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HomeMy WebLinkAbout2013-4296.Grievor.17-07-05 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-4296, 2013-4297, 2014-2530, 2014-2531, 2014-2532, 2014-3380, 2014-3381, 2014-3382, 2014-4273, 2014-4274, 2014-4275 UNION#2014-0517-0004, 2014-0517-0005, 2014-0517-0020, 2014-0517-0021, 2014-0517-0022, 2014-0517-0038, 2014-0517-0039, 2014-0517-0040, 2014-5112-0273, 2014-5112-0274, 2014-5112-0275 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel HEARING SUBMISSIONS August 31, 2015; June 16, August 18, August 30, August 31, 2016; March 14, March 16, April 4, April 20, 2017 May 5, 12 and 19, 2017 - 2 - Decision THE GRIEVANCES [1] In light of the significance of medical evidence in this decision, and the need to protect the Grievor’s confidentiality in that regard, the Grievor’s name has not been used. [2] Eleven grievances were referred to arbitration by the Union on behalf of this grievor. In essence they all relate in some way to the Grievor’s contention that her Employer failed to accommodate her when she was able to return to work from sick leave, and/or that it denied her Short Term Sick Pay (STSP) at various points when she had provided medical notes and reports from her doctor indicating the state of her health. Some grievances claim that the Grievor was short paid on some paycheques, or was not paid the correct percentage of STSP. One grievance claims reimbursement for the many doctor’s notes and letters that the Grievor had to obtain at the request of the Employer. The grievances are as follows: 1. Grievance No. 2014-0517-0004, filed on January 31, 2014, claims that the Employer had the Grievor off work on sick time without pay when she should have been accommodated in accordance with her doctor’s note. For her remedy, the Grievor is seeking full payment for sick days that had not been paid since November 4, 2013. 2. Grievance No. 2014-0517-0005, filed on January 31, 2014, claims, among other things, that the Employer’s refusal to accommodate the Grievor in accordance with her doctor’s note of November 27, 2013 was discriminatory. By way of remedy, the Grievor is seeking to have her doctor’s note honoured and to receive leave with pay until two policy grievances and unfair labour practices are resolved. 3. Grievance No. 2014-0517-0020, filed on July 9, 2014, claims that the Employer had exercised its Management Rights in an unreasonable and unjust manner because after providing doctor’s notes, and following management direction, the Grievor had been placed on an unpaid leave which affected her pay, pension and benefits. This was alleged to have started on January 1, 2014, and was again wrongfully implemented as of June 9, 2014. By way of remedy, the Grievor is seeking damages in the amount of $10,000. 4. Grievance No. 2014-0517-0021, filed on July 10, 2014, claims that the Employer had exercised its Management Rights in an unreasonable and unjust manner because the Superintendent of the Metro West Detention Centre had unreasonably affected the Grievor’s pay cheques by putting her on an unpaid leave. For a remedy the Grievor is seeking full redress, lost pension buyback, and damages in the amount of $10,000. - 3 - 5. Grievance No. 2014-0517-0022, filed on August 18, 2014, claims that the Employer had violated various articles of the collective agreement by unjustly subjecting the Grievor to hardship in the form of absence, reductions in payments in the amount of $4,995.23, and two IME requests. The Grievor is seeking remedies of reimbursement of $4,995.23, damages in the amount of $10,000, removal of any damaging documentation from her personnel file, and redeployment within the OPS. 6. Grievance No. 2014-0517-0038, filed on October 15, 2014, claims that the Superintendent of the Metro West Detention Centre had purposely and deliberately withheld the form for 75% of pay since March 2014, and that she had therefore been paid at the STSP rate of 66% pay. It was further alleged that the Employer had ignored 28 doctor’s notes that the Grievor had provided over the previous year and a half. By way of remedy, the Grievor is seeking full disclosure and redress. 7. Grievance No. 2014-0517-0039, filed on October 15, 2014, claims that Mr. Dunscombe had informed the Grievor by a Purolator letter that her WDHP file had been investigated and closed, and that this was bullying and harassment. The redress sought is full disclosure and full redress. 8. Grievance No. 2014-0517-0040, filed on October 15, 2014, claims that the Grievor had been required to submit doctor’s notes that had cost her $600, and two reports that had cost her $75. By way of remedy, the Grievor is seeking full redress. 9. Grievance No. 2014-5112-0273, Grievance No. 2014-5112-0274, and Grievance No. 2014-5112-0275, all filed on December 31, 2014, claim that the Employer had breached the Management Rights and No Discrimination clauses of the collective agreement by withholding regular pay through deductions that the Grievor had not approved, thereby causing the Grievor financial penalties, embarrassment and family complications. The remedy sought is full redress and all financial costs associated with the deductions from three pay cheques. [3] Counsel for the Union summarized the remedies sought as including a declaration of breaches of Articles 2, 3, 9 and 44 of the collective agreement; a declaration that the Employer has violated the Human Rights Code; an order that the Grievor be paid her full wages for time periods that she could have worked with accommodation, had the Employer accommodated her; an order that the Grievor be paid for all short-term sick plan benefits when she was unable to work due to illness, - 4 - and that those payments be made at the 75% level; and an order for general damages and other relief as the Board deems appropriate. [4] The parties agreed that should the grievances be allowed in whole or in part, that I remain seized to address remedial issues that may arise. OVERVIEW [5] It has been very difficult to write a coherent account of the Grievor’s evidence in this case. Although most of the Grievor’s evidence in chief was admitted through a “will say” statement, much of that was unspecific and without dates. It was clear, both from the “will say” and in the course of her testimony, that the Grievor needed to get a lot off her chest. However, she was not able to put much of what she claimed had happened to her in chronological order, and regularly, both in her examination in chief and in cross-examination, was wildly off the mark in terms of when things had occurred. The Grievor also made numerous allegations, and used colourful language to describe what she saw as the wrongs that the Employer or her co-workers had committed against racialized persons and against her. [6] I have determined not to include all of the Grievor’s allegations and descriptors in this decision unless it is absolutely necessary to the narrative in some way. As will become evident, the Grievor is a woman with some significant mental health issues, and as such, I do not fault her for her inability to focus or to have a good recall of what happened to her during periods when she was unwell or under a great deal of stress. While taking into account the Grievor’s evidence, to the extent possible, I have relied on the documentary evidence and the evidence of other witnesses for the chronology of events that occurred. [7] The Grievor has worked for the Ministry of Community Safety and Correctional Services as a Correctional Officer (“CO”) or a Probation and Parole Officer since around October 1986. During the periods relevant to the grievances before me, the Grievor worked at the Metro Toronto West Detention Centre (“Metro West DC”) as a CO before it closed, and then at the Toronto South Detention Centre (“Toronto South DC”). While she was at the Metro West DC, the Grievor worked in Property Release for some years, which was a Monday to Friday job. The Grievor believed she had been in that job for seven years, but it ultimately became clear that it was likely for less than three years. [8] The Grievor had been a Local union steward at Metro West DC. In her capacity as a union steward, in and around 2009 the Grievor had represented a coworker who was also a CO, in relation to allegations of misconduct in the workplace. That individual will be referred to as “COA” in this decision. The Grievor believed that COA had been falsely accused by a white male CO and other white co-workers of making statements and a gesture. The Grievor claims that she therefore vigorously advocated on COA’s behalf. The Grievor is a white woman, COA is a Black woman, and the Grievor believes that the Employer has taken reprisals against her for - 5 - representing this Black woman. The reprisals are alleged to have taken the form of the denial of sick benefits and medically-required accommodations that would have facilitated the Grievor’s return to work in 2013 and later. [9] In cross-examination the Grievor agreed that to her knowledge, COA’s case had been adjudicated or settled. She was shown a GSB decision which essentially found that COA had made inappropriate statements and a gesture towards a co-worker. The Grievor conceded that COA had not had her employment terminated for the alleged incident, and that she knew that COA had settled her grievance with the Employer. Nonetheless, the Grievor continued to maintain that COA had been wronged, and that the Grievor had suffered reprisals for having represented COA by asking the Employer to review the video tape of the alleged incident. The Grievor has also filed a complaint at the Human Rights Tribunal of Ontario regarding how COA was treated by the Employer. [10] At the time that events were unfolding with COA’s case, the Grievor claims that in retaliation against her for her representation of COA, the Employer moved her from her post in Property Release to the Video Court assignment. This appears to have occurred in or around late September 2010. In particular, the Grievor claims that the Deputy Superintendent of the Metro West DC, Trevor Dunscombe, moved her to the Video Court assignment because he wanted someone he was involved with romantically, Ms. Core, to keep an eye on the Grievor. The Grievor claims that Ms. Core and another worker later accused her of a pseudo-violent act, which led to the Grievor getting a one day suspension. As such, the Grievor did not trust either Mr. Dunscombe or Ms. Core. [11] In cross-examination it became clear that the Grievor may have been in the Property Release position for less than three years (not the seven that she had claimed), because the job likely only existed for a total of about seven years. It also became clear through cross-examination that the reason the Grievor was moved out of that post and to Video Court was because the CO who had had the Property Release job before the Grievor, returned to it. He had seniority over the Grievor, and could legitimately do a “post pick”. Nonetheless, the Grievor continued to maintain that the Metro West DC was only going to be open for about two more months, and that she should have been allowed to remain in the Property Release position. It is not clear from the evidence that could be correct, because the Grievor was moved to Video Court in or around late 2010, but the Metro West DC did not close until December 2014. [12] Since around 2009 or 2010, the Grievor claims that management has targeted her and treated her differently from her coworkers. She claims that management advised coworkers to make comments about her; that she was subjected to taunting and racially charged comments, and was being teased and baited by her coworkers; all of which led her to file a number of Occurrence Reports, but she claims that nothing was done about her situation. No time frames were provided for these allegations, and I am unable to make any findings of fact in regard to these allegations. They are recounted here as they provide the context in which the Grievor came to hold the - 6 - views she did about how she was being treated, and the allegations appear to have contributed to her feelings of frustration in respect of her employer. [13] The Grievor claims that she had applied for a staff training position in and around the period when her mother was dying in 2013. According to the Grievor, another CO, Kim Lengert, had been in the position as a learning opportunity for over seven years. The Grievor accompanied a co-worker, who will be referred to in this decision as “COS”, to an investigation meeting regarding a complaint that Ms. Lengert had allegedly instigated a Sheridan College student to make against COS. According to the Grievor, Ms. Lengert had told the student that she would fail her if she did not file a report saying that COS had failed to supervise the student properly. The student was a Black woman, who according to the Grievor was later reassigned to another institution. The Grievor saw this as another example of racism against Black people at the Metro West DC. This alleged incident set the Grievor against Ms. Lengert. Again, I make no finding of fact in respect of the alleged incident, and only recount it as it appears to have informed the Grievor’s view of CO Lengert. [14] In addition to her workplace issues, from around 2012 on, the Grievor was dealing with her terminally ill parents on her own as her brother was not around to help. She also had her own family to look after. During his illness, her father would call her workplace repeatedly because a fire truck had been called to their home, and he wanted the Grievor’s help. This required the Grievor to leave work to attend to her parents. [15] The Grievor’s parents were apparently hoarders, and as they became more ill, the Grievor had to deal with clearing their home in Toronto, as well as their cottage, and a residence in the United States. Her father died in June 2012. Her mother was also very ill and suffered from diabetes. At some point in the relevant period, the Grievor had to make the extremely difficult decision to have her mother’s legs amputated. The Grievor’s mother died in December 2013. [16] As the Grievor’s doctor testified, it appeared that the Grievor “could not catch a break”. [17] The Grievor claims that as a result of the harassment and differential treatment, she began to feel extremely stressed and took a great deal of time off work in the months and years after 2009. She maintained that the Employer would not grant her any compassionate leaves despite all that she was going through. [18] In cross-examination the Grievor conceded that in January 2011 she had been granted 7 days of compassionate leave, and again in April 2011 she had been given 9 days of compassionate leave. According to the Grievor those were because her mother had fallen and broken her hip while in Florida, and later, it was because the Grievor had to go down to Florida to pick up her parents’ dog and bring it back in their van because her parents were unable to do so. - 7 - [19] There is no dispute that the Grievor has had a terrible attendance record since at least 2012, and has repeatedly been off work for long periods of time. During both 2012 and 2013, she took the maximum STSP annual credits of 130 days per year. In 2014 she utilized 109 STSP credits, and in 2015, she again used the maximum of 130 STSP credits. [20] It appears that as a result of her many periods of absence, various returns to work following medical leaves, and at least one Workplace Safety and Insurance Board (“WSIB”) claim which was later denied, by November 16, 2014 the Grievor had accumulated 72 hours for which she had been paid incorrectly (e.g. she got paid while making a WSIB claim, but the claim was ultimately denied, etc.): between April 16 and December 2, 2012 she had been paid for 28 hours that had not been worked or otherwise accounted for; between February 17 and April 20, 2014, she had been paid for 4 hours that had not been worked or otherwise accounted for; and, between October 13 and November 16, 2014 she had been paid for 40 hours that had not been worked or otherwise accounted for. It is some of these 72 hours that the Employer appears to have clawed back from her paycheques over the course of her working between 2014 and 2015, during which time three or four of her grievances were filed alleging that she was being short paid. The Grievor considered these claw backs as reprisals or unfair treatment by the Employer. [21] The Grievor provided many doctor’s notes and letters to the Employer during the periods in question. She believes that the Employer targeted her, and treated her differently from other employees, because it would not accept her medical notes. Her supervisors or managers would take the note she had brought in to support her claims for STSP, but would deny her claim, and ask for further medical notes. According to the Grievor she was not paid for a year as a result of the Employer’s actions. As the evidence will show, that is an exaggeration of the length of time that the Grievor was without pay due to the Employer’s actions. [22] Since August 2015 the Grievor has been in receipt of Long Term Income Protection (LTIP) benefits, and later was also approved for Canada Pension Plan Disability benefits. [23] It is worth noting at the outset that from the Employer’s perspective, it is purported to have believed that the Grievor would only return to work in order to work 20 consecutive days in order to re-qualify for 130 STSP credits, and then she would be off work again. This view, along with an Independent Psychiatric Assessment report that the Employer commissioned, apparently coloured how management perceived of the Grievor’s claims of being sick, and consequently, the doctor’s notes that the Grievor provided. [24] There is documentary evidence regarding the Employer’s investigation of the Grievor’s Workplace Discrimination and Harassment Prevention Policy (“WDHP”) complaints. The Grievor nonetheless maintains that since no findings were made in her favour, that was part of the reprisal against her for her acting on behalf of Black co-workers. - 8 - THE MEDICAL AND EMPLOYMENT-RELATED EVIDENCE [25] The Grievor’s family physician, Dr. Amy Catania, testified in this proceeding. Prior to her marriage, Dr. Catania’s name was Amy Horvat. In the course of the hearing there was evidence of medical notes from Dr. Horvat or Dr. Catania, and evidence was given by Dr. Catania, but both names relate to the same family physician. In the interest of simplicity, I will refer to the Grievor’s family physician as “Dr. Catania” throughout. Dr. Catania was a reliable and credible witness who testified at length about the Grievor’s health issues, the deterioration in her health during the period in question, and about the many efforts that Dr. Catania made to try to inform the Employer about the Grievor’s medical condition. [26] Dr. Catania began treating the Grievor in 2011, and remains her family physician. From 2011 on, Dr. Catania was aware that the Grievor’s parents were both terminally ill, and that she was the sole person in her family responsible for their care. In addition, the Grievor was caring for her own family, and was working full time. [27] Dr. Catania’s electronic file for the Grievor included her own clinical notes, notes made by anyone in her office who dealt with the Grievor, copies of medical notes and referrals that her office sent out on behalf of the Grievor, medical reports from other practitioners regarding the Grievor, test results, and anything that the Grievor, or anyone else, sent in to Dr. Catania’s office relating to the Grievor. [28] Since at least January 2012 Dr. Catania has been seeing the Grievor regarding chronic and serious stress and anxiety. On January 12, 2012 Dr. Catania’s clinical notes indicate the Grievor was seen regarding stress management issues and hair loss on her left eyebrow, which appeared to have an eczematous rash. It was noted that she was dealing with both workplace issues as well as both her parents being terminally ill. Dr. Catania referred the Grievor to a dermatologist regarding the rash, and indicated that the Grievor was under a great amount of stress which had likely started the rash and hair loss on the eyebrow. She also provided a note that the Grievor should be off work for a month due to her mental health issues. [29] According to Dr. Catania, the Grievor suffered from trichotillomania, a form of an anxiety disorder which manifests with the patient picking hair off their body as a result of anxiety. For the Grievor, Dr. Catania had noted that she had a red crusting rash on her eyebrow as a result of picking at her eyebrow hairs. [30] It is apparent that at that time the Grievor was also seeing a counsellor every two weeks to help address her anxiety issues. [31] On March 19, 2012 Dr. Catania provided another medical note indicating the Grievor should continue to be off work for a further 2 months. The clinical notes indicate that the Grievor was still suffering from anxiety as she was dealing with her parental situation. Dr. Catania testified that the Grievor had been suffering significant anxiety and was having panic attacks. - 9 - [32] On May 23, 2012 the clinical notes indicate that the Grievor’s parental stressors were still acute and that her level of anxiety was unchanged. She was provided with another letter to remain off work. [33] It appears that the Grievor’s father died on June 20, 2012, and that the Grievor returned to work in August 2012. However, from the clinical notes it appears that on September 27, 2012 the Grievor saw her doctor again about her family stressors and anxiety. By this juncture Dr. Catania was referring to the Grievor’s eyebrow problem as trichotillomania in the patient file, and she provided a medical note indicating that the Grievor should be off work for two weeks to address the area around her eyebrow. [34] Dr. Catania testified that at that point the Grievor was not only picking at her eyebrows because of her anxiety, she was also very anxious of how she looked as a result of the picking, and was therefore anxious about going to work with the disfigurement. [35] On November 8, 2012 the clinical notes indicate that the Grievor informed Dr. Catania that she was off work on a leave of absence without pay. On December 11, 2012 Dr. Catania completed Manulife Financial forms for the Grievor to claim disability benefits on the basis that she was suffering from trichotillomania, and adjustment disorder with mixed anxiety and depression. [36] According to Dr. Catania, based on her meetings with the Grievor she had diagnosed the Grievor as suffering from an adjustment disorder. The basis of her diagnosis was that the Grievor was the primary care giver for her parents and her own family; she had been suffering the stress of caring for her ill parents; she had recently experienced her father’s death; and noting some of the changes in the Grievor’s mood, she felt there was enough evidence before her to call it “adjustment disorder”. [37] On December 20, 2012 Dr. Catania provided a return to work note indicating that the Grievor could return to regular work on December 27, 2012. [38] However, on February 7, 2013 the clinical notes indicate that the Grievor advised Dr. Catania that she was anxious and that it was related to work-related stressors. She was given a medical note that she was unable to return to work at the present time. [39] Counsel for the Employer put to Dr. Catania that at that juncture the Grievor would have worked for about 40 days, and was going off work. Dr. Catania testified that the Grievor’s anxiety had got worse, that the picking at her eyebrow was worse, and so as a result of her assessment that the work stressors had worsened the Grievor’s anxiety, she thought it best that the Grievor have some time off work. [40] Dr. Catania was asked if she had thought of referring the Grievor to a psychologist, but the doctor indicated that at that juncture the Grievor was seeing a - 10 - counsellor every two weeks, and Dr. Catania had been comfortable with her getting counselling at that time. [41] On June 17, 2013 the Grievor told Dr. Catania that she was suffering from high stress, workplace harassment, and that her mother’s health was getting worse. Dr. Catania noted that the Grievor was suffering from the trichotillomania, anxiety and depression, and again prepared Manulife Financial disability benefits forms for the Grievor on June 18, 2013. She noted that the trichotillomania was the primary diagnosis but that the Grievor was also suffering from adjustment reaction with mixed depression and anxiety. She noted the state of the Grievor’s eyebrows, which had crusting and hair loss. Dr. Catania noted that there was still potential for improvement if the stressors were reduced. [42] The Grievor would sometimes send letters, work-related documents, articles, or email exchanges to Dr. Catania’s attention, and these would be added to the Grievor’s electronic medical file. Dr. Catania testified that she would quickly review anything sent in, with a view to seeing how it may impact her care for her patient. [43] The Grievor provided Dr. Catania with a copy of a WDHP complaint that she had filed on February 14, 2013 about some members of the Union’s leadership, and an email dated June 16, 2013 in which she was asking about the status of her complaint as she had not apparently heard anything further. The Grievor indicated that she wanted a secondment to Probation and Parole, or to be placed back in her position as a Property Release Officer. [44] Wendy Russell, the Deputy Superintendent Administration for the Toronto West DC, advised the Grievor by email on June 17, 2013 that her WDHP complaint had been found to be out of scope, and noted that the Grievor had already been advised of that by the WDHP Advisor, Jennifer Kroft. [45] On July 23, 2013 Dr. Catania’s clinical notes indicate that the Grievor wanted a return to work note, and that the Grievor had been off work without pay as her application for disability benefits had been denied. The Grievor provided Dr. Catania with a copy of the July 12, 2013 Manulife Financial letter denying her disability claim. Dr. Catania provided a medical note indicating that the Grievor could return to work on August 6, 2013, and that she was capable of all duties involved in her current position. She recommended that the Grievor work a regular Monday to Friday shift for two months, and that she would be reassessed at the six week point to see if this modification to her schedule needed to be extended. [46] Dr. Catania was asked in cross-examination how she could have filled out forms for the Grievor for LTIP in June, and then soon after had stated that the Grievor was able to return to work. Dr. Catania explained that it was not uncommon for doctors to see denials of WSIB and long term disability (“LTD”) claims. In her experience with WSIB, the claims are denied all the time. With LTD claims, it could take two or three applications before the claim is approved. So, she did not think she would have given it much thought at the time. Since the Grievor was motivated to - 11 - return to work, and Dr. Catania believed that she should be trying to return to work, she had given the return to work note. The doctor explained that with mental health issues, doctors try out strategies to see if they make a difference or not, to see what may work. Unlike with a physical ailment, Dr. Catania explained, it takes more time to work out the intricacies of the symptoms, and whether the patient should be off work or not. She had been trying to see if there was a possibility of improvement in the Grievor’s health if they could reduce some of the Grievor’s workplace stressors. [47] Dr. Catania testified that she had recommended the Monday to Friday day shift because she felt that working one regular shift would be beneficial in reducing the stressors on the Grievor. The doctor was aware that the Grievor was dealing with anxiety; it was around the first anniversary of her father’s death, and she was still dealing with her ill mother. Dr. Catania testified that a regular shift is a fairly common strategy that she suggests for her patients because if the patient, like the Grievor, could have a regular predictable schedule, then she could get onto a regular sleep pattern. Dr. Catania was concerned that an unpredictable work schedule would have a negative impact on the Grievor, and would negatively affect her ability to stay at work. [48] However, on August 22, 2013 the Grievor advised the Employer by email that she had been placed in a high stress area called “Visits”, and that she was having to deal with Correctional Officers who had caused her harm in the recent past. That had led to her suffering from vomiting and bowel issues, and she indicated she was going back to her doctor. The Grievor also sent the Superintendent of the institution a picture of the scabs on her eyebrows to show him what the stress was doing to her. [49] On September 10, 2013 the clinical notes indicate the Grievor saw Dr. Catania and reported that her anxiety was increasing, and that she was pulling her eyebrows again. The doctor wrote another back to work note on September 10, 2013. It indicated that the Grievor had been returned to work in a high stress area, and that as a result her anxiety had significantly increased. Dr. Catania therefore recommended that the Grievor return to work for three 8 hour shifts per week, with no inmate contact. The Grievor would be reassessed in one month. [50] Dr. Catania testified that when she saw the Grievor on September 10th, the Grievor’s blood pressure was elevated, and the doctor decided to monitor it more closely as she had noticed the increase recently, and was of the view that the Grievor was suffering from mild hypertension. She had added the “no inmate contact” restriction to try to reduce the Grievor’s workplace stressors to try to keep her at work. [51] On October 1, 2013, when the Grievor saw Dr. Catania again, her blood pressure had improved, and she asked for a note to extend the “no inmate contact” requirement beyond the initial 4 weeks in the September 10th note. On October 10, 2013 Dr. Catania provided a medical note indicating that the Grievor’s hours could be increased to full time, but with no inmate contact. She indicated that the Grievor would be reassessed in one month. - 12 - [52] Dr. Catania testified that she had added the “no inmate contact” restriction in the first place because she was trying to keep the Grievor at work, but knew that they needed to decrease the stressors on the Grievor in order to decrease her anxiety levels. The doctor wanted to try to move the Grievor back to a full 5 days per week, so she felt that the inmate contact stressor had to be managed while the increase in hours was tried. As well, from the fact that the Grievor’s blood pressure had gone down to normal after the “no inmate contact” restriction, Dr. Catania surmised that had had a beneficial effect on the Grievor’s level of anxiety. At that time the Grievor was interested in applying for a staff training position, and Dr. Catania saw that as another positive sign. [53] By a letter dated October 23, 2013 Diane Semple-Patille, a Registered Nurse and Staff Services Manager at the Toronto West DC, requested further clarification from Dr. Catania regarding the October 10th note. In particular, Ms. Semple-Patille wanted some additional medical information regarding the prognosis and was seeking clarity on potential medical limitations and restrictions for “No inmate contact” and “increase her hours to full time (number of hours per day)”. [54] It appears that on November 5, 2013 the Grievor stopped going to work, and in and around early November 2013 she made a WSIB claim based on bullying. On November 26, 2013 she was advised that her WSIB claim had been denied, and on December 5, 2013 the Grievor filed an appeal of the WSIB decision. [55] Also on November 5, 2013 the Grievor sent her family doctor a long letter outlining her concerns about a number of her colleagues, including Ms. Kim Lengert, and her workplace issues, as well as an email exchange she had had with Wendy Russell, the Deputy Superintendent, Administration, at the Toronto West DC. [56] The Grievor went to see her doctor on November 27, 2013, and was cleared by Dr. Catania to return to work. The clinical notes indicated that the Grievor’s blood pressure was quite elevated, as was her heart rate, and the doctor testified this was likely as a result of the Grievor’s level of anxiety. The return to work note indicated that the Grievor should have no inmate contact, and that she should not have contact with two of her fellow-employees, Ms. Lengert and Ms. Core. Dr. Catania further recommended that the Grievor return to work on an 8 hour a day, five day a week schedule. [57] The reasons for these restrictions would not have been known to the Employer at that time, but Dr. Catania testified that her goal had been to try to get the Grievor back to work and to try to help her limit her anxiety. The doctor had both subjective and objective evidence before her at the time that the Grievor was suffering from anxiety. She was aware of the Grievor’s anxiety regarding working with Ms. Lengert and Ms. Cole, and that inmate contact was also a stressor. The hours of work and recommended schedule of 5 days a week were to try to give the Grievor a regular predictable schedule so that she could get onto a regular sleep regime. Dr. Catania felt that an unpredictable work schedule could negatively influence the Grievor’s ability to stay at work. - 13 - [58] By an email dated November 27, 2013 Ms. Russell, the Deputy Superintendent Administration at the Toronto West DC, advised the Grievor that she had received Dr. Catania’s note of that date, but that she was unable to accommodate the Grievor based on the information provided. Ms. Russell further noted that since the Grievor had exhausted her short-term sickness credits, she could apply for a leave of absence without pay. Ms. Russell provided the form for the Grievor to take to the doctor, and indicated that if the Grievor did not return the completed form by December 6, 2013, she would be placed on an unauthorized leave of absence without pay. [59] It is not clear whether the Grievor advised Dr. Catania of Ms. Russell’s November 27th email, but in early December 2013 the Grievor applied for a leave of absence with pay for the period of November 5, 2013 to January 1, 2014 on the basis that there was an investigation of the Grievor’s WDHP complaint underway. The complaint had been about an alleged incident of racism involving Ms. Lengert and a Black student from Sheridan College. The leave of absence request was ultimately denied on January 7, 2014. [60] As the Employer had not accepted the Grievor’s medical note, it appears that Ms. Semple-Patille had sent the Grievor a letter dated December 2, 2013 asking for clarification of Dr. Catania’s November 27th note. The clarification was to be provided by December 9, 2013. It would appear that the Grievor did not respond to that letter. [61] By a letter dated December 19, 2013 Ms. Semple-Patille again requested that the Grievor get further clarification from her doctor regarding the specific medical restrictions and/or limitations that were preventing the Grievor from performing her full job duties. The Grievor was also advised in that letter that effective December 9, 2013 her schedule had been changed to an administrative schedule, which meant that she was considered to be on 8 hours a day, five days a week, unpaid sick time. The Grievor was also told that the medical documentation was needed by December 27, 2013, and if she failed to provide it, she would be considered absent without approved leave as of December 30, 2013. The letter went on to say that such an absence could lead to discipline, up to and including dismissal or a declaration of abandonment of her position. [62] In a letter to Dr. Catania dated December 23, 2013 the Grievor advised that she was still being paid at that juncture, but that she needed a letter from the doctor, and that the Grievor would be going back to work on December 30, 2013 if she was unable to provide a note from Dr. Catania by that time. The Grievor advised her doctor that her mother was in significant decline at the time and was barely eating. [63] Also on December 23, 2013 the Grievor sent a copy of her letter to Dr. Catania to Ms. Semple-Patille, and asked her to forward it on to the WDHP investigator as she wanted the investigator to understand what she was going through, including the poor state of her mother’s health. - 14 - [64] On December 23, 2013, Dr. Catania provided a detailed medical report that indicated that she had been treating the Grievor since 2011; that she had treated her for anxiety, initially due to the Grievor’s grief around her ill parents, and more recently regarding work-related stressors. She advised that the Grievor had been treated with medications, and that she had been compliant with treatment. Dr. Catania indicated that the Grievor was suffering from trichotillomania, described that it is a form of anxiety, and included in her report the diagnostic criteria for trichotillomania as found in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (the “DSM IV”). [65] Dr. Catania reiterated that in her October 10 and November 27, 2013 letters she had requested that the Grievor should avoid inmate contact and contact with the individuals against whom she had a grievance. If those conditions could not be accommodated, Dr. Catania indicated that the Grievor may require time off work until her situation could be improved. She noted that the Employer had not outlined what information was required, and offered that if the information she was providing regarding the diagnosis and description of the malady did not suffice, that a detailed request of the information required should be sent to the doctor. [66] Dr. Catania was cross-examined about her view that the Grievor met the criteria for trichotillomania on the DSM IV, when the Grievor’s eyebrow condition could have been related to a dermatological condition. In particular, it was put to her that she had referred the Grievor to a dermatologist. Dr. Catania responded by pointing out that it was the trichotillomania that caused the Grievor to pull the hairs out of her eyebrows; and that caused the dermatological conditions of dermatitis and scarring. That in turn made the Grievor’s anxiety worse, and that anxiety caused her to pull more hair, which inflamed the skin, and made her more anxious. [67] Dr. Catania noted that she had referred the Grievor to a dermatologist in the early phase when the Grievor had been showing signs of stress, and Dr. Catania had been trying to eliminate other possible causes. She had been trying to see if someone else could examine her patient and identify some other cause for the rash. She noted that the dermatologist had given his differential diagnosis, and suggestion for treatment. However, the effects of that treatment had been short-lived, and when the Grievor was stressed, her picking had got worse, and the condition worsened, so Dr. Catania had concluded that the plucking was as a result of her anxiety. [68] In cross-examination Dr. Catania noted that she had not known that the Employer could not accommodate “no inmate contact” until December 2013. She had recommended it in September 2013, and to her knowledge the restriction had been met before the Grievor went off work again in early November 2013. [69] On December 26, 2013 the Grievor’s mother passed away, and the funeral was held on January 3, 2014. [70] By an email dated January 10, 2014 Wendy Russell advised the Grievor that Dr. Catania’s letter of December 23, 2013 had not addressed the medical - 15 - questionnaire that had apparently been sent to the Grievor on November 28, 2013, and which had apparently not been given to the doctor. As such, the Grievor was asked to have her doctor complete that document and return it to Ms. Semple-Patille by January 24, 2014. Ms. Russell recognized that the Grievor was on scheduled vacation at the time as the Grievor was on vacation out of the country from January 13 to 20, 2014. [71] On that same day, January 10, 2014, the Grievor responded to Ms. Russell’s email with frustration and indicated that she had been providing information since November 5, 2013, that she suffered from an anxiety disorder, and asked how many times her doctor had to provide the same information. Nonetheless, she undertook to send the latest Employer request to her doctor that day. It appears that around this time in early 2014 the Grievor contacted the Human Rights Tribunal of Ontario. [72] On January 11, 2014 the Grievor also forwarded to the OPSEU President, Smokey Thomas, the Minister of Corrections, Madeleine Meilleur, and a Member of Provincial Parliament, Doug Holyday, emails regarding her allegations of racism against Black students by a staff member at the Metro West DC. [73] By a letter dated January 13, 2014, Ms. Russell advised Dr. Catania that the Employer could not accommodate “no inmate contact and avoidance of staff” as they could not guarantee that the Grievor would not run into the staff in question or that she would have no inmate contact in a detention centre. Ms. Russell indicated that “we would be able to ensure limited inmate contact”. It is noteworthy that Ms. Russell did not indicate any concern regarding the hours of work or schedule restrictions that Dr. Catania had recommended. She asked Dr. Catania to complete a long list of questions. [74] Some of the questions asked had already effectively been answered by Dr. Catania in her December 23, 2013 letter. She was asked if she was the primary treating physician: Dr. Catania had indicated as such in her letter, and told the Employer she had been treating the Grievor since 2011. She was asked if the Grievor had a bona fide diagnosed medical condition that affected her ability to attend work regularly and perform her duties: Dr. Catania had already told the Employer about the trichotillomania, and described it as an anxiety disorder. She was asked if the Grievor was compliant with her prescribed treatment plan: Dr. Catania had already told the Employer that the Grievor had been compliant with the treatment plan. In any event, Dr. Catania sent the completed questionnaire back to Ms. Semple-Patille on January 24, 2014. She indicated that consistent hours and attempts to resolve the Grievor’s labour disputes would help with her symptom management. She also indicated that she had no concerns about the Grievor’s ability to handle stressful situations at work. [75] Dr. Catania testified that by that juncture she had noted from the last number of visits by the Grievor to the doctor’s office that the main source of her growing anxiety were the work stressors. Hence, the goal of making the restrictions recommendations was to remove some of the stressors in the hope that the Grievor’s health would improve, and that she could stay at work. Dr. Catania testified that she was optimistic - 16 - at the time about her prognosis for the Grievor: she had seen that in the early Fall, with restrictions, there had been improvements in the Grievor’s blood pressure when the Grievor’s anxiety could be reduced. She was hopeful that would be the result again if the Grievor did not have inmate contact or contact with the two colleagues who appeared to cause the Grievor anxiety. [76] On January 20, 2014 the Grievor learned that a fact-finding into one of her WDHP complaints regarding racism at the detention centre had found no violations of the Workplace Discrimination and Harassment Policy nor incidents of bullying involving the Grievor. [77] Notwithstanding Dr. Catania’s submission of the completed questionnaire on January 24, 2014, by an email dated January 27, 2014 Ms. Russell sent another email asking the Grievor to have her doctor complete the package again because she felt that Dr. Catania had not answered the question about there being “no inmate contact”. In fact, the package included a long list of further questions about all aspects of the accommodations that Dr. Catania had initially recommended in November 2013, some of which the Employer had not asked about previously. A response was to be provided by February 7, 2014. This led to the Grievor filing two grievances on January 31, 2014: Grievance #2014-0517-0004, regarding the Employer having her off on sick time without pay, and the Employer holding her out of work due to its failure to accommodate the Grievor’s doctor’s note; and Grievance #2014-0517-0005, regarding the Grievor’s doctor’s note about her accommodation needs not having been honoured. [78] On January 27, 2014 Tom O’Connell, Superintendent, sent the Grievor a non-disciplinary letter of counsel asking her to cease and desist from inappropriately escalating her workplace complaints to senior government officials, including the Minister and a Member of Provincial Parliament, as well as contacting staff at Sheridan College. The Grievor was very upset by the letter of counsel and felt that it was evidence that the Employer was retaliating against her for standing up against racism in the institution. [79] On February 7, 2014 Dr. Catania provided a response to the Employer’s letter of January 27th. She explained that the Grievor suffered from a medical condition that would prevent her from working rotating shifts as shift work results in poor sleep, fatigue, and irregular routines which would further exacerbate the Grievor’s anxiety symptoms, as it had done in the past. She explained that contact with Ms. Lengert and Ms. Core, against whom the Grievor had filed a grievance, caused the Grievor anxiety, which manifested in her pulling hair, caused her physical trauma, and further worsened her anxiety. Dr. Catania suggested that every effort be made to arrange or coordinate schedules so that these individuals would have minimal to no contact with the Grievor. Regarding the Employer’s position that it could limit contact with inmates, but could not guarantee no contact throughout the course of her shift, Dr. Catania indicated that a trial of limited inmate contact had been discussed with the Grievor, and that she was willing to try that out. - 17 - [80] In addition to the letter, Dr. Catania also provided a medical note in which she indicated that after a discussion with the Grievor, the Grievor had indicated that she would like to return to work and was willing to try a position with minimal inmate contact. Dr. Catania recommended that the trial be of 4 weeks in length, and she would then reassess the Grievor’s progress at that time. If the Grievor’s anxiety worsened, then further recommendations would be made. [81] Dr. Catania testified about why she had agreed that minimal inmate contact would be acceptable. She noted that the Grievor wanted to get back to work and Dr. Catania wanted to try to get her back to work, so through a discussion with the Grievor they had agreed that the Grievor should try to work with the limited inmate contact. According to Dr. Catania, over the years of treating the Grievor she had learned that supervising inmates could include the use of physical force, and that there may be violence involved, and the doctor did not think that the Grievor could tolerate that level of contact. Dr. Catania had assumed that there was work that the Grievor could do, including answering phones and registering people, that would not involve supervising inmates, and from Ms. Semple-Patille’s letter, she had deduced that the Employer could in fact ensure limited inmate contact. [82] In cross-examination Dr. Catania explained that she had not felt comfortable with the Grievor supervising inmates, but she felt that as a trial in the return to work, the Grievor could pass an inmate in the hall, or could register an inmate at a desk, duties that did not involve a direct supervisory role with inmates. Her reasoning was that she did not feel that the Grievor’s mental health state would allow her to safely supervise someone who had a risk of aggressive behaviour. [83] Dr. Catania was also cross-examined about the restriction regarding making every attempt to limit the Grievor’s contact with the two named individuals. She explained that she had assumed that having no contact with the two staff would not be possible, so she had not said “no contact” in regards to them, but that the detention centre was a fairly large establishment with multiple schedules, so that it should have been possible for the Employer to accommodate that restriction. [84] Notwithstanding Dr. Catania’s detailed letter and medical note, on February 10, 2014 Ms. Russell was in touch with the Grievor again by email indicating that further clarification of “minimal inmate contact” was required before the Employer could have a meeting to discuss the Grievor’s return to work. [85] On February 11, 2014 Dr. Catania provided a medical note that stated: “I understand that you require a definition of “minimal” inmate contact. As stated in your letter dated January 27, 2014, “the employer may be able to limit contact with inmates” and the Grievor may “come into contact throughout the course of her shift”. I suggest that [the Grievor] be allowed to trial a return to work with these principles in mind. [The Grievor] should not be placed in a situation that she is directly supervising inmates. You are stating that you can limit her contact with inmates and I suggest we proceed with this recommendation. Addendum: please note that as per previous - 18 - communications [the Grievor] should continue with maximum 8 hr shifts, Monday to Friday.” [86] At a return to work meeting held with the Employer on February 13, 2014, Ed Murray, the Scheduling Manager, and Ms. Semple-Patille were present. Despite Dr. Catania’s letters and notes, it appeared to the Grievor that the Employer was of the view that the 8 hour a day, five days a week schedule was simply a doctor’s recommendation, and they were not prepared to grant that accommodation. In the face of the long period that she had been off work, since November 5, 2013, without any source of income, the Grievor felt that she had to agree to return to work with no accommodations on February 17, 2014, on 12 hour shifts and a rotating schedule. She returned to work as an East Wing Control Officer. [87] The Grievor testified that since the institution was closing, in her view it would have caused no hardship to the Employer to have accommodated her. There was no Employer evidence to contradict the Grievor’s evidence in this regard. [88] Neither Ed Murray nor Dianne Semple-Patille testified in this proceeding. Nonetheless, based on notes that had allegedly been taken by someone at the return to work meeting, the Employer claims that the Grievor said that she wanted to get back to work, that she would have 20 days, and then she would be back to being sick. In cross-examination, this statement from the notes (which have not been entered as an exhibit as there is no one to attest to them) was put to the Grievor. She flatly denied having made the statement. As such, the only evidence I have before me is the Grievor’s denial of the comment, and I must accept that evidence. [89] On February 19, 2014 a Stage 2 Grievance meeting was held regarding two of the Grievor’s grievances, filed in January 2014, relating to the Employer’s failure to give her paid sick time when it had her off work due to its failure to accommodate her doctor’s note, and that her doctor’s note of November 27, 2013 had not been honoured. [90] The Grievor worked until March 28, 2014, at which point she went off work sick. She advised Ms. Semple-Patille that she had recurring issues again, and that she was requesting to be put on sick leave effective March 28, 2014. It was the Grievor’s uncontested evidence that her symptoms intensified after her return to work, and that her left eye began to bleed to the point that she could not cover it up with make-up. [91] On April 1, 2014 Barry McDonnell, the Deputy Regional Director, Central Regional Institutional Services, convened a conference call of management people to discuss the Grievor’s STSP issue. Mr. McDonnell was responsible for a number of institutions at the time, including the Metro West DC, and Tom O’Connell, as the Superintendent of the Metro West DC, reported to him. Mr. McDonnell retired in 2015, but testified in this proceeding. He had made notes at the time of the conference call, and while they were considered to be “solicitor/client privileged”, the Employer waived its privilege for a limited part of the notes as they related to the Grievor. Tom O’Connell was noted as being on the conference call. - 19 - [92] According to Mr. McDonnell’s notes: [The Grievor] goes off sick on a regular basis. Works until she gets her credits back & goes off sick again. At attendance meeting she stated she would work 20 days to get her STSP credits. She also told me (& J. Alphonso) on a grievance hearing that she would work 20 days to be eligible for credits and we could reach her in Jamaica. Cut her off on benefits as this is culpable. [93] The Union objected to the calling of some of the following evidence given by Mr. McDonnell and Ms. Alphonso regarding a stage 2 Grievance meeting, but made arguments about it in its final submissions. That evidence is recounted here for narrative purposes, but as will become clear in the “Decision” section, the Union’s objection was upheld. Mr. McDonnell testified about what the Grievor had told him at a stage 2 grievance meeting held on February 19, 2014. He had advised those on the call of the Grievor’s comments at that meeting. In cross-examination it became clear that Mr. McDonnell was not aware of the Grievor’s medical diagnosis; could not recall anything about the medical reasons she had been off work; he could not recall that Mr. O’Connell had discussed the Grievor’s medical situation with him; but he conceded that it would have made sense to look at the medical issues if the Grievor had presented them. [94] According to Mr. McDonnell’s notes regarding the February 19, 2014 stage 2 grievance meeting, the Grievor had not wanted any union representation at the meeting, so he and Jennifer Alphonso, another member of management, had met with the Grievor. From his notes it was clear that one of the two grievances discussed was about the Grievor having been put off on sick time without pay and the Employer’s failure to accommodate her doctor’s note. The second grievance was also about her doctor’s note of November 27, 2013 in regards to the accommodations sought not being honoured. It appears that after Mr. McDonnell’s note indicating “No evidence to support the CA was violated. Grievance denied”, there is a further note that “Grievor stated that once she had her twenty days of eligibility in for STSP she would once again book off sick and the employer could find her in Jamaica”. [95] Jennifer Alphonso, Deputy Superintendent at the Vanier Centre for Women, also testified in this proceeding. In February 2014 she had been the Deputy Superintendent at the Toronto South DC, and had attended the Grievor’s stage 2 grievance meeting with Mr. McDonnell. Ms. Alphonso had no involvement with the Grievor’s accommodation requests, or any of her issues: she had only been at the meeting as the second management person. Ms. Alphonso recalled the Grievor making the comment that Mr. McDonnell had noted, and that she had been surprised as it was not the sort of comment usually made at a grievance meeting about attendance or sick time. Ms. Alphonso conceded that she not reviewed the Grievor’s - 20 - medical information up to that point nor had she discussed the medicals with anyone in advance of that meeting. [96] Although he had no specific recollection about it, Mr. McDonnell conceded in cross-examination that he would likely have seen the doctor’s note of November 27, 2013 at the time. He testified that based on his expertise, the doctor’s note was not sufficient. Mr. McDonnell claimed that he relied on other staff with more expertise in medical issues, and that he would always consult about medical matters, but he could not say whether he had done so in this case. There is no evidence before me about anyone having been consulted, and no one who may have had the purported expertise in medical issues testified for the Employer. [97] Mr. McDonnell had seen pictures of the lesions on the Grievor’s face as she had sent them to him, along with sending them to others in positions of authority. Nonetheless, in his view there was no support for the Grievor’s position, even though he could not recall what had been wrong with the November 2013 doctor’s note. [98] By a letter dated April 3, 2014 the Grievor was advised by Superintendent Tom O’Connell that her request to utilize STSP credits was denied. In his letter, Mr. O’Connell relied on the alleged comment that the Grievor had made at the return to work meeting on February 13, 2014: that she would work 20 days (which is what is required to re-qualify for STSP credits), and then go off sick. He also made reference to the Grievor having made a similar comment in a Grievance meeting held on February 19, 2014. Based on these comments and the request to use STSP credits 20 days after the Grievor’s return to work, Mr. O’Connell felt the Employer could reasonably suspect that the Grievor was abusing her access to STSP credits, so he denied her request, and asked her to report back to work. [99] That same day the Grievor responded to Superintendent O’Connell with an email advising him that she had huge open sores on her face, had sent pictures of them to the WDHP, and that these were the manifestation of the stress she was feeling. She asked what she should do in light of his requirement that she return to work on the following Monday. [100] On April 3, 2014 the Grievor filed a complaint with the Human Rights Tribunal of Ontario against the Ministry, Tom O’Connell and Wendy Russell. She claimed breaches of the Human Rights Code in the area of employment on a number of grounds including creed and sex. In particular, the Grievor claimed that as a Christian, she had witnessed racism, false reports, and victimization of specific women (including COA and a Black Sheridan College student), that these actions were making her ill, and they violated her Christian beliefs. [101] On April 4, 2014 Deputy Superintendent Trevor Dunscombe sent the Grievor a letter calling her to an allegations meeting regarding her two purported comments about returning from sick leave only to work the 20 days qualifying period for STSP, and because the Grievor was alleged to have raised issues again about a WDHP - 21 - matter that had been investigated and closed. The Grievor was told that the meeting may result in disciplinary action. [102] The Grievor was also initially advised by Payroll that day that Superintendent O’Connell had decided that the Employer should recover all the Grievor’s overpayments at once, and as such, her paycheque had been recalled. However, later that day, the Grievor was advised that Mr. O’Connell had changed his mind, and that he had directed Payroll to continue to recover the Grievor’s overpayments through a previously arranged schedule; that there were still 39 hours to be recovered, as well as $510.06 in pension contributions, and her latest payment for March 28, 2014 would also be recovered. The impact of these changing directions was that the Grievor was not ultimately paid on time on April 10, 2014, and had to wait three to five business days after the payroll date to receive the bank deposit. [103] On April 4, 2014 the Grievor went to her doctor’s office and was seen by a Nurse Practitioner as Dr. Catania was away. The Grievor requested a note to be off work as she was suffering anxiety and workplace issues. The medical note provided stated that the Grievor was unable to attend at work due to medical reasons, and that she would be reassessed on April 9, 2014. Superintendent O’Connell emailed the Grievor to tell her that he was not accepting her medical note, and that she was expected to return to work on April 7, 2014. [104] On April 8, 2014 the Grievor received an email from Bo Jiang, who was the Investigator working on the Grievor’s WDHP complaint, with an attachment of a draft summary of the Grievor’s allegations. He asked for a follow up meeting with the Grievor. In light of the pending allegations meeting with management, which was supposed to include that the Grievor was continuing to raise an issue that the Employer purported had already been dealt with by the WDHP and closed, the Grievor was confused and asked Mr. Jiang what was going on. She noted that she felt the WDHP was compromised and biased if she had been told it was closed, when Mr. Jiang was still working on it. [105] Dr. Catania’s clinical notes on April 9, 2014 indicate that the Grievor was suffering considerable stress on that visit, and that the irritation on her eyebrows had returned. She was experiencing gastrointestinal upsets. Dr. Catania provided a medical note indicating that she was aware that the Grievor had been off work since March 28th, had been seen by the Nurse Practitioner on April 4, and had been assessed by Dr. Catania on April 9th. Based on her assessment, the Grievor was to be off work until she could be reassessed on April 28, 2014. Dr. Catania referred the Employer to her many previous notes regarding the Grievor’s ongoing medical issues. [106] Dr. Catania testified that it was obvious to her at that visit that the Grievor’s anxiety had got worse, she was experiencing physical symptoms including the worsening of her eyebrows, dermatitis, and stomach upsets, and that she could see that even the thought of going back to work was causing the Grievor anxiety. Dr. Catania noted that the Grievor had said she was feeling rage, which the doctor - 22 - equated to irritability. As such, the doctor felt that time off work would help to improve her patient’s condition. [107] In a letter to the Grievor dated April 14, 2014, Ms. Russell, who at this point was apparently the Acting Superintendent, noted that Tom O’Connell’s decision of April 3, 3014 to deny STSP benefits had been made on the basis that the Grievor had made statements “to various members of the management team” that she would work twenty days to requalify for STSP credits, at which point she would go off on sick leave. The Employer position was that these statements, made in combination with the timing of the Grievor’s request to be placed back on sick leave, had led the Employer to reasonably suspect that she was abusing her access to STSP credits. Ms. Russell indicated that the Grievor’s medical note of April 4, 2014 had not been accepted, and that the latest note from Dr. Catania, dated April 9, 2014, was also not sufficient to establish the Grievor’s entitlement to STSP credits. Ms. Russell stated that the Employer stood by its decision of April 3, 2014 to reasonably suspect that the Grievor was abusing her access to STSP credits, and directed the Grievor to return to work by April 15, 2014, or to be considered on an unauthorized leave of absence, which could lead to her dismissal from employment. [108] In her testimony, the Grievor consistently denied having made the comment that Mr. O’Connell attributed to her, and which appears to have been repeatedly relied upon by management in rejecting Dr. Catania’s medical notes and the Grievor’s request to access STSP credits. [109] On April 15, 2014 Acting Superintendent Russell sent the Grievor another letter, this time telling her that she was now absent from the workplace without approved leave, and that she had one final opportunity to provide sufficient justification for her absence, or to return to her regularly scheduled shifts commencing Wednesday April 16, 2014. Ms. Russell advised the Grievor that if she failed to comply by April 29, 2014, Ms. Russell would issue a letter deeming the Grievor to have abandoned her position. [110] After receiving this letter from Ms. Russell, on April 16, 2014 the Grievor wrote an urgent letter to her doctor to tell her that the Employer was going to terminate her employment, and that she needed Dr. Catania to send Ms. Russell a note telling her that the Grievor was not faking her illness. The Grievor told her doctor that her “nerves are shaking and my eyes are really bad. I don’t think I should be driving with my nerves so bad”. She testified that she had found that time to be extremely stressful and frightening as she felt that she was being bullied by the Employer, and that she was being kicked while she was as low as a person could be. She was very fearful that she was going to be fired from her employment. [111] On April 16, 2014 Dr. Catania provided another medical note in which she indicated she had given the Grievor numerous letters in regard to her current health and the impact on work, and that all seemed to be disregarded. She suggested that the Grievor contact her union representative, and indicated that any information regarding the Grievor’s health had been documented in her previous correspondence. - 23 - [112] Dr. Catania testified that at the time she had been frustrated because she had written so many letters; there had been subsequent request for clarifications, and she had provided those too, but she was not confident that her provision of a further letter would result in any action, or whether it was a waste of Dr. Catania’s time, and the Grievor’s money, as she had to pay for these letters. That was why she had suggested that the Grievor contact a union representative because the doctor’s letters were not being accepted, and Dr. Catania felt that the Grievor needed some advice on how to proceed. [113] The Grievor sent an email to Ms. Russell on April 16th stating that she was going to follow her doctor’s directions and stay off work. She stated that she was seriously ill, and that she was feeling very threatened with reprisal. She expressed concern that her doctor was not being believed. Ms. Russell responded on April 17th to reiterate that the Employer stood by its decision of April 3, 2014 to reasonably suspect that the Grievor was abusing her access to STSP credits, and maintained the position that the Grievor would be deemed to have abandoned her position if she remained absent without authorization. [114] On April 22, 2014 Dr. Catania met with the Grievor, and her clinical notes indicate that the Grievor was suffering from anxiety, had worsening skin lesions, and that it was related to her work issues. The doctor issued another medical note. This time, reflecting her extreme frustration, Dr. Catania indicated that the Grievor continued to be under her care for her health issues, that she has a diagnosed medical condition, and that Dr. Catania would no longer provide any more notes regarding this issue. [115] The Grievor told Ms. Semple-Patille via email dated April 24, 2014 that she did not know what to do, she was sick, and she wanted to heed her doctor’s advice, but she did not want to be fired because she was sick. She advised that she had not received a pay cheque that day. [116] Barry McDonnell, the Deputy Regional Director, agreed in cross-examination that he had been copied on this email from the Grievor on April 24, 2014, asking why she was not receiving a paycheque when she had recently provided two doctor’s notes verifying that she had been ill and was being treated for a diagnosed illness. [117] Later on April 24, 2014 Ms. Russell sent the Grievor a letter saying that Dr. Catania’s notes of April 16 and 22, 2014 continued to be insufficient to establish the Grievor’s entitlement to STSP credits, and that the Employer stood by its decision that it suspected her of abusing access to STSP credits. As such, the Grievor continued to be on an unauthorized leave of absence without pay, which was why she had not received a pay cheque. [118] By that point, according to the Grievor, Dr. Catania had provided 28 medical notes in a two-year period. It is not clear whether that number is accurate, but the - 24 - evidence supports a finding that many medical notes had been given to the Employer between November 2013 and April 2014. [119] On April 26, 2014 the Grievor sent Ms. Semple-Patille and others in management an email asking what she should do since she was feeling threatened. She noted that no matter what she did, or how many times her doctor wrote notes or reports, they were ignored, in effect accusing her doctor of lying. The Grievor indicated that she was having severe anxiety attacks as a result of being threatened with abandonment of her post, and stated that she was not abandoning anything, she was trying to get better. [120] On April 28, 2014 the Grievor sent her doctor a note to say that her leave request had been denied, and that the Employer was disregarding Dr. Catania’s notes. The Grievor indicated she was vomiting foam and that her eyelids and eyebrows were bleeding. [121] On April 29, 2014, which was the day she was to report for work or be considered as having abandoned her position, the Grievor sent Deputy Superintendent Russell an email indicating that she had reported that she was too ill to be at work that day at 7 a.m. She further stated: As per my Doctor and following the advice of my Minister I am going to have to look after my health which has been constantly deteriorating. I even have open lesions on my brows. I cannot be away from the washroom for a long period of time. I was afraid of being in an accident on the highway this morning because of my anxiety and panic attacks may cause me to be in an accident. I can only state that my Doctor is not lying and that my almost thirty years working for Corrections shows my integrity. [122] On May 1, 2014 Superintendent O’Connell sent the Grievor a letter in which he stated: Further, the medical note dated April 22, 2014, states that she [Dr. Catania] “will no longer provide any more notes regarding this issue”. As such, the Employer feels as though we are at an impasse, as the possibility of receiving objective medical documentation from your treating medical practitioner has been exhausted. As a result, and in an attempt for the Employer to obtain objective medical documentation regarding your ability to attend the workplace, I require you to participate in an Independent Psychiatric Evaluation (IPE) per article 44.9 of the collective agreement. Mr. O’Connell indicated that pending the outcome of the IPE, the Grievor would be placed on an authorized leave of absence without pay. - 25 - [123] During this period the Grievor was not receiving paycheques, and it was only when she complained that she was told there had been a processing error, and was finally paid on May 8, 2014. However, she was also advised repeatedly of an ever-increasing overpayment balance which would be deducted in increments from her cheques. There is little doubt that this correspondence caused the Grievor more stress and she appears to have been unable to understand why there were overpayments when she was not being authorized to use STSP credits. This is not to say that the Employer was incorrect about the fact that it had overpaid the Grievor at various junctures in her many periods of being off work sick, but rather that the Grievor was not in a good position to understand the information she was being provided, and that it added to her level of anxiety and feeling that she was being treated badly by her Employer. [124] On May 9, 2014, apparently feeling under duress due to the threat of termination of employment, the Grievor consented to participate in an Independent Psychiatric Evaluation. [125] On May 22, 2014 the Employer agreed to allow the Grievor to utilize STSP credits pending the outcome of the IPE. Although an IPE was scheduled for June 3, 2014, and the Grievor attended at it, the assessment was not completed. Ultimately the Grievor was sent to a different doctor for an IPE on September 16, 2014. [126] On or about October 1, 2014 Dr. Catania was provided with a copy of a “Summary Report from the Independent Psychological Assessment” that had been completed by Dr. Rubenstein, a psychologist, for the Employer. Dr. Rubenstein had apparently conducted a three-hour evaluation of the Grievor on September 16, 2014, and had been provided with extensive documentation for his review, including 12 notes and reports from Dr. Catania that spanned the period between March 23, 2011 and April 22, 2014. In his estimation, the Grievor showed no indication of meeting the criteria for a diagnosis of any psychological disorder according to the DSM IV. Dr. Rubenstein was of the view that there would be no psychological limitations or restrictions regarding the Grievor’s ability to work with inmates. He reported that his psychological examination had failed to identify any psychological impairment that would prevent the Grievor from returning to work as a Correctional Officer, and since he had not made any psychological diagnosis, there was no prognosis given. [127] It was not until August 30, 2016, the first day that Dr. Catania testified in this proceeding, that she saw the full report that Dr. Rubenstein had prepared. Having had the opportunity to review the full report, Dr. Catania testified at some length about it. She observed that while she is not a psychologist, she is familiar with the standard psychological tests he had conducted, and she knew how the evaluation tools are used. [128] Dr. Catania noted that Dr. Rubenstein had conducted the Beck Depression Inventory and the Beck Anxiety Inventory tests. She noted that his finding was that on the Beck Anxiety Inventory test, the Grievor was suffering at the severe level of anxiety. Dr. Catania agreed with that finding. She also agreed with the psychologist’s - 26 - finding that from the Beck Depression Inventory test, the Grievor suffered from moderate levels of depressive symptoms. What Dr. Catania could not understand was how, having made these findings based on administering the Beck tests, Dr. Rubenstein then went on to say that he could find no indication that the Grievor would meet criteria for diagnosis of any psychological disorder according to the DSM IV. She noted that, as she herself had advised the employer in her medical letters, Dr. Rubenstein was of the view that the Grievor was able to handle stressful situations, but he could not suggest any coping strategies for her in her workplace as he did not have a comprehensive understanding of salient aspects of her workplace environment and the personnel with whom the Grievor interacted. [129] From Dr. Rubenstein’s report, Dr. Catania noted that he had suggested that the Grievor engage in Cognitive Behavioural Therapy (“CBT”). She testified that CBT is a recommended therapy for people with anxiety, but she wondered how Dr. Rubenstein, having found no diagnosed disorder, could suggest CBT for the Grievor. This is a form of therapy provided by a trained psychologist or psychiatrist, the aim of which is to improve a patient’s symptoms. It tends to be used more frequently with more severe forms of mental illness and anxiety. [130] Dr. Catania testified that at the time she had received the very abbreviated version of the report, she had been surprised at the findings as she did not believe that the Grievor had made a miraculous recovery, and that given the severity and duration of the Grievor’s illness, that the Grievor could have been well enough to recover to the degree Dr. Rubenstein suggested. His summary report did not fit with what Dr. Catania had observed of the Grievor in the years she had been treating her. Nonetheless, at the time, she had assumed that Dr. Rubenstein had done a full assessment that had led him to the conclusions, and since Dr. Catania is not a psychiatrist or a psychologist, she had been confused by the report, but felt she had to accept it. However, having seen the full report at the hearing, including the outcomes of Dr. Rubenstein’s own testing of the Grievor, Dr. Catania disagreed with Dr. Rubenstein’s conclusion that the Grievor did not suffer from any diagnosed psychological disorder. [131] Furthermore, Dr. Catania did not agree in October 2014, and still did not agree at the time of the hearing, with Dr. Rubenstein’s assessment that the Grievor was capable of working with inmates. In Dr. Catania’s experience of trying to find accommodations for the Grievor at her workplace, even the smallest amount of work with inmates caused physical manifestations of her symptoms. [132] Based on her experience, after her years of following the Grievor, Dr. Catania had concerns about the Grievor’s ability to cope with stress in the work environment, and she still felt that limiting the number of stressors at work would improve the Grievor’s attendance. She could not agree with Dr. Rubenstein that without any restrictions, the Grievor would be able to handle stressful situations at work. Dr. Catania noted that she had seen the evidence that the Grievor was not able to handle stressful situations without anxiety, manifesting in an increase in her blood pressure, - 27 - stomach upsets, and hair pulling, so she had seen the mental and physical manifestations of the Grievor’s anxiety. [133] Dr. Catania also did not agree with Dr. Rubenstein that the Grievor’s scarring on her face should not require any restrictions or limitations to the Grievor’s returning to work as a CO. Dr. Catania testified that it was not the scarring alone that would prevent the Grievor’s return to work, but rather how the scarring affected the Grievor’s psyche. In the doctor’s experience, the Grievor found the lesions on her face extremely disfiguring, and her interpretation of that was that she was embarrassed by people looking at her. As such, the scarring was traumatic to the Grievor. [134] Dr. Catania agreed with Dr. Rubenstein’s view that the Grievor’s negative attitude towards the Employer was likely to lead to further conflict should she return to the workplace, and that it could lead to further absences. In Dr. Catania’s view, it did appear that the Grievor had an unhealthy relationship with her employer, and that the Employer did not seem to be supportive of the Grievor based on what the Grievor was telling her, so she could see that there could be further absences from work. [135] In cross-examination it was put to Dr. Catania that she would refer patients to psychologists like Dr. Rubenstein for assessment, but she did not agree. Dr. Catania testified that she would refer a patient to a psychiatrist for a diagnosis or to clarify a treatment, not to a psychologist. She would only refer a patient to a psychologist for in-depth counselling treatment options and talk therapy. [136] The Employer did not call Dr. Rubenstein to testify about his IPE and report. [137] In light of the IPE report, by a letter dated October 1, 2014, Deputy Superintendent Dunscombe ordered the Grievor to return to work on October 6th, and advised her that failure to do so may result in a declaration of abandonment of her position. The Grievor did not receive the letter until the afternoon of Friday October 3rd, and was unable to reach anyone in the Union for assistance. As such, on October 5th she sent a long and rambling email to Superintendent O’Connell and a large number of others outlining her many views and complaints about Mr. Dunscombe and his relationship to Ms. Core. She indicated that she felt threatened by the October 1st letter; that she had not had a chance to contact her doctor given the late date and time at which she had received the letter; that she wanted a back to work plan in accordance with Ministry policy; and the Grievor indicated that she should have been allowed to see the recommendations of the IPE report. [138] On October 6, 2014 the Grievor called in sick to work, and the Grievor met with Dr. Catania later that day. The Grievor and doctor discussed that while the Grievor was prepared to return to work, she could not work 12 hour shifts, as she would feel rage, and her anxiety would take over. Dr. Catania’s clinical notes make reference to the Grievor presenting with hair loss and crusting on her left eyebrow. Dr. Catania provided a medical note indicating that the Grievor should return to work on 8 hour shifts, on a five-day schedule, to allow her to properly transition back to work. - 28 - [139] Dr. Catania testified that at that meeting she believed that the Grievor was angry, and was concerned about the Grievor having to return to work as Dr. Catania felt that some of the Grievor’s mood symptoms would take over and worsen the level of irritability that the Grievor was feeling. The doctor suggested that the Grievor speak to her union. The Grievor indicated that the union had told her to take long term disability benefits, but Dr. Catania pointed out to the Grievor that she could not say that the Grievor could return to work, and also file a claim for long term disability benefits as those were inconsistent situations. The doctor still felt optimistic that they could get the Grievor back to work if there was a less stressful environment, and that was why she recommended a return to work, 5 days a week, on eight hour shifts to properly transition the Grievor back to the workplace. [140] By a letter dated October 6, 2014 Superintendent O’Connell advised the Grievor that she was considered to be on an unauthorized leave without pay effective that day, and that by October 21, 2014 she had to either return to work, or provide sufficient information to explain her absence from the workplace. Failure to do one or the other would result in him deeming her to have abandoned her position. [141] Despite Dr. Catania’s October 6, 2014 note, the Employer apparently believed there was no reason why the Grievor could not work 12 hour shifts on a rotating schedule, and as such, she was going to be required to work such shifts. [142] On October 7, 2014 the Grievor applied for STSP credits again. She also asked for a return to work meeting before she came back, but received no response. On October 8, 2014 she emailed a number of persons in management to ask about a return to work meeting on October 14th. On October 8, 2014 a Union representative, Ron Johnson, advised the Grievor that he had spoken to Mr. Dunscombe about her concerns, and had been told that through the IPE the Grievor had been cleared to return to work. He explained that if she did not return within 10 days, she would be considered to have abandoned her position. As such, he advised her to consider returning to work, and if she continued to experience illness after her return, then she could get medical documentation to support her. [143] On October 9, 2014 the Grievor wrote to a number of Union representatives stating that she was extremely fearful of returning to work. [144] On October 9th Superintendent O’Connell sent the Grievor an email indicating that since the IPE did not specify any restrictions or limitations that would prevent her from doing the job of a CO, there was no need for a return to work meeting. He stated that she was expected to come back to work on October 10th, and that she would be assigned a rotating schedule of 12 hour shifts. The Grievor responded indicating that her doctor had said she should work 8 hour shifts and for five days in a row. [145] Nonetheless, the Grievor returned to work on October 10, 2014 as she feared that her employment would be terminated. Thereafter, she struggled to finish her shifts, felt unwell, and missed many days of work, or had to leave shifts early. She testified that at the time the Metro West DC was winding down, and many units were - 29 - completely empty, so it would not have caused any hardship for the Employer to have accommodated her schedule. [146] On November 7, 2014 the Grievor was advised that she still had an overpayment of 72 hours. This caused the Grievor to write to David Hatt, the Director of Institutional Services, Central Region, to complain about having to work 12 hour shifts when her doctor had recommended 8 hours. She claimed that Mr. Dunscombe was taking a reprisal against her; that Messrs. Dunscombe and O’Connell had “ravaged” her paycheques; and that they now wanted a further 72 hours back from her. On November 9th the Grievor sent Mr. Hatt pictures of her face to show him the impact of the trichotillomania, but was told not to do so again. [147] In late 2014 the Grievor was transferred to the Toronto South DC. [148] On December 15, 2014 the Human Rights Tribunal of Ontario advised the Grievor, and other parties to her complaint, that it had determined that it may be appropriate to defer consideration of her HRTO complaint filed on April 3, 2014, pending the resolution of other legal proceedings dealing with similar subject matter to that in her complaint. [149] On January 13, 2015 the Grievor reported a workplace accident and made a claim for WSIB benefits. She claimed that while walking through security doors, the doors had closed and crushed her entire body. [150] In January 2015 Dr. Catania referred the Grievor to a psychiatrist, Dr. J. Dhaliwal, and on February 9, 2015, asked for his assessment and any suggestions for treatment options. [151] The Grievor was off work from January 19 to February 27, 2015, and made an STSP claim for the absence. She advised the Employer that the trichotillomania was spreading to her right eye as a result of her anxiety. For some periods of that time the Employer had considered her to be absent without leave as she had not provided medical notes to support her absence. A review of Dr. Catania’s clinical notes suggests that the Grievor was seen on January 19th after she had reported being hit at work by a door closing, and had made the WSIB claim. [152] By February 23, 2015 the Grievor was apparently wanting to return to work, but had to wait till her doctor provided the Employer with a note indicating that she could return to work. Dr. Catania provided a note dated February 26, 2015 that indicated that the Grievor was awaiting consultation with a specialist for her ongoing medical issues. The Grievor was not cleared to return to work. [153] On March 3, 2015 the Grievor’s WSIB claim was denied as video footage of the incident indicated that the doors had only slightly touched the Grievor on her right side, such that she had not even broken her stride as a result. - 30 - [154] On March 11, 2015 Dr. Catania provided a medical note indicating that she had seen the Grievor for her ongoing work related mental health issues, and that due to the Grievor’s ongoing anxiety and depression, she was unable to work on January 19 to 23, 26 to 30, February 2 to 6, 9 to 13, 18 to 20 and 27, 2015. The doctor indicated that the Grievor was waiting to see a psychiatrist, Dr. Dhaliwal, in early April 2015, and that she would be reassessed monthly until then. Dr. Catania stated that the Grievor should be off work until assessed by the psychiatrist. [155] On May 1, 2015 the Grievor advised the Employer that she needed to continue on sick leave as she was still waiting to see the specialist (Dr. Dhaliwal), and indicated she would most likely be applying for long term disability benefits when her sick leave expired. The Employer sought medical support in order to continue to allow the Grievor to utilize STSP credits. [156] On May 26, 2015 Dr. Catania provided another medical note to support the Grievor’s continued absence from work. She indicated that the Grievor had been seen regarding ongoing anxiety, that she was awaiting her appointment with Dr. Dhaliwal, and that further treatment recommendation and management of her illness would be deferred until after the assessment. [157] On June 18, 2015 Dr. Dhaliwal completed a Manulife Financial Initial Attending Physician’s Statement for Disability Benefits and indicated that his diagnosis was that the Grievor suffered from major depression, anxiety and PTSD. He also indicated that the Grievor had cognitive/mental restrictions in the moderate to severe range. [158] On June 22, 2015 Dr. Dhaliwal provided Dr. Catania with a lengthy reporting letter following his assessment of the Grievor. He reported that the Grievor had all the symptoms of major depressive disorder, all the symptoms of post-traumatic stress disorder, and that her symptoms were severe in intensity. He made recommendations for various medications, counselling, and if she had coverage, psychotherapy. He indicated she should be off work for an indefinite period of time because her functional capacity had decreased as a result of her medical conditions. He referred her for a psychological assessment. [159] Dr. Catania testified that she had felt a sense of relief when she received Dr. Dhaliwal’s report as she felt that finally someone was concurring with what she had been seeing since around 2011. She noted that Dr. Dhaliwal had done a complete assessment of the Grievor, going back to her childhood, and having read his report, she agreed with his conclusions about the severity of the Grievor’s symptoms; that she was at the severe level in terms of dysfunction. [160] In July 2015 it appears that the Grievor applied for Long Term Income Protection (“LTIP”) benefits, and Manulife Financial contacted Dr. Catania with a number of questions. [161] On August 7, 2015 Drs. Simrat Verraich and Sonia Singh provided Dr. Catania with an extensive psychological assessment following the referral from Dr. Dhaliwal. - 31 - They noted that the primary purpose of the referral was to provide the Grievor with psychological treatment to help her manage symptoms of anxiety, including PTSD, trichotillomania and depression. They noted that when she had had her first intake consultation on June 26, 2015, the Grievor had committed to 12 sessions of psychotherapy, with treatment focusing on cognitive-behavioural therapy intervention. The psychologists’ prognosis for the Grievor was cautiously optimistic. [162] In her testimony, Dr. Catania recalled that when she received the report from Drs. Verraich and Singh, it was the most comprehensive report she had seen up to that date, and rather than focussing on the last few years, it had focussed on the Grievor back to the Grievor’s youth. She noted that they had done interviews as well as psychodiagnostic testing, including the Beck tests, and as such she felt a sense of relief that there were again independent specialists who were confirming what she had been seeing for the years prior. [163] Following receipt of this report Dr. Catania provided Manulife Financial with a full response to the LTIP provider’s questions, and provided the reports she had received as a result of the referrals. [164] On September 24, 2015 Manulife advised the Grievor that, effective February 27, 2015, her period of total disability had commenced, and following the six-month qualifying period, that effective August 27, 2015, her LTIP claim had been approved for total disability from performing the essential duties of her normal occupation. The Grievor’s LTIP may continue till August 27, 2017 if she remains unable to perform the essential duties of her own occupation. [165] In order to be considered totally disabled, Manulife advised that under the group policy the definition is as follows: … for the first 30 months of total disability, an employee is wholly and continuously disabled by illness or accidental bodily injury which prevents him/her from performing the essential duties of his/her normal occupation. [166] In October 2015 the Grievor applied for CPP Disability benefits, and was ultimately approved for receipt of those benefits. [167] John McKinnon, Deputy Superintendent of Finance at Toronto South DC testified for the Employer regarding the Grievor’s payroll records. In his role he oversees the Personnel department, Reception, Finance department, and the Storage Warehouse. Personnel is responsible for attendance and payroll matters. Mr. McKinnon had worked with Ontario Shared Services, the corporate payroll department that administers all payroll for the Ontario Public Service, to create a document package and report regarding what the Grievor had worked, been paid for, or time for which she had been off sick, and either received payment or not. [168] The Grievor had raised some allegations about not having had a paycheque deposited, or that she had been short paid. It was Mr. McKinnon’s evidence that: - 32 - - The December 19, 2013 pay cheque for the pay period of November 25 to December 8, 2013, was deposited to the Grievor’s bank account. - The April 24, 2014 pay cheque for the pay period of March 31 to April 14, 2014, was for $28.17 because the Employer had made deductions for March 31 to April 13, 2014 when the Grievor was put on a Discretionary Leave Unpaid. That was a period for which the Employer did not accept the Grievor’s doctor’s notes, and had not therefore approved her for use of STSP credits. - The October 23, 2014 pay cheque for the period of September 29 to October 12, 2014 was for $668.91 because it had included deductions for October 6 to 9, 2014 (32 hours) of Unauthorized Leave Unpaid, and deductions for STSP in that period of 13.30 hours. [169] As Mr. McKinnon’s research had indicated that the Grievor had used her maximum STSP credits in 2012, 2014 and 2015, there is little more to be said about those years. The Grievor could not have accessed any more sick pay from the Employer in those years. The only year in which there was any shortfall was in 2014, when she was paid for 109 STSP credits out of the maximum 130. As such, at best, she may be entitled to 21 STSP credits for the time she was off work for medical reasons in 2014. [170] Thus, while the Grievor was off work sick from January 2 to 10, 2014, at that juncture she had not worked for 20 consecutive days in the year previous since her 2013 STSP credits had been exhausted, and therefore had no STSP credits to draw on. She then took pre-scheduled vacation for the period of January 13 to 24, 2014, and was paid vacation pay for that time. As she had still not returned to work to earn STSP credits, she remained on unpaid sick time from January 27 to February 14, 2014. [171] From the evidence in this case, the Grievor returned to work on February 17, 2014, so she was paid from that point on, either for time worked, or for vacation (March 9/14), or Special/Compassionate Leave (March 12 to 14/14). She went off work again on March 27, 2014, and was paid with an STSP credit for that day, but not for the period of March 28 to April 30, 2014, when the Employer would not accept her medical notes. [172] I note that from May 1 to October 3, 2014, the Grievor was permitted to use STSP credits (and for some portion of that time she topped up her STSP credits with vacation time – May 8 to July 4, 2014). From October 6 to 9, 2014, October 20 to November 5, 2014, and November 13 to December 30, 2014, the Grievor was off work sick. However, by October 2014 it appears that she had exhausted her 130 days of STSP credits, so she simply had no further entitlement. - 33 - [173] It is also worth noting that the Grievor appears to have received STSP credits at the 75% of regular pay rate for all the periods for which she received such pay in 2014, except for one period that may be in contention. The 75% payments are most obvious when, to top up her STSP, the Grievor used .25 of a vacation day every day from May 8 to July 4, 2014, in order to bring her up to receipt of 100% of her regular pay until her vacation bank appears to have been exhausted. [174] The one period for which the Grievor may not have been paid at the 75% rate was discussed in Mr. McKinnon’s evidence. He indicated that for the three days of October 1, 2, and 3, 2014 the Grievor received 66 2/3%, and that was why there had been a claw back of 13.3 hours on the Grievor’s October 23, 2014 pay cheque. This may be an area in which the parties will need to consider the payroll evidence further to determine if the Grievor was not paid at the 75% rate as there is no dispute by the Employer that she should have received benefits at that rate for any period during which the Grievor was entitled to use STSP credits. [175] Mr. McKinnon testified that in his review of the payroll documents there was no indication that the Employer had at any point clawed back any WSIB overpayments. The Employer reserved its right to consider this issue further should there be a finding in favour of the Grievor in this case. ARGUMENTS [176] While the parties made extensive closing arguments, I have only provided an overview of the submissions made. [177] The Union argues that based on the medical evidence before the Board, it has proven that the Employer failed to accommodate the Grievor when she was able to work with accommodations between November 27, 2013 and February 7 or February 13, 2014. [178] The Union also argues that the Grievor was entitled to STSP credits during all other relevant periods, and that she should have been paid STSP at the rate of 75% of her full wages, pursuant to Article 44.1.2(c). In the event that I find in favour of the Grievor, the Employer agrees with both of these positions. [179] It is the Union’s position that in light of the medical certificates and notes that Dr. Catania provided, the Employer had no reasonable basis to suspect that the Grievor was abusing sick leave. [180] With respect to the Employer’s evidence that it believed that the Grievor was abusing sick leave based on the Grievor’s purported comments at two meetings in February 2014, the Union asserts that there is no evidence to support the Employer’s contention as it regards the February 13, 2014 return to work meeting. No Employer witness was called to give evidence about that, and the Grievor’s evidence is that she did not say anything about working 20 days and then going off on sick leave as soon as she had qualified for STSP. - 34 - [181] Regarding the February 19, 2014 grievance meeting, the Union argues that what is said at such meetings is not admissible and should therefore not be admitted into evidence. Even if the Board accepts that the Grievor made the comment, the Union argues that is not a sufficient basis for concluding that the Grievor was abusing sick leave or should not be entitled to STSP. It argues that the question for the Board to decide is whether there was medical evidence to support the Grievor’s entitlement to STSP or not, and that any ill-advised comments the Grievor may have made out of frustration should not outweigh the medical evidence that was available at the time. [182] The Union argues that the Employer acted in bad faith in dismissing, rejecting and/or ignoring Dr. Catania’s medical notes, failing to accommodate the Grievor in her return to work, or pay her STSP benefits. [183] It further argues that the Employer’s treatment of the Grievor constituted retaliation against the Grievor for her workplace advocacy and representation of other employees, and her raising of health and safety issues. [184] By way of remedy, the Union outlined the declarations and orders it was seeking, which included findings of violations of Articles 2, 3, 9 and 44 of the collective agreement; a declaration that the Employer has breached sections 5 and 17 of the Human Rights Code; a declaration that the Employer has breached sections 25(3)(h), 27(2)(c), and 50 of the Occupational Health and Safety Act; an order that the Grievor be paid her full wages for periods during which she could have worked with accommodations had the Employer actually accommodated her; an order that the Grievor be paid full STSP benefits for time periods during which she was unable to work due to illness; an order that the Grievor be compensated for the unnecessary medical notes and certificates that the Employer required her to obtain from her doctor; and, an order of general damages for the violation of the Grievor’s human rights and the injury to dignity, self-respect and feelings the Grievor suffered, as well as the stress and anxiety that the Employer’s actions caused the Grievor. [185] On behalf of the Employer, counsel argued that the Grievor was an employee who had used her full complement of STSP credits in 2012 and 2013, and who appeared in the Fall of 2013 to be an employee who was able to return to work whenever she had exhausted her STSP credits or was denied WSIB benefits. It appeared to the Employer that the Grievor’s doctor provided letters indicating she could return to work whenever her periods of sick pay were exhausted. These were the facts upon which the Employer argues that it had a reasonable basis to question whether the Grievor could return to work in November 2013. [186] The Employer argues further that Ms. Semple-Patille wrote to Dr. Catania to seek clarification about the “no inmate contact” restriction and the hours of work restriction, and that those restrictions were not fully addressed until February 7, 2015. Shortly thereafter, the Grievor was returned to work. Counsel noted that it was clear that the Employer returned the Grievor to a job at the East Wing Control, which was a - 35 - job with minimal inmate contact, in accordance with one of Dr. Catania’s restrictions for the Grievor’s return to work. [187] Counsel for the Employer argued that the evidence of its two witnesses regarding the Grievor’s comment at the Step 2 grievance meeting in February 2014 should be admitted, as should the notes of that meeting, as the comment was not made in the context of the reason for the meeting, but was about what the Grievor was going to do prospectively. As such, it was argued that the comment should not be subject to the general privilege that attaches to grievance meetings. Counsel states that Mr. O’Connell was advised of this comment, and it therefore informed his belief that the Grievor was trying to access sick credits improperly. [188] According to Employer counsel, when in late March 2014 the Grievor was again seeking to access her STSP credits, after having worked 20 days, Mr. O’Connell would have had in front of him an employee who had been off work sick for her maximum STSP credits of six months in 2012 and 2013, and who was again in 2014 after working the minimum number of days to re-qualify for STSP, seeking to go off work sick on “day 21”. As well, he would have been aware of the Grievor’s comments from the two February 2014 meetings, that she would work for 20 days and then would be off sick again. It is argued that there is insufficient evidence to find that Mr. O’Connell was acting in bad faith based on the evidence in this case. According to the Employer, it was incumbent on the Grievor to say that her hours were an issue if she was having trouble with them, and that she was not doing her part in the accommodation process. [189] The Employer conceded that it had not called anyone to prove the notes it was seeking to rely upon regarding the second February meeting, but relied on the fact that it had put those notes to the Grievor. [190] It is argued that Mr. O’Connell was not acting in bad faith when he made the decision to discontinue the Grievor’s access to STSP credits after one day in late March 2014. Counsel for the Employer states that Mr. O’Connell wanted a clear answer regarding the Grievor’s mental health issues through an independent psychiatric evaluation, and he had indicated that he would permit the Grievor access to STSP credits while she went through the IPE process. As counsel put it, Mr. O’Connell, by directing the Grievor to the IPE process, saved the Grievor from a revolving door of six month sick leaves for a few more years. [191] The Employer argues that for the period between November 27, 2013 and February 14, 2014, the Grievor was not entitled to any further STSP credits, and the only remedy available should I find in the Union’s favour, would be wages for the time the Grievor was off work. The Employer argues that I should not order that wages be paid as the Employer did not get the accommodation information it needed until February 7, 2014, and it held a return to work meeting one week later, after which the Grievor returned to work. - 36 - [192] Counsel for the Employer argues that no adverse inference should be drawn from the fact that the Employer did not call certain witnesses as the business documents and letters are sufficient evidence, along with the pattern of absences, so there was no utility in calling witnesses to say that they had written a letter, or to reiterate what was in the letters. [193] While conceding that Dr. Catania was a forthright and objective witness, the Employer argues that she was simply too hopeful and optimistic about the Grievor’s ability to get back to work. [194] The Employer asserts that the Union has not established that there was any anti-union animus against the Grievor in this case, or that any of the actions taken by the Employer could be attributed to being a reprisal for her representation of co-workers. [195] The Employer conceded that if its representatives are found to have kept asking for sick notes from the Grievor’s doctor, it should pay for those notes. [196] The parties agreed that should I find that there should be an award of general damages in relation to the human rights allegations, that I remit that matter back to the parties to try to resolve the quantum among themselves, but that I should remain seized in the event that they are unable to do so. DECISION [197] In reaching a decision in this case I have reviewed all of the evidence, exhibits, jurisprudence, and submissions of the parties. To the extent that I have relied on the case law presented, it will be referred to below. Grievances regarding the November 27, 2013 to February 17, 2014 period: [198] Two of the grievances before me claim that the Employer failed to accommodate the Grievor when she was able to return to work on November 27, 2013, and that it breached section 17 of the Human Rights Code when it discriminated against her based on her disability, and failed to accommodate her in her return to work. The relevant sections of the Human Rights Code are as follows: 5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, - 37 - colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. . . . 9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. 10.(1) In Part I and in this Part, “disability” means, (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, (b) a condition of mental impairment or a developmental disability, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”) “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; … 17.(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. (2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. - 38 - (3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations. [199] There was no dispute between the parties that the initial onus is on the Union to establish that the Grievor was entitled to an accommodation. Once that requirement has been met, the onus shifts to the Employer to establish that accommodating the Grievor would have caused it undue hardship. The test was set out in North York General Hospital and ONA (B.(A.)), 2017 CarswellOnt 2530 (Trachuk), as follows: 95. The Association has the onus of making out a prima facie case of discrimination. If it succeeds, then the onus shifts to the employer to prove that it provided accommodation to the point of undue hardship. In Moore v. British Columbia (Ministry of Education), 2012 SCC 61 (S.C.C.), the Supreme Court referred to the three part test used to determine whether a party has made out a prima facie case of discrimination: As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. [200] I found Dr. Catania to be an excellent witness, who testified in an informed, honest and forthright manner. Her testimony, as outlined earlier, was well supported by her documentation in the Grievor’s medical file. She had treated the Grievor over a long period of time, and had witnessed the deterioration in the Grievor’s condition over time. Based on Dr. Catania’s evidence, I accept that the Grievor suffered from chronic and serious stress and anxiety from at least January 2012 on. As well, Dr. Catania found that the Grievor’s anxiety manifested itself in the Grievor pulling her eyebrow hairs to the point that her eyebrows would bleed. Dr. Catania had diagnosed the Grievor as suffering from trichotillomania, an anxiety disorder recognized in the DSM IV. The Grievor’s anxiety also manifest in spikes in her blood pressure, vomiting, and bowel problems. In addition to the trichotillomania, by December 2012 Dr. Catania diagnosed the Grievor as suffering from adjustment disorder with mixed anxiety and depression. Given the length of time over which Dr. Catania had treated the Grievor for her anxiety, and the impact that it had from time to time on the Grievor’s ability to work, it is apparent that her medical condition was disabling. Thus, I am satisfied that the Grievor and the Union have established that the Grievor suffered from a disability as it is defined in the Code. - 39 - [201] While she had consistently tried to find ways to ensure that the Grievor could return to work, Dr. Catania was also aware that there were many stressors in the Grievor’s life that appeared to stymie the Grievor’s overall medical improvement to the point where she could remain at work for extended periods of time. I accept Dr. Catania’s evidence that her goal for all her patients, including the Grievor, is to try to get them back to work, and that as long as the Grievor was prepared to try to return to work, Dr. Catania tried to find ways to ensure that she could do so. When that entailed trying out accommodations in the workplace, Dr. Catania was of the view that they should try out what may work, and she was prepared to review the results at regular intervals in order to tweak the restrictions in order to keep the Grievor working. [202] For the period of November 27, 2013 to February 11, 2014, based on the evidence outlined earlier, there is little doubt that Dr. Catania had, through five medical notes, reports, or responses to Employer questionnaires, provided the Employer with ample medical support for the Grievor’s return to work with three restrictions. Initially, Dr. Catania had indicated that the Grievor was to have no inmate contact, every attempt was to be made to limit her contact with Ms. Lengert and Ms. Core, and she was to work 8 hours a day, five days a week. I have accepted Dr. Catania’s explanations, as outlined earlier in the evidence above, for these restrictions. [203] It seems apparent from the documentary evidence that no sooner would a doctor’s note or letter be provided before Ms. Russell or Ms. Semple-Patille would turn around and tell the Grievor that the information was not good enough. Yet, it took them a while to say what they wanted. Even when Dr. Catania would answer their questions, they would turn right back and say it was insufficient, or was unclear, or would seek further clarification. What Ms. Russell and Ms. Semple-Patille managed to do, between November 27, 2013 and February 13, 2014 was to ask an inordinate number of questions while avoiding getting the Grievor back to work. Having heard the medical evidence, and without the benefit of any evidence from Ms. Russell or Ms. Semple-Patille as to why they were questioning the medical notes and letters, it appears that they simply did not accept Dr. Catania’s notes and letters. There is no evidence before me as to why that would have been their respective positions. Nonetheless, based on the Union’s evidence, I accept that the Grievor had disclosed a disability-related need for accommodation. [204] With respect to the period in question in these two grievances, this was not an employee who had been off work for long at the time her doctor was seeking to return her to work: The Grievor had been at work from early August to November 4, 2013. During that time, she had been accommodated in a regular Monday to Friday day shift. After the Grievor had complained about having been put in the high stress Visits area, on September 10, 2013 Dr. Catania had sent a note indicating that she should have no inmate contact, and should go back down to working three 8 hour a day shifts for a few weeks in order to get her anxiety in check. The Grievor was apparently accommodated with these restrictions. [205] Dr. Catania sent a note on October 1, 2013 indicating that the Grievor’s hours could be increased to full time, but that the “no inmate contact” should be maintained - 40 - for a further period. It was not until October 23, 2013 that Ms. Semple-Patille queried the continuing restriction of “no inmate contact”, and asked what the doctor meant by indicating that there should be an increase in the Grievor’s hours to full time. The Grievor went off work on November 5, 2013, and was cleared to return to work on November 27, 2013. [206] Thus, it is unclear to me why it took the Employer almost three months to get this Grievor back to work when she had only been off work for three weeks, and it had already been accommodating the Grievor with two of the three restrictions that Dr. Catania requested for the Grievor when she was to come back in late November 2013. [207] After the November 27, 2013 return to work letter, Dr. Catania provided another more detailed medical report on December 23, 2013, which provided the Grievor’s diagnosis, and a description of what she was suffering from. The doctor pointed out that the Employer was not telling her what exactly it required, and offered to provide more information if the Employer made a detailed request for information. [208] It was not until six weeks after the original return to work note that Wendy Russell finally told Dr. Catania on January 13, 2014 that the Employer could not accommodate “no inmate contact” and could not guarantee that the Grievor would not run into the two identified co-workers. She did however say that the Employer could ensure limited inmate contact. [209] Dr. Catania provided another note on January 24, 2014, explaining why the Grievor needed regular hours, and indicated that she could handle stressful situations at work. Ms. Russell asked for more medical information on January 27th. [210] On February 7, 2014 Dr. Catania sent further medical information explaining why she had requested the three accommodations for the Grievor, but she indicated that a trial of limited inmate contact would be acceptable. However, because Dr. Catania had provided two notes on that date, one of which said “limited inmate contact” and the other said “minimal inmate contact”, that was apparently not enough for Ms. Russell, who three days later asked for further clarification of the meaning of “minimal inmate contact”, and would not hold a return to work meeting with the Grievor until she received that clarification. [211] It is clear that out of exhaustion with the process, and because the Grievor simply had to get back to work because she had no source of income, and had had none for three months, the Grievor returned to work on February 17, 2014 without all of Dr. Catania’s recommended accommodations. She returned to a 12 hour rotational schedule, working in a job that limited her contact with inmates. [212] Based on the medical evidence, as given by Dr. Catania when she testified, as well as through the many medical notes and reports that she had made to the Employer on behalf of the Grievor, I am satisfied that at all material times between November 27, 2013 and February 17, 2014, from the point when Dr. Catania gave her - 41 - a return to work note, with an outline of the required accommodations, and until the Grievor returned to work, that the doctor had turned her mind to the Grievor’s medical situation, that the Grievor suffered from trichotillomania, which is a recognized anxiety disorder; the doctor was giving her educated medical opinion; and that she had valid medical bases for the restrictions sought having regard to the Grievor’s disability. I am therefore satisfied that the Union has met the onus of establishing that the Grievor was entitled to the accommodations she was seeking. [213] The onus then shifts to the Employer to show why it could not accommodate the restrictions, or that it would have caused it undue hardship to have accommodated the Grievor’s return to work restrictions. In OPSEU v. Ontario (Ministry of Community & Social Services), 1996 CarswellOnt 545 (Ont. Div. Ct.), Steele J., writing for the Divisional Court in a judicial review application, held that the Grievance Settlement Board had “erred in law when it found that the onus lay upon an employee to demonstrate that his needs could be accommodated by his employer without undue hardship. The employer is uniquely aware of what will and what will not constitute “undue hardship” for it. There was simply no evidence before the Board in this regard” (at para. 17). [214] Similarly, in Ottawa (City) v. Ottawa-Carleton Public Employees’ Union, Local 503, 2007 CarswellOnt 1112 (Ont. Div. Ct.), at para. 67, the Divisional Court reiterated that in the absence of an employer leading any evidence suggesting that accommodating a grievor would cause it undue hardship, that finding could not be made (See also Kingston (City) v. CUPE Local 109 (02-109-15), 2016 CarswellOnt 7508 (Surdykowski) at para. 119). As such, it is clear that the onus is on the Employer to call evidence regarding why it could not accommodate the Grievor’s restrictions. [215] As already noted, other than the plethora of letters and emails sent to the Grievor or Dr. Catania, there is no evidence before me of what anyone acting for the Employer considered, or why it would have caused undue hardship to have accommodated the Grievor’s restrictions. In the absence of any evidence regarding undue, or indeed any, hardship, I must find that there was none. [216] As noted earlier, Ms. Russell did not testify in this proceeding. Neither did Ms. Dianne Semple-Patille, who was the other manager involved in seeking medical notes and explanations from the Grievor or Dr. Catania during this period of time. There is therefore no evidence before me to explain why those acting for the Employer took so long to consider the accommodations, and kept up the barrage of requests for more medical notes. There is also no evidence to explain why the Employer could not have accommodated Dr. Catania’s restrictions on the Grievor’s return to work. [217] The uncontradicted evidence before me is that of the Grievor: she had been working 8 hour shifts five days a week, with no inmate contact, before she went off work in November 2013, without any problem being raised by the Employer. She testified that the Metro West DC was closing during that time, and there were fewer inmates housed there, so she believed that she could have been accommodated. Dr. Catania testified that since she understood that the institution was large, and operated - 42 - on a shift basis, she could not understand why it would not have been possible to try to schedule Ms. Core, Ms. Lengert, and the Grievor so as to minimize the chances of them running into each other. [218] In Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Hernden), 2014 CarswellOnt 8056 (Dissanayake), the Grievance Settlement Board (“GSB”) addressed grievances relating to employer requests for medical certificates for absences due to sickness. In that case, one person who had had direct involvement in the process had testified, but the decision-maker had not. The Board concluded that the employer had not presented sufficient evidence that it had exercised its discretion under Article 44.10 reasonably, in part because the person who had made decisions in that regard had not testified (at paras. 45 and 51). That is similar to the situation before me, as none of the individuals who appear to have been involved and/or exercising their discretion regarding the adequacy of Dr. Catania’s medical notes for the Grievor have testified. As such, I have no way of ascertaining whether the Grievor’s particular circumstances were given meaningful consideration in the process. [219] In the circumstances and for the reasons outlined above, I find that Grievance No. 2014-0517-0004, filed on January 31, 2014, claiming that the Employer had the Grievor off work on sick time without pay when she should have been accommodated in accordance with her doctor’s note, has been made out, and that the Grievor should be paid her full salary from November 27, 2013 until her return to work on February 17, 2014, less any period for which she may have received payment from the Employer in any other form (e.g. bereavement leave, vacation pay, etc.). [220] I also find that Grievance No. 2014-0517-0005, filed on January 31, 2014, claiming, among other things, that the Employer’s refusal to accommodate the Grievor in accordance with her doctor’s note of November 27, 2013 was discriminatory and a breach of the Employer’s duty to accommodate the Grievor’s disability under section 17 of the Human Rights Code, has been made out. There is ample evidence, both from the Grievor and her doctor, of the corrosive effect that the Employer’s refusal to return the Grievor to work was having on her. [221] As the Employer was aware at the time, because the Grievor had told them, the Grievor’s mother’s health was in serious decline, and she died on December 26, 2013, following a long illness. Yet, those who had to make decisions about the Grievor’s accommodation needs continued to badger her, and her doctor, for reasons that are not entirely clear as none of them testified. As a result, not only was the Grievor unable to return to work in a timely manner, she was left without any income for almost three months. [222] It should have been obvious to the Employer that the Grievor was suffering significant stress as she had been sending emails about her perceptions of how she was being treated, and why, to senior government officials, including the Minister and a Member of Provincial Parliament, as well as contacting staff at Sheridan College. Yet the only response to that knowledge was that on January 27, 2014 Tom - 43 - O’Connell, Superintendent, sent the Grievor a non-disciplinary letter of counsel asking her to cease and desist from inappropriately escalating her workplace complaints to such individuals. [223] The Employer knew, or ought to have known based on the information that had been provided to it by the Grievor’s doctor, and its own experience with the Grievor, that she had an anxiety disorder. It is difficult to avoid the conclusion that the Employer’s actions exacerbated her anxiety at a difficult time in the Grievor’s medical and personal life. [224] Given the nature of some of the other grievances before me, I will address the Union’s arguments regarding human rights damages after addressing all of the grievances. Grievances regarding the April to December 2014 period: [225] The Grievor filed a number of grievances claiming that the Employer had exercised its management rights in an unreasonable, unjust and unfair manner in that despite her having provided doctor’s notes to support her illness, the Employer had placed her on an unpaid leave. While Grievance #2014-0517-0020, filed on July 9, 2014, purports to address the time frame from January 1 to July 9, 2014, having decided as above regarding the period up to February 17, 2014, and since the Grievor then worked until March 27, 2014, these grievances appear to actually deal with the period following the Grievor going off work ill again from late March 2014 on. In the nine grievances filed between April to December, 2014, the Grievor continued to maintain that the Employer had violated the collective agreement and legislation by unjustly subjecting her to hardship; bullying and harassing her; making unauthorized deductions from her payments; not paying her 75% of her regular wages for STSP; ignoring her doctor’s notes for a year and a half; and, that the Employer had made the Grievor pay $600 for doctor’s notes and two reports. [226] I will first address the periods for which the Grievor was or was not paid. According to Mr. McKinnon, the Grievor received STSP credit for March 27, 2014, but was not paid between March 28 and April 30, 2014. She was paid through STSP credits, along with vacation top up while it lasted, between May 1 and October 3, 2014. Article 44 addresses the Short Term Sickness Plan, and the relevant provisions state as follows: 44.1.2 Effective April 1, 2013, 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 sixty-six and two thirds percent (66 2/3%) of regular salary for an additional one hundred and twenty-four (124) working days of absence, in each calendar year; or - 44 - (c) notwithstanding 44.1.2 (b), with seventy-five percent (75%) of regular salary for an additional one hundred and twenty-four (124) working days, if a certificate of a legally qualified medical practitioner is forwarded to the employee’s manager or designee certifying that the employee is unable to attend to official duties due to a severe mental or physical illness or injury (e.g. stroke, serious accident, hospitalization in excess of two (2) days, Quarantined, declared Pandemic event, shingles), or serious chronic mental or physical illness or injury (e.g. cancer, Crohn’s, multiple sclerosis, cystic fibrosis). 44.2 An employee is not entitled to leave of absence with pay under Article 44.1 until he or she has completed twenty (20) consecutive working days of employment. 44.3 Where an employee is on a sick leave of absence which commences in one (1) calendar year and continues into the following calendar year, he or she is not entitled to leave of absence with pay under Article 44.1 for more than one hundred and thirty (130) working days in the two (2) years until he or she has returned to work for twenty (20) consecutive working days. 44.4 An employee who has used leave of absence with pay for one hundred and thirty (130) working days in a calendar year under Article 44.1 must complete twenty (20) consecutive working days before he or she is entitled to further leave under Article 44.1 in the next calendar year. … 44.9 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. Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than five (5) days. [227] There is ample evidence before me through Dr. Catania’s medical notes and her testimony to support a finding that the Grievor suffered from serious, chronic mental illnesses including depression, trichotillomania, adjustment and anxiety disorders, and that these had a disabling impact on the Grievor. The Grievor therefore met the threshold in Article 44.1.2(c). For the most part, the Employer does not - 45 - appear to have disagreed at the time of the Grievor’s various periods of STSP credit use, when approved. [228] Despite the Grievor’s mistaken belief, the evidence established that when she was permitted to use her STSP credits, for the vast majority of the time, she was paid at the 75% of regular pay rate in accordance with Article 44.1.2(c). The one period that was in question was the three-day period between October 1 and 3, 2014: It was Mr. McKinnon’s evidence that for the three days of October 1, 2, and 3, 2014 the Grievor received 66 2/3%, which was why there had been a claw-back of 13.3 hours on the Grievor’s October 23, 2014 pay cheque. As already noted, the Employer did not dispute that the Grievor should have been paid STSP credits at the 75% rate, so if there are periods for which that was not the case, I direct that she be compensated for any shortfall. [229] There may also be a question about whether the Grievor was paid her full regular salary for the first six days of absence, as required by the collective agreement provision for STSP, Article 44.1.2(a). The parties are directed to review the payroll records to ensure that in 2014 the Grievor received six days of STSP at the full 100% wage rate, with the remaining 124 days at 75% of her regular salary. Thus, in respect of Grievance No. 2014-0517-0038, the Grievance is upheld in part, to the extent that the Grievor may not have been paid for the first six days of her STSP use in 2014, when she should have been paid at 100% of her wages, and thereafter, at the 75% rate for October 1, 2, and 3, 2014, or for any other period that the parties may find in 2014, I direct that she be paid any monies owing. [230] For reasons to follow, I find that the Grievor was entitled to access her full allocation of STSP credits in 2014. In light of Article 44.2, an employee is entitled to a maximum of 130 STSP credits after working at least 20 consecutive days. Since the Grievor worked 20 consecutive days between mid-February and late March 2014, if she qualified, she was entitled to 130 STSP credits in 2014 after that period of work. Based on the evidence, the Grievor was paid through STSP credits for 109 days in 2014. If she was unable to attend to her duties due to sickness or injury, the Grievor was therefore entitled to a further 21 days of STSP credits that she should have been permitted to use in that year. [231] On March 28, 2014 the Grievor told Ms. Semple-Patille that she was having a recurrence of her medical problems, and she therefore requested sick leave. It is the Grievor’s uncontested evidence that at the time her symptoms had intensified, and her left eye area was bleeding. [232] Notwithstanding that information, as Mr. Barry McDonnell testified, on April 1, 2014 he and other management staff discussed that the Grievor should be cut off benefits on the basis that the Grievor had allegedly indicated at two meetings in February 2014 that she would work 20 days and go off sick again. [233] With respect to the allegation that at the February 13, 2014 return to work meeting the Grievor made the comment that she would return to work for 20 days and - 46 - then book off sick, there is no direct Employer evidence in that regard. The Employer seeks to rely on some notes made of the return to work meeting. However, the author of those notes was not called to testify, and as such, the document has not been identified and proven. The Union did not agree to the notes being admitted. Since no one who had attended that meeting testified in this proceeding, the Union has not had the opportunity to cross-examine any Employer witness about it. The Grievor, who was present, has denied that she made the comment. In the absence of any evidence to the contrary, I must accept the Grievor’s evidence. [234] I accept the Union’s argument that an adjudicator should not rely solely on hearsay evidence when making central or critical findings of fact, particularly where those facts are contested. The Employer claims to have relied heavily on its view that since the Grievor made the comment, it was proof to management that she was abusing sick leave. As is clear from the correspondence, that belief led to management’s repeated denials of the Grievor’s requests to access her STSP credits in late March and April 2014. However, in respect of the February 13, 2014 meeting at which the Grievor is alleged to have made the comment, there is no evidence before me that the comment was made. [235] I agree with Arbitrator Luborsky’s decision in Peterborough Victoria Northumberland & Clarington Catholic District School Board v. O.E.C.T.A., 2011 CarswellOnt 3128, at para. 45, wherein he agreed with the union in that case that he should not rely entirely on hearsay evidence to support the essential facts forming the basis of the school board’s discipline of a teacher. In that case, the school board was seeking to rely on written statements made by students about an alleged altercation between a student and a teacher. The arbitrator found that the school board had not satisfied one of the preconditions for admission of hearsay evidence on the basis of necessity. Even though the students had graduated, there was no evidence that some or all of them could not have been available to testify with reasonable efforts by the school board (para. 54). Arbitrator Luborsky had before him no evidence that the school board had even tried to make reasonable efforts to produce the students as witnesses. As such, he declined to exercise his discretion to accept the hearsay statements of the students as it would require him to rely exclusively on hearsay evidence in sustaining the employer’s reasons for discipline, when the employee would be deprived of the right to a fair hearing, without the ability to cross-examine the witnesses who had provided the statements (para. 56). [236] At para. 57 of the decision, Arbitrator Luborsky stated “where an employer has the burden to establish cause for issuing discipline, and substantially all of the evidence to support the discipline is hearsay, the important value of preserving procedural fairness overrides the discretionary authority of arbitrators to accept such evidence”. While the case before me is not one of discipline, the onus is on the Employer to establish why it refused the Grievor’s requests for access to her STSP credits. [237] In R. v. Khelawon, 2006 CarswellOnt 7825 (SCC), at paras. 2 and 47, the Supreme Court of Canada addressed the issue of hearsay evidence. It held that - 47 - hearsay evidence is presumptively inadmissible, unless a party can establish that it falls within one of the exceptions to hearsay inadmissibility. The party seeking to lead the hearsay evidence bears the onus of showing that the evidence falls within one of the exceptions. [238] As did the GSB in Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Marshall), 2013 CarswellOnt 6313 (Abramsky), I too find that the Employer has not established, on the balance of probabilities, that the tests of necessity or reliability have been met. There is no evidence about the efforts that have been made to find the necessary witnesses who could attest to having made the notes, or attended at the February 13, 2014 return to work meeting. Furthermore, in light of the Grievor’s evidence denying that she made the comment at all at the meeting in question, I have no basis to find that the notes are sufficiently reliable to admit them for the truth of their content. (See paras. 19 and 20 of Marshall). [239] As evidenced by the many references in the communications from management to the Grievor in the relevant time period, it was management’s view that the Grievor was abusing sick leave because of the comment that has been attributed to her. However, since the Employer has called no evidence to establish that the comment was made at the February 13, 2014 meeting, nor any evidence about why it may have been unable to do so, and especially in light of the Grievor’s evidence to the contrary, I cannot accept the unidentified notes, which are a form of hearsay evidence, as the only proof that the Grievor made the comment. [240] For the reasons to follow, I also find that the Employer cannot rely on the comments that the Grievor made at the Step 2 grievance meeting on February 19, 2014. That meeting was part of the grievance procedure regarding the Grievor’s grievances of January 31, 2014 that she had been forced to remain off work sick because the Employer would not accept her doctor’s notes and accommodation requests. [241] Arbitrator Howard Brown, writing in York (City) Board of Education v. C.U.P.E. Local 1749-B, 1989 CarswellOnt 3894, discussed the privilege that attaches to communications during grievance meetings as follows: 9. After hearing submissions of counsel, the board ruled orally at the hearing that the evidence of the Step 3 and Step 4 grievance meetings sought to be introduced by the union is not admissible as being privileged communications between the parties. The board therefore exercised its discretion to exclude this form of evidence sought to be introduced by the union. The board rejected the union’s submission that an exception should be made to the general principle applied by most arbitrators in this jurisdiction that what transpires between the parties at their grievance meetings is a form of privileged communication engaged by them for the purpose of resolving disputes under their grievance procedure provided by the collective agreement. - 48 - 10. It is generally held that it is improper to constrain such discussions between the parties by a concern that what is said might be used against the interest of either party in subsequent arbitration proceedings. The nature and purpose of grievance meetings held under the terms of collective agreements between the parties are recognized as being inherently privileged procedures which are recognized as such by arbitrators with some exceptions. In that regard see Re Canadian Broadcasting Corp. and C.U.P.E. (1975), 8 L.A.C. (2d) 368 (H.D. Brown); … This principle was applied and followed in Re Regional Municipality of Ottawa-Carleton and C.U.P.E. Loc. 503 (1984), 14 L.A.C. (3d) 445 (P.C. Picher). The board in that case stated, inter alia, that (at p. 448): The purpose of the privilege surrounding statements made during the grievance procedure is to foster an environment in which the parties may freely discuss the grievance at hand with a view to settling it. In our opinion, however, the free discussion that should be promoted within the grievance procedure requires that the privilege extend beyond offers of settlement or statements specifically related to the possible settlement of the issue. Without limiting our view of the full scope of the privilege, we conclude that ordinarily, it should extend at least, to any statements that generally relate to the subject-matter of the grievance. For this reason the board upheld the objection of Mr. Brady to the admissibility of the evidence of the grievance meetings sought to be introduced by the union through Mr. Kirkby at the hearing. [242] In Ontario (Ministry of Finance) and OPSEU (Eagles), 2015 CarswellOnt 11375, Vice Chair Petryshen struck out a paragraph of the union’s particulars because it related to a statement made during a grievance meeting. He noted that the statement was protected by the grievance procedure privilege (at para. 20). [243] The jurisprudence regarding the protection of the grievance procedure privilege is long-established, and for good policy reasons. It is not sufficient for the Employer to argue that the Grievor’s comment had nothing to do with discussions about the grievance or settlement thereof, but was a gratuitous comment made towards the end of the meeting. Taken at its highest, the comment (which the Grievor denies having made), would have been made in the context of the Grievor’s belief that she was entitled to have been put on a paid sick leave if the Employer was not going to accommodate her in accordance with her doctor’s medical notes. It is noteworthy that at that juncture, the Grievor had recently returned to work without most of the accommodations that Dr. Catania had been advocating since November 2013. - 49 - [244] Notwithstanding my finding in this regard, and even if I were to accept that the Grievor made the comments attributed to her, I would not find that they were sufficient to override the Employer’s responsibility to objectively assess the Grievor’s medical situation when she sought to access STSP credits. By February 2014 when the Grievor was trying to come back to work, she was clearly extremely frustrated with her employer and its failure to let her return to work and accommodate her restrictions. Her employer knew that she was suffering from mental health disorders by that time, and management should have factored that into its consideration of anything the Grievor said or did. [245] It is clear from the evidence outlined earlier that Superintendent O’Connell, Deputy Superintendent Dunscombe, and Acting Superintendent/Deputy Superintendent Russell all believed that, based on the alleged February 2014 comments, the Grievor was abusing STSP credits, and that was the basis upon which they repeatedly denied her access to those credits in the period of March 28 to early May 2014. Article 44.10 permits the Employer to require an employee to submit a medical certificate for a period of absence of less than five days where abuse of sick leave is suspected. However, in this instance, despite the medical notes that the Grievor provided to the Employer from her doctor’s office, the Employer maintained its’ position that the Grievor was abusing sick leave, and therefore denied her STSP claims. [246] In order to fully appreciate the tenor of the Employer’s discourse with the Grievor during that period it is worth reviewing briefly what occurred after the McDonnell conference call of April 1, 2014: April 3/14 - Superintendent O’Connell advised the Grievor that use of her STSP credits was denied because of the February comments; that the Employer suspected she was abusing STSP credits; and he told her to report for work. - The Grievor told the Superintendent that she had huge sores on her face and that they were a manifestation of the stress she was feeling. - The Grievor filed an HRTO complaint against her Employer, Mr. O’Connell and Ms. Russell. April 4/14 - Deputy Superintendent Dunscombe sent the Grievor a letter advising her that the employer was going to hold an allegations meeting regarding her alleged February comments and her reference to aspects of a WDHP complaint which he said had been closed. - The Grievor was told by Payroll that Superintendent O’Connell had directed that they recover from her all monies owing from previous overpayments, and that as a result, her paycheque for that pay period had been cancelled. - The Grievor was contacted again by Payroll to say that the Superintendent had changed his direction, and that the recovery would - 50 - be done as already planned and as was being implemented, but that as a result of the earlier order, the Grievor would not get a paycheque as expected, but rather her pay would be delayed by 3 to 5 business days. - The Grievor attended at Dr. Catania’s office, but since the doctor was away on vacation, she had to see the Nurse Practitioner, who issued her a medical note indicating that the Grievor needed to be off work for medical reasons and would be reassessed on April 9, 2014. - Superintendent O’Connell, having received the medical note, advised the Grievor that he was not accepting it, and that she was expected to be back at work on April 7th. April 8/14 - The Grievor was advised by the WDHP investigator that he wanted to set up a meeting with her, which she did not understand since Mr. Dunscombe had just called her to an allegations meeting saying she had discussed matters from her WDHP complaint when it was already closed. April 9/14 - The Grievor saw Dr. Catania. She was noted as suffering from considerable stress, the irritation of her eyebrows had returned, and she was having gastrointestinal upsets. Dr. Catania provided a medical note to say that the Grievor should be off work from March 28th, that she would be reassessed on April 28th, and made reference to her previous medical notes that had already been provided to the Employer regarding the Grievor’s ongoing medical issues. April 14/14 - Acting Superintendent Russell denied the Grievor access to her STSP credits on the bases of the Grievor’s alleged February comments, the Employer view that the Grievor was suspected of abusing STSP credits, and that Ms. Russell was not accepting the medical notes of April 4 and 9, 2014 as they were insufficient to establish entitlement to STSP. She told the Grievor to return to work on April 15, 2014. April 15/14 - Ms. Russell sent the Grievor a letter indicating that she was now absent without approved leave, and that she must return to work by April 29th, or she would be deemed to have abandoned her position. April 16/14 - The Grievor wrote her doctor a letter saying her “nerves were shaking”, her eyes were really bad, that she could not drive as it was an extremely stressful time, that she was frightened, that she felt bullied, and she was fearful of being fired. - Dr. Catania provided the Employer with another medical note, this time indicating that she had given numerous letters regarding the Grievor’s - 51 - condition, that they seemed to be disregarded by the Employer, and that she was advising the Grievor to contact her union representative. - The Grievor advised Ms. Russell that she would be following her doctor’s advice and staying off work. April 17/14 - Ms. Russell reiterated to the Grievor that the Employer stood by its decision of April 3, 2014, that it suspected her of abusing STSP, and that the Grievor would be considered to have abandoned her job if she did not return to work. April 22/14 - Dr. Catania saw the Grievor again, noted she was suffering from anxiety, that her skin lesions were worse, and that her condition was related to the work issues. Dr. Catania sent in another note to the Employer saying that the Grievor was under her care for her health issues, that the Grievor had a diagnosed condition, and that she, Dr. Catania, would no longer provide any more notes regarding this issue. April 24/14 - The Grievor sent Ms. Semple-Patille an email saying she was sick, that she wanted to heed her doctor’s advice, that she did not know what to do as she was not getting paid, and she had provided doctor’s notes. The Grievor copied Mr. McDonnell, who was in senior management, on this email so he would have been aware of the situation. - Ms. Russell sent the Grievor a letter saying that Dr. Catania’s letters continued to be insufficient, that the Employer continued to suspect that the Grievor was abusing STSP credits, and that as a result she would not be paid. April 26/14 - The Grievor sent Ms. Semple-Patille and others in management an email saying she was feeling threatened, that no matter what she did or how many notes she provided, they ignored them, and that in effect, the Employer was saying that her doctor was lying. She advised that she was having severe anxiety attacks as a result of being threatened with abandonment of her post. She stated that she was not abandoning her post, but wanted to get better. April 28/14 - The Grievor advised Dr. Catania that her leave request had been denied, that she was vomiting foam, and that her eyelids and eyebrow were bleeding. April 29/14 - The Grievor sent Ms. Russell an email saying she was too ill to report to work. She described her health issues including that her health was - 52 - deteriorating, that she was having anxiety and panic attacks, that she had gastrointestinal problems such that she could not be far from a toilet for any length of time, and that because of her anxiety and panic attacks she was afraid of being in a car accident. She advised the Employer that her doctor was not lying. May 1/14 - Superintendent O’Connell advised that Grievor that since her doctor would not provide any more notes, they were at an impasse, and that he wanted the Grievor to submit to an independent psychiatric evaluation. Pending that IPE, she would be put on a leave of absence without pay. May 9/14 - The Grievor agreed to participate in an IPE due to the threat of termination. (She was subsequently granted access to her STSP credits pending the outcome of the IPE.) [247] I note again that Ms. Russell and Ms. Semple-Patille did not testify in this proceeding. Neither did Mr. O’Connell or Mr. Dunscombe. Hence, I have no evidence whatsoever as to why the Employer, no matter what they thought about what the Grievor was alleged to have said in February 2014, in the face of the medical notes provided to them, continued to deny the Grievor access to STSP credits. I rely again on the decision in Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Hernden), cited above, for the proposition that where those making the decisions to require more medical information, and to deny access to STSP credits, do not testify, the Board may conclude that the employer has not presented sufficient evidence that it exercised its discretion under Article 44.10 reasonably (at para 45). [248] The Employer relied upon the GSB’s decision in Ontario Public Service Employees Union (Pilger et al) and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2008-2793 et al (Abramsky) (September 2, 2011), for the proposition that the employer can request medical certificates from an employee who appears to have a pattern of absences. In that instance, the employer had a policy that outlined the steps to be taken where there were reasonable grounds to suspect abuse. In Pilger Vice Chair Abramsky noted that the case law had established that an employer has a legitimate interest in employee attendance, and has the right to develop a policy for dealing with high levels of absenteeism (at para. 35). She further noted that employer discretion regarding whether to request a medical certificate for every absence must be exercised on a case by case basis, where there are reasonable grounds to doubt the truth of the employee’s claim that they were away due to illness (at paras. 58, 59 and 60). However, the employer must still consider the merits of each individual matter before them for a decision, and must be prepared to allow for exceptions to the general policy in appropriate cases (at para. 60). While I agree with the principles outlined in Pilger, it has been of little assistance to me in deciding this case as there is no evidence before me that the Grievor’s managers utilized a similar policy, nor how they exercised their discretion. - 53 - [249] To the dispassionate observer, it appears that in March and April 2014 the Employer’s representatives engaged in behaviour that was similar to that engaged in during the period between November 2013 and February 2014: No matter what Dr. Catania said, management just did not accept the medical evidence. It was therefore completely disingenuous for Superintendent O’Connell to tell the Grievor on May 1, 2014 that they were at an impasse because Dr. Catania was not going to provide any further medical notes. By that juncture, the Employer had shown a blatant disregard for anything Dr. Catania had said, and despite her best efforts to advise the Employer of what the Grievor’s ailments were, the Employer would not accept her medical opinions. [250] The Grievance Settlement Board has held that the right to STSP is a substantial employee right. (See Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Hernden), cited above, at para. 47). [251] As outlined in C.U.P.E. Local 966 v. Caledon (Town), 2008 CarswellOnt 5574 (MacDowell), the standard of review in cases involving approval for short term disability payments is not whether the Employer made a reasonable decision, but whether on an objective basis, the grievor was in fact, and in light of all available medical evidence, unable to attend to his or her duties due to sickness or injury (at paras. 140 and 141). [252] Based on the evidence before me, I am satisfied that the Grievor had established that she was ill in late March and early April 2014, that she should have been granted access to her STSP credits at the time, and that the Employer exercised its management discretion regarding the Grievor’s entitlement to STSP credits in an arbitrary and unreasonable manner. While it may have seemed suspicious to management that the Grievor was going off sick again after having worked 20 consecutive days, had the decision-makers turned their minds to the fact that they had not taken Dr. Catania’s advice regarding the accommodations that the Grievor needed, they may have realized that was why the Grievor’s symptoms of anxiety and depression had been exacerbated to a debilitating extent. [253] Instead of considering the particular medical situation of this Grievor, it appears that the Employer’s representatives continued to act on their own suspicions. I have found that the Employer cannot rely on the comments that the Grievor is alleged to have made in February 2014, and it is not enough to have a suspicion that an employee is abusing sick leave because she has taken a lot of sick leave in the past. In the exercise of its discretion to grant access to STSP credits, the Employer must consider the medical information before it. Had the representatives of the Employer maintained an open mind about what was going on with the Grievor, they could equally have considered that she was a very sick worker, who may need more accommodation in order to be able to remain at work consistently. [254] As such, Grievance Nos. 2014-0517-0020 and 2014-0517-0021 are upheld and I direct that the Grievor should be permitted to access the STSP credits to which she - 54 - was entitled in 2014. Those credits are to be paid at the 75% of wages rate, subject also to the finding above regarding Grievance No. 2014-0517-0038. [255] Grievance No. 2014-0517-0022, filed on August 18, 2014, claims that the Employer had violated various articles of the collective agreement by unjustly subjecting the Grievor to hardship in the form of absence, reductions in payments in the amount of $4,995.23, and two IME requests. At the hearing the Union did not object to the Employer’s right to seek an IPE in this case, and as is clear from the evidence, there was only one such request. While true that the first IPE at which the Grievor attended did not go ahead, it is simply that the Grievor had to go to another doctor later on. Throughout that period of absence from work, she was paid through her STSP credits. [256] To the extent that there were reductions in payments to the Grievor as a result of previous overpayments, that issue is addressed in other grievances. The Grievor did not specify in her evidence what the $4,995.23 referred to, and as such there is no evidence to support a finding that there were improper reductions in payments in that amount. As well, to the extent that this grievance is about the November 2013 to February 2014 “absence” which the Grievor is claiming that the Employer subjected her to, I have already addressed those matters through her earlier grievances. As such, it appears that this grievance is a composite of a number of the Grievor’s complaints which have other iterations, and which are addressed in this decision. For all of these reasons, Grievance No. 2014-0517-0022 is hereby dismissed. [257] The Union made submissions regarding the Employer’s failure to pay the Grievor STSP credits when she did not return to work between October 6 and 9, 2014. The evidence regarding that period is as follows: September 16/14 - The Grievor attended for an IPE by Dr. Rubenstein. September 22/14 - Dr. Rubenstein provided the Employer with his IPE report. October 1/14 - Dr. Catania received an abbreviated version of Dr. Rubenstein’s IPE report, in which he indicated that there was no diagnosis of a psychiatric disorder as per the DSM IV in regards to the Grievor; that there were no psychiatric limitations on her returning to work as a CO, and that there were no restrictions to her working with inmates. Dr. Catania did not agree with his findings, but not being a psychologist herself, and not having seen the full report, she did not feel in a position to argue about the report at that time. Based on her experience up to that point, she did not agree that the Grievor could work with inmates. - Deputy Superintendent Dunscombe, on the basis of the IPE report, directed the Grievor to return to work on October 6, 2014, advised that her STSP use would stop at that point, and indicated that failure to return may result in a declaration that she had abandoned her position. - 55 - October 3/14 - The Grievor received the Employer’s October 1st letter, but it being a Friday, she was unable to reach the Union to discuss it. October 5/14 - The Grievor sent a long email to Superintendent O’Connell and others discussing Mr. Dunscombe’s relationship to Ms. Core; indicating that she felt threatened by the October 1st letter; that she had not seen the IPE report, and had not had an opportunity to see her doctor; and she wanted a return to work plan to be put in place. October 6/14 - The Grievor called in sick on what was to be her first day back at work. She visited Dr. Catania and they discussed the length of the shifts the Grievor should go back to. Dr. Catania provided a medical note saying that the Grievor should be returned to work on an 8 hour per day shift, five days per week, to allow a proper transition back to work. - Superintendent O’Connell advised the Grievor that she was on an unauthorized leave of absence without pay effective that day, and that she had to return to work by October 21, 2014 or provide sufficient information to explain her absence. Failure to do so would be deemed to be abandonment of her position. October 7/14 - The Grievor sent the Employer her doctor’s note, applied for STSP credits, and asked for a return to work meeting. October 8/14 - The Grievor asked the Employer for a return to work meeting on October 14th. She was advised by a Union representative who had spoken to the Employer that they wanted her back to work as a result of the IPE report, or the Employer would consider her to have abandoned her position. The Union encouraged her to return to work. October 9/14 - The Grievor wrote to a number of Union officials to indicate that she was fearful about returning to work. - Superintendent O’Connell emailed the Grievor to tell her that since the IPE report had indicated that no restrictions were necessary, there would be no need for a return to work meeting. The Grievor was told to return to work on a rotating schedule of 12 hour shifts on October 10th. She responded asking about her doctor’s note that had said she should return to 8 hour shifts, five days per week. - 56 - October 10/14 - The Grievor returned to work, because she feared that her employment would be terminated. Thereafter, she apparently struggled with the 12 hour shifts; was unwell; took days off sick; and left shifts early. In her view, since the Metro West DC was in the process of closing, there was no reason why the Employer could not have accommodated her doctor’s restrictions. January 10/15 - The Grievor went off work again, and has not returned since. As noted earlier, she was approved for LTIP benefits as of February 17, 2015. [258] The Union argued that the Grievor should have been allowed access to STSP credits for the period of October 6 to 9, 2014 because the Employer refused to accept Dr. Catania’s note regarding the accommodation the Grievor needed in order to return to work. The problem I have with this assertion is that Dr. Catania indicated that the Grievor could return to work, she did not say the Grievor was ill during this period. As such, it is not clear what the basis would be for granting the Grievor access to STSP credits, assuming that she had any left to draw upon by that juncture. The issue with respect to this period is one of the Employer’s duty to accommodate rather than one of access to STSP credits. [259] One of the Grievor’s grievances seeks compensation for the many doctor’s notes and reports she had to pay for as a result of the Employer’s repeated requests for more medical notes or information. The Employer conceded that if it was found that those acting for the employer had kept asking for medical notes when they should not have been necessary, then it should have to pay for them. As I have found that the Employer’s repeated demands for medical notes, which in fact were largely ignored or not accepted, were excessive, and amounted to harassing behaviour in the circumstances of this case, Grievance No. 2014-0517-0040 is upheld and I order that the Employer compensate the Grievor for payments she made for doctor’s notes and reports obtained between December 2013 and February 2014, and, after the first note from Dr. Catania in early April 2014, for the remainder of the medical notes required between April and May 2014. [260] The Grievor filed four grievances claiming that the Employer had not paid her or had improperly made deductions from her pay cheques at various points. The Employer claims that it had properly made the deductions in order to recoup overpayments that the Grievor had received, or because in its view the Grievor was not entitled to STSP credits for a particular period of time. [261] Grievance No. 2014-5112-0273 claimed that Pay Advice No. 5925422, paid on December 19, 2013 was not deposited. Based on Mr. McKinnon’s evidence regarding the search the Employer had conducted, that paycheque that the Grievor claimed had not been paid was, according to the Employer’s records, confirmed as having been deposited to her bank account. On the basis of the Employer’s evidence, I am - 57 - satisfied that the December 19, 2013 pay was deposited, and as such, Grievance No. 2014-5112-0273 is hereby dismissed. [262] Grievance No. 2014-5112-0274 claimed that Pay Advice No. 6524928, paid on April 24, 2014, had been incorrectly calculated such that the Grievor was only paid $28.17 on that paycheque. Mr. McKinnon confirmed that on the April 24, 2014 pay cheque, the Grievor received $28.17 because the Employer had made deductions for March 31 to April 13, 2014. I have already addressed this period in my findings for one of the other grievances. As such, to the extent that this grievance relates to that period, it is upheld as I have already found that the Grievor should have been allowed to access her STSP credits for that period, and, to the extent that the first six days of her sick leave fell within that pay period, if she did not receive full payment for six days at some point in her use of STSP credits in 2014, she should receive the difference between what she was paid and 100% payment. For the remainder of the time in that pay period, she would have been entitled to STSP credits at the rate of 75% of her regular wages. As I have already addressed this period, a finding in favour of the Grievor for the March 31 to April 13, 2014 period cannot amount to a double payment. Rather, I have found that the Grievor should have been permitted to utilize the 21 remaining STSP credits she had for 2014, no matter what days are covered by those credits. It is likely that those credits should have been applied to the period up to early May 2014 when she was granted STSP credit access, but I leave that to the parties to determine. Grievance No. 2014-5112-0274 is therefore upheld. [263] Grievance No. 2014-5112-0275 claimed that Pay Advice No. 7644855, paid on December 4, 2014, had been incorrectly calculated such that the Grievor was only paid $215.44 on that paycheque. This paycheque covered the period of November 10 to 23, 2014. According to Mr. McKinnon’s reporting, the Grievor was off sick during that period on unpaid sick leave, and that was why her paycheque reflected the limited number of hours for which she was paid, less the required statutory and pension deductions. In the absence of any evidence to the contrary from the Union, I accept the Employer’s explanation for the size of the Grievor’s paycheque. It is to be remembered that even if the Grievor had good reason to be sick, she would apparently not have had any STSP credits left in 2014 by that juncture. She was only entitled to 130 STSP credits after working till late March 2014. By November 10, 2014, she had only been back to work for about one month, so she had not yet worked the requisite qualifying period in order to re-qualify for any more STSP credits, but in any case, she would not have been eligible for more than 130 STSP credits in 2014. As such, she simply had no STSP bank to draw on, and if she took time off work sick, she was not going to be paid. For the foregoing reasons, Grievance No. 2014-5112-0275 is dismissed. [264] Grievance No. 2014-0517-0039 alleges that Mr. Dunscombe bullied and harassed the Grievor, contrary to Article 3.3 of the collective agreement, when he had advised the Grievor on April 4, 2014 that the Grievor’s WDHP complaint had been closed, when it apparently had not yet been closed. Even taking the Grievor’s allegation at its highest, on its own, this does not amount to bullying and harassment. - 58 - [265] The Union bears the onus where an allegation of harassment is made. The extent of its evidence was reliance on the letter Mr. Dunscombe sent to the Grievor, and an April 8, 2014 email from the WDHP investigator to the Grievor with a draft summary of allegations, and offering her dates to meet with her, which suggests that the WDHP complaint was not in fact closed. While I understand that the Grievor was generally frustrated with members of management, and that by October 15, 2014, when she filed this grievance six months after the fact, it was likely because Mr. Dunscombe had been instrumental in getting her to return to work after the IPE report, I find that she had no basis for this claim of bullying and harassment. Grievance No. 2014-0517-0039 is hereby dismissed. [266] The Union argued that the Employer’s treatment of the Grievor constituted retaliation against the Grievor for her workplace advocacy and representation of other employees, and because she raised health and safety issues. The Grievor may have a subjective belief that was the case, but there is absolutely no objective evidence to support her view. In the absence of any evidence to support such a finding, I decline to do so. [267] Notwithstanding the two findings above, on the basis of the evidence before me regarding the grievances in respect of the Employer’s failure to accommodate the Grievor’s disability between November 2013 and February 2014, in accordance with Dr. Catania’s recommended restrictions, and the Employer’s refusal to grant the Grievor access to her STSP credits in 2014, by which time it should have been well aware of the Grievor’s mental health issues, I have found the Employer’s representatives’ behaviour in this case to be egregious, arbitrary, and closed-minded. In the circumstances, as outlined above, it is not surprising that the Grievor was very upset, anxious, and frustrated by how she was being treated. It is also not surprising that Dr. Catania, a medical professional, was frustrated with how the Employer was dealing with her medical opinions, and by extension, with her patient. She could see the effect that it was having on the Grievor’s physical and mental health. Dr. Catania repeatedly did her best to try to inform the Employer of the Grievor’s health situation and what, in her professional opinion, was required to assist the Grievor in getting better. [268] In Prothero v. Ontario (Community Safety and Correctional Services), 2016 HRTO 1481, the Human Rights Tribunal addressed an application alleging discrimination and harassment in respect of employment because of a disability. Mr. Prothero had been ill and his doctor provided six medical notes over a three month period indicating that he should be off work for various periods of time. Management asked for additional information or for forms to be completed to manage the applicant’s STSP claim, and the doctor provided 3 such responses over a six month period. Management told the applicant at one point that if he did not return to work by a certain date, his pay would be cut off. [269] In that case the Tribunal addressed the harassment allegation, and found that Mr. Prothero’s manager’s conduct had amounted to harassment, as it was a course of vexatious comment or conduct that was known or ought reasonably to have been - 59 - known to be unwelcome. In the Tribunal’s view, an unnecessary number of letters had been sent immediately upon the commencement of the applicant’s leave, with unreasonable deadlines set for compliance, and there had been a threat to interrupt the applicant’s income source, despite clear documentation that showed he was off work for medical reasons and under a doctor’s care (at para. 63). [270] In the review of the evidence in this case, I have outlined the discourse between representatives of the Employer, the Grievor and Dr. Catania, and I have found that management sent an unnecessary number of letters and requests for more information in both the November 2013 to February 2014, and April to May 2014 periods. In October 2014, the Employer simply ignored Dr. Catania’s recommendation that the Grievor have a graduated return to work starting with an 8 hour a day, five day a week schedule. Unlike in the Prothero case where there was one threat to that employee’s continued employment, in this case Employer representatives repeatedly threatened to deem the Grievor to have abandoned her position, which would have amounted to dismissal, if she did not provide information sought, or return to work, by various dates. At that juncture, the Grievor was a long service public employee, with around 20 years of service, so the prospect of losing her job would understandably have been, and was in fact, frightening. On the basis of the evidence before me, I have no trouble finding that representatives of management acted in a manner that amounted to harassment, when they knew or ought reasonably to have known that the Grievor suffered from a mental disorder, which is a “disability” within the meaning of the Human Rights Code. [271] For reasons outlined earlier, I have also found that the Employer failed in its Code duty to accommodate the Grievor’s disability when she tried to return to work in late November 2013. In the Prothero case, cited above, the Tribunal stated as follows in respect of remedy for a breach of an applicant’s Code rights: [110] An award of compensation for injury to dignity, feelings and self-respect recognizes the inherent value of the right to be free from discrimination and the experience of victimization. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 OR (3d) 649, (ON S.C.D.C.), the Divisional Court confirmed that the factors to be considered in setting the amount of compensation include humiliation, hurt feelings, the loss of self-respect, dignity and confidence by the applicant, the experience of victimization, the vulnerability of the applicant, and the seriousness of the offensive treatment. [111] In Arunachalam v. Best Buy Canada, 2010 HRTO 1880 (CanLII), the Tribunal stated as follows regarding the jurisprudence dealing with awards for injury to dignity, feelings and self-respect, at paragraphs 52-54: - 60 - (…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 (CanLII) at para. 16. The first criterion recognizes that injury to dignity, feelings, and self- respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect. The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 (CanLII), at paras. 34-38. [272] Dr. Catania’s medical evidence, along with the Grievor’s evidence, establish that the Employer’s refusal to accept the Grievor’s doctor’s medical notes and reports, to return her to work when she had been cleared to do so, its repeated requests for the Grievor to return to work or face a finding of abandonment of her job, and it refusal to let her access her STSP credits when she needed them, had a severe impact on the Grievor. The Grievor was already in an emotionally fragile state as a result of her medical and mental health issues, and additionally, by November 2013, had been dealing with both her parents’ failing health, the death of her father, and then in December 2013, the death of her mother. [273] I accept that the Employer’s actions caused the Grievor to be much more anxious, upset, and fearful about her employment situation than she appears to have been in the years previous. I find that the Grievor returned to work in February 2014 without all of the accommodations she needed because of her need for an income, and due to her belief that no matter what her doctor provided, the Employer was not going to accommodate her with her doctor’s restrictions. I further find that there is ample evidence of the physical and - 61 - mental health impact that the Employer’s actions had on the Grievor including in the acute state of her trichotillomania, vomiting, bowel upsets, extreme anxiety about driving, as well as the manifestations of her poor mental health in the actions she was taking such as writing to high levels of management, the Minister, a Member of the Legislature, and Sheridan College officials. [274] Dr. Catania’s medical opinions about the Grievor’s mental illness were ultimately confirmed by the psychiatrist, Dr. Dhaliwal, and the two psychologists, Drs. Simrat Verraich and Sonia Singh, who assessed and treated the Grievor in 2015, and whose respective reports the Employer accepted at the hearing. Dr. Rubenstein was not called to testify and defend his 2014 report. I have accepted and preferred the medical evidence proffered by the Union in this case. [275] As did the Tribunal in Prothero, and for the reasons outlined above, I find that the type of discrimination that the Grievor experienced falls closer to the high end of the spectrum with respect to seriousness, and find that the facts of this case support an award of monetary compensation for injury to dignity, feelings and self-respect. [276] Since the parties have requested that no specific damages award be made at this time, and that they be given the opportunity to work on remedial issues between themselves, I will reserve on the quantum of such an award. Should the parties be unable to work out any of the remedial issues within 60 days of the date of this decision, or such date as is mutually agreeable, I will remain seized to address such matters. SUMMARY [277] I note that counsel for the Employer made very able submissions in this case about why the Grievor’s managers would have had a number of good reasons to have suspected that she was abusing sick leave, including that in 2012 and 2013 the Grievor had used her full complement of STSP credits; that only when her STSP credits ran out, or when WSIB denied her claims, the Grievor would be cleared by her doctor to return to work; that Dr. Catania indicated the Grievor should return to work on 8 hour shifts, Monday to Friday, but that there was insufficient reason for the weekday shift schedule; and that again in April 2014, when the Grievor had worked for 20 consecutive days, she went off work again and claimed STSP credits. [278] The problem ultimately was that no one from management who had been involved in exercising their discretion to deny the STSP credit use, or the accommodations sought, testified, so I did not have the benefit of hearing what - 62 - they in fact considered. In any event, in this case, what was clear from the evidence was that the Grievor had been suffering from health, and in particular mental health, problems for years. So the fact that she had taken so much sick leave over the past number of years, while perhaps appearing suspicious to management, was based on her deteriorating health. The following are my findings in respect of the eleven grievances before me: a) I find that Grievance No. 2014-0517-0004, claiming that the Employer had the Grievor off work on sick time without pay when she should have been accommodated in accordance with her doctor’s note, has been made out, and that the Grievor should be paid her full salary from November 27, 2013 until her return to work on February 17, 2014, less any period for which she may have received payment from the Employer in any other form (e.g. bereavement leave, vacation pay, etc.). b) I find that Grievance No. 2014-0517-0005, claiming, among other things, that the Employer’s refusal to accommodate the Grievor in accordance with her doctor’s note of November 27, 2013 was discriminatory and a breach of the Employer’s duty to accommodate the Grievor’s disability under section 17 of the Human Rights Code, has been made out. c) In respect of Grievance No. 2014-0517-0038, the Grievance is upheld in part, to the extent that the Grievor may not have been paid for the first six days of her STSP use in 2014, when she should have been paid at 100% of her wages, and thereafter, at the 75% rate for October 1, 2, and 3, 2014, or for any other period that the parties may find in 2014, I direct that she be paid any monies owing. d) Grievance Nos. 2014-0517-0020 and 2014-0517-0021 are upheld and I direct that the Grievor should be permitted to access the STSP credits to which she was entitled in 2014. Those credits are to be paid at the 75% of wages rate, subject also to the finding above regarding Grievance No. 2014-0517-0038. e) Grievance No. 2014-0517-0022 is dismissed. f) Grievance No. 2014-0517-0039 is dismissed. g) Grievance No. 2014-0517-0040 is upheld and I order that the Employer compensate the Grievor for payments she made for doctor’s notes and reports obtained between December 2013 and February 2014, and, after - 63 - the first note from Dr. Catania in early April 2014, for the remainder of the medical notes required between April and May 2014. h) Grievance No. 2014-5112-0273 is dismissed. i) Grievance No. 2014-5112-0274 is upheld. I have found that the Grievor should have been permitted to utilize the 21 remaining STSP credits she had for 2014, no matter what days are covered by those credits. It is likely that those credits should have been applied to the period up to early May 2014 when she was granted STSP credit access, but I leave that to the parties to determine. j) Grievance No. 2014-5112-0275 is dismissed. k) As did the Tribunal in Prothero, cited above, and for the reasons outlined above, I find that the type of discrimination that the Grievor experienced falls closer to the high end of the spectrum with respect to seriousness, and find that the facts of this case support an award of monetary compensation for injury to dignity, feelings and self-respect. [279] I will remain seized to address any issues that may arise out of this decision. Dated at Toronto, Ontario this 5th day of July 2017. Gail Misra, Arbitrator