCIlIty that was not too far away and she wanted a Job match evaluatIOn, along WIth an FAE She testIfied that the CanadIan Back InstItute (CBI) m MissIssauga, was the only faCIlIty that would commIt to a five-day turn around, and so she scheduled the F AE for hIm on Apnl 13 and Apnl 14 at the CBI. On Apnl 6 1999 she telephoned Mr Balog and left hIm a VOIce mall 42 regardmg the CBI appomtment, and told hIm that If he had any questIOns or concerns he should call her He dId not call her Mr Balog testIfied that the first knowledge he had about the F AE was a stIcky note left for hIm by Mr Rice on Apnl 6 1999 It states CanadIan Back InstItute 90 Dundas Street 905 272 0008 12 & 13/4 Time to Be Confirmed Accordmg to Mr Balog, no other mformatIOn was provIded to hIm. He stated that he receIved no mformatIOn about what a functIOnal assessment consIsted of He demed that he receIved thIS mformatIOn from Terry Homgsberg or that she left a message for hIm on Apnl 6 1999 He stated that she provIded a "vague explanatIOn" that It mvolved "testmg of some form" but no detaIls He testIfied that he asked her a number of tImes, If he had a chOIce about attendmg, and that she first told hIm that It was m hIS best mterests to attend, then told hIm he had no chOIce He also testIfied, however that although he talked WIth Ms Homgsberg about an F AE, she dId not tell hIm that she would be settmg one up He felt that the Employer's compellIng hIm to attend the F AE was dIscnmmatory because they already had the reqUIred mformatIOn from Dr Naumetz. EarlIer m March, Mr Balog had asked Mr Rice whether anyone else at Syl Apps had an F AE, and If so how many On March 5 1999 Mr Rice responded bye-mall that functIOnal assessments were not done on everyone, that "they tend to be requested when there IS a dIspute between the employee and management as to accommodatIOn needs, such as the current SItuatIOn we find ourselves m." In Mr Balog's VIew Mr RIce dId not respond to hIS questIOns He 43 testIfied that he was not aware that he was bemg sent for the F AE m order to resolve a dIsagreement about whether he could perform the RecreatIOn Officer Job WIth modIficatIOn. On Apnl 12, 1999 Ms Homgsberg prepared a referral letter to CBI, askmg them to determme "whether WIth accommodatIOn, he IS able to contmue workmg" as a RecreatIOn Officer The accommodatIOn plan developed by Mr Rice was attached as well as a Job descnptIOn. In the letter Ms Homgsberg descnbed the mJury that led to Mr Balog's SItuatIOn, the medIcal treatments he had receIved, and hIS medIcatIOns She contmued Overall, Mr Balog descnbes hIS Job as phYSIcal m nature and does not feel able to work m the capacIty of a recreatIOn officer even WIth the proposed accommodatIOn plan. GIven the attached Job descnptIOn and accommodatIOn, please comment, m lIght of your functIOnal findmgs, whether Mr Balog IS phYSIcally able to contmue workmg m hIS present Job He IS temporanly bemg accommodated m other pOSItIOns wIthm the faCIlIty such as the mam control booth and school control statIOn. For half-days on Apnl 13 and Apnl 14 1999 Mr Balog attended the assessment at the CBI. Mr Balog testIfied that an outlIne of the testmg was provIded to hIm when he arnved and he was told that If he expenenced pam, he should stop or take a break. He said that there were tImes when he was m pam, and took a break. He dId "the best I could" and "went beyond what I should have" and "paid for It." He stated that by the end of the test the first day hIS leg was swollen, hIS back was sore, he had dIfficulty walkmg, and was "m absolute pam at work" later m the day He dId not, however adVIse management "and no one asked." The second day of testmg "compounded the pam." By the end, he was "m worse shape than the day before" He was not Impressed WIth theIr testmg or procedures and they had hIm domg thmgs that "were not wIthm my restnctIOns" although he dId not tell the testers that. He felt that he had to do the test, that he had "no chOIce" and that there would be repnsals If he dId not. He felt "put through the meat gnnder" and It took hIm three weeks to recover 44 Two months later on June 16 1999 Mr Balog filed a gnevance that the Employer "ordered me to report to the CanadIan Back InstItute where I was subJected to a functIOnal assessment." It asserts that hIS nght to pnvacy was vIOlated. In terms of remedy he sought an acknowledgement by the Employer that theIr dIrectIOn was mappropnate, an order that the practIce cease, and "$750000 for pam and suffenng as a result of thIS malIcIOus practIce" Mr Balog testIfied that he filed thIS gnevance because he was gIven no chOIce about attendmg and no pnor mformatIOn about It, and because CBI was not provIded any background mformatIOn about hIm The test was pamful and stressful, and he was reqUIred to return to work. He felt that management was not entItled to the document because they already knew he was dIsabled, and knew from Dr Naumetz, that he was not able to perform the RecreatIOn Officer posItIOn. In hIS VIew the Employer's requlflng hIm to take the test was dIscnmmatory and harassment. Accordmg to the CBI report, "[p]nor to the functIOnal evaluatIOn, Mr Balog read, understood and sIgned the mformed consent outlImng the clIent's oblIgatIOn to ImmedIately mform the therapIst of pam or dIscomfort dunng the testmg." Mr Balog's sIgned consent form was mcluded m the record. The consent form outlInes the testmg to be done and the purpose of the test - "to compare my current phYSIcal abIlItIes WIth the phYSIcal demands assocIated WIth my pre aCCIdent/inJury status" It states that he understands that "I may expenence symptoms assocIated WIth exertIOn" and that he had an oblIgatIOn "to ImmedIately mform the therapIst of pam, fatIgue of dIscomfort that I may expenence dunng and ImmedIately after testmg." It states that he understands "that partIcIpatIOn m the test IS voluntary " that "I can stop or delay further testmg If I so deSIre " 45 An evaluatIOn ofMr Balog's abIlIty to partIcIpate m the functIOnal assessment was done at the begmmng of the test. The tester found "no physIcal reason preventmg Mr Balog from partIcIpatmg m the FunctIOnal AbIlItIes EvaluatIOn wIthm hIS abIlItIes and pam tolerances" Subsequently on February 21 2000 Mr Balog filed another gnevance [GSB#2000- 0013 OPSEU# 00E066] wIth respect to the dIsclosure of the CBI report to the Employer wIthout hIS consent. At the heanng, however Mr Balog's sIgned consent form for the release of the report to the Employer was mtroduced mto the record. The prelImmary report of the CBI was faxed to Ms Homgsberg. She made a number of edItonal, but not substantIve, changes She testIfied that CBI dId not have to accept her changes If they felt otherwIse The final report, dated Apnl 18 1999 concluded as follows Mr Balog's pnmary barners for returmng to the dutIes as outlIned m the accommodatIOn report are hIS nght knee range of motIOn and strength lImItatIOns These lImItatIOns prevent hIm from establIshmg a stable base of support for lIftmg, carrymg and other actIvItIes mvolvmg knee extenSIOn from a squat pOSItIOn. ThIS bIOmechamcal problem leads to a sIgmficant relIance on upper body strength whIch m turn leads to reported back fatIgue and pam. Because of the mstabIlIty and lack of strength m the knee and the bIOmechamcal changes assocIated WIth the mabIlIty to establIsh a safe base of support, Mr Balog wIll not be able to safely 11ft or mampulate the weIghts that are reqUIred/stated m the accommodatIOn report. Ms Homgsberg dIscussed the CBI report WIth Mr Rice, mcludmg whether the accommodatIOn plan could be reVIsed to meet hIS tolerances as set out m the report. It was Mr Rice's VIew that further modIficatIOn could be made On Apnl 21 1999 Ms Homgsberg provIded a number of documents to Mr Balog to provIde to Dr Naumetz, mcludmg a letter dated Apnl 20 1999 a copy of the CBI report, and a 46 copy of the accommodatIOn plan. She also enclosed for Mr Balog mformatIOn about her role wIthm the Mimstry as he had requested. The Apnl 20 1999 letter to Dr Naumetz states that the CBI found that "Mr Balog meets the standmg and walkmg reqUIrements as outlIned on the accommodatIOn plan, but does not meet the reqUIrements re settmg up eqUIpment between 15 and 35 kg." Rather he "IS able to 11ft 30lbs on a frequent baSIS and carry 40lbs x 10 meters" She wrote "It IS sIgmficant to note that followmg a dIscussIOn WIth Mr Balog's program manager Mr Charles RIce, the present accommodatIOn plan can be revIsed to accommodate hIS restnctIOns and present tolerances as outlIned by the assessment findmgs " The letter states "Please notIfy me whether WIth the proposed change to the current accommodatIOn plan, Mr Balog can contmue workmg as a recreatIOn officer In addItIOn, any other mformatIOn that you feel may be of aSSIstance to US m accommodatmg Mr Balog m hIS Job as a recreatIOnal officer would be apprecIated." Dr Naumetz responded by letter dated Apnl 23 1999 the date that he saw Mr Balog. He states that ''''[t]here are a number of senous concerns from my pomt of VIew WIth thIS Employment AccommodatIOn Planmng Form." Even though there would be a second staff member "shadow" at all tImes, he dId "not thmk It realIstIc for a man who reqUIres an artIfiCIal knee Jomt to be mvolved m any recreatIOn program mvolvmg young adults" smce he "would be there only to verbally gUIde them." It contmues "He would not be able to mstruct anythmg by performmg and he would be hamstrung m hIS efforts by havmg to summon a second person at all tImes when he wanted anythmg done" In terms ofweanng hIS knee brace whIle settmg up eqUIpment between 15 and 35 kg. he stated that "even WIth a knee brace, he wIll have dIfficulty WIth swellIng and pam and gIvmg 47 way If he even attempts to do thIS ThIS too IS ImpractIcal" He stated "His arthntIc knee basIcally from my pomt of VIew prevents hIm from domg almost anythmg physIcal" It should be noted, however that m Ms Homgsberg cover letter of Apnl 20 1999 she specIfically noted that CBI had found that hIS tolerance was "hftmg 30 Ibs on a frequent basIs" and that he was able to "carry 40 Ibs for 10 metres" and asked Dr Naumetz to comment on those lImItatIOns In Dr Naumetz's VIew Mr Balog could not proVIde care, control or custody of resIdents, and hIS safety would be at nsk If he dId. He dId not understand how Mr Balog could aVOId tWIstmg, Jumpmg, squattmg or walkmg fast "yet he mIght be expected to supervIse reSIdents on escort status whIle weanng hIS knee brace" He contmued. ThIS to me IS totally ImpractIcal I cannot Imagme hIm supervIsmg reSIdents on escort status If they are young offenders He would be totally useless to try to prevent any type of outbreak or behavIOural problem mvolvmg any type of phYSIcal movement, etc It seems to be that, gIven thIS man's lImItatIOns, It IS useless to try to desIgn aJob for hIm as a recreatIOnal officer when he wIll, m actual fact, be only a 1/3rd recreatIOnal officer It seems an exerCIse m futIlIty and rather than pursue thIS Ime of reasomng, I would suggest that a Job be found for hIm where he would be m an appropnate accommodatIOn where hIS background m the field can be put to use m a sedentary settmg. Ms Homgsberg was qUIte cntIcal of Dr Naumetz's Apnl 23 1999 response Her first reactIOn was that he dId not address the questIOn of the whether the revIsed accommodatIOn plan was feasIble Her second reactIOn was that Dr N aumetz was makmg recommendatIOns about accommodatIOn and determmatIOns of what was appropnate such as bemg a 1/3rd RecreatIOn Officer when hIS role was to proVIde restnctIOns and lImItatIOns Her recommendatIOn to management was that the next step should be an mdependent medIcal exammatIOn (!ME) 48 Dale EllIott, who became the DIrector of Syl Apps m July 1999 agreed wIth Ms Homgsberg's VIew about the role of the doctor m the accommodatIOn process In her VIew the doctor's sole Job was to proVIde the employee's medIcal restnctIOns and hmItatIOns It was not to advIse on the appropnate accommodatIOn. ThIS VIew was also shared by Ms Metracas m her testImony On May 3 1999 Marg Connelly faxed the CBI report, the accommodatIOn plan, the RecreatIOn Officer Job specIficatIOn and PDA to WSIB askmg whether Mr Balog could perform the RecreatIOn Officer Job as modIfied. She made follow-up calls on May 7 and agam on May 18 1998 She subsequently spoke to a manager about the lack of response, and was advIsed that the claims adJudIcator would call her the next week wIth a response On June 7 1999 the WSIB claims adJudIcator Mary VUJICIC, telephoned Ms Connelly and advIsed that m her opmIOn, the accommodatIOn plan took away the essentIal dutIes of the RecreatIOn Officer posItIOn. On June 15 1999 Ms Connelly wrote to the claims adJudIcator askmg her to advIse "where you feel that we are takmg away the essentIal dutIes of the Job" The letter states "The manager does not feel that we are takmg away any of the essentIal dutIes of the Job and wIth the accommodatIOn plan that has been developed for Mr Balog we feel he IS at the least nsk possIble" After thIS, WSIB arranged to have an ergonomIc assessment to further assess the SUItabIlIty of the proposed accommodatIOn plan. On June 28 1999 WSIB ErgonomIc SpeCIalIst Shelley GIbbons attended at Syl Apps, along wIth Mr Balog, Marg Connelly Program Manager Steve Johnston and Local Umon PresIdent VivIan Van Wagner The purpose of the VISIt was to assess the RecreatIOn Officer Job 49 "to determme If It IS wIthm hIS current medIcal precautIOns and to evaluate the accommodatIOn proposed by the Employer" In a report dated July 7 1999 Ms GIbbons determmed that the RecreatIOn Officer posItIOn "exceeded the worker's current medIcal precautIOns" and the Employer's proposed accommodatIOn "elImmat[ed] the maJonty of the essentIal dutIes from the Job but thIS IS not a feasIble optIOn for the worker on a long term or permanent basIs" Her recommendatIOn was as follows It IS the opmIOn of thIS ErgonomIcs SpecIalIst that the work's pre-mJury Job of RecreatIOn Officer II cannot be accommodated wIth feasIble accommodatIOns to allow the worker to return to work wIthm hIS medIcal precautIOns As dIscussed dunng the worksIte assessment, the employer should be lookmg for other Jobs wIthm the worker's medIcal precautIOns Once a potentIal Job IS IdentIfied, the workplace partIes (worker employer umon) should dISCUSS the dutIes and phYSIcal demands of the Job to ensure It IS wIthm the worker's medIcal precautIOns The workplace partIes should be able to IdentIfy any accommodatIOns reqUIred to help the worker safety and successfully return to work. On July 16 1999 WSIB claims adJudIcator Mary ViSICIC confirmed that the proposed accommodatIOn was not sUItable smce It elImmated a number of essentIal dutIes from the Job She wrote "GIven the above, I trust you wIll contmue to work WIth Mr Balog to IdentIfy other Jobs that would meet hIS permanent medIcal precautIOns" The Employer dIsagreed WIth the assessment, but accepted It. Accordmgly the Issue of whether or not Mr Balog could be accommodated m hIS home pOSItIOn of RecreatIOn Officer was finally resolved. The Issue now became one of a health reassIgnment. 50 C. Phase 3 - The Reassignment to Control (July 1999- December 1999) With the Employer's acceptance of the WSIB determmatIOn that the RecreatIOn Officer posItIOn, as modIfied, was not a sUItable accommodatIOn, the process became an Issue of a health reassIgnment. ArtIcle 7 5 of the collectIve agreement provIdes Where, for reasons of health, an employee IS assIgned to a posItIOn m a classIficatIOn havmg a lower maXImum salary he or she shall not receIve any salary progressIOn or salary decrease for a penod of SIX (6) months after hIS or her assIgnment, and If at the end of that penod, he or she IS unable to accept employment m hIS or her former classIficatIOn, he or she shall be assIgned to a classIficatIOn consIstent WIth hIS or her condItIOn. ThIS development occurred at the same tIme that a new DIrector was assIgned to Syl Apps, Dale Elhott. It also comcIded WIth Mr Balog bemg off work, effectIve July 3 1999 due to "anxIety and depressIOn (stress-related)" whIch necessItated a penod of tIme away from work "as yet undetermmed" as set out m a medIcal note from Dr LeWIS Ms EllIott took over as DIrector of Syl Apps on July 6 1999 She testIfied that she revIewed all of the accommodatIOn files, mcludmg Mr Balog's, m preparatIOn for determmmg the Employer's next steps On July 15 1999 Beth BaIley called Mr Balog to mqUIre about hIS portfolIo and resume, whIch had not yet been submItted. It had been provIded to hIm on November 13 1998 Mr Balog agreed to submIt It by July 21 and he dId. When asked why he had not submItted the portfolIo before then on cross-exammatIOn, Mr Balog testIfied that he dId not see or place any Importance on the portfolIo gIven management's mactIOn m regard to accommodatIOn. He had no faith m the process and dId not belIeve It would make a dIfference 51 Accordmg to Beth BaIley and Marg Connelly as well as Debra Matracas, the portfolIo IS very Important when an employee IS seekmg a health reassIgnment to another posItIOn. It IS the tool used by management to match avaIlable posItIOns to an employee's skIlls, expenence and abIlItIes In Ms BaIley's VIew the portfolIo that was submItted on July 21 1999 was only partIally completed. It dId not mclude any of hIS trammg or expenence m Control, School Control or ReceptIOn On July 29 1999 DIrector EllIott met wIth her management team, mcludmg Steve Johnston, Charles Rice Mike MagUIre, and Beth BaIley to dISCUSS a number of accommodatIOn cases, mcludmg Mr Balog's Accordmg to Ms EllIott, management "looked at what we could offer wIthm the facIlIty" At the tIme, there was a vacancy m Control because an employee m that posItIOn had successfully competed for another posItIOn. Based on management's reVIew of Mr Balog's restnctIOns, skIlls and abIlItIes, employee portfolIo trammg, expenence and resume, It was decIded to reassIgn hIm, for health reasons, to the posItIOn of Control Officer Ms EllIott acknowledged, on cross-exammatIOn, that she dId not personally consult wIth Mr Balog about thIS decIsIOn or seek hIS mput. She stated that It IS the manager's responsIbIlIty to keep m touch wIth the employee, not the DIrector's She stated that an employee may obJect and VOIce theIr opmIOn about an accommodatIOn, but It IS the Employer's decIsIOn to make Ms EllIott testIfied that the usual practIce IS to send the posItIOn descnptIOn and PDA to the employee's doctor to reVIew except where there IS suffiCIent mformatIOn on file to make the decIsIOn. In thIS case management felt that It had suffiCIent mformatIOn based on ItS knowledge of the posItIOn and Mr Balog's medIcal restnctIOns Management also consIdered the fact that 52 Mr Balog had successfully tramed for and worked m Control for a penod of tIme m the Spnng of 1999 A meetmg was scheduled to advIse Mr Balog about the reassIgnment to Control Officer for September 27 1999 The adJudIcator for WSIB was mVIted m order to answer any questIOns that Mr Balog mIght have regardmg hIS entItlement under that statute The adJudIcator was unable to attend but the meetmg proceeded, as scheduled. There IS no testImomal eVIdence m the record regardmg when Mr Balog was adVIsed of thIS meetmg or what was said to hIm regardmg hIS attendance The only eVIdence IS Mr Balog's wntten "History of Worker" whIch he provIded to WSIB on December 16 1999 m regard to the date of September 23 1999 He wrote that Mr Johnston adVIsed hIm that he was reqUIred to attend a meetmg on September 27 at Syl Apps to accommodate the WSIB claims adJudIcator He notes "I was aware that If I dId not attend thIS meetmg I could be dIscIplIned. Mr Johnston confirmed thIS mformatIOn." DIrector EllIott testIfied that Mr Balog would not have been dIscIplIned If he was unable to attend the meetmg. On October 25 1999 Mr Balog filed four gnevances [GSB# 1999-1475 OPSEU# 99DI72, 99D173 99D174 99D17S], two of whIch dealt WIth the September 27 1999 meetmg. In one of the gnevances, It was alleged that Mr Johnston called Mr Balog at home on September 27 to report for a meetmg at 1 00 pm on the same day WIthout proper notIficatIOn. The second gnevance alleges that management faIled to provIde adequate accommodatIOn for the September 27 1999 meetmg, m lIght of a meetmg scheduled for September 28 1999 m BurlIngton. Agam, there was no testImony about the September 28 1999 meetmg. Mr Balog's "History of Worker" states that a Stage 2 meetmg was rescheduled to the BurlIngton locatIOn, at 53 hIS request, pnor to hIS bemg advIsed of the September 27 1999 meetmg. There IS no mdIcatIOn that Mr Balog thereafter sought to reschedule the September 28 meetmg. A letter dated September 27 1999 was provIded to Mr Balog at the meetmg, advIsmg hIm of the reassIgnment, effectIve October 4 1999 and askmg hIm to report for onentatIOn ShIftS, begmmng that day The letter further adVIsed that because the new posItIOn was at a lower salary hIS current salary would be red-cIrcled for SIX months, but after that tIme hIS salary would be at the lower rate The dIfference was $4 88 per hour or $195 20 per week. Mr Balog testIfied that he could not understand how Control could be vIewed as an appropnate accommodatIOn when, m the past, both Steve Johnston and Charles Rice had vIewed It as mappropnate He was angry that he was SImply told about the reassIgnment, WIthout any mput or negotIatIOn or explanatIOn. He vIewed It as management "dumpmg" hIm, findmg someplace for hIm to go but whIch proVIded hIm "no challenge" He agreed, on cross- exammatIOn, that It was not the accommodatIOn he wanted. He vIewed It as a "pumshment pOSItIOn." He also had medIcal concerns because Dr Naumetz had not cleared the Job In hIS VIew he had been ordered to return to work. Ms EllIott testIfied that Mr Balog was not ordered back to work on October 4 1999 Instead, she lIsted that date because he dId not have medIcal documentatIOn to support hIS contmued absence He was adVIsed, dunng the meetmg on September 27 1999 of the need to proVIde further medIcal documentatIOn. On September 28 1999 Mr Balog presented a medIcal note from Dr LeWIS to support hIS contmued absence The medIcal note states 54 Mr Balog has been a patIent of mme smce Apnl 15th 1999 He suffers from DepressIOn and IS currently on medIcatIOn and receIvmg psychotherapy He has also been treated by Dr v.A. Naumetz, an OrthopedIc Surgeon, for nght knee problems It IS my recommendatIOn, from a medIcal health standpomt, that Mr Balog not return to work at thIS tIme Based on thIS medIcal note, Mr Balog remamed off work. He dId not report to work on October 4 1999 The thIrd gnevance filed on October 25 1999 alleges that the Mimstry Improperly Implemented a change m schedule on October 4 1999 The fourth one alleges that management was "not qualIfied to order me mto the Secunty Officer posItIOn wIthout consultatIOn (professIOnal) as reqUIred m [the] Return to Work Protocol" On October 26 1999 Marg Connelly sent a letter to Mr Balog advIsmg hIm that hIS short-term sIckness plan credIts (STSP) would expIre on December 24 1999 after whIch the long-term mcome protectIOn plan (L TIP) If approved, would start. She also enclosed an L TIP applIcatIOn. Ms Connelly testIfied that thIS was a standard letter gIven to all employees whose sIck credIts expIre m two months, so that they can apply for L TIP and there would be no gap between the expIry of STSP and the start ofLTIP The letter was not an order for hIm to return to work by December 24 1999 Although the Employer dId not send the posItIOn descnptIOn for Control or the PDA to Dr Naumetz, Ms Connelly dId send them to WSIB for theIr reVIew on September 30 1999 statmg that "[w]e feel that thIS posItIOn meets all of the medIcal restnctIOns m the mformatIOn proVIded by hIS doctor" Mr Balog, however sought Dr Naumetz's opmIOn about the Control 55 Officer posItIOn. Dr Naumetz provIded a letter dated November 15 1999 whIch states as follows TO WHOM IT MA Y CONCERN Re Gary BALOG Mr Balog came to see me today and showed me a lIst of dutIes reqUIred of a secunty officer at Syl Apps He wondered If I could wnte a letter to help hIm m secunng work wIth Syl Apps that he IS phYSIcally able to perform. ThIS man IS 47 years of age and has an arthntIc nght knee ThIS hmIts hIm m many ways as I have wntten extensIvely m the past about. For the purpose of thIS letter I can say that It would be very dIfficult for hIm to work 12 hour shIfts and apparently he has to work m a congested area where he has to bend and reach and tWISt, and these movements would aggravate hIS arthntIc knee The Job reqUIres sIttmg for the maJonty of the 12 hour ShIft and he tells me that he cannot SIt for more than 45 mmutes at a tIme Bendmg and stoopmg, because they would mvolve movmg the nght knee, would aggravate hIS condItIOn and cause pam. Suggested modIficatIOn of the Job descnptIOn would be eIght hours maXImum for a shIft of work WIth frequent work-sIte breaks Any twIstmg, stoopmg or bendmg should be mImmIzed or elImmated. Management receIved thIS letter on December 17 1999 Ms EllIot testIfied that management felt that the doctor was not aware of the Job because he called the Control room a "congested" area. In management's VIew the doctor was mIsmformed. Dr Naumetz testIfied that hIS understandmg of the pOSItIOn was based on mformatIOn from Mr Balog. The words "congested worksIte" are found m the PDA for the Control Officer pOSItIOn and were the subJect of much dIspute between the partIes In the comments sectIOn, next to the box "congested worksIte" are the words "confined work area." Accordmg to Marg Connelly who had prepared many PDAs for the Mimstry and had tramed managers on how to prepare them, the comments sectIOn proVIdes clanficatIOn about what IS checked on the boxes She referred to a PDA glossary whIch defines "congested worksIte" as a "worksIte [whIch] allows lIttle room for movement due to lImIted area, volume of matenals to be stored far greater than 56 space avaIlable, layout of work area, etc" Ms Connelly however dId not prepare the PDA m questIOn and dId not know If the person who dId utIlIzed the same glossary Dunng the course of the heanng, the partIes and I took a VIew of the Control Room, whIch mcludes both Control and ReceptIOn. It IS a reasonably sIzed room, wIth large glass wmdows on three SIdes In my VIew the room was "congested" only m the sense that It was a confined work area. There was ample room for movement. There was no sIgmficant volume of matenals to be stored whIch were far greater than the space avaIlable and the layout permItted room for movement. On December 14 1999 a few days before management receIved Dr Naumetz's letter of November 15 1999 Mr Balog provIded two other medIcal notes Both are from Dr LeWIS who was treatmg Mr Balog for depressIOn. The first, dated December 14 1999 IS a return to work medIcal note WIthout restnctIOns It reads Dear Mr Johnston Please be adVIsed that Mr Gary Balog IS able to return to work on December 22nd 1999 He wIll rem am under my care The second letter also dated December 14 1999 IS a relatIvely lengthy letter concermng Mr Balog's depressIOn due to the loss of phYSIcal functIOn m relatIOn to hIS nght knee mJury and the "many degradmg and de-humamzmg actIOns from the management of Syl Apps Youth Centre" m relatIOn to the process of accommodatIOn. Dr LeWIS concluded With respect to Mr Balog's mental health It IS clear that the losses of functIOn phYSIcally the loss of hIS former Job (because he can no longer perform these dutIes) the loss of hIS dIgmty whIch he feels has occurred by both co-workers and management at Syl Apps has resulted m the SIgns and symptoms of anXIety and depressIOn descnbed earlIer AccommodatIOn must ensure that hIS phYSIcal lImItatIOns wIll not be challenged and that he can utIlIze hIS cogmtIve skIlls and mamtam a sense of mtellectual and emotIOnal mterest by feelIng that he IS makmg 57 a contnbutIOn to the Mimstry of whIch he has been a proud employee for the past 25 years As a result of the events It hich have occurred betJ+ een Mr Balog and Syl Apps management, it is my opinion that accommodation outside the institution It ould be beneficial to his mental health FaIlure to find an accommodatIOn agreeable to both management at Syl Apps and Mr Balog wIll result m deletenous effects for Mr Balog. (emphasIs added) DIrector EllIott testIfied that, m management's VIew the two December 14 1999 letters from Dr LeWIS were m conflIct. Management accepted the return to work letter smce Dr LeWIS was the treatmg physIcIan and It had been based on hIS letters that Mr Balog's absence from work smce July 3 1999 had been accepted. On cross-exammatIOn, Ms EllIott stated that the second December 14 1999 letter was accepted as a request for accommodatIOn because of depressIOn, but that It dId not provIde a restnctIOn or lImItatIOn. In her VIew It was an "opmIOn" that accommodatIOn outsIde the mstItutIOn would be "beneficIal" to hIS mental health. She dId not VIew It as a restnctIOn or lImItatIOn, and felt no need to seek clanficatIOn from Dr LeWIS In her VIew Dr LeWIS had cleared Mr Balog to return to work, WIthout restnctIOns, and It was tIme to see If the Control Officer pOSItIOn could meet Mr Balog's needs The testImony of Dr LeWIS m regard to these two December 14 1999 letters revealed a number of sIgmficant pomts In relatIOn to the return to work note, Dr LeWIS testIfied that It was hIS ImpressIOn, from Mr Balog, that Mr Balog would lose hIS Job Ifhe dId not return to work by December 22 He belIeved that there was "an ultImatum of sorts" He was not aware that Mr Balog's STSP credIts were due to expIre Dr LeWIS testIfied that he dId not feel that Mr Balog could go back to work, but he felt that losmg hIS Job would cause further problems So when 58 "Gary asked If I would accommodate hIm to return to work because of the SItuatIOn" Dr LeWIS agreed. In terms of the December 14 1999 accommodatIOn letter the eVIdence showed that an ongmal verSIOn of the letter dated December 10 1999 mcluded a substantIally dIfferent recommendatIOn regardmg accommodatIOn. The earlIer letter states With respect to Mr Balog's mental health It IS clear that the losses of functIOn phYSIcally the loss of hIS former Job (because he can no longer perform these dutIes) the loss of hIS dIgmty whIch he feels has occurred by both co-workers and management at Syl Apps has resulted m the SIgns and symptoms of anXIety and depressIOn descnbed earlIer Accommodation ltithin Syl Apps Youth Centre or in any other setting must ensure that hIS phYSIcal lImItatIOns wIll not be challenged and that he can utIlIze hIS cogmtIve skIlls and mamtam a sense of mtellectual and emotIOnal mterest by feelIng that he IS makmg a contributIOn to the mstItutIOn of whIch he has been a proud employee for the past 25 years FaIlure to find an accommodatIOn agreeable to both management at Syl Apps and Mr Balog wIll result m deletenous effects for both the Centre and Mr Balog. (emphasIs added) Dr LewIs's patIent notes mdIcate that the letter was changed after meetmg WIth Mr Balog on December 13 1999 On re-exammatIOn, Dr LeWIS testIfied that he made the change m the letter because he felt It would be better for Mr Balog If he could be accommodated outsIde of Syl Apps He testIfied that the December 14 1999 letter stated hIS medIcal opmIOn. He dId not, however explam why hIS medIcal opmIOn changed. On December 17 1999 Mr Balog requested vacatIOn from December 22 through January 2, 2000 and that request was granted. As a result, WIth the New Year Mr Balog receIved hIS full allotment of STSP credIts (130 days) WIthout havmg to work for 20 consecutIve days as the collectIve agreement reqUIres 59 On December 17 1999 Program Manager Steve Johnston wrote to Mr Balog, confirmmg hIS vacatIOn from December 22 to January 2, and confirmmg hIS schedule m Control It further states Secondly as a response to your concern that we the management of Syl Apps Youth Centre are not respondmg to the Issues and concerns raised by Dr LewIs, I am statmg that we are respondmg to Dr LewIs' statement that you are able to return to work as of December 22, 1999 I completely endorse that you wIll contmue on as Dr LeWIS' patIent, as mdlcated m Dr LeWIS' letter ThIrdly that I have wntten a letter to Dr Naumetz whIch I am askmg you to forward. The letter IS a response to Issues raised regardmg the phYSIcal nature of your assIgned pOSItIOn m Control The letter to Dr Naumetz from Steve Johnston, dated December 17 1999 states as follows Thank you for your letter dated November 15 1999 whIch we Just receIved today regardmg Gary Balog. Mr Balog has been reassIgned to the Control Officer pOSItIOn as It met the phYSIcal restnctIOns outlIned by yourself and the FunctIOnal Assessment that was conducted on Mr Balog. The work area IS not congested and the workstatIOn took mto consIderatIOn ergonomIcs m the deSIgn. The pOSItIOn does reqUIre some bendmg, reachmg and tWlstmg, however they are mmor phYSIcal reqUIrements of the Job and these tasks can be performed from the ergonomIc sWIvel chair whIch IS already m place In regards to Mr Balog's sIttmg restnctIOns dunng a 12-hour ShIft, there IS suffiCIent fleXIbIlIty m thIS Job whIch allows hIm to change pOSItIOns as reqUIred, so thIS wIll not be a problem. Weare also m the process of obtammg a cordless headset, whIch would allow Gary even more fleXIbIlIty Once agam, thank you for your co-operatIOn m provldmg medIcal mformatIOn on Mr Balog. Dr Naumetz dId not respond to thIS letter and no response was expected. It should be noted that the PDA for the Control Officer pOSItIOn states that bendmg, reachmg and tWlstmg are "maJor" functIOns of the pOSItIOn (defined as "frequent repetItIOn for more than 3 hours dally") When 60 questIOned about thIS at the heanng, DIrector EllIott agreed that It was dIfferent but stated that Mr Johnston was conveymg the Job as It had been modIfied for Mr Balog. On January 3 2000 Mr Balog attended at work m the posItIOn of Control Officer D Phase 4 - The Dispute about the Control Officer Position (Jan.-Sept. 2000) ThIS next penod centres on a dIspute between the partIes as to whether or not the Control Officer posItIOn was a sUItable accommodatIOn for Mr Balog. By thIS tIme, the SItuatIOn was qUIte tense between the partIes and that worsened over tIme Mr Balog began hIS onentatIOn ShIft on January 3 2000 at 6 30 a.m. His supervIsor was now Mike MagUIre, although there was a bnef transItIOn penod where Steve Johnston was stIll mvolved. Mr MagUIre met wIth Mr Balog when he returned to work. He stated that It was "no secret that Gary was unhappy wIth the Control Officer placement" that he felt that the posItIOn was "mappropnate "Mr Balog also vOIced unhappmess regardmg the change m supervISIOn. He felt that Steve Johnston should stIll be hIS manager Mr Balog began hIS first onentatIOn ShIft at 8 00 a.m At approxImately 2 00 p.m Mr Balog began to develop pam m hIS knee As the ShIft contmued, It radIated mto hIS back and nght thIgh and mtensIfied. He reported thIS to the Nurse on Duty and ShIft I.C and filled out an Employee IncIdent Report. The followmg day January 4 2000 at approxImately 8 00 a.m Mr Balog also expenenced pam. The shIft began at 630 a.m. and at 1030 a.m. he filed an Employee IncIdent 61 Report whIch stated that he expenenced "nght knee pam travelIng through back of leg, through buttock mto small of lower back up under shoulder blades Pam began at 8 00 and has rapIdly mcreased. SIttmg mcreases pam. DuratIOn of sIttmg has lessened as ShIft progresses" ThI s was reported to the Nurse on Duty and the ShIft I.C Mr Balog left work early and went to see Dr Reynolds Based on these reports, Mr Johnson, on January 4 2000 sent a request for medIcal mformatIOn to Dr Reynold's, Mr Balog's famIly physIcIan, regardmg hIS abIlIty to perform the posItIOn of Control Officer In the mCIdent reports, Mr Balog lIsted Dr Reynolds as hIS treatmg phYSICIan. The letter states, m relevant part, as follows The Mimstry of Commumty and SocIal ServIces IS commItted to makmg every reasonable effort to proVIde accommodatIOns for employees, If deemed necessary for medIcal reasons In order to determme whether Mr Balog IS able to perform the dutIes of hIS posItIOn, or other work that IS reqUIred to be done, would you please reVIew the Job specIficatIOn and complete the attached MedIcal Report Forms by January 15 2000 The Job specIficatIOn outlInes the full range of dutIes Mr Balog IS expected to perform The MedIcal Report forms detaIl the phYSIcal demands of the vanous tasks to be performed and IdentIfies any specIfic restnctIOns and/or lImItatIOns Mr Balog may have Please return the completed forms m the enclosed envelope If there are any charges for completmg these forms, please return an mVOIce wIth your response We very much apprecIate your assIstance m helpmg us Accordmg to DIrector EllIot, the mCIdent reports filed by Mr Balog m early January 2000 were the first mdIcatIOn that Mr Balog had problems wIth hIS back. Mr Balog went to see Dr Reynolds on January 4 2000 Mr Balog reported that hIS confined work space made movement of hIS knee dIfficult causmg pam as well as pam m hIS 62 lower back. Dr Reynolds sent hIm home untIl hIS next appomtment, January 11 2000 He also arranged for an x-ray and noted that he had an appomtment wIth Dr Naumetz on January 7 2000 On January 4 2000 Mr Balog filed a gnevance [GSB# 1999-1854 OPSEU# 00B069] assertmg that the Control Officer posItIOn "IS an Improper accommodatIOn pursuant to medIcal reqUIrements and documentatIOn provIded to Syl Apps management " The appomtment wIth Dr Naumetz on January 7 2000 dId not go well Accordmg to Mr Balog, Steve Johnston had mformed hIm on January 5 2000 that he would be sendmg forms for both Dr Reynolds and Dr Naumetz to hIm by couner There are no documents m the record or confirmmg testImomal eVIdence that medIcal forms were sent to Dr Naumetz. Accordmg to Mr Balog, the forms dId not arrIve by the January 7th appomtment. Mr Balog testIfied that he explamed to Dr Naumetz that the package had not arrIved and he tned to explam the mformatIOn the Employer wanted but Dr Naumetz became frustrated and angry Dr N aumetz told hIm that he dIdn't want to see hIm anymore, that he had done all that he could, proVIded all the mformatIOn he could and he could do no more Mr Balog stated that he apologIzed and left the office Dr Naumetz testIfied on exammatIOn-m-chIef that he had become exasperated by the number of letters he was asked to wnte and "blew up a bIt" at Mr Balog. He felt that It had become "too much" and he was "SIck and tIred of wntmg letters" for hIm There was no one, m 17 years, who reqUIred so many letters He testIfied that he was not angry WIth Mr Balog or any one m partIcular It was "okay to wnte a few letters, a few opmIOns" but the number here to hIm, "seemed excessIve" 63 On cross-exammatIOn, Dr Naumetz acknowledged that the Mimstry had only requested health mformatIOn about Mr Balog on three occaSIOns (May 1998 - for whIch there IS no eVIdence that Dr Naumetz responded, August 1998 and March/Apnl 1999) The other tImes he wrote letters regardmg accommodatIOn were at the request of Mr Balog. Dr Naumetz testIfied that what bothered hIm was the unusual number of VISItS by Mr Balog for "a relatIvely sImple condItIOn." As tIme went on, he said that the VISItS had less to do wIth Mr Balog's medIcal condItIOn and more to do wIth findmg hIm sUItable employment, whIch was "not my role" His role was to "medIcally assIst" the patIent. He also stated, however that he found some of the questIOns asked by the Employer to be "ludICroUS" He testIfied that he was frustrated that no one m the Mimstry dIrectly contacted hIm to find common ground. On March 7 2000 Mr Balog sent a letter to Dr Naumetz apologIzmg for what happened m January It states Dear Dr Naumetz, I am wntmg wIth regards to my last appomtment January 7 2000 I was keenly aware of your frustratIOn wIth the work place process that I was mstructed to follow I have come to realIze that these contmued requests have served to damage the PatIent/Doctor relatIOnshIp I have developed wIth you as my attendmg orthopedIC speCIalIst. To that end I have mformed my employer that any further requests for medIcal mformatIOn they may have should be made dIrectly to your office I smcerely apologIze to you, for not recogmzmg the Impact of these requests and for not addressmg these Issues sooner Mr Balog dId not see Dr Naumetz after January 7 2000 Dr Naumetz testIfied that the decIsIOn not to see hIm was Mr Balog's, not hIS On February 21 2000 Mr Balog filed a gnevance allegmg that management's repeated requests to provIde medIcal mformatIOn that had been extenSIvely wntten about and documented "ha[d] reached the pomt that [it] had negatIvely Impact[ ed] my patIent/doctor relatIOnshIps" 64 Mr Balog went to see Dr Reynolds on January 11 2000 Mr Balog's knee had Improved and hIS back pam had lessened, and Dr Reynolds authonzed hIm to return to work the followmg day The note states that Mr Balog "may return to work 21 1 00 wIth modIficatIOns" Exactly what modIficatIOns were meant was not stated. The note was not provIded to the Employer untIl January 17 2000 On January 12,2000 Mr Balog attended at work, and agam began to expenence pam m hIS nght knee radIatmg mto hIS lower back. He filed an Employee IncIdent Report and left work two hours early After thIS, Mr Balog dId not attend work agam untIl March 22,2000 The x-ray taken of Mr Balog's lumbar spme on January 13 2000 showed "advanced long-standmg degeneratIve dIsease at the LS-S 1 level " ThIS document, however was not provIded to the Employer untIl March 14 2000 at a medIatIOn seSSIOn before the Gnevance Settlement Board. On January 19 2000 Mr Balog telephoned hIS supervIsor Mike MagUIre, to adVIse that he would be off work for at least the next two weeks for phYSIOtherapy and he would be seemg hIS famIly doctor at that tIme Dunng thIS two-week penod, Mr Balog requested an ergonomIC assessment of the control booth and dIscussed the matter WIth Mike MagUIre Mr MagUIre testIfied that management had been planmng to revamp the secunty and safety system m Control as well as retrofit the booth to make It eaSIer to operate, so he thought to accomplIsh both management's and Mr Balog's needs at the same tIme He got m touch WIth WSIB to see If they had someone 65 who could perform an ergonomIc assessment of the Control Officer pOSItIOn, and they dId. A February 2,2000 date was scheduled for thIS assessment. The record shows that Employment AccommodatIOn SpecIalIst Terry Homgsberg preferred to have an occupatIOnal therapIst perform the assessment. It was her understandmg that an ergonomIst from WSIB was scheduled to do the assessment, followmg a request by the claims adJudIcator to do so and that Mr MagUIre had approved It. Ms Homgsberg called the ergonomIst to cancel the assessment. Her e-maIl states "I cannot over emphasIze the Importance of followmg the above recommendatIOns, especIally m lIght of the hIghly senSItIve nature of thIS case" Ms Homgsberg testIfied that she was referrIng to the fact that numerous gnevances had been filed and that the accommodatIOn process was not proceedmg smoothly from Mr Balog's perspectIve Mr MagUIre testIfied that he was upset that Ms Homgsberg had cancelled the assessment and referred the matter to DIrector EllIott. Ms EllIott testIfied that she proceeded WIth the WSIB assessment because the Mimstry staff could not come qUIckly and they wanted the assessment done m tIme for Mr Balog's return to work, whIch was belIeved to be early February Accordmgly the February 2, 2000 assessment the WSIB ergonomIcs speCIalIst went ahead. On February 2, 2000 WSIB ErgonomIcs SpeCIalIst Barb CImermancIc attended at Syl Apps to reVIew the control booth. Present were Mike MagUIre, Gary Balog, WSIB Claims AdJudIcator Lons DebIasI, and Nurse Case Manager Maureen Lachance 66 On February 16 2000 the ErgonomIcs SpecIalIst Issued her report. The purpose of the report was stated to be "As requested by the AdJudIcator to reVIew the posItIOn of the Control Officer for sUItabIlIty based on the worker's medIcal precautIOns" The report concluded that the Control Officer posItIOn fell wlthm Mr Balog's medIcal restnctIOns It states It IS the opmIOn of thIS ErgonomIcs SpecIalIst that thIS Job falls wlthm the medIcal precautIOns wIth respect to the phYSIcal demands of the Job as outlIned by Dr Naumetz m hIS report, dated November 25 1998 The only exceptIOn IS that the ShIftS are 12 hours m duratIOn, whereas Dr Naumetz mdlcated m a report dated November 15 1999 that eIght-hour ShIftS were suggested. However the phYSIcal demands of the Job are sedentary wIth postural changes allowed on a self- determmed basIs The phYSIcal demands on the knee are lImIted to alternatmg between sIttmg, standmg and walkmg postures The report was very specIfic to Mr Balog - companng hIS medIcal restnctIOns and mdlvldual anthropometncs (hIS standmg shoulder heIght, seated knee heIght, seated thIgh heIght, hIp breadth, shoulder to shoulder WIdth, forearm length, arm length) to the Job reqUIrements and desIgn of the Control booth. She measured the heIght of the workstatIOn, the depth of the workstatIOn, the WIdth of the workstatIOn, the heIght of the key box, the reach to the wmdow the number of steps to the receptIOn wmdow as well as to the fire panel As set forth m the report, the ergonomIc specIalIst was aware of Mr Balog's recent problems smce hIS return to the posItIOn of Control Officer The report reVIews all of the "essentIal dutIes" of the posItIOn whIch she found mcluded the followmg . SIt at workstatIOn, wIth freedom to rotate between sIttmg, standmg, walkmg posItIOn. . At ShIft change, receIve update from prevIOUS ShIft, wIth respect to keys, status of doors, vehIcles out, fire panel . Manage mternal and external phones 67 . ReceIve VISItorS after busmess hours, ensure proper secunty clearance, ensure sIgmng of regIster passmg out of VISItor tags, notIfymg umts of VISItor arrIval . ReceIves couner packages form receptIOn wmdow . Momtor secunty screens . Momtor fire panel . Keep track of keys, VISItor tags through wmdow . Typmg usmg computer . FIlmg dutIes In the "dIscussIOn" sectIOn of the report, the specIalIst states The set up of the workstatIOn needs to be addressed. The eqUIpment used most should be desIgned m close proXImIty and wIthm an arm's length reach dIstance The worker should be able to face one dIrectIOn when accessmg all the most- used eqUIpment. ThIS wIll reduce the necessIty to twISt or SWIvel m the chair The eqUIpment located m the shelvmg under the workstatIOn should be relocated to areas whIch are accessIble at a Waist to shoulder heIght from a seated pOSItIOn. Items should also be placed at wIthm arm's length reach dIstances to prevent over-reachmg The wmdow should be re-desIgned m such a way to allow the worker to access the wmdow m eIther a seated or standmg pOSItIOn wIthm an arm's length reach dIstance The area under the workstatIOn should have adequate space so as to accommodate the worker's legs m both extended and bent pOSItIOns Due to the length of the worker's legs, workmg m a cramped space reqUIres that the knees are kept m a statIcally bent pOSItIOn. To relIeve any muscle fatIgue assocIated WIth statIc postures, the worker should have adequate space to change leg pOSItIOns The proVISIOn of a footstool wIll further allow the worker to change leg pOSItIOns and elevate the leg If needed. HeIght adJustable workstatIOns allow greater fleXIbIlIty to work m eIther a seated or standmg pOSItIOn. Chairs and footstools are necessary to accommodate both short and tall workers She then has a "recommendatIOns" sectIOn whIch mcludes the Items set forth m the "dIscussIOn" sectIOn plus a number of other matters There are recommendatIOns regardmg how 68 Mr Balog should get up out of the chair and sWIvel m the chair the type of chair reqUIred, the provIsIOn of a footstool the provIsIOn of a headset; the reposItIOmng of the phone, the removal of shelvmg located below the workstatIOn, and the weanng of cushIOned soled shoes In terms of the 12-hour shIft, she recommended that "further medIcal documentatIOn should be obtamed to determme the reason the workmg hours are suggested to be a maXImum of eIght hours The Job reqUIres no phYSIcal capabIlItIes greater than sedentary The worker has flexIbIlIty to move between seated, standmg and walkmg postures" The management team at Syl Apps revIewed the report. A number of the recommendatIOns were Implemented, some were not. The phones were reposItIOned and a headset was proVIded for one the busIer phone lInes The computer momtors were stacked and the keyboard relocated and an ergonomIcally correct one mstalled. All control functIOns were now through the keyboard. The fire panel was moved closer The set of drawers under the desk on the left-hand SIde was removed, but not the ones on the far nght hand SIde A brace was removed from under the desk. A footstool was put m. An ergonomIcally correct chair was brought m. The locatIOn of the most used keys was changed. One thmg that was not changed, however was the heIght of the desk. It was thought that the adJustable chair was suffiCIent. Both Ms EllIott and Mike MagUIre testIfied that an ergonomIc specIalIst was hIred to teach Mr Balog about the proper use of the chair although Mr Balog demed thIS Accordmg to DIrector EllIott, the employer has no oblIgatIOn to Implement the ergonomIst's recommendatIOns Instead, they are only for the Employer's consIderatIOn. The ergonomIst's report states as the bottom of the first page Please note the claims adJudIcator wIll follow up wIth the workplace partIes to commumcate theIr decIsIOn and where applIcable, to venfy any reqUIred accommodatIOns are Implemented pnor to the worker returmng to work. 69 In thIS case, the claims adJudIcator dId not lIst any "reqUIred accommodatIOns" Ms EllIott testIfied that she dId not seek out sources of fundmg to Implement the ergonomIst's recommendatIOns She stated that she revIewed the cntena for such fundmg and dId not belIeve that they were elIgIble She dId not determme the cost of an adJustable workstatIOn. Mr MagUIre's recollectIOn on thIS pomt was qUIte vague He testIfied that he mqUIred about raIsmg the heIght of the desk wIth Mamtenance Manager Ron LIster but was told It could not be done He dId not recall why The same occurred for the change m the wmdow Mr LIster told hIm that It could not be done but Mr MagUIre dId not recall why Mr Balog had a dIfferent assessment of the changes made by management. He testIfied that m terms of the matters raised m the "dIscussIOn" sectIOn of the report, the only thmg done was that one momtor was moved. The footstool, he stated, was "a pIece of wood underneath" and he was not sure It was a stool smce It had been there before the report. He testIfied that when sIttmg at the workstatIOn, hIS knees would rub agamst the bottom of the desk and he was unable to wear hIS brace The ergonomIst measured that Mr Balog's seated knee heIght to be 66 cm and the desk heIght to be 69 cm It IS unclear whether or not her calculatIOn mcluded hIS knee brace Her recommendatIOn m regard to desk heIght, however for a tall male was 74 to 78 cm On February 15 2000 Mr Balog had stIll not returned to work, and Dr Reynolds had not completed the Health InformatIOn Form that had been sent to hIm on January 4 2000 Mr MagUIre wrote to Mr Balog, statmg that "[y]ou have been off work smce Jan. 4/00 and I have no medIcal documentatIOn that supports our abIlIty to mamtam your pay and benefits" He agam enclosed a "Request for Health InformatIOn" form for hIS doctor along WIth a phYSIcal demands 70 analysIs and posItIOn specIficatIOn for the Control Officer posItIOn. He requested the mformatIOn by February 22, 2000 He concluded "When I receIve thIS mformatIOn, we wIll need to meet and develop a return to work or employment accommodatIOn plan to respond to your needs If you have any questIOns about thIS request, please contact me " On February 22, 2000 the Employer receIved the completed forms from Dr Reynolds The doctor placed an 8-hour work restnctIOn on hIS hours of work, statmg that he was "unable to work longer because of pam caused by osteoarthntIs R knee" The duratIOn of thIS restnctIOn was "undetermmed" and he would be reassessed on March 14 2000 He also stated that "patIent reqUIres ergonomIcally correct work statIOn." At the present, he stated that Mr Balog was unable to work, for an "undetermmed" tIme Also submItted on February 22, 2000 was a January 25 2000 letter from Dr Reynolds that supported the November 15 1999 letter of Dr Naumetz and the December 14 1999 letter from Dr LewIs It states To Whom It May Concern Re Gary Balog I have receIved letters wntten by Dr V Naumetz and Dr F LewIs, copIes of whIch are enclosed, and I agree wIth theIr recommendatIOns I have been Mr Balog's famIly phYSICIan smce 1979 and I have been mvolved m the treatment of hIS current work related medIcal problems The eVIdence shows that Mr Balog requested thIS letter from Dr Reynolds on December 20 1999 Dr Reynold's clImcal notes state that Mr Balog "wants letter from me supportmg Drs LeWIS and Naumetz's recent letters" 71 From Ms EllIott's perspectIve there was nothmg new m Dr Reynold's report of February 22, 2000 or hIS January 25 2000 letter She felt that the Mimstry had addressed Dr Naumetz's restnctIOns m relatIOn to the knee and had responded to hIS mIsunderstandmg about the Control Officer posItIOn. In terms of the ergonomIcally correct workstatIOn, the Mimstry had undertaken the February 2, 2000 ergonomIc assessment and made a number of changes She noted that Dr Reynold's lIsted no restnctIOns concernmg Mr Balog's back. On March 10 2000 Dr Reynolds provIded another medIcal note that "Gary Balog IS unable to return to work at thIS tIme" and would be reassessed m two weeks It states "In order to return to work hIS work statIOn has to be modIfied as per the WSIB ergonomIst's advIce" Dr LewIs's clImcal notes of a seSSIOn wIth Mr Balog from March 13 2000 mdIcate that "the one optIOn Gary has gIven to Syl Apps IS to be accommodated outsIde the mstItutIOn." On March 16 2000 WSIB Claims AdJudIcator Lons DeBIasI Issued a decIsIOn on Mr Balog's request to reopen hIS claim due the recurrences whIch took place on January 4 and January 12, 2000 These claims were demed. In addItIOn, based on the February 2, 2000 ergonomIst report, he determmed that "It would appear that the pOSItIOn of control officer gIven your medIcal precautIOns IS sUItable" He further determmed that shIfts of 12 hours were SUItable m lIght of "the fleXIbIlIty you have to move between sItmg, standmg and walkmg." There was nothmg m hIS report that reqUIred the Mimstry to Implement any of the recommendatIOns m the ergonomIst's report. On March 17 2000 before the Mimstry receIved the WSIB determmatIOn of March 16 2000 Mr MagUIre sent Mr Balog another letter seekmg addItIOnal medIcal documentatIOn to support hIS contmumg absence from work. ThIS was a follow-up to Dr Reynold's earlIer letter 72 and asked for hIS doctor "to specIfically address what your restnctIOns/lImItatIOns are and how they Impact on your abIlIty to perform your Job" The letter then summanzed events from the Mimstry's perspectIve It asks that the doctor complete the mformatIOn by March 24 2000 Dr Reynolds completed the forms on March 27 2000 but they were not returned to the Mimstry untIl Apnl 10 2000 along wIth two other medIcal certIficates from Dr Reynolds dated Apnl 4 and Apnl 6 2000 The March 27 2000 form lIsts the same restnctIOns set out m Dr Naumetz's report of November 28 1998 plus 8-hour ShIftS, the workstatIOn set-up as per the WSIB ergonomIst's report, and he "needs to get up and away from work statIOn to flex and stretch every hour for 10 mmutes to relIeve back pam." Dr Reynolds testIfied, on cross- exammatIOn, that It was hIS understandmg, from Mr Balog, that the changes recommended by the ergonomIst had not been done He had not seen the workstatIOn. The Apnl 6 note states that "Mr Balog has been under my care smce 3 1 00 for nght knee osteoarthntIs and lumbar stram." The Apnl 4 2000 letter states that Mr Balog was unable to work from January 4 to January 11 and January 13 to March 22, 2000 "because of nght knee pam due to osteoarthntIs and back pam due to lumbar stram. Both condItIOns are aggravated by hIS workstatIOn." The letter goes on to say I support Dr Naumetz's recommendatIOn for eIght hour ShIftS His work statIOn should be modIfied as per the WSIB ergonomIst's recommendatIOns GIven Mr Balog's depressIOn and the medIcatIOn he takes to treat thIS, plus the Tylenol WIth codeme he needs to control hIS pam, he should not do ShIft work. Irregular sleepmg patterns defimtely aggravate hIS depressIOn. He would perform best If he was allowed to work straight days WIth a maXImum eIght hour shIft. His orthopaedIc problems are chromc Allowmg hIm the recommended accommodatIOns would help hIm cope WIth thIS dIsabIlIty and would alleVIate IS depressIOn whIch IS due to the chromc dIsabIlIty and also mabIlIty to obtam an appropnate accommodatIOn. 73 Pnor to the Mimstry's receIpt of these documents, DIrector EllIott sent a letter to Mr Balog on March 21 2000 statmg, m part, that "we expect you to return to work for your next scheduled onentatIOn ShIft on Thursday March 23rd at 1830" The letter was based on the March 16 2000 WSIB's demal ofMr Balog's request to reopen hIS claim and ItS determmatIOn that the Control PosItIOn was wIthm hIS medIcal precautIOns, mcludmg the 12-hour ShIftS With that determmatIOn, Mr Balog's absences smce January fell under STSP rather than WSIB It was Ms Elhott's VIew that there was nothmg to substantIate Mr Balog's contmued absence from work and receIpt of STSP Management had accommodated hIS knee restnctIOns There was no medIcal eVIdence concermng restnctIOns related to hIS back. The tone of the letter reveals some underlymg frustratIOn. It states Dear Gary You have been receIvmg pay under the Short Term SIckness Plan (STSP) smce January 4 2000 totalhng 38 24 days to the end of February and contmumg. You IdentIfied that the Control Officer posItIOn was aggravatmg your knee mJury causmg back pam. We have made every effort to accommodate you wIthm your medIcal restnctIOns and to assIst you m your return to work, however you have not accepted these accommodatIOns Smce January we have allowed you to be paid usmg the STSP credIts whIle aWaItmg the WSIB ergonomIc assessment and theIr decIsIOn on your most recent claim. On March 16 2000 WSIB determmed that the Control Officer posItIOn was sUItable mcludmg workmg the 12 hour ShIftS GIven thIS report there IS no eVIdence to contmue paymg you under STSP therefore your entItlement under thIS benefit wIll cease Immediately and you wIll be taken off the payroll effectIve March 21 2000 Further we expect you to return to work for your next scheduled onentatIOn ShIft on Thursday March 23rd at 1830 If you have any questIOns please feel free to call me 74 Ms EllIott testIfied that the purpose of the letter was not to order Mr Balog back to work, but to clanfy hIS status m regard to STSP She stated that If an employee IS not at work, he or she IS eIther on STSP or a leave of absence Without these "we expect a return to work." Mr Balog, however clearly mterpreted the March 21 2000 letter as an order to return to work. He mterpreted It as a threat. In hIS VIew Ifhe was "off the payroll" that meant he was no longer an employee He went to Dr Reynolds who wrote hIm the followmg note on March 22, 2000 Mr Balog has been off work for medIcal reasons He IS returmng to work wIthout my authonzatIOn. It was Dr Reynold's understandmg that Mr Balog had been ordered to return to work. Mr Balog returned to work on March 23 2000 Accordmg to Mr MagUIre, when Mr Balog arnved at work he had four Employee IncIdent Reports wIth hIm He adVIsed Mr MagUIre that he would be completmg them throughout the ShIft to show hIS progress and any dIfficultIes he had m completmg the shIft. Mr MagUIre told hIm to do what he had to do Mr Balog testIfied that he felt that It was Important to document hIS SItuatIOn, smce he was returnmg to work under duress He stated that he adVIsed Mr MagUIre that he would be self-momtonng, that he was startmg the shIft m pam and had not completed hIS treatment smce he was reqUIred to return to work. He would document the progress of hIS medIcal condItIOn. In regard to hIS treatment, Mr Balog testIfied on exammatIOn-m-chIef that he had to stop hIS back treatments because of hIS return to work. On cross-exammatIOn, however he admItted 75 that he stopped the physIOtherapy treatments because WSIB had demed hIS claim and he could not afford to pay for them On March 23 2000 Mr Balog filled out the four Employee InCIdent Reports At 19 10 (the ShIft began at 18 30) Mr Balog wrote the first Employee InCIdent Report Syl Apps management (Dale EllIott) have ordered me to work under threat of repnsal The work place mJury I suffered on Jan. 3 2000 has not been recogmzed. Syl Apps management have effectIvely elImmated my treatments and are forcmg me to work WIth mJunes Upon reportmg to work, my pam level at 0630 hrs IS a 3 (0 - none 10- extreme) He filed a second report later that day at 22 00 It states "Pam movmg from thIgh to lower back and travelhng to mId back. IntensIty of pam mcreasmg." The thIrd report, dated March 24 2000 at 0200 states "The pam m my nght thIgh has mcreased. The pam m my low back has mcreased dramatIcally I am begmmng to expenence muscle spasm m my upper back. Walkmg and adJustmg pOSItIOn IS no longer relIevmg pam. I have also developed pam m my nght knee cap" At 04 15 on March 24 2000 Mr Balog wrote the fourth Employee InCIdent Report "At approxImately 0345 I ask[ed] the I.C If I could use a medIcal room to try and allevIate the pam that had spread from my thIgh (R) to my low back to my shoulders (spasms) I took one Tylenol WIth codeme - the pam remams" At 04 15 Mr Balog left work "because I have not been able to control or lessen the pam and ItS effects" The shIft was scheduled to end at 08 30 Mr Balog filed a SImIlar Employee InCIdent Report and left work early on both March 27 and March 28 2000 Mr Balog's next scheduled ShIftS On March 27 2000 Mr Balog filed a gnevance allegmg that the Mimstry had placed hIS health and safety at nsk. Mr Balog's next shIft, from 630 pm. on March 31 to 630 a.m. on Apnl 1 was Mr Balog's first regular (i e non-onentatIOn) ShIft m the Control Officer pOSItIOn. Mr MagUIre sent 76 an e-maIl to the ShIft I.C that Mr Balog needed "to take the rems tomght." Mr MagUIre also e- maIled Mr Balog that all the tImes he leaves work early would be wIthout pay and that he should not park m the handIcap spot unless he has stIcker to do so Mr MagUIre adVIsed the ShIft I.C that Mr Balog mIght be a "lIttle uptIght" after receIvmg thIS message In regard to the handIcap stIcker Mr MagUIre testIfied that It had been reported to hIm that Mr Balog's van was parked m the handIcap spot wIthout hIS handIcap stIcker bemg VIsIble Because another employee had parked there wIthout a stIcker and had receIved a $100 00 fine, he wanted to alert Mr Balog that hIS handIcap stIcker had to be dIsplayed. It was Mr Balog's VIew that hIS handIcap-parkmg permIt was properly dIsplayed on hIS VISor In terms of the demal of STSP for the pen ods he dId not complete hIS ShIft, Mr Balog sent a clearly angry e-maIl to Mr MagUIre on March 31 2000 In relevant part It states As you are aware I have followed the procedure for reportmg mJunes on the Job Ie WSIB forms, reportmg to the IC on duty (Ken Femck) and the nurse on duty You are now mformmg me that all SIck or mJury related tIme off wIll be deleted from my wages ThIS effectIvely demes me benefits that I am entItled to under the C.A. As I am on a 1830hrs to 0630hrs ShIft I am forwardmg thIS E mall to you as my formal complamt. I see these actIOns as very senous contraventIOn's of a number of my nghts The e-maIl also complamed that Mr MagUIre had been m dIrect contact WIth Dr Reynolds On Apnl 10 2000 Mr MagUIre responded, by letter to Mr Balog's March 31 e-maIl The letter addresses a number of pomts - Mr MagUIre's contact WIth Dr Reynolds office, the demal of STSP benefits and the handIcap parkmg. In relevant part, It states I was not m dIrect contact WIth Dr Reynolds His secretary contacted me on two occaSIOns The first tIme she descnbed that there was a problem WIth the Dr's workload and he needed to extend the tIme lImIt. I told her at that tIme I would get back to her I had receIved a letter from a WSIB specIalIst statmg that the 77 posItIOn was acceptable and that you could m fact work m the Control Officer's posItIOn. At thIS pomt you were dIrected to come to work as per the letter you receIved from Dale EllIott. Dr Reynold's office contacted me agam and requested the extensIOn agam. At thIS pomt I was clear you had been told to come to work based on the medIcal mformatIOn receIved I explamed, If you and your Dr felt there was mformatIOn he wanted me to have, It would be revIewed, however the decIsIOn for your return was made She mformed me that the Dr would complete the form and send It to me For your mformatIOn, It has not yet arrIved. Your pomt regardmg demal of benefits My e-maIl to you mdIcated I have no medIcal documentatIOn to support the use of STSP and your claim for WSIB had been demed. As per your request to rem statement of momes deducted, I wIll reVIew the mformatIOn to date and respond appropnately Use of the handIcapped parkmg. I want to thank you for your note I was concerned that you dId not have the proper authonty to park there, whIch could have subJected you to a large fine It IS my understandmg the stIcker/marker was not VIsIble I thought I would bnng It to your attentIOn. In terms of handIcap parkmg, Mr MagUIre testIfied that Mr Balog later complamed that a Mimstry van had been parked m the handIcap spot for a number of days He stated that, m response, he sent a note to staff not to park there smce there were employees who needed those spots On November 29 2000 Mr Balog filed a gnevance [GSB# 2001-0590 01F471] that "management provIded consent for an employee to use handIcapped parkmg wIthout a permIt as It was reqUIred. The same pnvIlege was not provIded when I reqUIred handIcapped parkmg and I was told to remove my vehIcle On another occaSIOn, I was sent a memo mformmg me not to park m handIcapped parkmg wIthout a permIt (my permIt was dIsplayed on my VISor)" His gnevance descnbed thIS as dIscnmmatIOn agamst a dIsabled employee On July 9 2000 he also filed a gnevance [GSB# 2001-0590 01F469] concermng the demal of STSP benefits for tIme off due to Illness or mJury and mclusIOn m the Attendance Support Program. DIrector EllIott testIfied that from the Mimstry's VIew there was no medIcal JustIficatIOn for Mr Balog not workmg full ShIftS m the Control Officer pOSItIOn. 78 On the overnIght shIft of March 31-Apnl 1 2000 Mr Balog agam reported pam and asked to he down m the medIcal room His Employee IncIdent Report states At 0300 hrs pam developed m my nght knee movmg through my nght thIgh mto my low back. At 0345 the pam had proceeded mto my shoulders and muscle spasms began to occur m my upper back. At 0350 I asked the I.C If! could use a medIcal room to he down to attempt to allevIate the pam that was now effectmg my neck. The ShIft I.C reported, on the same form, that "Gary was granted permISSIOn to use the medIcal room at 0400 hrs to aid hIm m allevIatmg some of the pam he was expenencmg m hIS lower back. I checked on Gary at 0430hrs and 0530 hrs to assure he was okay and to ask hIm If he needed anythmg" Mr Balog used the medIcal room from 4 00 a.m. to 6 15 a.m. Mr Balog's use of the medIcal room for an extended penod that evemng was not well receIved by management. Both Mr MagUIre and DIrector Elhott testIfied that they found Mr Balog's extended use of the medIcal room to be exceSSIve and mappropnate It caused operatIOnal dIfficultIes for the ShIft I.C who had to perform the Control Officer's dutIes dunng that tIme They felt that the medIcal room, on the mght ShIft when the nurse was not present, should only be used for short-term breaks, not for hours In theIr VIew If Mr Balog was m too much pam to work he should go home If not, he should stay and complete hIS shIft. Accordmgly Mr MagUIre dIrected the ShIft I.C not to permIt Mr Balog to use the medIcal room. The followmg day Apnl2, 2000 Mr Balog agam expenenced pam and requested use of the medIcal room. PermIssIOn was demed. Mr Balog then left work. His Employee InCIdent Report states 79 Pam m nght knee radIatmg mto thIgh, lower back, upper back and neck wIth muscle spasms m upper back. Started ShIft at 18 30 hrs wIth low grade pam that spread and mcreased as ShIft lengthened. Requested use of medIcal bed to attempt to allevIate pam. I was demed by the I.C on duty to use medIcal room as dIrected by M. MagUIre I was mformed that I could choose to stay m control or leave and tIme lost would not be covered by medIcal benefits and these wages would be deducted from my pay On May 1 2000 Mr Balog filed a gnevance [GSB# 2000-0334 OPSEU# 00B196] regardmg the demal of hIS request to use the medIcal room, allegmg that It created a health and safety hazard and contnbuted to a pOIsoned work envIronment. In terms of remedy the gnevance sought a "permanent full tIme classIfied accommodatIOn outsIde of SA YC be researched and provIded for me" whIch consIdered hIS educatIOn, background, medIcal precautIOns and expenence A sImIlar gnevance allegmg a pOIsoned work envIronment was filed on May 14 2000 [GSB# 2000-0454 OPSEU# 00B222] In terms of remedy It sought "that another work locatIOn (not Syl Apps) be provIded to me and allow me to contmue to work m a safe and healthy work envIronment free of dIscnmmatIOn." Accordmg to DIrector EllIott and Mr MagUIre no employee was be allowed to use the medIcal room for extended pen ods, not Just Mr Balog, but he was the only one who sought to use the medIcal room for an extended tIme The dIrectIOn, however was that Mr Balog could no longer use the medIcal room at all He was not adVIsed that he could use It for short penods, but not extended ones Instead, there was a blanket demal of use of the medIcal room. Mr Balog testIfied that other employees were allowed to use the medIcal room for extended pen ods, but he dId not provIde any specIfics DIrector EllIott testIfied that management had concerns about what was occurnng. She testIfied that management had made efforts to get Mr Balog to try the Control Officer posItIOn m 80 January and Mr Balog began filIng employee mCIdent reports In March, the same thmg was happemng. Management was partIcularly troubled by Mr Balog's commg to work on March 23 2003 antIcIpatmg, before he started work, the filIng of four employee mCIdent reports They were also concerned because, m management's VIew no "mcIdents" had occurred. The testImony of Mike MagUIre, Dale EllIott and Marg Connelly however was that they belIeved Mr Balog's claims of pam. They "accepted" It, and dId not suspect hIm of abuse On Apnl 11 2000 Steve Clayton, a Umt SupervIsor and relIef ShIft Coordmator wrote an e-maIl to Mike MagUIre and Joe Lamontagne, lIstmg the subject as "oh my back" The e-maIl states that "Gary Balog went home thIS mornmg at 0530 sIck statmg hIS back had gone mto spasms, Apnl 11 " Mr MagUIre testIfied that he brought up the Issue of the appropnate use of e- mall at the I.C meetmg. He recalled that he told Mr Clayton that hIS actIOn was unacceptable He "defimtely" spoke to Mr Lamontagne about It at the IC meetmg. On Apnl14 2000 Mr Balog left work early and mIssed hIS ShIft the followmg day On Apnl 16 2000 he agam left work early SImIlarly on Apnl 20 2000 Mr Balog left work 3 5 hours early He completed another Employee IncIdent Report, statmg that the reoccurrence IS "due to the physIcal demands of the posItIOn over 12 hour shIft " and notmg that he had not yet been able to complete a 12-hour shIft. These absences were recorded as leaves wIthout pay On Apnl 20 2000 DIrector EllIott wrote a lengthy letter to Mr Balog "to provIde both a summary and gIve dIrectIOn to you." The letter notes that dunng the past year and a half there had been much mformatIOn and dIscussIOn but "we have found lIttle common ground or shared mterpretatIOns" She then summanzed the Mimstry's posItIOn MedIcal InformatIOn. 81 - both ILLEA and WSIB Act, Part IV SectIOns 37(3)(4) and Part V SectIOn 40 (1)(c) confirm the employer's nghts and oblIgatIOns related to obtammg and shanng medIcal mformatIOn. - The medIcal mformatIOn requested IS to provIde the employer wIth mformatIOn regardmg any lImItatIOns It IS not up to the health practItIOner to dIrect the actual accommodatIOn. - We have receIved medIcal mformatIOn for you from three practItIOners - Dr Naumetz for the knee, Dr LewIs for anxIety and depressIOn, and Dr Reynolds as a famIly doctor for the back and depressIOn. - You have expressed frustratIOn that we have requested several medIcal mformatIOn packages at vanous tImes ThIS has been because we wIll only accept medIcal mformatI on/lImI tatI ons from the physIcIan treatmg the specIfic mJury/SItuatIOn e g. Dr Naumetz cannot speak to the anxIety Dr LewIs cannot speak to the knee, etc - The WSIB report dated March 16/00 confirms that reassIgnment to the Control Officer posItIOn, related to the knee, IS sUItable - Dr Naumetz's suggestIOns of November 15/99 were revIewed and we confirmed to hIm the appropnate mformatIOn regardmg the Control posItIOn. - Dr LewIs cleared you to return to work on December 22,/99 related to depressIOn and anxIety - Your current medIcal mformatIOn IS from Dr Reynolds As noted above, he IS not been the treatmg physIcIan related to your knee and on thIS, we accept the WSIB AdJudIcator decIsIOn (report dated March 16/00) It IS on thIS basIs that we have advIsed you that there IS no basIs for use of sIck credIts and so we have not been paymg you for days not worked. - Your current medIcal mformatIOn notes depressIOn and medIcatIOn as reasons for employment accommodatIOn Agam, Dr Reynolds has not been the treatmg physIcIan for these and the treatmg physIcIan, Dr LewIs cleared you to return to work. - If these Issues are now/agam to be consIdered by management for employment accommodatIOn, we wIll reqUIre medIcal documentatIOn from a specIalIst 1 e general practItIOners such as Dr Reynolds and Dr LewIs wIll not be accepted. Next Steps reo MedIcal InformatIOn UntIl we have medIcal mformatIOn from a specIalIst WIth restnctIOns related to depressIOn and medIcatIOn, we wIll contmue our current posItIOn that we have no medIcal documentatIOn that supports use of sIck credIts We wIll provIde three 82 specIalIst names for you to choose from and we wIll make the referral Weare reCeIVIng and reVIeWIng thIS InformatIOn as per ILLEA and the WSIB Act. You are aware of the pay penod for the facIlIty and of days that you do not work full ShIftS From thIS, you can determIne how your pay wIll be affected. If you reqUIre confirmatIOn, please call one of the Pay and Benefits Reps for assIstance I am confirmIng to you that contact wIth your manager Mike MagUIre and Human Resources should be regardIng the performance of your Job In Control, and the present. There wIll be no further meetIngs or dIscussIOns to go over yet agaIn what has gone on In the past. Our dIfferences on these wIll go through the gnevance and arbItratIOn processes that are In place to support dIffenng posItIOns ThIS letter IS not Intended to be dIscIplInary In nature, but It IS Intended to provIde clanty on expectatIOns Weare not denYIng or refusIng you anythIng. Rather we are statIng that we have already provIded InfOrmatIOn to the best of our abIlIty and wIll work wIth you on next steps DIrector EllIott testIfied that the recent medIcal notes from Dr Reynolds (i e the March 27 2000 forms, the letters Apnl 4 and Apnl 6 2000 all of whIch were receIved on Apnl 10 2000) confused management. For the first tIme, Dr Reynolds was addressIng all three medIcal condItIOns - Mr Balog's knee, back and depressIOn. Management was also confused by Dr Reynold's March 22, 2000 letter that Mr Balog was returnIng to work "wIthout hIS authonzatIOn" In lIght of hIS March 27 2000 lIst of restnctIOns The Employer was not aware of the fallIng out between Mr Balog and Dr Naumetz, and the last medIcal note from Dr LewIs had cleared hIm to return to work wIthout restnctIOns DIrector EllIott testIfied that the medIcal InfOrmatIOn provIded by Dr Reynolds dId not provIde anythIng new and management felt that It was accommodatIng Mr Balog wIthIn hIS medIcal restnctIOns Although Dr Reynolds note recommended an 8 hour shIft, as had Dr Naumetz's on November 15 1999 WSIB had subsequently approved a 12-hour shIft. Management was, however wIllIng to consIder new InformatIOn from a specIalIst. In Ms EllIott's VIew management was eXerCISIng ItS nght to reqUIre an Independent medIcal eXamInatIOn (IME) Ms EllIott testIfied that management felt that Independent specIalIsts were needed to resolve the conflIctIng medIcal InformatIOn. 83 The clImcal notes of Dr Reynold's dated Apnl 6 2000 IndIcate that he would refer Mr Balog to two specIalIsts, one for hIS knee and one for depressIOn. Mr Balog, however dId not advIse management about thIS Management was unaware of the fact that Mr Balog saw a number of specIalIsts dunng the Spnng and Summer of 2000 untIl that fact was revealed dunng dIsclosure In thIS lItIgatIOn In September 2000 On May 3 2000 Dr John Shepherd, an orthopaedIc surgeon to whom Dr Reynolds referred Mr Balog, wrote to Dr Reynolds about Mr Balog's medIcal condItIOn. He concluded that Mr Balog "ObvIOusly has early osteoarthntIs of hIS knee" His recommendatIOn was for Mr Balog to lose weIght and exerCIse as well as consIder another debndement. Mr Balog dId not provIde thIS report to the Employer It was provIded dunng dIsclosure In thIS matter on September 19 2000 On July 4 2000 Dr Satpal GIrgla, the psychIatnst to whom Dr Reynolds referred Mr Balog, wrote a letter to Dr Reynolds He saw Mr Balog on three occaSIOns His dIagnosIs was "maJor depressIOn wIth work-related stress" He recommended some potentIal changes In Mr Balog's medIcatIOn and that he contInue wIth Dr LewIs He stated that "an InterventIOn by the Harassment and DISCnmInatIOn CoordInator for the Mimstry mIght help hIS sItuatIOn as he feels he IS unable to handle workIng 12-hour shIfts" Mr Balog dId not provIde thIS report to the Employer It was provIded In connectIOn wIth dIsclosure In September 2000 On June 27 2000 Dr Greg JarosynskI, another orthopaedIc specIalIst, wrote a letter to Dr Reynolds that outlInes the medIcal Issues faced by Mr Balog In relatIOn to hIS knee and back, notIng "advanced arthntIc changes of predomInantly L5-S 1 and also L4-5 to a lesser 84 degree" He concluded that "Gary has a cOmbInatIOn of problems that are not easIly fixable" He dId not recommend further surgery for hIS knee, or for hIS back. AgaIn, the Employer dId not receIve thIS from Mr Balog dIrectly It was provIded In September 2000 as a result of dIsclosure In connectIOn wIth thIS lItIgatIOn. A final report that was receIved through dIsclosure In September 2000 was a July 17 2000 report to Dr Reynolds from Brant 730 PhysIOtherapy It states that" [t ]hI s bn ef report was requested by Mr Balog to be sent to you, In order to support the recommendatIOns you outlIned to hIS employer regardIng hIS physIcal status" The recommendatIOns were I support the medIcal precautIOns as outlIned by Dr Naumetz, wIth regards to Mr Balog's knee With respect to your and Dr Naumetz's recommendatIOn to work an 8 hour ShIft versus 12 hour Mr Balog should truly be permItted enough space at hIS work statIOn, to allow for contInued movement of hIS knee and back In SIttIng or standIng, and, on hIS scheduled breaks, be permItted to use a pnvate space In order to stretch, use hIS TENS machIne or Ice as needed. ThIS In essence would lIkely contribute to better paIn control and functIOn on the Job to endure a full 12 hour shIft. As reported by Mr Balog, he IS permItted none of the above, thus I would support the recommended 8 hour shIft. (emphasIs In ongInal) In the penod after Ms EllIott's letter of Apnl 20 2000 through July 2000 Mr Balog was able to complete a number of 12-hour ShIftS, and on a number of occaSIOns left work early Also on a number of occaSIOns, he called In SICk. He attended Dr Reynold's office a number of tImes dunng thIS penod complaInIng of knee and back paIn. He also saw Dr LewIs and the specIalIsts arranged by Dr Reynolds On Apnl 29 2000 Dr LewIs wrote a letter addressed to "To Whom It May Concern" outlImng the physIcal and emotIOnal problems expenenced by Mr Balog. He states "As a result of hIS sleep problem ShIft work IS detnmental to hIm, and he would benefit from 8 hour day 85 ShIftS" Management dId not accept thIS letter In lIght of Ms EllIott's Apnl 20 2000 letter regardIng the need for specIalIsts On May 14 2000 as Mr Balog sWIveled In hIS chair hIS nght knee struck the drawers on the far nght hand sIde of the workstatIOn. He completed an Employee IncIdent Report and left work early On May 28 2000 Mr Balog wrote a letter to Mike MagUIre regardIng "health and safety hazards In the Secunty Officer posItIOn." He notes that the desk heIght dId not allow hIS knees to slIde under the desk surface wIthout rubbIng, and that the addItIOn of hIS brace IS not possIble "sInce the desk heIght wIll not allow ItS comfortable use" He asked for Mr MagUIre to address thIS matter and respond In wntIng. A second sImIlar IncIdent took place on July 12, 2000 Mr MagUIre testIfied that the desk could not be lowered, and It was felt that because the ergonomIc chair could be raised or lowered, the Issue of the desk heIght could be addressed through the chair He dId not recall If he told thIS to Mr Balog. DIrector EllIott also testIfied that management felt that the abIlIty to raise or lower the chair dealt wIth the problem of the desk heIght. On June 1 2000 Ms EllIott met wIth Mr Balog to dISCUSS a number of gnevances, but they also dIscussed the Employer's Apnl request for IMEs In relatIOn to any request for accommodatIOn In relatIOn to hIS back or anxIety and depressIOn. Ms EllIott's notes of that dIscussIOn IndIcate that Ms EllIott Informed Mr Balog that If the medIcal documentatIOn from an IME supported the tIme off that he had taken, the Employer would return hIS sIck credIts as well as reVIew any restnctIOns related to employment accommodatIOn. In the Intenm, however the Mimstry would maIntaIn ItS posItIOn that there was no medIcal documentatIOn supportIng hIS 86 InabIlIty to perform the Control Officer posItIOn. In the Mimstry's VIew thIS was not dIscIplInary Instead, they were applYIng the provIsIOns of the collectIve agreement and the reqUIrement that absences need to be supported by medIcal documentatIOn. The IME Issue was agaIn dIscussed at a meetIng between management and Mr Balog, along wIth Local Umon PresIdent Van Wagner on June 29 2000 At the meetIng, Mr Balog was advIsed that he had been entered Into Step One of the Attendance Support Program, and provIded wIth the names of three orthopaedIc specIalIsts and three psychIatnsts Ms Connelly who attended the meetIng, testIfied that she explaIned to Mr Balog about the IME process - that he would choose one of the three doctors, the employer would set up the appoIntment, and that all partIes would be bound by the results of the IME She stated that Mr Balog stated that he was satIsfied wIth hIS own doctors Ms EllIott asked hIm to take the names of the doctors and thInk about It, and Mr Balog agreed to do so The July 9 2000 gnevance filed by Mr Balog, whIch gneved the Employer's demal of hIS STSP benefits for hIS absences, also referred to hIS InclUSIOn In the Attendance Support Program He alleged that hIS InclUSIOn was a repnsal for not beIng able to complete hIS ShIftS and dISCnmInatIOn on the basIs of dIsabIlIty In mId-July DIrector EllIott offered to let Mr Balog choose the specIalIsts, If he preferred, provIded they met Mimstry cntena. Subsequently Mr Balog agreed to the IME process, selectIng two doctors on the Mimstry's lIst Dr Waldenberg for hIS depressIOn/anxIety and Dr Blackstone for hIS knee/back. 87 The June 12, 2000 clImc notes of Dr LewIs reveal a sIgmficant dIscussIOn about work. They IndIcate Mr Balog was havIng "extreme dIfficulty workIng" that hIS "back spasms have calmed down" that "after 8 hours, Gary finds that he IS bored and frustrated wIthIn the workplace" Dr LewIs noted that Mr Balog stated that he "was unable to deal wIth the lack of dIgmty and respect" at Syl Apps and that management had "never even looked for an accommodatIOn whIch took Into account hIS traInIng." The notes state "It's the InstItutIOn that has treated Gary unfairly that has resulted In Gary no longer wantIng to work In that InstItutIOn regardless of posItIOn." Dr LewIs testIfied that Mr Balog's feelIngs about the InstItutIOn were IncreasIngly negatIve E. Phase 5 - The IME Process (July 2000 to November 2000) and the Temporary Accommodation in Reception. 1 Dr Waldenberg - the Psychiatric IME (July 27, 2000) On July 18 2000 the Mimstry sent Dr Waldenberg a letter of referral for an Independent psychIatnc evaluatIOn of Mr Balog. The referral letter outlInes the hIStOry of Mr Balog's sItuatIOn, a copy of the Control Officer posItIOn specIficatIOn, the 12-hour ShIft schedule, and notes that an Apnl 11 2000 medIcal note "IndIcates that Mr Balog cannot work a 12 hour ShIft work due to the medIcatIOn prescnbed and hIS depreSSIOn." The referral also mentIOns the announced pnvatIzatIOn of Syl Apps and Mr Balog's request, In 1998 for a workplace accommodatIOn. It contInues that Mr Balog "was InSIstent that thIS be outsIde the facIlIty It IS our polIcy to first try and accommodate employees In theIr home posItIOn. We tned thIS wIthout success" 88 Two specIfic questIOns were asked 1 Based on the InformatIOn provIded and your assessment, do you agree wIth the dIagnosIs of depressIOn? If so what IS the seventy of Mr Balog's depressIOn? Is thIS depreSSIOn temporary? 2 Do the current medIcatIOns for depressIOn Impact on Mr Balog's work In the control booth? Based on the medIcal InfOrmatIOn on file from Dr Reynolds, G.P It IS recommended that Mr Balog work 8 hour shIfts Instead of 12 hours - do you feel thIS IS warranted, If so why? The letter concluded that If Dr Waldenberg needed addItIOnal InfOrmatIOn or cl anfi catIOn, he should contact Beth BaIley On July 27 2000 Mr Balog met wIth Dr Waldenberg. Dr Waldenberg's report, dated the same day and receIved by the Employer on August 2, 2000 confirmed that Mr Balog suffered from depressIOn of "moderate seventy" Dr W aldenberg determIned that the questIOn of whether the depressIOn was temporary was "a dIfficult one to answer" He noted that It had been ongOIng for 18 months and that "[d]epressIOn In the presence of chromc paIn IS notonously dIfficult to cure" but he felt that Mr Balog's pharmacologIcal treatment had "not been sufficIently aggressIve" and "more could be done In thIS area" so he concluded that the "Jury IS stIll out" on the Issue He found that Mr Balog was dealIng wIth sIgmficant losses In regard to hIS abIlIty to engage In physIcal and athletIc actIvItIes and Job loss - gOIng from a Job he "really lIked to do" (RecreatIOn Officer) to a Job "whIch means very lIttle to hIm and In whIch there IS very lIttle Job satIsfactIOn." Dr Waldenberg dId not feel that Mr Balog's medIcatIOns "have anythIng much to do wIth Mr Balog's work In the control booth." Instead, "the complex InteractIOn of the patIent's paIn and hIS angry feelIngs of frustratIOn wIth regard to the employer" led hIm "to recommend 89 accommodatIng Mr Balog's request to work 8-hour ShIftS" ThIS was "due to hIS paIn and hIS depreSSIOn In equal measure" The report noted that although Mr Balog told hIm that he had dIfficulty workIng the full 12 hours "because of paIn rather than depressIOn" when he answered that questIOn Mr Balog talked "at some length about hIS anger wIth management and how he feels let down by them" As a result, Dr W aldenberg concluded that It was "probably too sImple to say that It IS Just paIn caUSIng hIS dIfficultIes In completIng the ShIft" and felt "that It IS both the paIn and hIS unresolved feelIngs of anger and frustratIOn." Dr Waldenberg testIfied at the heanng on November 21 2000 He was called to testIfy by the Umon, but counsel for the Umon dId not speak wIth hIm In advance concermng hIS testImony Nor dId counsel for the Employer At the heanng, Dr Waldenberg stated, on examInatIOn-In-chIef, that In the referral, he was not asked whether Mr Balog should remaIn at the workplace and he dId not attempt to address that questIOn. He dId note, however that the referral letter mentIOned Mr Balog's request to be accommodated outsIde of the InstItutIOn and that Mimstry had said that thIS was not the usual first recourse, that It was more usual to accommodate wIthIn the employee's own settIng, If possIble He also testIfied that "In an Ideal world, he mIght have been better off workIng somewhere else" ThIS was because It would be "one less source of stress" and help hIS recovery In a "less Ideal world" contInuIng to work wIth the Employer would be "dIfficult" create "addItIOnal treatment Issues" and there would "less lIkely be a complete recovery" although he could not say by how much. He was shown Dr LewIs's December 14 1999 letter and stated that although he dId not know whether faIlIng to agree to an accommodatIOn outsIde the InstItutIOn would be deletenous, Mr Balog was "unlIkely to recover as well as he mIght." 90 On cross-eXamInatIOn, Dr Waldenberg stated that If he belIeved that somethIng was sIgmficant he would mentIOn It In hIS OpInIOn, even though not specIfically asked. He stated that It was a "fair statement" that he dId not mentIOn that It would be better for Mr Balog to be at another InstItutIOn because he dId not feel It necessary for treatment. He stated that dunng theIr meetIng Mr Balog suggested a number of ways to reduce hIS anger such as workIng 8 hours per day workIng In another posItIOn, workIng elsewhere, or early retIrement, but he dIsagreed that he dId not Include those alternatIves because they would not assIst Mr Balog. Instead, he dId not know that these other optIOns were possible On re-eXamInatIOn, Dr Waldenberg testIfied that In hIS medIcal OpInIOn, Mr Balog would benefit from beIng moved out of Syl Apps Youth Centre "From the patIent's pOInt of vIew" It was "the course of actIOn to follow" DIrector EllIott testIfied that the management team dIscussed Dr W aldenberg' s report and agreed to respond to hIS VIews regardIng the 8-hour shIft. Management also reInstated hIS STSP entItlements from March 2000 forward. At the tIme however Mr Balog was off work, and they would Wait for the other IME report. In terms of Dr Waldenberg's November 21 2000 testImony DIrector EllIott agreed that management dId not ask Dr Waldenberg If Mr Balog should remaIn at Syl Apps, or the Impact If he remaIned. In her VIew the Employer does not lead the doctor to the accommodatIOn. Instead, the Employer IS lookIng for InformatIOn to enable the Employer to determIne the accommodatIOn. She testIfied that Dr Waldenberg' s VIew that It would be In the patIent's best Interest to work elsewhere was "not helpful" and that It was not the doctor's role to state what the 91 accommodatIOn should be Instead, the doctor's role IS to state the restnctIOns In her VIew a restnctIOn IS a statement that an employee cannot work In a partIcular envIronment. On July 29 2000 Mr Balog went to see Dr Reynolds reportIng severe nght buttock paIn and beIng unable to work. Mr Balog mIssed hIS next scheduled ShIftS, and on August 9 2000 Dr Reynolds provIded hIm wIth a medIcal note, whIch states as follows On July 29 2000 thIS man expenenced Increased lower back paIn and nght SCIatIca due to lumbar dISC hernIatIOn. He IS unable to get out of bed at thIS tIme, thus he IS unable to work. He IS to have another CT scan of hIS lumbar spIne and he wIll see a neurosurgeon. As soon as he IS able, he wIll resume physIOtherapy It IS my OpInIOn that thIS IS an exacerbatIOn of hIS pre-exIstIng work Induced lower back problem and thus should be covered by WSIB He wIll be unable to work for at least SIX to eIght weeks He wIll be assessed on a regular basIs The length of tIme off work may need to be extended. Mr Balog remaIned off work untIl October 6 2000 The August 13 2000 CT scan showed no sIgmficant change from the earlIer one In June 2000 2. Dr Blackstone - the Orthopaedic IME (August 2000) On August 8 2000 the Mimstry sent a referral letter to Dr Ian Blackstone for an Independent orthopaedIc evaluatIOn of Mr Balog to be held on August 16 2000 It outlInes the hIStOry ofMr Balog's sItuatIOn from the Mimstry's perspectIve It Included the Job specIficatIOn for the Control Officer posItIOn, the PDA for that posItIOn and the 12-hour shIft schedule Three specIfic questIOns were asked to be addressed In the evaluatIOn 1 Based on the InformatIOn provIded and on your assessment, can Mr Balog work In the capacIty of a Control Officer whIch IS sedentary In terms of the 92 physIcal demands wIth fleXIbIlIty to change posItIOns? If not, please specIfy why Is the condItIOn temporary? 2 Is Mr Balog able to work 12-hour shIfts? He currently sustaInS 10 hours - It IS sIgmficant to note that there IS fleXIbIlIty wIth regards to breaks and changIng posItIOns from SIttIng, standIng, walkIng and as well Mr Balog SItS In an ergonomIcally sound chair If not can your provIde the reasons why 3 FolloWIng your assessment, does Mr Balog have any functIOnal lImItatIOns WIth regard to performIng hIS Job as a Control Officer? If so please elaborate Mr Balog kept hIS appoIntment wIth Dr Blackstone on August 16 2000 despIte hIS recent back problems He reported to Dr Blackstone that he had "been on bed rest at home untIl the last couple of days" Dr Blackstone's report, whIch IS not dated, answers the three questIOns posed. In regard to the questIOn of whether Mr Balog can work In the capacIty of Control Officer the report states I belIeve that the descnptIOn of the actIvItIes of Control Officer does Indeed represent sedentary work, however Mr Balog states that there IS an aspect of thIS Job that aggravates hIS back. ThIS related to the constant rotatIng of hIS lumbar spIne when mOVIng on hIS wheeled chair from one workstatIOn to another It IS my OpInIOn that the pathology In hIS lumbar spIne would be aggravated by constant rotary motIOns of hIS lumbar spIne whIle seated. In addItIOn, Mr Balog relates that there IS a lIftIng aspect to hIS Job that IS, that he has to lIft heavy key boxes, whIch also aggravates hIS back paIn. ThIS In my OpInIOn IS also appropnate In terms of the length of hIS ShIftS, Dr Blackstone wrote "As far as the length of hIS ShIftS are concerned, If he were not aggravatIng hIS low back by rotatIng It repeatedly he may well be able to work the twelve hour shIft. The ergonomIcally sound chair wIth whIch he has been provIded seems entIrely appropnate" SImIlarly In regard to any functIOnal lImItatIOns, Dr Blackstone wrote "I belIeve that rotary movements of hIS lumbar spIne are Indeed aggravatIng hIS back paIn and If thIS aspect of hIS actIvItIes could be controlled the rest of the Job descnptIOn as a Control Officer seems appropnate In regards to both hIS lumbar spIne and nght knee dIfficultIes" 93 DIrector EllIott testIfied that the Employer dIsagreed that the Control Officer posItIOn reqUIred constant rotary movement or the lIftIng of heavy key boxes The Mimstry felt that the doctor dId not have an accurate perceptIOn of the work sIte or what the Job reqUIred. The VIew that the partIes and I took showed that the keys were located on slIdIng boards No lIftIng of heavy boxes, or any boxes, was reqUIred. Management felt that If Dr Blackstone had the correct InfOrmatIOn, then the Control Officer posItIOn would be deemed appropnate As a result, a second consultatIOn wIth Dr Blackstone was scheduled for October 31 2000 Pnor to thIS appoIntment, on September 25 2000 Mike MagUIre and Mr Balog had a dIscussIOn about hIS return to work. At tIme, Mr Balog was not sure If he would be returnIng to work on a full-tIme or part-tIme basIs Mr MagUIre Informed hIm that management was respondIng to Dr W aldenberg' s VIew that he should work 8-hour ShIftS, and that as a result, he would be temporanly accommodated In the ReceptIOmst posItIOn. He explaIned at the heanng that It was not feasIble operatIOnally to have an employee work 8 hours In the Control Officer posItIOn, and that Mr Balog's restnctIOns could only be met In the ReceptIOmst posItIOn. Mr MagUIre also advIsed Mr Balog that hIS STSP credIts would expIre on October 27 2000 and that L TIP forms would be sent to hIm On October 2, 2000 Dr Reynolds cleared Mr Balog to return to work wIth a number of restnctIOns as set out In a letter dated September 29 2000 The restnctIOns Included no ShIft work; four hour mornIng ShIftS only no bendIng, runmng, lIftIng, pushIng, pullIng or squattIng; no reachIng beyond hIS arm's length when eIther SIttIng or standIng; work statIOn desk should allow hIm to extend hIS legs and desk heIght should be such that he doesn't have to lean over It; hIS chair should be adJustable and provIde proper lumbar support; he must be allowed 15 mInute 94 breaks every hour If necessary to stretch, walk or lay down In order to allevIate lower back paIn, repetItIve movement from SIttIng to standIng and VIce versa should be aVOIded. The eVIdence showed that most of the restnctIOns set forth In the September 29 2000 letter were wntten down by Mr Balog whIle he was In Toronto attendIng an Ontano FederatIOn of Labour Conference ExecutIve meetIng. WhIle there, Mr Balog wrote out on Sheraton Centre Toronto letterhead a detaIled lIst of restnctIOns, most of whIch were adopted by Dr Reynolds When questIOned about thIS on cross-eXamInatIOn at the heanng, Dr Reynolds agreed that he consIdered Mr Balog's notes and VIews about what he was capable of and that there were sImIlantIes between the two documents In fact, there are stnkIng sImIlantIes between the two documents On October 19 2000 Dr Reynolds Issued another letter IncreaSIng the number of hours that Mr Balog could work to SIX hours per day whIle keepIng the same restnctIOns From management's VIew the September 29 and October 19 letters from Dr Reynolds wIth restnctIOns went outsIde of the agreed upon IME process for determInIng accommodatIOn. In management's VIew they also conflIcted wIth Dr Blackstone's earlIer conclusIOns On October 27 2000 the Mimstry sent ItS second referral letter to Dr Blackstone In that letter the Mimstry states that there IS "not 'constant rotatIng' to shIft from one place to another" In the Control posItIOn. "Rather he IS In an ergonomIc chair that sWIvels, per Dr Reynolds recommendatIOn, the posItIOn reqUIres a range of movement approxImately 45 degrees to the left and nght of centre" It further noted that there was "no heavy lIftIng of key boxes, In fact, the key cabInet IS mounted on the wall and the panels slIde on rollers In and out of the 95 cabInet honzontally" The letter notes that, per Dr Reynold's restnctIOns, the Mimstry had temporanly accommodated Mr Balog In the ReceptIOmst posItIOn. It attached the posItIOn descnptIOn and PDA for that posItIOn as well It then asks In your OpInIOn, can Mr Balog assume hIS dutIes In the control posItIOn, IncludIng the reqUIred ShIft schedule? FaIlIng that, IS the ReceptIOn posItIOn an appropnate placement. If not, IS It your OpInIOn that the aggravatIOn of the back IS SO sIgmficant that It IS unrealIstIc for Mr Balog to return to work In any capacIty at thIS tIme? Mr Balog attended the appoIntment wIth Dr Blackstone on October 31 2000 but declIned to partIcIpate because he felt mIsled by the fact that he was not provIded the letter sent to Dr Blackstone, In advance, as promIsed, and because he had not understood that Dr Blackstone would be asked to comment on the ReceptIOmst posItIOn. A meetIng wIth DIrector EllIott, Mike MagUIre, Marg Connelly Mr Balog and Local Umon PresIdent VivIan Van Wagner took place on November 1 2000 where Mr Balog's concerns were addressed. DIrector EllIott stated at the meetIng - and Marg Connelly testIfied at the heanng - that she had prepared a copy of what had been sent to Dr Blackstone for Mr Balog on October 30 and left It In a confidentIal envelope for hIm at ReceptIOn. He had been scheduled to work on October 31 before hIS appoIntment wIth Dr Blackstone Mr Balog called In sIck that day and Mike MagUIre dId not know that the package was WaitIng for hIm at work. When he learned about It, he tned to contact Mr Balog but was unable to reach hIm At the meetIng, management explaIned the reasons for IncludIng the ReceptIOmst InfOrmatIOn to Dr Blackstone It was to bnng hIm up-to-date on recent events, IncludIng Dr Reynold's restnctIOns of September 29 and the temporary accommodatIOn In ReceptIOn. Management wanted to know If the Control Officer posItIOn remaIned appropnate If not, why 96 and was ReceptIOn an appropnate accommodatIOn, If not, why and what work would be appropnate After thIS, Mr Balog consented to meet wIth Dr Blackstone and an appoIntment was scheduled for November 7 2000 Dr Blackstone found Mr Balog's physIcal condItIOn IdentIcal to hIS earlIer one He concluded that regular 8-hour ShIftS would be appropnate, that the ReceptIOmst posItIOn met hIS restnctIOns, that hIS knee condItIOn was controllable In the Control Officer's posItIOn, but that "[t]he questIOn of whether he rotates hIS lumber spIne In that Job IS an open one" He stated 4 The question of rotation of the lumbar spine yt,hile sitting on an ergonomic chair? I am not able to vIsualIze thIS chair but It would have to hold hIm very firmly (almost be strapped Into the chair) to prevent rotatIOn of the lumbar spIne If he IS sWIvelIng. I am not able to comment on the degree of heavy lIftIng as there appears to be some dIsagreement between whether the key boxes have to be lIfted or merely slId. I am also of the OpInIOn that the other aspects of the control posItIOn do comply wIth hIS restnctIOns as placed. AccordIng to DIrector EllIott, management made no change In Mr Balog's accommodatIOn after thIS second report. Dr Reynolds, on November 3 2000 had cleared Mr Balog to work eIght-hour ShIftS The Employer and Mr Balog sIgned accommodatIOn plan agreements for temporary accommodatIOn In the ReceptIOmst posItIOn on November 28 2000 Management dId not follow-up In regard to Dr Blackstone's statement that Mr Balog would have to be strapped Into a chair to prevent rotatIOn of the lumbar spIne because by the tIme the report was receIved, the facIlIty was about to be pnvatIzed. Syl Apps was pnvatIzed on December 1 2000 Mr Balog elected to leave the Ontano publIc servIce and accept the posItIOn of Control Officer wIth the new employer 97 At the heanng on January 11 2001 and January 24 2001 Dr Blackstone testIfied about hIS reports ObvIOusly thIS testImony was not avaIlable to the Employer whIle Mr Balog remaIned an employee of Syl Apps His testImony on examInatIOn-In-chIef, was that If Mr Balog could frequently change posItIOns, use an appropnate chair and do the Job wIthout constantly tWIStIng hIS back, he could do the Job In lIght of Mr Balog's arthntIc back, tWIStIng would be paInful He stated that IfMr Balog sat In hIS chair and rotated left and nght repeatedly It would aggravate hIS back. He said that Mr Balog should not do any rotatIOn at work, whIch could only be accomplIshed by workIng dIrectly facIng front. AlternatIvely If the work area were large enough, the chair could be moved to another area wIthout rotatIng, although It could not be done qUIckly He also stated that constant up and down movements would be bad for hIS back, whIch was somethIng he had not understood before regardIng the placement of the key boxes, as would pullIng the key boxes out. After lookIng at pIctures of the worksIte, he felt that Mr Balog would have dIfficulty on a long-term basIs, performIng the Job although he could do It for a whIle If he dId hIS motIOns delIberately and carefully he mIght be able to do the Job Indefimtely He stated that the type of movement he suggests IS not natural, but can be learned. On November 16 2000 WSIB Issued a decIsIOn In regard to Mr Balog's appeal of the demal of hIS claim for compensatIOn In relatIOn to hIS mental stress and low back paIn and assocIated loss of earnIngs The Appeals ResolutIOn Officer determIned that Mr Balog was not entItled to claim for hIS low back InJury or depressIOn and that "[t]he Job as a control officer as defined In the ergonomIcs specIalIst's report of February 2000 IS sUItable and wIthIn the restnctIOns outlIned at that tIme" The Officer noted that "[a]lthough there were some other recommendatIOns made, It was stIll her final assessment at the end that the Job was wIthIn the restnctIOns" She noted that the worker and hIS representatIve "have made some Issues regardIng the heIght of the desk as well as obtaInIng keys and answenng alarms" but she dId "not 98 find [that] thIS eVIdence was compellIng or that It supported that the Job would be unsUItable" She contInued "In fact, It would be my statement that the InJured worker dId not make a reasonable attempt to return to thIS employer or work out any dIfficultIes he was havIng at that tIme" She found that Mr.Balog "raised many obstacles to Impede hIS early and safe return to work process" notIng hIS "many gnevances" and "hIS complaInt to the Ontano Human Rights CommIssIon " AccordIngly hIS absences from work from January 3 2000 and hIS claim from the depressIOn from June 1999 to January 3 2000 were not allowed. On November 11 2000 Mr Balog filed a gnevance that the Employer had reclassIfied hIm Into a posItIOn that he has been unable to sustaIn, whIch demed hIm severance pay as a RecreatIOn Officer II. He states that others are beIng reclassIfied after dIvestment, thereby provIdIng them wIth full severance pay Decision A. Has the Employer Satisfied its Duty to Accommodate Mr Balog? The fundamental Issue In thIS case IS whether the Control Officer posItIOn was an appropnate accommodatIOn under the Ontano Human Rights Code and the collectIve agreement. ThIS was the subJect of Mr Balog's gnevance dated January 4 2000 [GSB# 1999-1845 OPSEU# 00B069] Although, ImtIally there was a sIgmficant dIspute between the partIes regardIng whether Mr Balog could be accommodated In hIS home posItIOn of RecreatIOn Officer that Issue was resolved by the determInatIOn of WSIB In July 1999 that the Employer's proposed accommodatIOn removed too many of the essentIal dutIes of the Job to be appropnate The Mimstry accepted that conclusIOn and the partIes do not dIspute that the gnevor could not be accommodated In the RecreatIOn Officer posItIOn. Instead, the dIspute centers on the 99 appropnateness of the gnevor's reassIgnment on October 4 1999 to the Control Officer posItIOn. The Umon challenges the appropnateness of the assIgnment both at that tIme, and thereafter At the tIme of the reassIgnment, Mr Balog had a permanent "dIsabIlIty" wIthIn the meamng of the Code In relatIOn to hIS nght knee He had also requested accommodatIOn. AccordIngly the Umon has establIshed a "pnma facIe" case of entItlement to accommodatIOn, and the onus ShIftS to the Employer to establIsh that IS has met the duty to accommodate The Umon raises a number of procedural problems wIth the Employer's actIOns In reachIng the decIsIOn to assIgn Mr Balog to Control 1 It dId not first provIde the posItIOn specIficatIOn and PDA for Control to the gnevor's doctors 2 It dId not consult wIth Mr Balog pnor to makIng the decIsIOn to reassIgn hIm to control, whIch vIOlated hIS nght to dIgmty and self-respect In the accommodatIOn process 3 The Mimstry dId not consIder any alternatIve posItIOns outsIde of Syl Apps It only consIdered the Control posItIOn. Each argument wIll be addressed below 1 The failure to clear the Control position with the grievor's doctors. The Umon asserts that the Employer dId not provIde the posItIOn specIficatIOn and PDA for the Control Officer posItIOn to the gnevor's doctors for clearance before assIgmng hIm thIS Job ThIS Issue IS also raised In one of Mr Balog's gnevances, dated October 25 1999 There was eVIdence that the Employer's practIce IS to have the posItIOn descnptIOn and PDA sent to the employee's doctor for reVIew except where there IS sufficIent medIcal InfOrmatIOn for management to make an assessment based on ItS knowledge of the Job In thIS case, management 100 felt that It had enough InformatIOn to do that. It had restnctIOns related to Mr Balog's knee (the only known dIsabIlIty) Mr Balog had also performed the Job In the Spnng of 1999 wIth no medIcal Issues an SIng. SIgmficantly dunng that tIme, there was no IndIcatIOn from eIther Mr Balog or hIS doctors that the Control Officer posItIOn was unsUItable There was no eVIdence that management's actIOns vIOlated the Employer's accommodatIOn or return-to-work polIcIes It may have been prudent for management to have cleared the Job wIth the gnevor's doctor but there was no reqUIrement for It to do so Subsequently ImmedIately after Mr Balog expressed dIfficulty In performIng the work In January 2000 the posItIOn descnptIOn and PDA were sent to Dr Reynolds for hIS reVIew AccordIngly I find no vIOlatIOn of the Employer's accommodatIOn polIcy or the collectIve agreement In thIS regard, 2. The Employer's Failure to Consult with Mr Balog The Umon also asserts that management vIOlated the gnevor's nghts to dIgmty and respect In the accommodatIOn process by decIdIng on the Control Officer posItIOn wIthout first consultIng Mr Balog. ThIS argument reqUIres an analysIs of the respectIve roles and responsIbIlItIes of the vanous partIes to the accommodatIOn process The Supreme Court of Canada In Board of School Trustees, School District No 23 (Central Okanagan) et al. v Renaud, et al (1992) 95 D.L.R. (4th) 577 (S C C ), found that "[t]he search for accommodatIOn IS a multI-party InqUIry" The Employer has the pnmary duty and, gIven that It IS In charge of the workplace, "can be expected to ImtIate the process" (95 D.L.R.(4th) at 591) The Umon has a role and "there IS also a duty on the complaInant to assIst In secunng an appropnate accommodatIOn." (95 D.L.R. (4th) at 592) The Court stated, at p 593 To facIlItate the search for accommodatIOn, the complaInant must do hIS or her part as well ConcomItant WIth a search for reasonable accommodatIOn IS a duty 101 to facIlItate the search for such an accommodatIOn. Thus, In determInIng whether the duty of accommodatIOn has been fulfilled, the conduct of the complaInant must be consIdered. ThIS does not mean that, In addItIOn to bnngIng to the attentIOn of the employer the facts relatIng to dISCnmInatIOn, the complaInant has a duty to ongInate a solutIOn. WhIle the complaInant may be In a posItIOn to make suggestIOns, the employer IS In the best posItIOn to determIne how the complaInant can be accommodated wIthout undue Interference In the operatIOn of the employer's busIness When an employer has ImtIated a proposal that IS reasonable and would, If Implemented, fulfil the duty to accommodate, the complaInant has a duty to facIlItate the ImplementatIOn of the proposal If faIlure to take reasonable steps on the part of the complaInant causes the proposal to founder the complaInant wIll be dIsmIssed. The other aspect of thIS duty IS the oblIgatIOn to accept reasonable accommodatIOn The complaInant cannot expect a perfect solutIOn. If a proposal that would be reasonable In all the CIrcumstances IS turned down, the employer's duty IS dIscharged. SImIlarly In Re Canadian Forest Products Ltd (Polar Division) and I WA.-Canada Local 1-424 (1995) 50 LAC (4th) 164 (BlasIna) the duty on the employee was referred to as the "duty to facIlItate" accommodatIOn. The "PolIcy and GUIdelInes on DIsabIlIty and the Duty to Accommodate" publIshed by the Ontano Human Rights CommIssIOn lIsts the partIes' dutIes and responsIbIlItIes In the accommodatIOn process SectIOn 3 4 states that "[e]veryone Involved should cooperatIvely engage In the process, share InfOrmatIOn, and avaIl themselves of potentIal accommodatIOn solutIOns" It then lIsts the responsIbIlItIes of the employee whIch Include, among other thIngs, the oblIgatIOn to "partIcIpate In dIscussIOns regardIng possIble accommodatIOn solutIOns" There IS no correspondIng oblIgatIOn on the employer The polIcy gUIdelInes also state, In SectIOn 3 1 1 that "accommodatIOn must be provIded In a manner that most respects the dIgmty of the person, If to do so does not create undue hardshIp DIgmty Includes consIderatIOn of how accommodatIOn IS provIded and the IndIVIdual's own partIcIpatIOn In the process" 102 The eVIdence shows that the partIes have very dIfferent VIews about an employee's partIcIpatIOn In the process, as It relates to a health reassIgnment Mr Balog expected to be Included In dIscussIOns about possIble alternatIve posItIOns and potentIal accommodatIOns Instead, the decIsIOn about Control was made wIthout personally consultIng hIm The Employer In contrast, expected to determIne the appropnate assIgnment and then dISCUSS It WIth the employee and develop a return-to-work/accommodatIOn plan. As DIrector EllIott testIfied, the employee may express hIS or her VIews and obJectIOns, but It IS the employer's decIsIOn to make Debra Metracas testIfied that the employee partIcIpates In the accommodatIOn process by provIdIng InformatIOn and partIcIpatIng In the accommodatIOn plan as well as adVISIng the Employer regardIng how the plan IS functIOmng. The only case dIrectly on pOInt was Re Saint Paul s Hospital and Hospital Employees Union (2001), 96 L.AC (4th) 129 (Jackson), cIted by the Employer In that case, the employer after reCeIVIng a letter from the gnevor's doctor determIned the accommodatIOn and advIsed the gnevor and the Umon of that by letter whIch also advIsed the gnevor that If he faIled to report to work as scheduled, he would be termInated. No meetIng was arranged to dISCUSS the accommodatIOn. When the gnevor declIned the accommodatIOn, he was termInated. The arbItrator ruled that there was no "general oblIgatIOn on the Employer to Involve the Umon In ItS search for accommodatIOn" unless It IS a potentIal party to the dISCnmInatIOn eIther because It partIcIpated In formulatIng the work rule or practIce that dISCnmInates, or because the Umon's cooperatIOn IS necessary to find a reasonable accommodatIOn. (96 LAC (4th) at 145) He added that "as a practIcal matter It makes sense to Involve the Umon and the affected employee" but "the effect of a faIlure to do so when It IS not legally reqUIred must depend on the partIcular cIrcumstances of the case at hand." The arbItrator noted that the Employer 103 acknowledged "that It would have been preferable for the Employer to have dIscussed It accommodatIOn proposal wIth the Umon and the gnevor" but he agreed wIth the Employer that "such a meetIng would not have changed what happened." In the arbItrator's VIew the gnevor faIled to accept the Employer's reasonable accommodatIOn proposal, and consequently the Employer's duty to accommodate was dIscharged. Upon consIderatIOn, It IS my VIew that the Employer's approach IS consIstent WIth the polIcy gUIdelInes and the Supreme Court of Canada's decIsIOn In Renaud, supra In Renaud, the Court found that "[w]hIle the complaInant may be In a posItIOn to make suggestIOns, the employer IS In the best posItIOn to determIne how the complaInant can be accommodated wIthout undue Interference In the operatIOn of the employer's busIness" The employer has the responsIbIlIty to "ImtIate the process" whIle the employee has "an oblIgatIOn to accept reasonable accommodatIOn." The decIsIOn seems to IndIcate that the proposal for accommodatIOn may come from the employer wIthout first dIrectly consultIng the employee about vanous optIOns LIkewIse, the gUIdelInes reqUIre employee partIcIpatIOn and state that an employee must "partIcIpate In dIscussIOns regardIng possIble accommodatIOn solutIOns" But they do not reqUIre the employer to hold such dIscussIOns Of course the employer may do so and perhaps should do so but the employer may also based on the medIcal InfOrmatIOn provIded, determIne the appropnate accommodatIOn and then dISCUSS It WIth the employee wIthout vIOlatIng the duty to accommodate The Umon argues that the proper way for the Employer to have proceeded was set out In the decIsIOn of the WSIB AdJudIcator after she determIned that the RecreatIOn Officer posItIOn, as 104 modIfied, was not a sUItable accommodatIOn. She wrote "GIven the above, I trust that you wIll contInue to work wIth Mr Balog to IdentIfy other Jobs that would meet hIS permanent medIcal precautIOns" The Umon referred to thIS sentence as the dIrectIOn of the "experts In accommodatIOn. " In my VIew that argument reads too much Into a sIngle sentence The July 7 1999 report of the WSIB ergonomIc specIalIst provIded dIfferent InstructIOns That report stated that "the Employer should be lookIng for other Jobs wIthIn the worker's medIcal precautIOns" and that "once a potentIal Job IS IdentIfied, the workplace partIes should dISCUSS the dutIes and physIcal demands of the Job to ensure It IS WIthIn the worker's medIcal precautIOns" The two reports are not consIstent, and are not determInatIve of thIS Issue There IS no questIOn that the employee must be Included and partIcIpate In the accommodatIOn process The eVIdence showed that Mr Balog dId partIcIpate In the process He provIded InfOrmatIOn. He often expressed hIS VIews to Mr Johnston, Mr Rice, Mr MagUIre, Ms EllIott and other managers He made suggestIOns to management about alternatIve Jobs He partIcIpated In develoPIng accommodatIOn plans - except In relatIOn to Control, whIch he refused to do There were many meetIngs between management, Mr Balog and the Umon, IncludIng a meetIng about the reassIgnment to Control At that meetIng, Mr Balog had the opportumty to express hIS vIews, although the decIsIOn had already been made It IS thIS exclusIOn that counsel for the Umon contends vIOlated Mr Balog's nght to respect and dIgmty In the accommodatIOn process I conclude, however that the employer dId not vIOlate Mr Balog's nghts when It made that decIsIOn wIthout first meetIng wIth Mr Balog. PartIcIpatIOn In the accommodatIOn process does not Include the nght to 105 consultatIOn about potentIal alternatIve posItIOns before a health reassIgnment IS IdentIfied, provIded that consultatIOn occurs In thIS case the Employer revIewed the employee's Input In the form of hIS resume and portfolIo hIS earlIer dIscussIOns wIth management, hIS medIcal documentatIOn and It dId meet wIth hIm about the reassIgnment on September 27 1999 before the decIsIOn took effect. Under the cIrcumstances, the Employer's faIlure to meet wIth hIm before the decIsIOn was made does not vIOlate ItS duty to accommodate Mr Balog. An employer may decIde on a health reassIgnment wIthout first dISCUSSIng It WIth the employee, provIded that a consultatIOn occurs 3 The Employer's Failure to Consider Options Other than Control. The Umon contends that the Mimstry's faIlure to consIder any posItIOns outsIde of Syl Apps vIOlates ItS own polIcy and the duty to accommodate The Umon argues that the accommodatIOn process In the Ontano publIc servIce (OPS) reqUIres that accommodatIOn first be attempted In the employee's home posItIOn, followed by findIng an alternatIve posItIOn In hIS Mimstry followed by findIng an alternatIve posItIOn In the rest of the OPS It asserts that It does not state that the second step after an employee cannot be accommodated In hIS home posItIOn, IS findIng another posItIOn WIthIn the employee's worksIte The second step It asserts, IS the employee's Mimstry whIch Include all appropnate posItIOns In the Mimstry not Just those In the employee's own InstItutIOn or branch. The Umon asserts that by lImItIng the search to posItIOns WIthIn Syl Apps the employer vIOlated ItS own accommodatIOn polIcIes The Umon also asserts that the "hIghest" level In the accommodatIOn contInuum must be Implemented, not the lowest. It asserts that by lImItIng Mr Balog's optIOns to vacanCIes solely wIthIn Syl Apps management Implemented the lowest form of accommodatIOn and faIled to 106 meet Its duty of accommodatIOn. In support It cItes to Quesnel v London Educational Health Centre (1995) 28 C.H.R.R.D/474 (Ont. Bd. OfInqUIry) In response, the Employer asserts that the "Mimstry" In the second step Includes the employee's IndIVIdual InstItutIOn or branch, and that It properly follows a "least dIsruptIve" approach. As Debra Matracas testIfied, the employee's home InstItutIOn IS vIewed as less dIsruptIve than mOVIng the employee to another locatIOn, SInce the employee IS famIlIar wIth the settIng, knows the people and the work. The Mimstry cItes to Renaud, supra, for the proposItIOn that an employee cannot expect a "perfect" accommodatIOn and must be reasonable In the search for accommodatIOn. It also cItes to Re Canadian Forest Products, supra Invison v Bodner (1994) C.H.R.R. BntIsh ColumbIa HOUSIng AccommodatIOn/DIsabIlIty Vol 26 Dec 51 Children s and Women s Health Center of British Columbia v Hospital Employees Union [2000] B C C AA No 362 and Re C ANP AR and United Steelyt,orkers of America, Local 1976 (2000) 93 L.AC (4th) 208 (M. PIcher) The eVIdence does not support a conclusIOn that the Employer vIOlated ItS own accommodatIOn polIcy when It consIdered the vacancy In Control The search was done "In the Mimstry" and they found a vacancy at Syl Apps whIch corresponded to the "least dIsruptIve" approach. In my VIew the "least dIsruptIve" approach to findIng a health reassIgnment does not vIOlate the gnevor's nght to accommodatIOn. In the normal course - In the absence of dIvestment - a health reassIgnment to an appropnate posItIOn WIthIn the IndIVIdual's home InstItutIOn would Involve consIderably less dIsruptIOn for the employee who IS famIlIar wIth the operatIOn, staff 107 and management, as well as less dIsruptIOn for the Employer In thIS case, however dIvestment meant that It was less desIrable for Mr Balog to remaIn at Syl Apps than to be assIgned elsewhere But that IS not the norm. I find that by folloWIng ItS "least dIsruptIve" approach to health reassIgnment, the employer dId assIgn Mr Balog to a posItIOn "WIthIn the Mimstry" and therefore dId not vIOlate ItS own polIcy In a senes of decIsIOns by thIS Board In OPSEU (Hyland) and Ministry of Correctional Services GSB No 1470/91 et al (Petryshen) dated May 13 2002, August 28 2002, and November 13 2002, the Umon had requested that the Board dIrect the employer to only consIder posItIOns outsIde of the Toronto East DetentIOn Centre In ItS efforts to accommodate the gnevor In the future The Board, In ItS first - and second- decIsIOn demed that request. In the first decIsIOn, the Board stated at pp 34-35 [T]he usual remedIal response would sImply be a dIrectIOn to the Employer to properly accommodate the affected employee and I have not been persuaded that the partIes should be restncted In the way suggested by the Umon when they engage In the process of findIng appropnate dutIes and a satIsfactory locatIOn for Mr Hyland. The goal of thIS exerCIse IS for the Employer to accommodate Mr Hyland to the pOInt of undue hardshIp and If the Employer IS now able to accomplIsh that goal at the Toronto East It should not be precluded from dOIng so The second Hyland decIsIOn revIewed a proposed accommodatIOn wIthIn Toronto East, and the Board found It deficIent. AgaIn, the Umon requested that the Board dIrect the Employer to accommodate Mr Hyland wIth a posItIOn outsIde the Toronto East. The Board ruled at pp 5-6 that "I am stIll of the VIew that such a dIrectIOn would be Inappropnate In the CIrcumstances If the Employer IS unable to accommodate Mr Hyland at the TEDC wIthIn a reasonable tIme, It should consIder relocatIng hIm to an InstItutIOn where hIS handIcap can be accommodated." FInally after the Board found another proposal by the Employer Inadequate to ensure that Mr 108 Hyland would not be exposed to smoke, the Board agreed that It was tIme for the Employer to focus Its accommodatIOn efforts "beyond thIS locatIOn " In my VIew the Hyland decIsIOns support the "least dIsruptIve" approach to accommodatIOn. It approved of the Employer's practIce, after It IS determIned that an employee cannot be accommodated In theIr home posItIOn, to look at alternatIve posItIOns WIthIn the Mimstry gIVIng first consIderatIOn to the employee's own work locatIOn. I also cannot conclude that the Employer vIOlated Mr Balog's nght to accommodatIOn by faIlIng to consIder alternatIves other than Control, provIded that Control was, In fact, an appropnate accommodatIOn. There may have been other potentIal accommodatIOns wIthIn the Mimstry There was no eVIdence on thIS, eIther way The Umon focussed, Instead, on the fact that no other alternatIves were consIdered. The case law cIted seems to be somewhat dIvIded on whether or not an employee IS entItled to the "most appropnate accommodatIOn." The CommISSIOn's gUIdelInes, at SectIOn 3 3 state that "[t]he duty to accommodate reqUIres that the most appropnate accommodatIOn be determIned and then be undertaken, short of undue hardshIp" It IS not clear however whether thIS would apply to a health reassIgnment. The GUIdelInes recogmze that there IS no nght to an alternatIve posItIOn under the Code and that the Issue IS the subJect of "some debate" The gUIdelInes further state that "If there IS a chOIce between two accommodatIOns whIch are equally responsIve to the person's needs In a dIgmfied manner then those responsIble are entItled to select the one that IS less expenSIve or that IS less dIsruptIve to the orgamzatIOn." 109 In Renaud, supra, the Supreme Court of Canada stated that the complaInant cannot expect a "perfect solutIOn. If a proposal that would be reasonable In all of the CIrcumstances IS turned down, the employer's duty IS dIscharged." ThIS seems to reJect the "most appropnate accommodatIOn" reqUIrement. The decIsIOn In CANPAR and United Steelyt,orkers of America, Local 1976 supra, a decIsIOn under the CanadIan Human Rights Act clearly reJects the "most appropnate accommodatIOn" reqUIrement. In that case, to accommodate an employee's need, for relIgIOus reasons, not to work on late Fnday afternoons, the employer assIgned the gnevor to a more centrally located route whIch allowed for the SubstItutIOn of other dnvers on Fnday afternoons, wIthout dIfficulty A number of other alternatIves were suggested, but not the one that the gnevor favored - retentIOn of hIS former route, wIth relIef on late Fnday afternoons The Company argued that It was under no oblIgatIOn to suffer hardshIp Itself by beIng compelled to hIre an addItIOnal employee, or to adJust the gnevor's former route In ways that were not operatIOnally feasIble The arbItrator ruled that "It IS Incumbent upon the employee concerned to contnbute posItIvely to the process, and to accept an offer of reasonable accommodatIOn, even through It mIght not be the specIfic accommodatIOn whIch the employee would prefer" (93 L.A C (4th) at 212) Even If the new route were less desIrable he ruled that "It would not be unreasonable to expect the gnevor to contnbute to the process by acceptIng the adJustment." The arbItrator concluded, at p 214 WhIle It may be arguable that dIfferent formulas of accommodatIOn mIght be fashIOned, some of whIch could be more appealIng to [the gnevor], It IS not the oblIgatIOn of the Company under the CanadIan Human Rights Act to necessanly offer an employee seekIng accommodatIOn the preCIse accommodated assIgnment that he or she mIght demand. 110 In contrast, the case cIted by the Umon, Quesnel v London Educational Health Centre supra, does state, at par 16 that "[w]hat IS appropnate In a gIven sItuatIOn wIll vary from person to person, but the analysIs must recogmze that, short of undue hardshIp the hIghest pOInt In the contInuum of accommodatIOn must be achIeved." In that case, however the "hIghest pOInt" In the accommodatIOn contInuum, the constructIOn of an elevator was found to be "ImpractIcal and the cost prohIbItIve" AccordIngly a lesser form of accommodatIOn, a ramp was ordered. In my VIew an employee In a health reassIgnment sItuatIOn IS not entItled to the "most appropnate accommodatIOn." An employee IS entItled to a "reasonable accommodatIOn" short of undue hardshIp consIdenng all of the CIrcumstances Consequently the Issue IS whether the Control posItIOn IS a reasonable accommodatIOn In all of the cIrcumstances, regardless of whether there mIght be other possibly more appropnate accommodatIOns short of undue hardshI p ThIS VIew was endorsed by the Ontano Court of Appeal In Re Queen in Right of Ontario (MinistlY of Community and Social Services v Grievance Settlement Board (2000) 50 O.R. (3d) 560 (Ont. C.A) The Court held that where an employer can fulfil the duty of accommodatIOn by offenng appropnate schedulIng changes, It need not demonstrate that an alternatIve form of accommodatIOn, such as a leave of absence wIth pay would necessanly result In undue hardshIp (50 O.R. (3d) at 574) For thIS reason, the faIlure of the Employer to consIder alternatIves to the Control posItIOn does not, by Itself, vIOlate the Employer's duty to accommodate RelYIng on the Court of Appeals decIsIOn, the Federal Court of Appeal In Hutchinson v Canada (Minister of the Environment) [2003] F C.J No 439 reached the same conclusIOn. In 111 that case, the complaInant, who had chemIcal sensItIvItIes, argued that the employer's reJectIOn of her preferred accommodatIOn (her own office In a nearby bUIldIng) showed a refusal to accommodate to the pOInt of undue hardshIp The Court held that the complaInant had no nght to hold out for her preferred optIOn. It concluded that the "complaInant cannot refuse a reasonable solutIOn on the ground that the alternatIve whIch they favour wIll not cause the employer undue hardshIp" (par 77) The same conclusIOn applIes In thIS case B. Substantive Issues with the Control Officer Position The Umon raises a number of substantIve Issues regardIng whether Control was an appropnate accommodatIOn for Mr Balog, at the tIme he was assIgned to It through the tIme of dIvestment, November 30 2000 The Issue IS qUIte complex. There IS a lot of medIcal InfOrmatIOn to consIder as well as a "hIStOry"- both Mr Balog's resIstance to the Control Officer posItIOn from the very outset and the Impact of pnvatIzatIOn on both Mr Balog and management. The eVIdence clearly shows that Mr Balog, from May 1998 onward, reJected Control as a sUItable accommodatIOn. He felt that It was a "dumpIng" ground where pregnant females were placed, It provIded no mental challenge he vIewed It as a "pumshment posItIOn" he dId not want It, penod. His reJectIOn of the Control posItIOn as a sUItable accommodatIOn could not have been clearer How hIS reJectIOn of that posItIOn factored Into what occurred IS far less clear It IS equally eVIdent that Mr Balog's VIew about Control was not shared by management. In management's VIew Control was a very Important and Integral Job wIthIn the InstItutIOn, Important to the safety of both staff and resIdents It was also one of the few Jobs wIthIn Syl Apps that dId not reqUIre an employee to engage In physIcal restraInts of young offenders In 112 management's VIew It was an appropnate accommodatIOn that matched Mr Balog's skIlls and abIlItIes as well as hIS physIcal lImItatIOns 1 The Initial Decision Regarding Control. Whether the Control Officer posItIOn matched Mr Balog's physIcal lImItatIOns was dIsputed by the partIes In thIS regard, Mr Balog's three dIsabIlItIes must be consIdered. The first was hIS nght knee The second was hIS back. The thIrd was hIS depreSSIOn. By the Summer/Fall of 2000 It IS clear that Mr Balog suffered from all three dIsabIlItIes At the tIme of hIS health reassIgnment to Control, however Mr Balog's only dIsabIlIty was In relatIOn to hIS knee His back problems dId not surface as an Issue untIl early 2000 and even after that, there were no addItIOnal restnctIOns related to hIS back except for the need to stretch. His depressIOn dId not surface as a dIsabIlIty requlflng accommodatIOn untIl, at the earlIest, December 1999 and even then, he was cleared to return to work wIthout restnctIOn. Based on the medIcal eVIdence avaIlable to the Employer In the Summer/September of 1999 when the decIsIOn to assIgn hIm to control was made, I conclude, on the balance of probabIlItIes, that the Control Officer posItIOn was an appropnate accommodatIOn. It appears to have met the physIcal lImItatIOns and restnctIOns set out In Dr Naumetz's letters of August 28 1998 and November 25 1998 (wIth the exceptIOn of the length of the ShIft) as well as the C.B.!. report. He had the skIlls and abIlIty to perform the Job He had been traIned In the posItIOn dunng the Spnng of 1999 as part of a temporary accommodatIOn untIl the Issue of the RecreatIOn Officer posItIOn was resolved, and he successfully worked there wIthout any IndIcatIOn that It caused hIm physIcal problems 113 It clearly however was not what Mr Balog wanted. He wanted a posItIOn outsIde the InstItutIOn that utIlIzed hIS skIlls and expenence He wanted a Job that provIded hIm wIth dIgmty and respect as a dIsabled person, and In hIS VIew Control dId not meet those reqUIrements In some ways, thIS IS "the" fundamental dIfference between the partIes In thIS case Mr Balog's VIew that the Control posItIOn dId not respect hIS nght to dIgmty as a dIsabled person versus management's VIew that It was an Important and Integral posItIOn WIthIn the facIlIty ThIS raises the Issue of whether an employee's subJectIve VIews about a Job are factors whIch must be consIdered In determInIng whether a posItIOn IS an appropnate accommodatIOn. 2. The Role of an Employee's Subjective Views In my VIew the standard for determInIng whether a proposed accommodatIOn IS appropnate must be based on an obJectIve assessment of the Job In lIght of the employee's skIlls, abIlItIes, educatIOn, expenence and medIcal restnctIOns, not the employee's subJectIve VIews Although accommodatIOn IS an IndIvIdualIzed determInatIOn, the standard for determInIng whether a health reassIgnment IS an appropnate accommodatIOn must be based on an obJectIve standard. A health reassIgnment IS not a process for an employee to select the Job he wants or escape dIvestment. A health reassIgnment IS a process of matchIng an employee's educatIOn, abIlItIes, expenence, skIlls and medIcal restnctIOns wIth the essentIal dutIes of a vacant posItIOn, WIth or wIthout modIficatIOn. GIven the SIze and scope of the Ontano publIc servIce, thIS determInatIOn must be made on an obJectIve basIs, wIthout regard to an employee's personal VIews about the ments of the partIcular Job ThIS conclusIOn IS supported by a number of cases cIted by the Employer In Children sand Women s Health Centres of British Columbia, supra, It was clear that the employee was not happy wIth the Employer's proposed accommodatIOn. The board of arbItratIOn determIned, 114 however that the employee's subJectIve feelIngs were not relevant. It concluded at pars 134- 137 The essence of the duty to accommodate IS that the partIes to an employment relatIOnshIp are legally reqUIred to take reasonable measures, short of undue hardshIp to accommodate the statutonly protected charactenstIcs of IndIVIdual employees, IncludIng that of dIsabIlIty The test of reasonableness IS not subJectIve to the employee The lItmus test IS not whether the employee gets what he or she wants We accept, as we must, the dIrectIOn of the Supreme Court that what constItutes reasonable measures In relatIOn to the Issue of whether the employer has complIed wIth ItS duty to accommodate a dIsabled employee IS a questIOn of fact It IS the obJectIve facts that must govern the result, not the subJectIve feelIngs or ImpreSSIOns of the gnevor or other wItnesses as to how she felt about how she was beIng treated. If we conclude, on the basIs of all the facts before us, that reasonable measures to accommodate the gnevor's dIsabIlIty were taken by the employer the gnevance must be dIsmIssed. The decIsIOn In C ANP AR, supra, dIscussed earlIer IS essentIally to the same effect. AccordIngly I conclude that Mr Balog's subJectIve feelIngs about the Control Officer posItIOn are not relevant to the determInatIOn of whether that posItIOn was a reasonable accommodatIOn. Whether It was reasonable or not, depends pnmanly on the medIcal InfOrmatIOn that the Employer had at the tIme 3 Whether Control Remained a Suitable Accommodation. A sIgmficant focus of the Umon was that the Control posItIOn became unsUItable In lIght of Mr Balog's InabIlIty to perform the Job begInmng In January 2000 The Umon argues that It was then that hIS back condItIOn became more pronounced as well as hIS depressIOn, makIng the Job unsUItable and rendenng It an Inappropnate accommodatIOn. There IS no questIOn that the duty to accommodate an employee IS an ongoIng responsIbIlIty It applIes to both temporary and permanent dIsabIlItIes, and thIngs can change over tIme requlflng a revIew of the sItuatIOn. 115 There was qUIte a lot of medIcal documentatIOn provIded between January and November 2000 Some of It was conflIctIng. I wIll reVIew what InformatIOn the Employer had at that tIme to determIne whether the eVIdence, on the balance of probabIlItIes, supports the conclusIOn that the Control Officer posItIOn remaIned a sUItable permanent accommodatIOn. Also relevant IS Mr Balog's expenence In the Control Officer posItIOn, although, at the end of the day It IS the medIcal documentatIOn that governs a. Medical Information 1 Dr. LewIs - phYSIcIan wIth specIalty In psychIatnc Issues The December 14 1999 return to work note the December 14 1999 accommodatIOn letter Apnl 29 2000 letter regardIng 8 hour ShIftS 2 Dr. Naumetz - the November 25 1998 letter regardIng the RecreatIOn Officer posItIOn, WIth restnctIOns, the November 15 1999 letter regardIng the Control Officer posItIOn, WIth restnctIOns 3 The WSIB - February 16 2000 ergonomIc report whIch concluded that the Control Officer posItIOn met Mr Balog's restnctIOns, but was uncertaIn regardIng the 12-hour ShIftS, the March 16 2000 Claims AdJudIcator decIsIOn that the Control Officer posItIOn was sUItable, IncludIng the 12-hour ShIftS, the November 16 2000 decIsIOn by the Appeals ResolutIOn Officer upholdIng the AdJudIcator's decIsIOn. 4 Dr. Reynolds - January 24 2000 letter supportIng Dr Naumetz and Dr LewIs's letters, February 22, 2000 letter requlflng 8 hour shIfts due to hIS knee paIn and an ergonomIcally correct work statIOn. March 10 2000 letter requlflng that the work statIOn be modIfied per the ergonomIst's report and 8 hour ShIftS due to depressIOn and medIcatIOn, March 27 2000 letter lIstIng restnctIOns as outlIned by Dr Naumetz, 8 hour shIfts, a workstatIOn as per the WSIB ergonomIst's report, and stretchIng 10 mInutes every hour Apnl 6 2000 lIstIng restnctIOns of 8 hours and no ShIft work; September 29 2000 letter wIth restnctIOns related to Mr Balog's hernIated dISC, and subsequent letters IncreaSIng the number of hours he could work. 5 Dr. Shepard - orthopaedIc surgeon. May 3 2000 report (receIved by the Employer In September 2000) whIch recommended that Mr Balog lose weIght, exerCIse and consIder another debndement. No restnctIOns provIded. 6 Dr. GIrgla - psychIatnst. July 4 2000 report (receIved by the Employer In September 2000) whIch confirmed that Mr Balog had "maJor depressIOn wIth work-related stress" No restnctIOns provIded. 116 7 Dr. JarosynskI - orthopaedIc specIalIst. June 27 2000 report (receIved by the Employer In September 2000) Confirmed "advanced arthntIc changes" to hIS back, and knee Issues No restnctIOns provIded. 8 The Brant 730 PhysIOtherapy Report - Issued on July 17 2000 (receIved by the Employer In September 2000) It supported Dr Naumetz's recommendatIOns regardIng Mr Balog's knee and IndIcated that If Mr Balog had enough space at hIS work statIOn to allow for contInued movement of hIS knee and back In SIttIng or standIng, and on scheduled breaks, be permItted to use a pnvate space to stretch or use hIS TENS machIne or Ice, he could endure a full 12 hour shIft. But, "as reported by Mr Balog, he IS permItted none of the above thus I would support the recommended 8 hour shIft." 9 Dr. Waldenberg - psychIatnst. July 27 2000 IME report whIch recommended 8 hour ShIftS due to paIn and depressIOn In equal measure, and hIS November 21 2000 testImony whIch stated, In part, that It would be In Mr Balog's best Interest to work at another locatIOn. 10 Dr.Blackstone - orthopaedIc surgeon. August 16 2000 IME report whIch questIOned the "constant rotatIOn of the lumbar spIne" as reported by Mr Balog, and the follow-up November 7 2000 report, whIch stated that the "rotatIOn of the lumbar spIne IS stIll an open questIOn." b. Dr Lewis and Dr Waldenberg The Umon strongly asserted that the December 14 1999 letter from Dr LewIs, and the testImony of Dr Waldenberg at the heanng both constItuted "restnctIOns" In regard to Mr Balog's mental dIsabIlIty - that he should work away from Syl Apps It asserts that In the context of mental dIsabIlItIes, an Inexact sCIence, the two doctor's recommendatIOns should be vIewed as "restnctIOns" In the alternatIve, It argues that to reqUIre the same type of restnctIOn wIth a mental health dIsabIlIty that IS reqUIred In a physIcal dIsabIlIty IS an Improper standard or polIcy that falls the three-part standard adopted by the Supreme Court of Canada In British Columbia Government and Service Employees Union v Public Service Employees Relations Commission, et al. (MeIOnn)(1999) 176 D.L.R. (4th) 1 (S C C ) The Umon also relIes on Grismer Estate v British Columbia Council of Human Rights et al. (1999), 181 D .L.R. (4th) 385 (S C C ) Entrop et al. v Imperial Oil Limited et al (2000), 50 O.R. (3d) 18 (Ont. C A) 117 The Employer takes the posItIOn that the Umon's argument Improperly attempts to change the IndIVIdual gnevance of Mr Balog Into a polIcy gnevance It also argues that the doctors' recommendatIOns were Just that, recommendatIOns about what would be beneficIal, not medIcal restnctIOns FInally It argues that Meiorin IS InapplIcable I agree wIth the Employer that the Umon's argument IS In the nature of a polIcy challenge to the ImplementatIOn of the Employer's accommodatIOn polIcy whIch IS beyond the scope of the IndIVIdual gnevances filed by Mr Balog. ThIS case was not lItIgated as a polIcy gnevance, and counsel for the Umon confirmed that the Umon was not challengIng the polIcy Just ItS applIcatIOn. AccordIngly a basIc challenge to the Employer's accommodatIOn polIcy as It relates to mental dIsabIlItIes IS beyond the scope of these gnevances If that conclusIOn IS Incorrect, however I nevertheless conclude that the Umon has not establIshed a prima facie case that treatIng all dIsabIlIty restnctIOns the same dISCnmInates agaInst employees wIth mental dIsabIlItIes The Umon's argument IS premIsed on the VIew that wntIng restnctIOns for employees wIth mental dIsabIlItIes IS sIgmficantly more dIfficult and ImpreCIse than It IS for employees wIth physIcal dIsabIlItIes There was no eVIdence presented, however to support that conclusIOn. NeIther Dr LewIs nor Dr Waldenberg was asked about that at the heanng. NeIther one testIfied that wntIng restnctIOns was more dIfficult when a patIent suffered a mental dIsabIlIty Dr LewIs, gIven hIS background as a famIly physIcIan wIth a specIalty In psychology would have been well placed to answer such an InqUIry Dr Waldenberg testIfied that psychIatry IS an "Inexact sCIence" but that does not necessanly mean that restnctIOns are dIfficult to provIde Ms Matracas testIfied that she has seen clear restnctIOns from doctors In both mental and physIcal dIsabIlIty cases The fact that the two doctors stated that Mr Balog would benefit from a Job outsIde of Syl Apps does not establIsh that medIcal 118 restnctIOns for a mental dIsabIlIty cannot be clearly wntten. AccordIngly because a prima facie case was not establIshed, I find It unnecessary to reVIew that standard under the three-part Meoirin test. I also cannot agree that the two doctors' statements constItute a medIcal restnctIOn that the Employer had to honour In my VIew the Employer properly dIscounted the December 14 1999 letter from Dr LewIs That letter whIch was unsolIcIted by the Employer states, In pertInent part, as follows As a result of the events whIch have occurred between Mr Balog and Syl Apps management, It IS my OpInIOn that accommodatIOn outsIde the InstItutIOn would be beneficIal to hIS mental health FaIlure to find an accommodatIOn agreeable to both management at Syl Apps and Mr Balog wIll result In deletenous effects for Mr Balog. ThIS letter does not state that Mr Balog can no longer (or even should no longer) work at Syl Apps It says It would be "beneficIal to hIS mental health" to be accommodated outsIde the InstItutIOn. The second sentence does not change the result. It does not state that faIlure to accommodate hIm outsIde the InstItutIOn wIll be deletenous for Mr Balog, nor IS that ImplIcIt from readIng the two sentences together Management vIewed thIS letter as a recommendatIOn that It would "benefit" Mr Balog to be accommodated outsIde of Syl Apps It does not state that a dIfferent locatIOn IS medIcally necessary Management dId not read It as a reqUIrement or a restnctIOn that he could no longer work there for hIS mental health. That InterpretatIOn by management was reasonable I also find that management's decIsIOn to dIscount Dr LewIs's December 14 1999 accommodatIOn letter to be reasonable In lIght of Dr LewIs's note, on the same day that Mr 119 Balog was able to return to work, wIthout restnctIOns There IS certaInly a conflIct between a note that says that Mr Balog has recovered enough from hIS depreSSIOn to return to work at the InstItutIOn, WIth no restnctIOns, and one that says that because of conflIcts WIth management, he would benefit by beIng accommodated elsewhere If Mr Balog was well enough In relatIOn to hIS depreSSIOn to return to full-tIme work at Syl Apps, It undermInes the request for accommodatIOn outsIde of the InstItutIOn. What was revealed at the heanng only further supported management's decIsIOn not to credIt Dr LewIs's accommodatIOn letter of December 14 1999 That eVIdence showed that Dr LewIs ongInally wrote, on December 10 1999 that accommodatIOn could take place "wIthIn Syl Apps Youth Centre or In any other settIng " After meetIng wIth Mr Balog on December 13 1999 Dr LewIs changed hIS letter Although Dr LewIs testIfied that the second letter represented hIS medIcal OpInIOn, he dId not explaIn why hIS medIcal OpInIOn made such a radIcal ShIft between December 10 and December 14 SImIlarly the testImony of Dr Waldenberg does not support a conclusIOn that the Control Officer posItIOn was an Inappropnate accommodatIOn. Dr Waldenberg testIfied that "In an Ideal world, [Mr Balog] mIght have been better off workIng somewhere else" Although he dId not know that workIng elsewhere was a possIbIlIty he agreed that It was a "fair statement" that he dId not mentIOn It In hIS report because he dId not feel It necessary for treatment. He agreed, however that Mr Balog would benefit from workIng elsewhere I cannot VIew thIS testImony as a restnctIOn that Mr Balog cannot or should not work at Syl Apps The Umon submIts that the December 14 1999 letter from Dr LewIs and the testImony of Dr Waldenberg are "on all fours" wIth the conclusIOn of the psychologIst In McConnell v 120 Yukon Public Service Commission (1998) 34 C.H.R.R. D/26 (Y T Bd. AdJ ), and should be treated the same In that case, Ms McConnell suffered from depressIOn, a mental dIsabIlIty Pursuant to the Government's polIcy Ms McConnell took a two-year leave of absence whIch provIded that If the employee was medIcally unable to return to work after that tIme, the "employee shall be termInated for health reasons" She was termInated and filed a human nghts complaInt. The Board of AdJudIcatIOn determIned that the government "dId not have the dIscretIOn to release Ms McConnell untIl they fully consIdered accommodatIOn possIbIlItIes" (D/29) Pnor to her termInatIOn, Ms McConnell submItted a letter from her psychologIst that stated Because of the nature of the refernng problem and because Ms McConnnell has only recently Improved enough to consIder gaInful employment, It would be III advIsed, In my OpInIOn, to have her return to the same or a sImIlar posItIOn to the one she had In the Department of JustIce Based on thIS letter the Board of AdJudIcatIOn concluded that "[t]he faIlure of the employer to consIder or put theIr mInds to the possIbIlIty of a transfer IS a faIlure to accommodate" (D/31) As noted, the Umon contends that thIS case IS "on all fours" wIth Mr Balog's sItuatIOn. The only dIfference It submIts, IS that Dr DutIl expressed hIS VIews In the negatIve (it would be Ill-advIsed) whIle Drs LeWIS and Waldenberg expressed theIr VIews In the posItIve (it would be beneficIal) The Umon IS correct that, on the surface there IS arguably sImIlanty between Dr DutIl's note, Dr LewIs's December 14 1999 letter and Dr Waldenberg's testImony Beyond the surface however there are sIgmficant dIfferences In the McConnell case, there was no sImultaneous return to work letter from Dr DutIl, releasIng the complaInant to return to her 121 former office yt, ithout restrictions That alone IS a key dIfference whIch fundamentally undermInes the Impact of Dr LewIS's letter In terms of Dr Waldenberg' s eVIdence, hIS testImony taken In ItS entIrety was more balanced than Dr DutIl's letter He dId not agree that Mr Balog's remaInIng at Syl Apps would be "deletenous" although he agreed that Mr Balog was "unlIkely to recover as well as he mIght." The essence of hIS testImony was that It would be beneficIal to Mr Balog to be assIgned outsIde of Syl Apps That, In my VIew IS not a medIcally necessary restnctIOn but a recommendatIOn to facIlItate hIS recovery The Umon also raised another challenge to the Employer's accommodatIOn polIcy under Meoirin SpecIfically It alleged that havIng each IndIVIdual Mimstry apply the polIcy leads to the nsk of IneqUItable applIcatIOn and that because It IS the Crown that IS the employer the polIcy must be centrally admInIstered. The Employer obJected to thIS argument on the basIs that It raises a polIcy argument whIch IS not encompassed wIthIn Mr Balog's gnevances I agree Further I conclude that even If It was properly raised, the Umon has not establIshed a prima facie case There IS no eVIdence that the Mimstry's ImplementatIOn of the polIcy has led to unequal applIcatIOn of the accommodatIOn polIcy c. Dealing with Conflicting Medical Information - Reliance on WSIB. The eVIdence shows that the Employer was faced wIth a great deal of conflIctIng InfOrmatIOn. On the one hand, It had a number of doctors' letters statIng that Mr Balog reqUIred 8 hour ShIftS On the other hand, It had the WSIB determInatIOns that the Control Officer Job was a sUItable accommodatIOn, based on hIS medIcal precautIOns, IncludIng a 12-hour shIft. The 122 Employer clearly relIed on the WSIB determInatIOns, although It was fully wIllIng to consIder other medIcal documentatIOn. Eventually It reqUIred Independent medIcal eXamInatIOns In my VIew under the facts of thIS case, the Employer's relIance on the WSIB determInatIOns was not unreasonable, partIcularly In lIght of ItS wIllIngness to consIder other medIcal InformatIOn. WSIB was the only entIty whIch actually vIsIted the worksIte, took measurements of both the workstatIOn and Mr Balog, and analyzed the actual Job In relatIOn to Mr Balog's eXIstIng medIcal precautIOns None of the doctors dId that, and there was, on occaSIOn, reason to questIOn the InformatIOn upon whIch the doctors based theIr conclusIOns For example, Dr Naumetz's letter of November 15 1999 refers to the worksIte as "congested" when, based on my VIew there was ample room to move about. SImIlarly Dr Blackstone questIOned the lIftIng of heavy key boxes, based on what Mr Balog told hIm, when the boxes, In fact, slIde In and out. The GSB has held that "employers and arbItratIOn boards are not completely bound by medIcal certIficates, especIally where there IS some questIOn as to whether the certIficate IS based upon the doctor's receIpt of all the relevant and pertInent InformatIOn." OPSEU (Stacey) and Ministry of Correctional Services, supra at p 20 In that case, the Board concluded that "the Employer had legItImate grounds to wonder whether or not the doctor had a full apprecIatIOn of the modIfied assIgnment beIng offered to the gnevor when the medIcal certIficate was rendered." (p 20) The same conclusIOn applIes here To the same effect IS Re Jones et al. and Treasury Board (Department of Transport) (1981), 29 L AC (2d) 349 (Kates) 123 Under these cIrcumstances, the Employer's relIance on WSIB's determInatIOn In relatIOn to Its 12-hour shIft determInatIOn was reasonable At all tImes, the Mimstry was wIllIng to consIder - and Indeed sought - addItIOnal medIcal InformatIOn. d. The Ergonomist's Recommendations. The Umon IS also cntIcal of the Employer for faIlIng to Implement all of the WSIB ergonomIst's recommendatIOns, and asserts that the Employer faIled to accommodate Mr Balog by ImplementIng only some, but not all of them, SInce It faIled to show that It could not do so short of undue hardshIp The Umon pOInts out that Dr Reynolds repeatedly lIsted as a restnctIOn the need to change the workstatIOn as per the WSIB ergonomIst's report. The eVIdence shows that the Mimstry dId make qUIte a number of changes to the workstatIOn, as per the WSIB ergonomIst's report. In thIS regard, I credIt the testImony of Ms EllIott, Mr MagUIre and other management wItnesses over Mr Balog's testImony that the employer dId nothIng other than change the locatIOn of one momtor A number of Important thIngs, however were not done, most notably the adJustable desk heIght and the redesIgn of the pass-through WIndow The Employer dId not VIew the "recommendatIOns" of the WSIB ergonomIst as reqUIrements, although they were wntten In "should" language WSIB appears to concur wIth that assessment, as set out In ItS November 16 2000 decIsIOn. The Employer lIke WSIB vIewed the ergonomIst's report as concludIng that the Job as It eXIsted, fell wIthIn Mr Balog's eXIstIng medIcal precautIOns 124 The eVIdence showed, however that Mr Balog had some dIfficultIes wIth the heIght of the desk, and on two occaSIOns, he struck hIS nght knee on the cabInets on the far nght sIde of the workstatIOn. The Employer's only response to thIS was that the adJustable chair sufficIently dealt wIth that Issue There IS no eVIdence, however that the Employer made any attempt to confirm that conclusIOn wIth an ergonomIc specIalIst. Nor was the eVIdence regardIng ItS exploratIOn of the Issue of the adJustable desk partIcularly compellIng. Mr MagUIre testIfied that he asked MaIntenance Manager Ron LIster about the Issue, as well as the WIndow and was told It could not be done Mr MagUIre could not recall why No cost estImates were prepared or Introduced Into eVIdence In Grismer Estate v British Columbia Council of Human Rights et al (1999) 181 D .L.R. (4th) 385 401 (S C C) the Court held that "ImpressIOmstIc eVIdence of Increased expense wIll not generally suffice" The Court stated at p 401 "WhIle In some CIrcumstances excessIve cost may JustIfy a refusal to accommodate those wIth dIsabIlItIes, one must be wary of puttIng too Iowa value on accommodatIng the dIsabled. It IS all too easy to cIte Increased costs as a reason for refusIng to accord the dIsabled equal treatment." In thIS case, In regard to the desk heIght, all that the Employer provIded was "ImpressIOmstIc eVIdence" In the face of Mr Balog's dIfficultIes wIth the heIght of the desk, that was InSUfficIent to establIsh that It accommodated Mr Balog to the pOInt of undue hardshIp That conclusIOn, however does not mean that the posItIOn of Control Officer overall, was unsUItable e. Mr Balog's Cooperation with the Accommodation Process. In terms of the sUItabIlty of the Control Job In the Spnng of 2000 there were no doctors' reports whIch stated that Mr Balog could not do the Job wIth modIficatIOns The two 125 "restnctIOns" that the Employer dId not meet were the workstatIOn per the WSIB ergonomIst's report, and the 8-hour shIfts The WSIB however had determIned that the Job was sUItable IncludIng the 12-hour ShIftS and, for the reasons set forth above, I find that the Employer's relIance on the WSIB determInatIOn to have been reasonable The eVIdence showed, however that Mr Balog was unable to work In the posItIOn wIthout expenencIng paIn. Nor was he usually able to complete 12-hour ShIftS From hIS first ShIft In Control on January 3 2000 he reported expenenCIng sIgmficant back paIn, whIch was a new development and one whIch the WSIB determInatIOns dId not address The Employer tned to determIne whether there were restnctIOns related to hIS back through the letters sent to Dr Reynolds on January 4 2000 and February 15 2000 What came back was an 8-hour restnctIOn due to paIn In hIS nght knee and the need for an ergonomIcally correct workstatIOn. Later Dr Reynold's added a need to stretch for 10 mInutes every hour whIch the eVIdence showed that the Employer tned to Implement. There was no eVIdence that thIS reqUIrement was not met, except on occaSIOn for operatIOnal reasons Dunng the heanng, management testIfied that they accepted, at face value Mr Balog's claims of paIn whIle In the Control Officer posItIOn. In cloSIng arguments, however counsel for the Employer paInted Mr Balog as attemptIng to mampulate hIS doctors to achIeve hIS goal - a posItIOn outsIde of Syl Apps Further counsel argued that Mr Balog dId not cooperate wIth the accommodatIOn process, that he dId not truly try the Control posItIOn. In ItS submISSIOn, Mr Balog faIled to gIve Control a fair chance to work, and Instead, completely reJected It as a potentIal accommodatIOn. In so dOIng, It argues that Mr Balog faIled to meet hIS oblIgatIOns In the accommodatIOn process In support, the Employer cItes to Renaud, supra, as well as Re Canadian Forest Products Ltd (Polar Division) and I WA.-Canada Local 1-424 supra, Ivison 126 v Bodner (1994),26 C.H.R.R. D/505 (B C C.H.R.) Re Canadian Pacific Ltd and Brotherhood of Maintenance of Way Employees (1996),57 LAC (4th) 129 (M. PIcher) Boogars v Greater Victoria Hospital Society [1989] B C C.H.R.D No 8 (Barr) Childrens and Women s Health Centre of British Columbia v Hospital Employees Union (Rasmussen) [2000] B C C AA No 363 (LaIng) Counsel for the Umon, In reply argued that there can be no questIOn about the bona fides of Mr Balog's medIcal condItIOns He had permanent nght knee damage he had sIgmficant degeneratIve back problems he suffered from depressIOn. It submIts that the medIcal eVIdence of dIsabIlIty was substantIal and undIsputed. Further It submIts that Mr Balog dId all that the Employer asked hIm to do In regard to the accommodatIOn process and he was sImply unable to do It because It was an unsUItable Job Instead of recogmZIng that, the Umon submIts that management decIded to keep hIm In Control In order to fOISt Mr Balog off on the new employer so he would become "somebody else's problem" There can be no doubt that management was frustrated by what It perceIved as Mr Balog's unwIllIngness to cooperate In the accommodatIOn process In regard to Control From ItS perspectIve, Mr Balog had reJected Control from the outset, first as a temporary accommodatIOn and later as a permanent accommodatIOn. In partIcular management had dIfficulty understandIng why Mr Balog could perform the Job as a temporary accommodatIOn In Control wIthout IncIdent dunng the Spnng of 1999 but Immediately upon hIS beIng assIgned to It permanently could not perform a full ShIft wIthout sIgmficant paIn. Management's concerns were fueled by the gnevor's returmng to work In March wIth four blank IncIdent reports ready to document hIS InabIlIty to do the Job and by hIS repeatedly leavIng work early They were fueled by all of hIS attempts to have hIS doctors' support an accommodatIOn outsIde of the InstItutIOn. 127 Counsel further asserted that Mr Balog was USIng the accommodatIOn process to escape dIvestment. The eVIdence showed that the number of employees requestIng accommodatIOn at Syl Apps markedly rose after the dIvestment announcement, and addItIOnal resources and personnel were devoted to those claims, IncludIng Mr Balog's In thIS regard, I credIt Mr Rice's testImony that Mr Balog, on more than one occaSIOn, told hIm that hIS goal was to reach Factor 80 and remaIn In the OPS over Mr Balog's demals that he said thIS Overall, I found Mr Rice's recollectIOns of events to be better than Mr Balog's Also It sImply makes sense that Mr Balog would be concerned about dIvestment. He testIfied as much In regard to hIS meetIng wIth DIrector Hansplant. At that meetIng, he vOIced hIS concern about the "rumours about pnvItazatIOn" and "my concern- what happens to me" He testIfied that he was fearful because there were a lot of healthy employees, wIth two good legs, and he was not In that posItIOn. It sImply makes sense that a man In Mr Balog's posItIOn - WIth 25 years of servIce and concerned that he could no longer do hIS Job - would be very concerned about dIvestment. Many employees at Syl Apps were concerned. SpecIal programs were set up to assIst employees who wanted to stay In the OPS through resume wntIng and IntervIew skIlls AccordIngly on the balance of probabIlItIes, I find It more lIkely than not that Mr Balog vOIced hIS concerns about pnvItIzatIOn and Factor 80 to Mr Rice There IS no doubt In the eVIdence that Mr Balog completely reJected the Control posItIOn as an appropnate accommodatIOn, and that he wanted an accommodatIOn outsIde of the InstItutIOn. Except for the ongInal alternatIve posItIOn that he wanted of Escort Dnver all of the posItIOns that Mr Balog sought were outsIde of the InstItutIOn. Indeed, qUIte a number of hIS gnevances specIfically request an accommodatIOn outsIde of Syl Apps as a remedy 128 There IS also no doubt that Mr Balog felt wronged and harassed by management as well as hIS co-workers, that he felt margInalIzed by the accommodatIOn process, and that he felt dIscnmInated agaInst. His feelIngs were genUIne, as were hIS physIcal problems The Mimstry contends Mr Balog's reJectIOn of Control and hIS faIlure to cooperate stemmed from hIS desIre for an accommodatIOn outsIde of the InstItutIOn In order to remaIn In the OPS and eventually reach Factor 80 Yet the Issue of Mr Balog's actIOns In relatIOn to the Control posItIOn IS more complex than that. After much consIderatIOn, based on all of the eVIdence, I find that I cannot agree The testImony and report of Dr Waldenberg was the most enlIghtemng about Mr Balog's actIOns In relatIOn to Control Dr Waldenberg wrote as follows It IS probably too sImple to say that It IS Just paIn caUSIng hIS dIfficulty In completIng the shIft. I thInk that It IS both the paIn and hIS unresolved feelIngs of anger and frustratIOn I do not belIeve that that the current medIcatIOns for the depressIOn have anythIng much to do wIth Mr Balog's work In the control booth, however for reasons prevIOusly stated, that IS to say the complex InteractIOn of the patIent's paIn and hIS angry feelIngs of frustratIOn wIth regard to the employer would lead me to recommend accommodatIng Mr Balog's request to work 8-hour ShIftS I do not thInk that he can be productIve workIng 12 hours and that the reasons for thIS are due to hIS paIn and hIS depreSSIOn In equal measure Dr Waldenberg's report reveals that Mr Balog's InabIlIty to work full ShIftS In Control was due to hIS depreSSIOn and paIn "In equal measure" His depressIOn was due In part to the loss of hIS physIcal abIlItIes, the loss of a Job he loved, hIS frustratIOns wIth the accommodatIOn process IncludIng hIS assIgnment to Control ("a Job whIch means very lIttle to hIm and In whIch there IS 129 very lIttle Job satIsfactIOn"), hIS anger at management, and hIS chromc paIn. As Dr LewIs's notes reveal, It was also due to famIly stresses In hIS testImony Dr Waldenberg stated that In sItuatIOns lIke Mr Balog's, matters become "self-feedIng and self-reInforcIng." He explaIned that when an IndIVIdual feels a sense of InJustIce (nghtly or wrongly) thIngs that happen are perceIved as further examples of Improper treatment and contnbute to the sense of InJustIce That leads to a breakdown In trust and eventually to thIS kInd of tnbunal Mr Balog's depressIOn was clearly genUIne His belIef that Control was an Inappropnate accommodatIOn was genUIne His chromc paIn was genuIne His anger at management was genuIne These factors, In my VIew led to hIS actIOns In relatIOn to Control, far more so than hIS desIre to remaIn wIthIn the OPS and reach Factor 80 The eVIdence showed that Mr Balog's mental state adversely affected hIS abIlIty to cope wIth hIS physIcal paIn. Although I can empathIze wIth management's frustratIOn wIth Mr Balog's actIOns after January 2000 (both In relatIOn to the Control posItIOn and wIth hIS doctors) I conclude, based on all of the eVIdence and on the balance of probabIlItIes, that Mr Balog dId not purposefully fall to cooperate wIth regard to the Control Officer posItIOn. I conclude, on the balance of probabIlItIes, that hIS InabIlIty to work full ShIftS In Control was based on hIS depressIOn and paIn In equal measure and dId not represent a wIllful faIlure to cooperate f The IME reports of Dr Blackstone. The paIn that Mr Balog expenenced In the Control posItIOn begInmng In January 2000 was pnmanly related to hIS back, and the medIcal eVIdence clearly establIshes that Mr Balog had degeneratIve back problems Although those problems pre-dated hIS January 2000 start In 130 Control, they appear to have worsened over tIme SIgmficantly however except for the stretchIng reqUIrement, there were no medIcal restnctIOns related to hIS back. The Employer's Request for Health InformatIOn whIch was sent to Dr Reynolds on January 4 2000 and agaIn on February 15 2000 was an attempt by the Employer to determIne If addItIOnal restnctIOns were medIcally reqUIred. Dr Reynolds' letters In response however added no addItIOnal restnctIOns due to the back, other than the reqUIrement to stretch. Yet Mr Balog contInued to expenence problems He contInued to mISS work and leave early As a result, the IME to Dr Blackstone was pursued, wIth the Employer agreeIng to be bound by the results I have carefully consIdered both of Dr Blackstone's reports as well as hIS testImony Insofar as It sheds lIght on hIS reports I do not consIder It appropnate to rely on Dr Blackstone's eVIdence whIch the Employer dId not have before It at the relevant tIme Dr Blackstone's first report raises two concerns as to whether or not Control was a sUItable posItIOn. His concerns Involved "the constant rotatIng of hIS lumbar spIne when mOVIng on hIS wheeled chair from one workstatIOn to another" whIch would aggravate Mr Balog's lumbar spIne It also Involved the lIftIng of heavy key boxes He concluded as follows As stated In the answers to the above two questIOns, I belIeve that rotary movements of hIS lumbar spIne are Indeed aggravatIng hIS back paIn and If thIS aspect of hIS actIvItIes could be controlled the rest of the Job descnptIOn as a Control Officer seems appropnate In regards to both hIS lumbar spIne and nght knee dIfficultIes Management dIsagreed that Control Involved "constant rotatIng of hIS lumbar spIne" or the lIftIng of heavy key boxes In theIr VIew thIS was another example of Mr Balog's provIdIng Inaccurate InformatIOn to a doctor On October 27 2000 the Mimstry wrote to Dr Blackstone that "[w]IthIn Gary's posItIOn In Control there IS not 'constant rotatIng' to shIft from one place to 131 another Rather he IS In an ergonomIc chair that sWIvels, per Dr Reynolds recommendatIOn, the posItIOn reqUIres a range of movement approxImately 45 degrees to the left and nght of centre" It also noted that the key boxes "slIde on rollers In and out of the cabInet honzontally " It asked Dr Blackstone "In your OpInIOn, can Mr Balog assume hIS dutIes In the control posItIOn, IncludIng the reqUIred ShIft schedule?" Dr Blackstone's conclusIOn In hIS second report, November 7 2000 dId not accept the Mimstry's VIew that there was no constant rotatIOn of the lumbar spIne He determIned that "[t]he questIOn of whether he rotates hIS lumbar spIne In that Job IS an open one" In regard to "the questIOn of rotatIOn of the lumbar spIne whIle SIttIng on an ergonomIc chair" he stated I am not able to vIsualIze thIS chair but It would have to hold hIm very firmly (almost be strapped Into the chair) to prevent rotatIOn of the lumbar spIne If he IS sWIvelIng. I am not able to comment on the degree of heavy lIftIng as there appears to be some dIsagreement between whether the key boxes have to be lIfted or merely slId. I am also of the OpInIOn that the other aspects of the control posItIOn do comply wIth hIS restnctIOns as placed. DIrector EllIott testIfied that management dId not follow-up on thIS second report because Mr Balog was temporanly beIng accommodated In ReceptIOn, and the report came shortly before dIvestment. In essence, the partIes - and the process - basIcally ran out of tIme The onus IS on the Employer to establIsh that It appropnately accommodated Mr Balog. It has to establIsh, on the balance of probabIlItIes, that the Control Officer posItIOn, WIth modIficatIOns, was a sUItable posItIOn for Mr Balog In relatIOn to hIS medIcal condItIOn. I find that the Employer met ItS onus In relatIOn to Mr Balog's knee dIsabIlIty and hIS mental dIsabIlIty I do not find, however that the Employer met ItS onus In relatIOn to Mr Balog's back dIsabIlIty 132 The IME reports of Dr Blackstone IndIcate that there IS an aspect of the Job that aggravates Mr Balog's back condItIOn - the rotatIng of hIS lumbar spIne In hIS second report, he states that thIS IS stIll an "open questIOn." EssentIally Dr Blackstone dId not accept the Mimstry's VIew that Mr Balog dId not rotate hIS lumbar spIne whIle SIttIng In the ergonomIcally correct chair He stated that the chair would have to "hold hIm very firmly (almost be strapped Into the chair) to prevent rotatIOn of the lumber spIne Ifhe IS sWIvelIng." Clearly that would not be feasIble Dr Blackstone's reports do not conclude that Mr Balog was able to perform the Control Officer posItIOn. At best, they are InCOnclUSIve WhIle Dr Blackstone's second report came very late In the day - and undoubtedly at an extremely busy tIme for management - It stIll came In whIle Mr Balog remaIned an employee of the Mimstry Management had agreed to be bound by the results of the IME Dr Blackstone's second report could not be dIscounted because management belIeved that he stIll dId not have an accurate VIew of the Job The Mimstry clearly vOIced ItS vIews In the second referral letter Dr Blackstone consIdered those VIews but dId not accept them. The Issue of the rotatIOn of the lumbar spIne was "stIll an open questIOn." Consequently based on Dr Blackstone's reports whIch are, at best, InCOnclUSIve regardIng Mr Balog's abIlIty to perform the Job wIthout the nsk of further InJury I conclude on the balance of probabIlItIes, that the Employer has not sustaIned ItS onus on thIS Issue AccordIngly thIS gnevance [GSB# 1999-1845 OPSEU# 00B069] IS allowed. As of the November 7 2000 IME, the medIcal eVIdence dId not establIsh, on the balance of probabIlItIes, that Control remaIned a sUItable accommodatIOn. In terms of remedy I wIll leave that to the partIes to determIne, If possIble I wIll, however remaIn seIzed. 133 I would note, however that the fact that Dr Blackstone also determIned that the posItIOn of ReceptIOn was sUItable In relatIOn to Mr Balog's back and knee restnctIOns does not necessanly mean that ReceptIOn was an appropnate alternatIve permanent accommodatIOn for Mr Balog. Although I have approved of the Employer's first lookIng at vacanCIes WIthIn the employee's home InstItutIOn In makIng health reassIgnments, the Mimstry dId not turn ItS mInd to thIS Issue There IS no eVIdence as to whether a vacancy eXIsted In Control, and there IS no basIs to conclude that had It turned It mInd to the Issue Mr Balog would have been reassIgned to ReceptIOn. C. Mr Balog's Other Grievances 1 The February 2, 1999 - Grievances regarding Lack of Information ER 7-99, ER 8-99, ER 14-99, ER 15-99, ER 16-99, ER 17-99 [GSB# 1998-1972, OPSEU# 99B316-1A, 99B316-1B, 99B316-2A, 99B316-2B, 99B316-3A, 99B316-3B] Mr Balog gneved that he was not provIded wIth the InformatIOn he requested about accommodatIOn. I conclude that Mr Balog was provIded wIth substantIal InformatIOn from the Employer about accommodatIOn. Although the Employer's October 30 1998 letter mIght have Included a number of attachments, such as the actual polIcIes and the Ontano Human Rights Code I find that Mr Balog was provIded wIth InformatIOn about the accommodatIOn process He was provIded InformatIOn by DIrector Hansplant, Mr Rice, Ms BaIley Ms Connelly and others Further the InfOrmatIOn sought by Mr Balog was avaIlable to all employees on the government's Intranet. AccordIngly the Umon has not sustaIned ItS onus and these gnevances are dIsmIssed. 134 2. The February 2, 1999 Grievances Concerning Mr Rice A. ER 9-99, ER 10-99 - The Wheelchair Comment [GSB# 1998-1972, OPSEU# 99B316- lC,99B316-1D] The eVIdence IS clear that Mr Rice made a comment, at the meetIng on December 18 1999 that he saw no reason why Mr Balog could not perform hIS Job as a RecreatIOn Officer from a wheelchair Mr Balog found thIS comment humIlIatIng and dISCnmInatory The comment came In a dIscussIOn about whether or not Mr Balog could stIll perform the work of a RecreatIOn Officer wIth modIficatIOn. It IS clear that Mr Balog and Mr Rice dId not agree on thIS Issue It was dunng thIS dIscussIOn that Mr Rice made the wheelchair comment, to emphasIze hIS VIew that even If Mr Balog's restnctIOns placed hIm In a wheelchair he could stIll perform the Job He testIfied that he was thInkIng about wheelchair athletes at the tIme, and dId not mean It In a derogatory manner CertaInly Mr Balog perceIved It In a derogatory manner partIcularly sInce, In hIS VIew Mr Rice would know that such a sItuatIOn would be unsafe around young offenders Although the comment may have been InSensItIve, I conclude that dId not constItute a dISCnmInatory comment It was a statement to emphaSIze hIS VIew that Mr Balog could stIll perform the Job of a RecreatIOn Officer I find no vIOlatIOn of the collectIve agreement, and thIS gnevance IS dIsmIssed. B. ER 11-99 - The "Jump Through Hoops" Comment [GSB# 1998-1972, OPSEU# 99B316-1E] 135 AgaIn, there IS no dIspute that dunng the December 18 1999 dIscussIOn, Mr RIce told Mr Balog that he was gOIng to have to "Jump through hoops" In regards to accommodatIOn and he wasn't gOIng to lIke It. Mr Balog alleges that thIS comment dISCnmInates agaInst hIm on the basIs of dIsabIlIty Mr RIce testIfied that he was refernng to the reqUIrements of the accommodatIOn process when he made thIS comment. In hIS VIew the reqUIrements of the process, wIth ItS requests for medIcal InformatIOn and restnctIOns and accommodatIOn plans were a cumbersome, dIfficult process, and that was what he meant by the comment. I find Mr RIce's explanatIOn of thIS comment to be reasonable In hIS VIew the reqUIrements of the accommodatIOn process were akIn to "JumpIng through hoops" Clearly the words "Jump through hoops" IS a colloqUIal expreSSIOn that IS often used In the manner used by Mr RIce to mean havIng to go through red tape and reqUIrements I conclude that It dId not vIOlate Mr Balog's nghts under ArtIcle 3 1 of the collectIve agreement. The gnevance IS therefore dIsmIssed. C. ER 12-99 - Being Sent Home From Work on December 18, 1999 [GSB# 1998-1972, OPSEU# 99B316-1F] The eVIdence showed that Mr Rice, as the gnevor's manager was faced wIth a sIgmficant dIlemma In mId-December 1998 Mr Balog was claimIng, supported by Dr Naumetz's letter of November 25 1998 that he could no longer perform the Job of RecreatIOn Officer as modIfied. Mr RIce dId not agree wIth that conclusIOn. He felt that the admInIstratIve and non-sports related aspects of the Job could be performed by Mr Balog. There was a dIspute whIch would need eIther an F AE or a determInatIOn from WSIB to resolve From Mr Rice's perspectIve, Mr 136 Balog had already reJected the "grab bag" of Jobs for employees In Mr Balog's posItIOn - Control, ReceptIOn and School Control Consequently hIS alternatIves were to (1) force Mr Balog to contInue to perform the RecreatIOn Officer Job (whIch Mr Balog said he could not do) or (2) reqUIre hIm to work In Control, ReceptIOn and School Control (whIch Mr Balog dId not want to do) or (3) send hIm home wIth full pay and benefits SInce It was near Chnstmas and no F AE could be arranged In the short-term, Mr Rice choose to send Mr Balog home wIth full pay and benefits Clearly thIS actIOn upset Mr Balog who felt that he was Just beIng shunted off Mr Balog had been lookIng forward to the meetIng on December 18 He expected Mr RIce to agree wIth Dr Naumetz that he could no longer perform the RecreatIOn Officer Job and thus move the process to the next step That dId not happen. Instead, he was sent home Although there IS ment to both sIdes on thIS matter I conclude that the Employer dId not vIOlate Mr Balog's nghts under ArtIcle 3 1 when It sent hIm home from work, on full pay and benefits There IS no questIOn that there was a legItImate dIspute between the partIes regardIng whether Mr Balog could stIll perform the RecreatIOn Officer posItIOn, WIth modIficatIOns There IS also no questIOn that Mr Balog had, In the past, reJected the posItIOns of Control and ReceptIOn. It IS also clear that there were no other posItIOns that Mr Balog could have performed, on a temporary basIs, untIl the RecreatIOn Officer Issue was resolved SInce he could not perform physIcal restraInts There was no eVIdence that Mr Balog was sIngled-out In thIS regard. The eVIdence showed that two other employees had also been sent home wIth pay In these cIrcumstances, Mr Rice's decIsIOn to send Mr Balog home wIth full pay dId not vIOlate hIS nghts under ArtIcle 3 1 137 Mr Balog also alleges that Mr Rice told hIm that he would have to gneve If he wanted a permanent accommodatIOn. Mr RIce demed saYIng thIS. He testIfied that Mr Balog said that he would have to gneve SInce no progress was beIng made, and Mr Rice told hIm to do what he had to do I credIt Mr RIce's verSIOn of the dIscussIOn. I found Mr RIce's recollectIOn of events to be supenor to Mr Balog's, and Mr Rice's notes, wntten at the tIme confirm hIS testImony AccordIngly thIS aspect of the gnevance IS also not sustaIned. The gnevance IS therefore dIsmIssed. D ER 13-99 - A Group of People Would be Looking at his Job [GSB# 1998-1972, OPSEU# 99B316-1G] Mr Balog alleges that Mr RIce attempted to IntImIdate hIm by InformIng hIm that a group of people would be lookIng at hIS Job and would provIde advIce as to what components of hIS Job he could or could not do Exactly what Mr Balog IS refernng to In thIS gnevance IS not clear In the record. It could eIther be refernng to the Employer's hlflng of Tern Homgsberg, whIch IS how Mr Balog referred to It at the heanng. Or It could be refernng to the schedulIng of an FAE Mr Balog's eVIdence on thIS IS sImply not clear and accordIngly the gnevance cannot succeed on thIS basIs alone Nevertheless, IfI am wrong, I conclude that Mr Rice's InformIng Mr Balog about eIther Ms Homgsberg or the F AE IS not a vIOlatIOn of ArtIcle 3 1 of the collectIve agreement. The eVIdence shows that the F AE was the next step In the process to resolve the partIes' dIspute about the RecreatIOn Officer posItIOn. His adVISIng Mr Balog about that, and what It entaIls, was appropnate and not a means of IntImIdatIOn. The same IS true about Mr Rice's adVISIng Mr Balog about Ms Homgsberg who was hIred to assIst In hIS accommodatIOn Issues AccordIngly thIS gnevance IS dIsmIssed. 138 3 March 5, 1999 Grievances A. Discussion in a Nonprivate Location and Going After Credits Comment - ER 23-99, ER 24-99 [GSB#1999-0068, OPSEU# 99B393-ER 23-99, OPSEU# 99B393-ER 24-99] Mr Balog alleges that on February 15 1999 Mr RIce dIscussed confidentIal InformatIOn In an open workplace locatIOn, despIte hIS requests to move to a locatIOn wIth more pnvacy He also alleges that Mr RIce dIscnmInated agaInst hIm, harassed and tned to IntImIdate hIm as well as threaten repnsals when he told hIm that he would be "lookIng for credIts" If he dId not feel that a meetIng was reqUIred. February 15 1999 was Mr Balog's first day back to work after he was sent home on December 18 1998 He had been temporanly assIgned to Control, ReceptIOn and School Control, and he wanted to talk to Mr RIce about that before he started work. He dId not arrange, In advance, to meet wIth Mr Rice, and he waited for hIm, along wIth Local Umon PresIdent VivIan Van Wagner In the maIn VISItIng area. AccordIng to Mr Balog's testImony whIch IS not In dIspute, Mr Rice told hIm that he would be traInIng In Control and ReceptIOn and other thIngs that came along. Mr Balog said that he asked to meet wIth hIm, saYIng that they needed to talk about how thIS assIgnment was decIded, but not there Mr Rice dIsagreed that they needed to meet SInce everythIng had been spelled out In the letter and he asked Mr Balog what he needed to know Mr Balog agaIn said that he dId not want to dISCUSS It there but In a more pnvate place He asked Mr Rice three tImes to meet In pnvate, and finally Mr Rice agreed to meet, although he could not do It then. He then added that If he dId not agree wIth the reasons for the meetIng he would be gOIng after hIm for credIts 139 DealIng first wIth the pnvacy Issue, I cannot conclude that Mr Balog's nghts to pnvacy were vIOlated. Mr Balog could have arranged, In advance, to meet wIth Mr Rice If he wanted to dISCUSS the assIgnment. He dId not and chose to Wait for hIm In the maIn VISItIng area. Mr Rice told Mr Balog that he would be traInIng In Control and ReceptIOn and other areas before Mr Balog asked hIm to meet about the assIgnment, In pnvate There IS no eVIdence that anyone, other than Ms Van Wagner who was InvIted by Mr Balog, heard what Mr RIce Said, or even that anyone else was present. There IS no eVIdence that Mr Rice made any further comments about Mr Balog after that pOInt. Under these facts, there IS no eVIdence of breach of confidentIalIty or vIOlatIOn of any pnvacy nghts Gnevance ER 23-99 IS therefore dIsmIssed. The next Issue IS Mr Rice's comment that he would go after Mr Balog for credIts If he dId not agree wIth the need for the meetIng. ThIS comment must be put Into context. Mr Balog wanted to meet, whIch IS understandable He had questIOns Mr.RIce dId not want to meet, and hIS eVIdence was that he already had meetIngs arranged for that mormng. Yet Mr Balog InsIsted, and would not report to Control untIl a meetIng took place In that context, Mr Rice made the credIts comment. The comment may have been a bIt harsh, but It was not dISCnmInatory on the basIs of hIS dIsabIlIty Mr Balog should have been at work. He would not report, however untIl he met wIth Mr Rice It IS understandable that In lIght of Mr RIce's VIew that a meetIng was unnecessary he would say that he would be lookIng for credIts If, In fact, there was no legItImate reason to meet. It was not dISCnmInatory to do that. It dId not threaten retalIatIOn for the exerCIse of protected nghts Although It IS understandable how the comment would upset Mr Balog, I find no vIOlatIOn of ArtIcle 3 1 The gnevance IS therefore dIsmIssed. 140 B. ER 25-99 - Employer Failed to Respect Grievance Procedure [GSB#1999-0068, OPSEU# 99B393-ER 25-99] The record IS not clear what thIS refers to It appears to assert that what occurred to Mr Balog was In repnsal for hIS filIng earlIer gnevances There was no eVIdence to support such an allegatIOn. AccordIngly the gnevance IS dIsmIssed. 5. March 11, 1999 - Jamieson Comment - ER 26-99 [GSB# 1999-0272, OPSEU# 99B490] ThIS matter was settled by the partIes, and IS therefore not properly before me 6. April 13, 1999 - Hours of Work Reprisal [GSB# 1999-0279, OPSEU# 99B491] The eVIdence showed that Mr Balog's work schedule changed from an 8-hour day to an 8 5 hour day AccordIng to Mr Rice, Mr Balog's former manager had Improperly allowed staff to Include lunch In an eIght-hour schedule The RecreatIOn Officer Job IS In Schedule 47 whIch has a schedule of 40 hours, 8 hours per day There IS no eVIdence that the change was made In repnsal The Employer submIts that the change was to comply wIth the collectIve agreement, and It IS not a vIOlatIOn to comply wIth the collectIve agreement. I must concur AccordIngly thIS gnevance IS dIsmIssed. 7 April 14, 1999 - Easter 1999 -"Working for Nothing" Comment - ER 36-99 [GSB# 1999-0271, OPSEU# 99B489] Mr Balog alleges that Mr Rice made humIlIatIng, InSensItIve and dISCnmInatory statements to hIm when he said "he IS workIng for nothIng" when he reported to work on Good Fnday and when he ordered hIm to leave and to not report on Easter Monday 141 The eVIdence showed that Apnl 2, 1999 was Good Fnday a statutory holIday Mr Balog reported to work and after lunch was Informed by the In-Charge Manager that he had spoken to Mr RIce who Informed hIm that he "was workIng for nothIng." Mr Rice was not questIOned about thIS comment. Mr Balog then spoke dIrectly wIth Mr Rice who told Mr Balog that there must have been a mIsunderstandIng, and Mr Balog told hIm that there was no mIsunderstandIng, hIS schedule was Monday to Fnday 8 30 a.m. to 5 00 p.m Mr Rice told hIm to leave Mr Balog asked hIm If It was an "order" and Mr RIce responded, "yes" and that he was also ordenng hIm not to report to work on Easter Monday another holIday Mr Balog then left. In my VIew there was a mIsunderstandIng about whether Mr Balog should report to work on Good Fnday and Easter Monday Mr Balog relIed on hIS general hours of work, whIle Mr Rice relIed on the fact that the days were publIc holIdays The actual work schedule for the day was not Introduced. The collectIve agreement provIdes a substantIal premIUm for workIng on a holIday and It IS not surpnSIng that Mr Rice ordered Mr Balog to leave If he was not supposed to work that day The same IS true for Easter Monday There IS no basIs to conclude that thIS dIrectIve to leave was because of hIS dIsabIlIty The eVIdence further shows that Mr Balog applIed for overtIme for the two days, and was paid for them Under all of the facts, I conclude that there was no vIOlatIOn of the collectIve agreement, and the gnevance IS dIsmIssed. 8. June 16, 1999 - Being Ordered to Report to the CBI - ER 59-99 [GSB# 1999-0759, OPSEU# 99D068] Feb. 21, 2000 -Employer Receipt of CBI Report Without Consent - ER 30-00 [GSB# 2000-0013, OPSEU# 00E066] Mr Balog alleged that hIS nghts under ArtIcle 3 1 were vIOlated when he was ordered to report to the CanadIan Back InstItute (CBI) where he was subJected to a functIOnal assessment. He also alleges that management receIved a copy of the report wIthout hIS wntten consent. 142 The eVIdence shows that the partIes had a dIspute about whether or not Mr Balog could perform the dutIes of a RecreatIOn Officer wIth modIficatIOns To help resolve that dIspute, the Employer sought to have Mr Balog attend a FunctIOnal Assessment EvaluatIOn (F AE) whIch IS part of the accommodatIOn process In Mr Balog's VIew he was ordered to go to thIS assessment and was gIven "no chOIce" The eVIdence of Ms Tern Homgsberg was that she told Mr Balog that an F AE was part of the accommodatIOn process and that It would be In hIS best Interests to go She dIsagreed that she told hIm that he had no chOIce In the matter She testIfied that he dId not obJ ect to attendIng. Where the eVIdence of Ms Homgsberg and Mr Balog conflIct, I prefer the eVIdence of Ms Homgsberg. Her recollectIOn of events, partIcularly theIr dIscussIOns, was sIgmficantly supenor to Mr Balog's A lot of Mr Balog's testImony about the CBI was not supported and contrary to documentatIOn In the record. AccordIngly I conclude that, on the balance of probabIlItIes, Mr Balog was not "ordered" to attend CBI. It's possIble that he may have perceIved It In that way but he was not, In fact, "ordered" to go The gnevance IS therefore dIsmIssed. As to the second gnevance, the eVIdence shows that Mr Balog sIgned a "Consent to Release InformatIOn" to Syl Apps, In connectIOn wIth the CBI assessment, on Apnl 13 1999 The second gnevance IS therefore dIsmIssed. 143 9 October 25, 1999 Grievances - (1) Failure to Accommodate for September 27, 1999 Meeting. ER 70-99 [GSB# 1999-1475, OPSEU# 99D172], (2) Failure to Provide Proper Notification. ER 71-99 [GSB# 1999-1475, OPSEU# 99D172], (3) Failure to Provide Notice of Schedule Change. ER 72-99 [GSB# 1999-1475, OPSEU# 99D174] These gnevances concern the meetIng of September 27 1999 In whIch Mr Balog was told that he was beIng reassIgned, for health reasons, to the Control Officer posItIOn. The first gnevance Involves an allegatIOn that management faIled to provIde adequate accommodatIOn for the September 27 meetIng, In lIght of a meetIng scheduled for September 28 In BurlIngton. The second gnevance alleges that Mr Johnston called Mr Balog at home on September 27 to report for a meetIng at 1 00 P m on the same day wIthout proper notIficatIOn. The thIrd gnevance concerns notIce about a schedule change for October 4 1999 the day Mr Balog was supposed to report to work as a Control Officer There was no testImomal eVIdence In the record regardIng when Mr Balog was advIsed of the September 27 1999 meetIng or what was said to hIm about hIS attendance The only eVIdence IS Mr Balog's wntten "History of Worker" whIch he provIded to WSIB on December 16 1999 In regard to the date of September 23 1999 he wrote that Mr Johnston advIsed hIm that he was reqUIred to attend a meetIng on September 27 As a result, the second gnevance must be dIsmIssed based on Mr Balog's own documents His "History" documents shows that he was advIsed about the meetIng on September 23rd not the mornIng of September 2ih as alleged In the gnevance In terms of the first gnevance there was no testImomal eVIdence concermng a meetIng on September 28 Mr Balog's "History of Worker document states that a Stage 2 meetIng on September 28 was rescheduled to the BurlIngton locatIOn at hIS request, pnor to hIS beIng 144 advIsed of the September 2ih meetIng. There IS no eVIdence that Mr Balog thereafter sought to reschedule the September 28th meetIng or otherwIse sought an accommodatIOn regardIng the two meetIngs Under these facts, the first gnevance must also be dIsmIssed. There IS no eVIdence of any request for accommodatIOn, and the locatIOn of the September 28th meetIng was changed at hIS request. In terms of the change In schedule regardIng October 4 1999 that was the date Mr Balog was expected to start work as a Control Officer He was advIsed that If he needed addItIOnal tIme off, he would need another doctor's note SInce hIS last one was dated July 3 1999 The collectIve agreement does provIde for a certaIn number of days notIce before an employee's schedule may be changed, and had Mr Balog actually commenced work on October 4 1999 the Mimstry may not have complIed wIth the tIme reqUIred. But he dId not report to work on October 4 1999 He remaIned off on sIck leave AccordIngly there was no vIOlatIOn of Mr Balog's nghts under the collectIve agreement. The thIrd gnevance dated October 25 1999 IS also therefore dIsmIssed. 10 October 25, 1999 Grievance - Failure to Consult with Professionals Before Ordering Mr Balog into the Control Officer position. ER 73-99 [GSB# 1999-1475, OPSEU# 99D175] ThIS gnevance alleges that management faIled to have hIS doctors reVIew the Control Officer posItIOn before he was assIgned to It. The substance of thIS gnevance was dealt wIth earlIer In the decIsIOn. For the reasons set forth there, I conclude that the Employer's actIOns dId not vIOlate the Employer's polIcIes or the collectIve agreement. There IS no reqUIrement that the 145 employee's doctor reVIew the posItIOn before It may be assIgned under ArtIcle 7 5 of the collectIve agreement. 11 January 26, 2000 Grievance - Employer Failed to Provide a Safe and Healthy Work Environment. ER 2-00[GSB# 1999-2084, OPSEU# 00BI07] ThIS gnevance, In effect, alleges that Mr Balog could not perform the Job of Control wIthout It caUSIng hIm paIn. The eVIdence dId establIsh that Mr Balog had dIfficulty performIng the full ShIft In Control Yet the Job at the tIme of the gnevance was consIstent WIth the medIcal restnctIOns In Dr Naumetz's letter of November 15 1999 wIth the exceptIOn of the duratIOn of the shIft. That Issue was In dIspute, and on March 16 2000 the WSIB determIned that the Job was sUItable, IncludIng 12-hour shIfts The restnctIOn added by Dr Reynold's letter of February 22, 2000 for an "ergonomIcally correct workstatIOn" had been largely met by the modIficatIOns done by the Mimstry In my VIew where a Job conforms to the eXIstIng medIcal InfOrmatIOn, It cannot be a vIOlatIOn of health and safety to assIgn the gnevor to that Job The only exceptIOn to thIS was In relatIOn to the heIght of the desk. On that Issue the Employer faIled to establIsh that It had accommodated Mr Balog's medIcal needs to the pOInt of undue hardshIp C onsequentl y In relatIOn to that aspect only the posItIOn In Control, as modIfied, dId not satIsfy the Employer's oblIgatIOn to provIde a safe and healthy envIronment. My conclusIOn that, ultImately the Employer dId not sustaIn ItS onus that Control was an appropnate accommodatIOn IS not InCOnsIstent WIth thIS determInatIOn. That decIsIOn was based predomInantly on Dr Blackstone's August and November 2000 Independent medIcal reports that rotatIng/movIng from one workstatIOn to another on hIS wheeled chair aggravated hIS back. It was not untIl that pOInt that the Employer had any medIcal InfOrmatIOn that the Job was not sUItable By that tIme, Mr Balog was no longer workIng In the posItIOn. 146 In terms of remedy I award the sum of $500 00 12. February 21, 2000 Grievance - Interference With Doctor/Patient Relationship By Repeated Requests for Medical Information. ER 31-00 [GSB# 2000-0014, OPSEU# 00E067] ThIS gnevance alleges that management's repeated requests for medIcal InformatIOn, whIch had already been provIded, Interfered wIth hIS doctor/patIent relatIOnshIp and constItuted harassment. The eVIdence establIshes that thIS gnevance refers to Mr Balog's relatIOnshIp wIth Dr Naumetz. The eVIdence showed that between 1998 and 2000 management requested InformatIOn from hIS specIalIst, Dr Naumetz, on three occaSIOns Several other letters were wntten by Dr Naumetz for the Mimstry but they were provIded at Mr Balog's request, not the Mimstry's It IS certaInly true that Dr Naumetz became exasperated wIth Mr Balog's search for accommodatIOn. Mr Balog saw thIS as a dIrect result of management's repeated requests for InfOrmatIOn. Dr Naumetz's eVIdence, however on cross-eXamInatIOn was that hIS exasperatIOn came from the fact that far more of Mr Balog's VISItS had to do wIth hIS search for accommodatIOn rather than hIS care and treatment. In fairness, Dr Naumetz's letter of November 25 1998 makes It clear that he thought that Mr Balog should not contInue as a RecreatIOn Officer even though he also lIsted restnctIOns for that posItIOn. His letter of Apnl 23 1999 strongly reIterates the same pOInt, and comes off qUIte cntIcal of the Mimstry for tryIng to modIfy the posItIOn whIch he vIewed as "ImpractIcal" and 147 "an exerCIse In futIlIty" From that perspectIve, management appeared to askIng the same questIOn tWIce In fact, however the Apnl 1999 letter to Dr Naumetz asked a dIfferent questIOn - specIfically whether In lIght of the findIngs of the CBI (and the revIsed lIftIng lImIts), Mr Balog could perform the posItIOn, as modIfied. Further the breakdown of the doctor/patIent relatIOnshIp (whIch, accordIng to Dr Naumetz's eVIdence, was ended by Mr Balog) dId not occur untIl February 7 2000 - long after hIS Apnl 1999 letter In fact, the only other letter receIved from Dr Naumetz from the Mimstry In 1999 was the letter he wrote on November 15 1999 about the Control Officer Job at Mr Balog's request. There was no corroboratIng or documentary eVIdence that the Employer requested addItIOnal InfOrmatIOn from Dr Naumetz In January 2000 The eVIdence showed that request went to Dr Reynolds, the doctor Mr Balog lIsted as hIS treatIng physIcIan In the Employee IncIdent Reports that he filed. Under the facts of thIS case, I cannot conclude that the Mimstry was unreasonable In ItS requests for medIcal InformatIOn. On the contrary In lIght of the Issues that eXIsted, the Mimstry's requests for medIcal InfOrmatIOn were reasonable MedIcal InformatIOn - partIcularly lImItatIOns and restnctIOns - are absolutely key to the accommodatIOn process It IS from the IdentIfied lImItatIOns and restnctIOns that management can determIne If the Job may be modIfied, and an accommodatIOn plan developed. It IS part of an employee's responsIbIlIty to provIde that medIcal InformatIOn. In thIS case there was a dIspute regardIng whether or not Mr Balog could perform the RecreatIOn Officer Job as modIfied. ThIS was followed by a dIspute regardIng whether he could perform the dutIes of a Control Officer as modIfied. The nature of Mr Balog's medIcal Issues 148 also evolved - from stnctly a knee dIsabIlIty to back Issues and depressIOn. In those cIrcumstances, repeated requests for InfOrmatIOn were needed. There IS no eVIdence at all that the Mimstry's requests for medIcal InformatIOn were In any way desIgned to harrass Mr Balog or to Interfere wIth hIS doctor/patIent relatIOnshIp ThIS gnevance IS therefore demed. 13 March 26, 2000 Grievance - Denial of STSP and Placing Health & Safety at Risk ER 23-00 [GSB# 2000-0333, OPSEU# 00B195], July 9. 2000 Grievance - Denial of STSP and Inclusion in the Attendance Support Program. [GSB# 2001-0590, OPSEU# 01F469] The first gnevance asserts that the Employer's demal of STSP to the gnevor for hIS absences after January 3 2000 was a vIOlatIOn of ArtIcle 44 of the collectIve agreement and ArtIcle 9 1 Health and Safety The second gnevance asserts that the demal of STSP benefits and placIng hIm In the Attendance Support Program was a repnsal, dISCnmInatIOn and a form of harassment. My reasons In regard to Gnevance ER 2-00 apply here as well In regard to ArtIcle 9 1 In relatIOn to ArtIcle 44 I find that the Employer acted properly at the tIme, In regard to Mr Balog's nghts under thIS contractual benefit. I also find that Mr Balog's InclUSIOn In the ASP under the specIfic facts of thIS case was proper and not a repnsal, dISCnmInatIOn or a form of harassment. ArtIcle 44 Short Term SIckness Plan, provIdes as follows 44 1 An employee who IS unable to attend to hIS or her dutIes due to sIckness or InJury IS entItled to leave of absence wIth pay as follows (a) wIth regular salary for the first SIX (6) workIng days of absence (b) wIth seventy-five percent (75%) of regular salary for an addItIOnal one hundred and twenty four (124) workIng days of absence, In each calendar year 149 449 Where for reasons of health, an employee IS frequently absent or unable to perform hIS or her dutIes, the Employer may reqUIre hIm or her to submIt to a medIcal eXamInatIOn at the expense of the Employer 44 10 After five (5) days' absence caused by sIckness, no leave wIth pay shall be allowed unless a certIficate of a legally qualIfied medIcal practItIOner IS forwarded to the employee's manager certIfYIng that the employee IS unable to attend to hIS or her officIal dutIes In order to qualIfy for STSP "the employee or the Umon must satIsfy the Board that the employee IS reasonably unable to attend work because of the InJury" OPSEU (Stacey) and MinistlY of Correctional Services, supra at p 22 At the tIme that Mr Balog was demed the use of STSP In mId-March 2000 It was the Mimstry's VIew that It had no medIcal documentatIOn to support hIS absences/leavIng work early from Control WSIB had Just demed Mr Balog's request to reopen hIS claim for hIS absences In January through March 2000 and determIned that the posItIOn of Control, IncludIng the 12-hour ShIftS, complIed wIth Mr Balog's eXIstIng medIcal restnctIOns ThIS led DIrector EllIott to conclude that "[g]Iven thIS report there IS no eVIdence to contInue paYIng you under STSP " Based on the medIcal InformatIOn In the Employer's possessIOn at the tIme, thIS was a reasonable conclusIOn and fully consIstent WIth ArtIcle 44 10 CertaInly there was some medIcal documentatIOn regardIng the 8-hour ShIft, but It was In conflIct WIth the WSIB determInatIOn. Dr Reynold's Apnl 4 2000 note that Mr Balog needed 8-hour ShIftS due to the medIcatIOn for depressIOn appeared to conflIct WIth Dr LewIs's earlIer note whIch had cleared Mr Balog to return to work, wIthout restnctIOn. As set out In DIrector EllIott's letter of Apnl 20 2000 "UntIl we have medIcal InfOrmatIOn from a specIalIst WIth restnctIOns related to depressIOn and medIcatIOn, we wIll contInue our current posItIOn that we have no medIcal documentatIOn that supports use of sIck credIts" It then proposed the IME process, whIch IS provIded 150 for under ArtIcle 449 Subsequently upon receIpt of Dr Waldenberg's IME report In July 2000 Mr Balog's entItlement to STSP was restored, retroactIve to March 2000 The eVIdence shows that he had already been provIded wIth STSP benefits from January 3 2000 to March 22, 2000 Under these facts, I conclude that management's temporary cessatIOn of Mr Balog's STSP credIts was consIstent WIth ArtIcle 44 of the collectIve agreement, as was ItS restoratIOn of the benefit upon receIpt of Dr Waldenberg's medIcal report. I also find that Mr Balog's InclUSIOn In the Attendance Support Program was not Improper With the demal of Mr Balog's request to reopen hIS WSIB claim to Include hIS absences In 2000 hIS absences eIther had to be covered by STSP or be unpaid. With the medIcal documentatIOn to support hIS InabIlIty to work 12-hour ShIftS, hIS absences became covered by STSP From between January 1 2000 through July 31 2000 Mr Balog was absent In excess of fifty 12-hour ShIftS whIch placed hIm In the program InclusIOn In the ASP program IS not dIscIplInary His InclUSIOn was not Improper at the tIme These gnevances are therefore dIsmIssed. 14 May 14. 2000 Grievance -Alleged Poisoned Work Environment - ER 38-00 [GSB# 2000-0454, OPSEU# 00B222] In thIS gnevance Mr Balog alleges that the DIrector of Syl Apps allowed management to create a pOIsoned work envIronment whIch vIOlated hIS nghts to equalIty IncludIng dIscIplInary restnctIOns, vexatIOus comments, threats of repnsal, restnctIOns on freedom of speech, IntImIdatIOn, and practIces whIch endanger hIS safety and health. These allegatIOns summanze Mr Balog's perceptIOn of hIS treatment by management. 151 A number of these Issues have been dealt wIth In other gnevances (e g. the alleged threats of repnsal, IntImIdatIOn, health and safety Issues) There was no eVIdence of any dIscIplInary measures or restnctIOns Imposed on Mr Balog. Nor was there any eVIdence that hIS freedom of speech was beIng restncted. In terms of the vexatIOus comments, the eVIdence showed that when Mr Balog mentIOned specIfic IndIVIduals, management followed-up wIth those IndIVIduals More often, Mr Balog would not IdentIfy who was saYIng thIngs, but even then, management put out a general memo on the subJ ect. The eVIdence shows that earlIer concerns about employees' perceptIOns of Control had been dealt wIth by the Employer and the Umon. There IS no eVIdence that management Ignored reported Improper comments or turned a blInd eye to hIS generalIzed complaInts The eVIdence IS to the contrary ConsIdenng all of the eVIdence, I cannot conclude that there was a pOIsoned work envIronment at Syl Apps Instead, there was a legItImate dIsagreement regardIng Mr Balog's accommodatIOn, and that conflIct Influenced Mr Balog's perceptIOn about everythIng that management dId. As Dr Waldenberg testIfied, when employees feel a sense of InJustIce (nghtly or wrongly), thIngs that happen are seen as a contInUatIOn of the InJustIce and the sItuatIOn reInforces Itself and worsens It IS not dIfficult to see how Mr Balog's perceptIOns were formed. There were many tImes when It must have seemed that the Employer was unreasonably determIned to keep Mr Balog In the RecreatIOn Officer posItIOn, and later In Control Yet management's actIOns were consIstent WIth the accommodatIOn polIcy the collectIve agreement and the Human Rights Code AccordIngly thIS gnevance must be dIsmIssed. 152 15 May 1.2000 Grievance - Denial of Use of the Medical Room. ER 22-00 [GSB# 2000-0334, OPSEU# 00B196] ThIS gnevance alleges that the Employer's demal of Mr Balog's request to use the medIcal room on Apnl 1 2000 was dISCnmInatory and placed hIS health and safety at nsk. It IS undIsputed that the Employer on Apnl 2, 2000 demed Mr Balog any further use of the medIcal room when on the evemng shIft. The reason for thIS was what management belIeved was Mr Balog's exceSSIve use of the medIcal room the evemng before On that mght, Mr Balog used the medIcal for over 211z hours dunng the ShIft, whIle no nurse was present. ThIS caused operatIOnal problems, and management felt that prolonged use of the medIcal room was not appropnate Management asserted that no employees were allowed to use the medIcal room for extended pen ods, not Just Mr Balog. The eVIdence establIshed that prolonged use of the medIcal room created operatIOnal dIfficultIes SInce the ShIft IC had to fill In for Control rather than attend to hIS own dutIes AccordIngly management's decIsIOn to restnct prolonged use of the medIcal room IS reasonable The problem wIth management's response, however IS that It was not lImIted to prolonged use Instead, Mr Balog was precluded from USIng the medIcal room at all. Such a blanket restnctIOn was not operatIOnally reqUIred. In so restnctIng Mr Balog, Mr Balog was not afforded the same nghts as other employees ThIS vIOlated hIS nghts under ArtIcle 3 1 of the collectIve agreement. AccordIngly thIS gnevance IS allowed. In terms of a remedy I award $500 00 as general damages 153 16. November 11. 2000 Grievance - Denial of Proper Severance Pay - ER 56-00 [GSB# 2001-0590, OPSEU# 01F470] ThIS gnevance asserts that reclassIfYIng hIm to the Control posItIOn demed hIm hIS proper severance upon dIvestment, as a RecreatIOn Officer It also alleges that other CorrectIOnal Officers In the Secunty Officer posItIOn were not reclassIfied untIl after dIvestment, whIch he alleges IS dISCnmInatory ThIS gnevance would have ment If, at the tIme Mr Balog was reassIgned to Control under ArtIcle 7 5 of the collectIve agreement, that reassIgnment was Improper I have earlIer ruled, however that the assIgnment, at the tIme, was consIstent WIth hIS medIcal restnctIOns, hIS skIlls, educatIOn, and abIlItIes He had been traIned In the Job and had prevIOusly performed It, as a temporary accommodatIOn, wIthout any medIcal Issues an SIng. It had also been determIned that he could no longer perform the dutIes of hIS home posItIOn, WIth modIficatIOns AccordIngly a health reassIgnment was reqUIred and the assIgnment to Control was appropnate under the facts at the tIme That reassIgnment, In effect, changed hIS "home" posItIOn to Control, or Secunty Officer Therefore, hIS entItlement to severance at the tIme of dIvestment would not be based on the RecreatIOn Officer's salary My conclusIOn that, at the tIme of dIvestment, the Employer on the balance of probabIlItIes, no longer establIshed that Control was a sUItable accommodatIOn does not mean that he was Improperly demed hIS severance at the RecreatIOn Officer pay level AccordIngly thIS gnevance must also be demed. 154 17 November 29. 2000 Grievance - Handicap Parking Issues [GSB# 2001-0590, OPSEU# 01F471] ThIS gnevance alleges harassment and dISCnmInatIOn In regard to handIcap parkIng at Syl Apps SpecIfically It alleges that on November 29 2000 management allowed an employee to use handIcapped parkIng wIthout a permIt but when he reqUIred handIcapped parkIng he as told to remove hIS vehIcle It also alleges that the memo he receIved from Mr MagUIre InformIng hIm not to park In a handIcapped space wIthout a permIt (when It was dIsplayed on hIS VISor) was dISCnmInatory The only eVIdence about the first aspect of thIS gnevance came from Mr MagUIre He testIfied that when Mr Balog complaIned that a Mimstry van had been parked In the handIcap spot for a number of days, he sent a note to staff not to park there SInce there were employees who needed the spots There IS no eVIdence In the record that Mr Balog was ever told to remove hIS vehIcle from the handIcap parkIng spot. In regard to the memo from Mr MagUIre regardIng handIcap parkIng, Mr MagUIre explaIned at the heanng, and at the tIme to Mr Balog, that hIS memo was based on It beIng reported to hIm that the handIcap permIt on Mr Balog's vehIcle had not been dIsplayed. I conclude that under the facts, Mr MagUIre's adVISIng Mr Balog that hIS permIt must be dIsplayed IS neIther dISCnmInatory nor harassment. ThIS gnevance IS dIsmIssed. Conclusion ThIS was a very long and a sad case I thought so dunng the heanng, and now after wntIng thIS decISIOn, I am stIll of the same VIew even more so As stated at the outset, thIS case 155 Involves mIsunderstandIngs, mIscommumcatIOns, unrealIzed expectatIOns, mIstrust and fear IncludIng the fear of dIvestment. It does not, however Involve any vIllaIns All of the wItnesses - management, the doctors, and Mr Balog - tned to do theIr best and dId what they thought was best. As the case law develops, there may be more understandIng of the partIes' respectIve nghts and oblIgatIOns In regard to accommodatIOn. Undoubtedly there wIll always be dIsagreements, and that IS, essentIally what occurred here I would lIke to thank counsel for theIr consIstent professIOnalIsm, and the qualIty of theIr representatIOn and submIssIOns For all of the reasons set forth above, I conclude as follows 1 Gnevance ER 1-00 [GSB# 1999-1845, OPSEU# 00B069] January 4 2000 IS allowed. I conclude that the Employer on the balance of probabIlItIes, dId not sustaIn ItS onus that the posItIOn of Control Officer remaIned a sUItable accommodatIOn In relatIOn to hIS back dIsabIlIty In lIght of Dr Blackstone's IME reports of August and November 2000 Those reports do not establIsh, on the balance of probabIlItIes, that Control remaIned a sUItable accommodatIOn for Mr Balog. At best, they were InCOnclUSIve I remIt the Issue of remedy to the partIes to determIne 2 Gnevance ER 2-00 [GSB# 1999-2084, OPSEU# 00BI07] January 26 2000 IS allowed In part. ThIS gnevance alleges that the Employer faIled to provIde Mr Balog wIth a safe and healthy work envIronment. I conclude the Mimstry through ItS revIsIOns to the Control booth, largely met the restnctIOns set out by Dr Reynolds The only exceptIOn was In relatIOn to the heIght of the desk and the pass-through WIndows On thIS, the eVIdence faIled to establIsh that the Employer accommodated Mr Balog to the pOInt of undue hardshIp thereby faIlIng, In part, to provIde a safe work envIronment. In terms of remedy I award the sum of $500 00 as general damages 3 Gnevance ER 22-00 [GSB# 2000-0334, OPSEU# 00B196] May 1 2000 IS allowed. I conclude that management's blanket demal of the medIcal room to Mr Balog, Instead of lImItIng hIS use to short VISItS, faIled to provIde hIm the same nghts as other employees In vIOlatIOn of ArtIcle 3 1 of the collectIve agreement. In terms of remedy I award the sum of $500 00 as general damages 156 4 All other gnevances are dIsmIssed. 5 I shall remaIn seIzed. Issued at Toronto thIS 21 st day of Apnl, 2004