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HomeMy WebLinkAbout1992-0524.Watts.97-11-06 'i - i. OM'ARIO EMPLOy/tS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE BOO, TORONTO ON M6G 1Z8 TELEPHONErrELEPHONE (416) 326-1388 1SO,RUE DUNDAS OUEST, BUREAU 800, TORONTO (ON) M6G 1Z8 FACSIMILEtrELECOPIE (416) 326-1396 GSB # 524/94 OPSEU # 940656 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Watts) Grievor - and - the Crown in Right of ontario (Ministry of Community & social Services) Employer BEFORE L. Mikus Vice-Chair FOR THE N. Roland UNION Counsel Roland, Jacobs Barristers & Solicitors FOR THE S Mason EMPLOYER Counsel Legal Services Branch Ministry of Community ~ social services HEARING November 9, 1995 January 15, 16, 17, 1996 February 9, 1996 June 26, 1996 September 5, 6, 9, 10, 18, 19, 1996 October 21, 1996 November 4, 21, 1996 t :i The grievor, Kathl Watts, began working for the Ministry of Community and Social Services, Correctional Services, in 1981 as a summer student. She was initially hired as a Parole Clerk in a contract position, which lasted for almost six years. Her duties were mainly clerical at the time, although she did attend Parole Board hearings. She was interested in obtaining a position as a Probation and Parole Officer and took a two-year Probation Officer Training Course at York University During that tIme she worked for three years as a volunteer Probation Officer in Etobicoke and received an award from the Etobicoke Family Court for work she had done with young offenders. In June of 1987 she was offered an unclassified position replacing a Parole Officer on sick leave and was subsequently asked to work in another contract position by Mr Rick Partridge, who was the superintendent of the Etobicoke Probation Office. She was approached by the supervisor of Probationary Services in North York who had received good comments about her from her two previous supervisors and was offered an unclassified position at that office. She worked there in that capacity until June of 1990 when she was the successful applicant for a full time classified position as a Parole Officer 2 (P02). Throughout most of her hfetime, more than twenty-three years, the grievor has been plagued by numerous medical problems resultmg from her diabetic condition. She is what IS referred to as a "brittle" diabetic, whIch means that she has had difficulty maintaining appropriate blood sugar levels. At one point she used ~~ msulm pump to ensure a continuous stream of insulin which should have resulted in more stable blood sugar levels. Unfortunately, she suffered from insulin shock several times and the pump was finally discontinued when it was discovered that she had developed a , senSItiVIty to one of the fast actmg insulin. 1 { .. 2 In 1986 she began displaying symptoms of kidney damage and by November of 1989 had lost her sight completely as a result of complications of kidney failure, a common complication of diabetes. She was advised by her physicians that she should consider a kidney transplant. It was their opinion that, if she declined the transplant, she would be permanently blind within a short period of time. Although they could offer her no assurances, they suggested that if she received a kidney transplant, her eyesight might improve. At the time she was retaining about 60 pounds of excess water as a result of her kidney failure and required extensive preparation for her transplant. The grievor, even though she was an unclassified worker at the time, was told that the Ministry would give her an unpaid leave of absence to deal with her medical problems and that, when her transplant was completed, she could return to work in her former position. This unusual offer was based primarily on the recommendation of her supervisor, Mr Marc Levine. By January or February of 1990 it was clear that she was desperately in need of a transplant. She had virtually lost her sight and was able to discern only shadows. She was required to use a white cane. Her water retentIon had Increased to about 80 pounds and she was unable to walk to the end of the drIveway During that time she continued to take courses towards completing her parole officer training course at York University, successfully passed all of her exams, applied for and was granted a classified full-time position. On April 9, 1990, she had her kidney transplant. Her eyesight improved immediately Things were , still blurred but she could read print with good lighting and high powered magmficatIon. On June 11, 1990, she returned to work as a Parole Officer 2. Mr Marc Levine was her supervisor Even i .. 3 though she was able to return to work very shortly after her transplant~ she was still required to take a significant number ofleaves from work to attend for blood tests. Initially she was required to have daily tests. That decreased to twIce a week and then weekly and finally montWy She continued her contacts with the CNIB and continued to use a white cane. As well~ because she was retaining water due to her kidney failure~ she developed macular edema, which is essentially an excess of water in the eye. She then developed cataracts. In February of 1992 she had cataract surgery on both eyes. Within a couple of weeks both eyes had clouded over again and her physician did a vitrectomy~ which is an extraction of the cloudy fluid in the vitreous fluid of the eye. During the procedure he discovered a film over her retina, which he tried to remove. The membrane~ however~ was firmly attached to the eye and his efforts resulted in profuse bleeding. As a result of that surgery, she lost all sight in both eyes. The doctors advised her that it was traumatic and that the vision would return, which it ultimately did, although only in her left eye. Her right eye remains cloudy and apparently will not improve. Even at the hearing letters or pictures continue to appear broken up and she must close her right eye to read. Because of her problems WIth her left eye~ her depth perceptIon IS poor~ which affects her mobihty She was afraid to undergo further surgery but~ in February of 1994, consented to another surgical procedure for her cataracts. This surgery was successful and her vision improved quite a bit. For a while she could see more clearly However at the time of the hearing her eyes had began to cloud over again. As a result of her SIght ImpaIrment she was having great difficulty in her mobility She had contracted the Canadian Institute for the BlInd (CNIB) for Instructions a nd advice on managing with i .. 4 limited sight m an effort to maintam her independence. In the fall of 1994 it was suggested that she consider using a guide dog. Her Job required that she meet with young offenders and their families, attend at custody hearings, group and foster homes, meetings with other agencies, parents and court attendances. She was not able to read street signs and had difficulty manoeuvring stairs and escalators. It was suggested a guide dog would give her more mobility As well it would be more safe. She investigated a Canadian guide dog school and was told that there was approximately a two-year wait, unless she could enter the summer course immediately She was unable to do so and investigated some American schools. She spoke to a school in Rochester, Minnesota and was told that she would be required to attend for a month at training school to make sure that she could handle the guide dog before it would be released to her She sent in her application with the necessary medical reports, attended school and was given a German Shepherd. Ultimately he turned out to be a poor choice. She was a very strong dog who chased other dogs and squirrels and pulled the grievor off of her feet in doing so. She called the training school in Rochester and was advised to try a choke collar, which she did without success. Finally the dog dragged her across the lawn and dislocated her shoulder At that point she requested the training school take the dog back, which they dId in early April. Because of the dislocated shoulder, the grievor developed an infectIon whtch took some time for the doctors to identify Ultimately they did exploratory surgery and found a large pocket of mfection In her shoulder That necessitated an extended period of absence from work. She made two more attempts to obtain a guide dog and ultimately, in July of 1994, did receive one that worked well with her That necessitated another extended absence from work. , As well, because she was on routine immunosuppressant drugs to prevent rejection of her t :i 5 transplanted kidney, her body's defence mechanisms were suppressed and she was vulnerable to any flu or cold virus that was circulatmg. She took large doses of antibiotics to combat these minor illnesses, some of which were successful, some of which were not. These constant problems with various illnesses created havoc with her diabetes. It was very difficult for her to control her blood sugars and she suffered from hypo glycaemia, high blood sugars and acidoses. Because her diabetes was out of control, her kidney function, her eye sight and her circulation in the small blood vessels in particular were affected. Her moods fluctuated considerably Sometimes her thinking was confused and at one pomt she passed out in the office as a result of hypoglycaemia. In short, all of her medical problems impacted on each other to the point that her medical condition was unstable on all fronts. It was her evidence that throughout this time she was expected to fulfil her duties as a P02. She was able to do so using a computer and a magnifying glass. In January of 1995 the grievor decided to make a concentrated effort to control her life and began taking Tai Chi classes. She became involved in an exercise program which resulted in a blister on the ball of her foot. Her physician prescribed antibiotics, without success. By the end of May she had seen a plastic surgeon who put her foot in a cast and again prescribed massive doses of antibiotics. Ten days later the cast was removed and her foot had Improved. She was put back in a cast for another three weeks, this time without any antibiotics. When that cast was' removed the blister had become larger and deeper Ultimately the grievor developed an infection m her leg that was life threatening and underwent a below-the-knee amputatlon. She was off work from June until mid October as a result. She had her surgery in July and was transferred 'to a rehabIlItation centre m August, at which tIme she was given a temporary prostheSIS. While she was training to become .. 6 proficient WIth her prosthesis she developed bhsters, wInch contraindicated the use of the prosthesis. As a result she was confined to a wheel chair At the time of the hearing she had just received her permanent prosthesIs and was still in the process of adjusting to it. She has been advIsed that the arteries in her legs are 60 to 80% occluded and that the future prognosis with respect to her left leg is unclear As well her eye sight is becoming worse and she is concerned that the average life of a transplanted kidney is between 8 and 11 years and she may be faced with a decision regarding another transplant at some point In the future. While she was waiting for her transplant in 1990, she became aware that the Ministry was considering implementing the use of computers in the department. Since she had every expectation of returning to work she decIded that it would be prudent for her to investigate technical aids to assist her in her duties. At the CNIB she had been looking at computers with large print screens or voice synthesizers. The CNIB did a needs assessment, which they subsequently forwarded to the Employer She was tested on a closed circuit TV (CCTV), which looks like a regular TV monitor but enlarges regular print significantly She subsequently met with the Vocational Rehabilitation counsellors from the Ministry, described her Job dutIes and asked about the aIds available to asSIst her in doing her work. They tested her on CCTV and told her that they would prepare a report. She understood that they were to supply the equipment that she would neece The CNIB assessment had been sent to the Vocational RehabilitatIon counsellor, Raj Jayarajan, outlining what they believed she would need, WhICh included the CCTV and a voice synthesizer (IBM ScreenReader) whIch would dIrect the computer, by keystrokes, to read various lines on the -------- l . 7 screen to the gnevor Ultimately an Application to Employment Accommodation Fund for Persons With Disabilities was completed for the grievor Mr John Stuart-Vanderburg, project officer with the Ministry of CommunIty and Social Services, completed the form. In it he noted that the grievor had "a detenorating eye condition brought on by cataracts and diabetic retinopathy It Under the section entitled "Budget", he noted that the total cost of the equipment needed to implement the recommendations was $30,500.00 Attached to that was a lengthy description of what the grievor needed and what would be reqUIred to fulfil those needs. That report stated, in part, as follows: JOB DUTIES REQUIRING ACCOMMODATION The Employee in question has partial sight but is likely to worsen considerably without much warning. The request includes a closed circuit television reading and writing, a micro computer equipped with large print display, and voice synthesis capable of accessing the Ministry's computer network. Although sharing the 20" colour monitor, the CCTV and computer display can be used separately or both at the same time. The voice synthesis can echo what the large print display software is displaying on the computer screen. Therefore, in spite of vision that fluctuates a great deal, the Employee is able to read photocopies of Court Orders, document client files, and complete necessary fonus and thereby document client interviews, telephone conversations, as well as reading and writing her electronic mail messages. HOW MINISTRY HAS PRACTISED RESPONSIBLE FINANCIAL MANAGEMENT By completing a functional assessment where the Employee actively participates, the Ministry verifies that equipment being requested is, in fact, what is known to be essential. There is no vendor attempting to sell equipment that may not be necessary The equipment bemg requested is a proven package that functions without incompatibility problems in the required setting ofthe DEECN Network. The system being requested can function with all the access devices being requested or take away access devices no longer deemed necessary For example, if the large print display -- -- - - -- --------------- , 8 hardware/software and the CCTV is no longer necessary, they can be removed from the system and reassigned to another Employee. DETAILED BUDGET IBM PST ModelS7sx $ 3,800.00 IBM Tape BacklUp System with 2 tapes $ 1,000.00 20" VGA Colour Monitor $ 2,000.00 Vista Large Print System $ 3,36S.00 Lynx Daughter? Card for CCTV $ I,SOO.OO CCTV Camera with auto focus $ 3,380.00 Automated Viewing Table $ 1,3S0.00 IBM Screen Reader $ 800.00 Voice Synthesizer (Portable DEC) $ 2,100.00 HP Laser Printer $ 1,200.00 DEC LK 250 Keyboard $ 300.00 DEC User License $ 2S0.00 DEMCA Card for Network Connection $ 600.00 IBM Dos Version 5 0 $ IS0.00 QEMM Version 6 0 $ 150.00 WordPerfect S 1 $ 300.00 TOTAL TECHNICAL ACCOMMODA nON COST $22,245.00 WORK STA nON B ACCOMMODA nON REQUIREMENTS. RECOMMENDA nONS. To begin with, Kathi will need to increase her work surface to a minimum of eleven linear feet. Five feet for every ET, five feet for equipment, with leg clearance, and three feet of leg clearance in the remaining eleven feet for other work. However, this increase in work surface cannot compromise her client meeting space comprised of two chairs and a small side table. This side table should be equipped with a wann, task of localizing of light source for the purpose ofweJcoming sighted guests. Her work station should include the following: """"". Five linear feet of manual storage Three file drawers One box drawer One articulated or pull out keyboard The lighting grid for the most part should be decamped. The remaining tube should be , replaced with warm fluorescent tubes. 9 In addition the window blinds should be accessible to Kathi so that she can adjust the light source to suit her own level of comfort. Kathi, now that she will be operating an automated work station should be outfitted with an ergonomic chair in a mid toned brightly coloured fabric from the orange to plum range. Finally, the following are some associated costs: Work Station $ 4,500.00 Ergo chair $ 600.00 Computer Tenninal Support Support Ann (Ergo Ann) IV $ 329.00 Total $5,429.00 TOTAL FUND REQUEST Technical Accommodations $22,245 00 Work Station Accommodations $ 5,429.00 Taxes, Delivery and Installation Charges $ 2,800.00 TOTAL FUND REQUEST $30,500.00 That background brings us to the first of the eleven grievances filed by the grievor It states as follows: I grieve that I have been discriminated against by the Ministry of Community and Social Services in the person of Marc Levine, Supervisor, Probation Services, 1000 Finch Avenue West, Ste. 201, Downsview, Ont. M3J 2V5, in violation of the Collective Agreement, including but not limited to Article A.I in violation of the Human Rights Code Sec. 10 (1), part A, Sec. 4 (1) and 4(2). I grieve too that I was denied my right to union representation, in violatIOn of the Collective Agreement. By way of remedy she requested the following: 1 That I be given the position of Manager, Illegal Options Project that I was denied due to my disability, or a comparable posItion, , 2. That I receive proper accommodation for my disability as set out by the needs assessment completed by John Stewart Vanderburg of the Quick Response Team (QR T) and any updated assessments, including by not limited to' computer equipment, VIsual aids, clerical assistance, proper lighting, spacial requirement and --- ---- 10 complete training on all computer plus related equipment. 3 That all harassment of myself by my supervisor, Marc Levine, because of my disability and job accommodation needs cease and desist immediately 4 That my supervisor, Marc Levine, be required to participate in a course/program related to accommodation of/sensitivity towards disabled Employees. 5 That my attendance record be corrected to accurately reflect my sick time off. 6 That my attendance record plus personnel file include recognition of the fact my sick time off is significantly related to my lack of proper job accommodation in the work place. 7 That I receive an apology, in writing, from my supervisor, Marc Levine. The position at issue was a temporary developmental opportunity under the supervision of Mr Rick Partridge and involved investIgating illegal adoptions in Ontario as well as working with international agencies. The position required someone with investigation and communicatIon skills, knowledge of the court system, good report writing skills and the ability to work independently It would have been a promotion for the grievor, even though it was a temporary contract position of only six months duration. According to the grievor, another employee, Mr Peter Hoag, had been expected to take the posItion but told the grievor that he was not interested. She asked him if he was aware of anyone else who had expressed an interest and was told to call Mr Partridge. The grievor did and told him that she was interested in discussing the position. Mr Partridge told her that he would be delighted to have her as part of his team provided that Mr Levine approved her transfer This conversation took place m early February of 1994 The grievor talked to Mr Levme about the transfer and told him that Mr Partridge had said that she could have the job as long as Mr Levine approved. Mr Levine suggested to the gnevor that there might be other employees more interested m the position than her and told her that he would have to make inquiries. Just prior to that conversatiOn Mr Levine had requested the grievor attend a meeting for the purposes of an Attendance ReVIew The meeting was scheduled for February 8, 1994, but, according to the -- ---- ---- -- ------------- j 11 grievor, when she asked that the meeting be tape recorded, Mr Levme refused, at which point it was adjourned. The next day the grievor attended a meeting with Mr Levine, Ms. Lauri McEvoy from the Quick Response Team and Mr Nuzhat Jaffnes from Employment Equity Just prior to that meeting Mr Levine entered the grievor's office and advised her that he had spoken to Mr Partridge and told him that the grievor was unreliable and had an attendance problem. Mr Levine suggested he consider someone besides the grievor At the time he did not mention any other employee by name. When the grievor heard what Mr Levine had told Mr Partridge she was amazed. She had never had any complaints about her work and she had never been disciplined. In fact, Mr Levine had written a letter of recommendation during her custody dispute with her former spouse over their daughter In that letter he described her as an important member of their team. She suggested to Mr Levine that there would be no point in her applying for any other positions given his recommendatIOn. He SImply shrugged his shoulders and left. By then Ms. McEvoy and Mr Jaffries had arrived for their meeting and, for approximately one-half an hour, they discussed the grievor's accommodation concerns. Subsequent to that meeting the grievor and Mr Jaffnes met with Mr Levine and she repeated what he had told her about the developmental opportunity Mr Jaffries reminded Mr Levine that the Issue with respect to a secondment was not Job performance but rather whether the person was available. He reminded Mr Levine that it was not a competition and that Mr Levme's only concern should have beenwhether or not the grievor was able to do the work. He suggested that Mr Levme and the grievor meet agam to discuss future developmental opportunities and the meetmg ended on that note. The gnevor subsequently received a memo from Mr Partndge thankmg her for her mterest m the position and stating as follows: I was made aware of the fact that another individual had expressed an interest in this 12 position, besides yourself. The individual's work is vel)' well known to me and, in fact, she worked for me for four years. In light of her experience, education and clinical capacities, I felt that she was the person most qualified to do the job. In light ofthe sensitivities around this project, it is important for me to have the most qualified person. On February 16, 1994, the grievor received a memo advising her that Ms. Frances Fong would be working on a three-month developmental opportunity with Mr Partridge on a special project. The grievor viewed this memo as a significant turning point in her relationship with Mr Levine. Because their relationship had become more strained, she was even more determined to transfer to another area of work outside ofMr Levine's supervision. Given his comments about her reliability, she became concerned that she would never be successful in her attempts to obtain a transfer She knew that any jobs she applied for in the future would be affected by his views. Her concerns were verified when she applied for the position of Court Duty Officer The Court Duty Officer positIOn required a parole officer to monitor proceedmgs under the Young Offenders Act at the North York courthouse on Sheppard Avenue, which is considered the "home"court for that office. The duties include explaining the proceedings and disposition of cases to the young offender and his/her parents, acting as a liaison between the judge and the young offender, taking notes for the parole officer who would ultimately receive the file, suggesting and/or approvmg alternative measures to aVOId court proceedings and assisting the young offenders in obtaining bail, if necessary ~. The grievor had performed in that pOSItion prior to her transplant and, when she became aware that the PO assIgned to the court was retirIng, approached Mr Levine about takIng over hIS duties. Although she described the job as boring and unappealing to most PO's, she was interested in it , because she believed it could resolve some of the outstandIng problems between her and Mr LeVIne. -- .. 13 Court proceedmgs started at 1000 hours and the grievor believed that the later start would allow her more time to schedule medical appointments with less disruption to her workload. She also explamed to Mr Levme that, because the Court Duty Officer did not have a client workload, any absences due to illness would be less disruptive to any scheduled appointments with clients and other agencies. When the grievor was absent, another PO had to take over her assignments, including attending at scheduled meetings andlor rescheduling meetings for her The Court Duty position, on the other hand, had its own backup system for emergency absences and, if the grievor had to be absent from work, the scheduled backup PO could take over her duties with far less inconvenience to the clients and the PO's. As well, the grievor lived across the street from the courthouse and would not have had to contend with ice, snow or public transportation. Finally, because she had done the job in the past, there would have been no need to train her for the position. Mr Levine told the grievor he would think about her request. She was surprised to be told later that Mr Levine had hired another PO for the position who had been on a contract position in the Halton office and who lived in Burlington. She asked Mr Levine why she was not considered for the positIOn but he never responded. She ultimately gamed access, through a discnmination and harassment complaint she had filed against Mr Levine under the Workplace Discrimination and Harassment Prevention Pohcy (WDHPP), to memos m Mr Levme's personal file that prompted her to file a grIevance regardmg the denial of the posItion. His first memo was to Ms. Renwick, Manager of Probation SerVIces and stated as follows. Subject: I have discussed this with Jean Blackmore... , .and it looks like the next step is an Attendance Review when Kathi returns. Kathi is into 14 so much denial, and as far as I am concerned, her cases have been severely neglected since at least the summer I know she will be asking for time off for more eye surgery (which means another 3 weeks sick time). This is a difficult one. I want to impress upon her that she does have options (employee counselling), and possibly can be assisted to find ajob better suited for her, something that doesn't require care to clients. My heart goes out, but she is just not functioning, is battling anyone who crosses her Judges have commented on her sickly appearance, Professional Clinicians have stated that she has some major problems, and facilities have found her difficult to deal with. When she returns (not the first week though), I will be speaking to her about an attendance review Ms. Blackmore was a consultant in the Human Resources Department at the time. Another memo, dated April 18, 1994, was addressed to the grievor from Mr Levine, although it was never actually sent to her because of intervening events. That memo stated. TO: Kathi Watts Subject: Court Duty In response to your question as to why you were not assigned to the Court Duty position Kathi, I offer the following by way of explanation. Operational Requirements. Basically it is the least disruptive option to "cover off' a caseload, with little or no notice, should you be ill for any period of time, as opposed to "scrambling" to find someone to cover off court. If you were to be off ill for any period of time, potentially 6 other caseloads could be disrupted, as opposed to just yours. With Theresa coming in, simply, no caseload is disrupted. While I am confident that the person I am bringing in to cover isappropriate, hard working and experIenced, I do recognize your interest again in performing as the North York Court Duty Officer This is the sole reason why I have said Theresa's assignment will be listed as 6 months, otherwise I would have said at least one year At the end of the 6 months, I will be in a better pOSition to review Court Duty Should your health improve, which I truly hope for, certainly then you would again be considered for the position. , Again, thank you for your interest and I hope you are clearer In my rationale. My concerns continue to be what is best for clients, the office and my staff, 15 The reference in the earlier memo to judges' comments on her appearance arose before the grievor went off work for her transplant. Apparently, one judge had spoken to Mr Levine about the fact that the grievor did not look well. Mr Levine suggested she wear make-up to improve her appearance. The grievor took issue WIth Mr Levine's comments in the second memo. She did not understand his reference to the need to "scramble" to cover her absences since there was a regularly scheduled backup PO for that precise purpose. She also did not understand why he felt it would be less disruptive to cover off her work as a PO Her absences from her assignments meant that her work had to be distributed to other PO's, which included another PO covering meetings with her clients. That caused major disruptlon to the clients because of their need for an ongoing relationship with their PO It was upsetting for them to have to deal with different PO's who did not have a complete knowledge of the file. It would have been far less disruptive to the clients to replace her in the Court Duty Officer position. Finally, she understood Mr Levine's memo to state that, until her health Improved, she would not be considered for any transfers, which caused her considerable concern since her diabetic condition would never be cured. About the same time the grievor applied for an Employment Specialist positIon. She did not get the job and, when she gained access to Mr Levme's personal file, understood why she was refused the position. In May of 1994, he had completed a Reference Check Form for the competItion. In it he identified several areas of strength for the gnevor, stating that she met or exceeded expectation III several categories. However, he made several negatIve comments as well. He first noted that the , grIevor's attendance record was far below expectations. He then stated the grievor had difficulty 16 accepting critical feedback and that she became defensive and argumentative with assorted agency staff. When asked to describe the grievor's organizational skills, Mr Levine responded. Below expectations. This is an area Kathi could improve upon, and to her credit, used to be a strength area for her I have little doubt, if focused and healthy, could again make organization a strength area again. Mr Levine was asked about his overall impression of the grievor and stated. GeneraUy Kathi historicaUy has been regarded as a good worker, who has traditionaHy enjoyed her work. As of late, Kathi has had numerous medical and personal problems that have made it difficult for her to remain focused and as dedicated as she has traditionaHy been. Finally, he was asked whether he would rehire her He stated. No Loss of focus, confused priorities, poor ability to accept constructive criticism and a negative attitude, have unfortunately hurt Kathi's effectiveness and desire as a Ministry employee. That Reference Check Form led to grievance number eight, which alleges that Mr Levine made false and derogatory comments about the grievor The next grievance arIses from circumstances that occurred about the same time as the grievor became aware of the Reference Check Form. She had that document m her hand when Mr Levine called to ask her if she was interested in applying for a temporary supervisory vacancy She had just returned from guide dog school and Mr Levme had asked that the competitIOn be held over until her ~_. return to gIVe her the opportUnIty to apply The grievor, after reading Mr Levine's comments in the Reference Check Form, knew that she would never be considered for the positIOn, espeCially since Mr Levme was to be on the selection commIttee. She was under considerable stress at the , tIme and saw Mr Levine's actions as a deliberate attempt to exacerbate that tension. He knew that .. 17 she had been interested in obtaining a supervIsory position and believed he was "setting her up for disappointment" She filed a grievance alleging that Mr Levine harassed her and asking for an order that the harassment cease, that Mr Levine apologize to her and that he provide written assurances to her that his actions would have no future consequences for her professionally or personally When the grievor obtained access to Mr Levine's complete files, she became aware of other memos and e-mails concerning her that reinforced her view that Mr Levine was harassing and discriminating against her During this time the grievor was aware that Mr Levine had concerns about her attendance. In fact, he had attempted to schedule an attendance review meeting with the gnevor and had dictated a memo in November of 1993 settmg out his concernsJ:o Ms. Blackmore and Ms. RenWICk. The memo stated as follows: I am on the verge of requesting an attendance review with Kathi Watts. Her last two years sick time have far exceeded the office average of 6 7 days. In 1992 she was sick close to 30 days, and 1993, about 25 days so far I feel strongly that it has begun to affect her work, both quality and quantity While she is very ill, in my opinion, she has a strong temperament, which is why I need to move delicately (yet forcefully). She actually just passed out downstairs and has been sent to the hospital (probably due to low blood sugar). .....~. I want to impress upon her she needs to be healthy, because-it impacts on other staff, i.e. a secretary has gone with her, a P 0 is dog sitting.... I know I am sounding insensitive (I promise not to spring it on her the moment she gets back). I feel a kind of crises needs to be created for her to begm to make necessary changes to take care of herself, at least in the things she can control Because of her strong personality, I suspect things will get messy Aside from the Probationer's she supervises, I worry about her daughter as well. Her ex- husband is fighting for custody oftheir daughter, statmg Kathi is not fit to parent, is sickly, , passes out a lot. .not far from the truth if you ask me. Due to ill health, she IS no longer dependable, reliable, punctual and getting her work done. ~ 18 Can we look at a date to meet with her soon? Please give me a call and all thoughts are appreciated. If you have any questions, I will try and fill in the holes. When the grievor received a copy of the November 30, 1993, memo she was incensed Although she had receIved the computer eqwpment recommended, she was continuing to experience difficulties. She did not know how to use the equipment and, although someone had been hIred to train her, her trainers were In the process of learning the ScreenReader and were unable to provide proper training. As well, the lighting continued to be problematic in her office and she worked for the most part In a dark room with a hand held magnifying glass. At the same time she was very concerned about her daughter and the custody dispute with her ex-spouse. She testified that if her ex-spouse's lawyer had seen that memo it could have cost her that custody fight. Ironically, at the same time Mr Levine gave the grievor a letter to present to the Court on her behalf praising her for being a valued employee. It was the grievor's view that Mr Levine had no right to make any judgments about her ability as a parent. With respect to his comments about her dependability and relIabilIty, she conceded that she was having much difficulty in keeping up with her workload, but blamed it to a large extent on her inability to handle the new computer equipment. One of the other issues that raised allegations of discrimination and harassment involved the grievor's experience with-her guide dog. SometIme in mid-1993 she decided that it would be in her best interest to obtain a guide dog. She receIved her first dog m the fall of 1993 She explained to Mr Levme that she had concerns gettmg around on publIc transit using a whIte cane. She had to viSIt clients in foster homes, group homes and in schools from Etobicoke to Scarborough, downtown Toronto and North York and. Since she did not drive, she was obliged to use public tranSIt. As = 19 well, there was a lot of construction going on in the city and a gUIde dog would be able to recognize construction signs and help her to avoid them. The decision to get a guide dog was an individual decIsion based on safety concerns. She advised him she would require a leave of absence to attend training school. As a result of her discussion with Mr Levme, he wrote a memo dated May 4, 1993, to Ms. Blackmore with a copy to Ms. Renwick on the subject of special! compassionate leave which reads as follows: Jean, Thanks for the package you sent me. It is too bad there is nothing historic specific to Kathi's kind ofrequest. I hate to be a "ground breaker" In reviewing the content, I have little difficulty in considering to grant a Special Compassionate 3-day paid leave (Art 55). It is Article 30 1 which gives me trouble. I am not sure how valid my reasons are, but I feel what Kathi is requesting, a 4-5 week paid leave of absence, is excessive. I say this after reading the material you sent me as most examples of leave given are for emergency, unforeseen reasons. In Kathi's case, getting a Guide Dog for her own personal use is valid and likely something that will be good for her Without being insensitive, a dog won't help her write up PDR's, or complete any other functions related to being a PO Given Kathi has had advanced notice with respect to the amount of time needed to train, my concern is that she is taking things for granted that she will get approval. Her feeling that "it is coming to her" Given her knowledge of the training, she still chose to go to Florida this week, spending her vacation time in this way, making no allowances for the possibility of needing to take vacation time to get trained. In fact, had Kathi approached me indicating that she would like to take a one-third or one-half month of vacation time to attend the training, and would the Ministry support the other half, I might feel different, as I think Ihis is something reasonable and workable. IfKathi does not get everything she demands, she has made it very clear to me that she will grieve and take the issue to Human Rights. ,~. I feel that Ministry has contributed significantly to Kathi's development and accommodation at work. Purchases in excess of $25,000 00 for sight enhancing equipment, time off to attend ARF addiction courses, and supporting her through her numerous illnesses (more sick time oft), are all issues for me, I have no doubt that we have been more than fair in our dealmgs with Kathi and do not want to lose sight of this if the issue is grieved. , From the package you sent me, I view the following themes required by management. - "reasonableness" of the decision . 20 - non discriminatory - weB thought out...and any questions deserving of sympathy or of compassion, employee's objective reasonable basis In the grievor's view the memo was unfair Mr Levine never spoke to her about using some of her vacation time for her guide dog training. She also denied demanding tIme off for the traming course but did state that she knew it was her right to be granted the time off and that, if the Ministry had refused, she would have grieved and filed a complaint with the Human Rights Commission. With respect to the reference to ARF, the grievor explained that she attended the courses because 80 - 90% of the young offenders she dealt with had drug or alcohol related problems, either theirs or their families. In any event, the Ministry offered to pay for the ARF course on the Wlderstanding that she would share whatever she learned at the course with her co-workers. She felt that Mr Levine's comments with respect to that course were unfair and irrelevant to her request for a leave of absence. In a memo dated May 17, 1993 Mr Levine wrote to Ms. Blackmore about the grievor as follows: In response, Kathi has put the request in writing. Her arguments, being a single sole support Mom, is basically afford ability If she does not get approval, she will not get a dog. She also promises to grieve, to go to Human Rights... In my opinion, she really does have sympathy on her side. Operationally, it would not be impossible to cover off her case load and we have done it before for her past transplant and related illnesses. Merlyn is thinking similar to us, but ultimately it is up to us. I had wondered if there was some sort of precedent either Provincially, Federally or in the Private Sector on this issue, either disallowing it or allowing it. Does Phil have any input? I am afraid we may be stuck. I am willing to test it, though, take my chances, i.e. offer her some sort of perceived "fair" compromise, i.e. one-half we will pay, and one-half she will pay thru vacation or unpaid leave. You and I would need to "firm up" what we specifically say to her though, and the sooner the better ~ 21 According to the gnevor, this memo was also inaccurate in that Mr Levine never spoke to her about sharing the responsibility for the costs. In any event, on May 21, 1993, another memo from Mr Levine to the grievor regardmg guide dog training stated as follows. Kathi, with respect to your request for paid (3-4 weeks) time off to train for a Guide Dog, I am pleased to say permission has been granted for the full period. I am supporting this request for special and compassionate reasons. Please let me know once you have confirmed the times, in order that we may plan for appropriate case coverage. To facilitate the request, I will need a note/letter from your DR. confirming the need for a dog, given your lack of sight. As well, I will need a letter/document (copy to you from the training facility will do), confirming the exact dates and times for the course. I wish you good luck and look forward to having you (and your new friend) back. Notwithstanding Mr Levine's comments in that memo regarding their support for her leave of absence, Ms. Renwick wrote a memo dated May 25, 1993, to Mr Levine, the subject bemg "re Kathi aftermath" That memo stated as follows. And have you both given thought to the response when someone else in the office is too allergic to the dog to come to work or what we will do when it bites a client? Nothing is easy but I think we have some satisfaction that we are doing the right thing; in the spirit of Employment Equity, for Kathi and for the Ministry, ensuring that we have documentation to support granting a leave with pay for this substantial amount of time/tax payer's money You will have both done a thorough job of sorting through this and making a good decision. When the grievor receIved this memo it was the first time she became aware of any concerns about other staff being allergic to her dog or about the dog bitmg anyone. She did not know what Ms. -.- Renwick meant when she referred to "Kathl aftermath" In the collection of memos that the grievor received, one was dated January 27, 1994, from Joy,ce Green, who was a secretary for some of the PO's m the office and who had been assigned to the " 22 grievor The memo was to Mr Levine and stated. When Kathi was in doggy school this case was assigned to her The grievor considered this memo to be offensive. In her view, it ridiculed her efforts to obtain a gUIde dog. No such comments were ever made directly to her That was when the grievor discovered what an active role Ms. Green had played her attendance. She was aware that Ms. Green kept a record of the employee's time off, but the memos indicated a more concentrated attention to Ms. Watts' attendance than she had been aware of. For example, a memo dated December 10, 1993, from Ms. Green to Mr Levine about thegrievor simply stated "arrived today at 12.30 P.M." On March 2, 1994, Ms. Green wrote a memo to Mr Levine about the grievor that stated "left at 3 45 P.M. with Giles to also pick up Karl" The Giles referred to in the memo is another probation officer and Karl is the grievor's daughter On May of 1996 Ms. Green again wrote a e-mail to Mr Levine about the grievor that stated as follows. "Mr Eastwood just phoned saying Kathi had taken him right down Keele Street ASKED ME TO LOOK UP gEORGE hARVEY SCHOOL. as THE PHONES WERE BUSY BY THE TIME i GOT BACK TO IDM HE HAD FOUND WHERE THE SCHOOL WAS. hE SAID HE WOULD NOW GO ON TO HIS APPT AT sTRACHAN HOUSE AND BE BACK AT 2.30 P.M. THEY LEFT AT 10'45 AND IT'S NOW 11.30 A.M.(sic) In another memo dated May 27, 1994, Ms. Green wrote the-following to Mr Levine about the grievof' Kathi yesterday disappeared for a rather long time and I went to the washroom to see if she had fainted....she said she was not feeling well and that her pressure was down. This morning at 10 10 A.M. she called in sick... , A memo of May 17, 1994, about the grievor stated. " ~ 23 ~'just come in at 10'10 A.M." Her date book said Subsidy Interview York Centre. On May 30, 1994, three memos were written by Ms. Green about the gnevor The first one stated. Came in at about 9:30 A.M. and it's now 10:20 and she has asked David Giles to take her to Kari's school to get Kari as she is not well, and then take them both to her Doctor on Keele and Wilson. Dave has marked 11.30 return... Kathi has St. Cyrils, Dr and return ? The next at 1.30 P.M. stated. "back at 1 40 P.M. Karl in tow " The fmal memo was written at 4:05 in the afternoon and stated. "Kathi and Karl left at 4:00 P.M." A fmal memo dated June 27, 1994, by Ms. Green to Mr Levine, the subject of which was "Monday" stated as follows. "For what it's worth....! am glad I am off that front desk.... Kathi and Eastwood have continually and espec. when you are not here are behind closed doors twittering. Josie said she could feel the tension out there and the office is not the same as it used to be. I feel that Kathi is carrying on her vendetta... thus creating tension all around.... I am surprised being roped into her problems as much as he is seems to be supporting her I don't think I would want her in my cottage! After reading these private memos from Mr Levme's files the grievor began to reflect on Mr Levine's attitude towards her and recalled a staff meeting at Queen's Park in the fall of 1993 wherein she alleges that Mr Levine made an uncalled for remark about her Another P 0 was assistmg her across the street when Mr Levine walked by and said "don't fall for that crap" L 24 The first grievance filed by the grievor, in addition to her allegations concerning the illegal adoption project position, included allegations of discrimination and a failure to accommodate. It was dated April 18, 1994, and, at that time, all of the equipment that it had been suggested the grievor obtain had been put into place. The grievor, however, had some concerns that additIonal equipment be bought for the future since the prognosis for her sight seemed very dismal. As well, the grievor continued to have complaints about the Employer's lack of accommodation. She never received assistance in ensuring that the proper lighting was in place and the glare on her TV screen continued to be problematic. She was in a very small office, notwithstanding the fact that there were three larger offices in the department. Ms. McEvoy had attempted to show the grievor how to work the CCTV and another computer analyst had attempted to teach her the ScreenReader program. However, neither of them knew enough about the equipment to train her properly She and Mr Levine had had many ongoing talks and he knew about her difficulties. She had thought that he was making efforts to help her He and she had been in contact with the Quick Response Team. The Ministry had arranged for a computer trainer to teach the grievor but she felt she still was not getting enough assistance. She also spoke to Ms. McEvoy, the accomoclation specialist for the Ministry, on an ongoing basis about her problems but never dId receIve adequate training. At one point the gnevor hung a piece of black bnstol board over the wmdow to stop the reflection of the light on the computer screen. She contmued to use fier own magnification eqUIpment because she was unable to operate the computer generated equipment. As mentioned prevlOulsy, the gnevor gained access to what she characterized as a "secret" file Mr Levine had accumuated concerning her She had become aware of the existence the file at a Step 25 2 grievance meeting when the subject of her WDHPP complaint arose. At a Stage 2 grievance meeting, Ms. James, a supervisor in the North York office, handed her Mr Levine's file. The grievor started to review it while waiting for her Union Steward, David Ethier, and noticed a few of the memos Ms. Green had written to Mr Levine. Before Mr Ethier arrived, Ms. Green came into the office and told her that Ms. James wanted it back to check something. The grievor gave the file to Ms. Green and, when she passed her desk later on her way to Ms. James' office, noticed that she still had the file. By that time Mr Etluer had arrived and the grievor told him what she had seen. When Ms. Green came back WIth the file the grievor noticed that the e-mails that she had seen had been removed. She immediately went to Ms. James' office and told her what had happened. Ms. James~ the grievor and Mr Ethier met in the boardroom, reviewed the file and found that 13 documents had been removed, the majority of which were memos from Ms. Green to Mr Levine about the grievor Ms. James apologized, obtained the missing documents later that day and provided them to the gnevor As has been mentioned previously, in December of 1993, Mr Levine had determined that an attendance reView meetmg was in order However, the grievor was in hospital at the time and did not return to work until February On February 4, 1994, Mr Levine wrote a letter to Ms. Blackmore about the attendance review stating as follows: With respect to Kathi's attendance review, she has approached the Employment Equity Manger and has started to complain to her that the reason she is off has to do WIth lack of proper accommodation. She is off sick due to headaches, due to eyestrain, even though she has the enhanced equipment. I indicated to Ms. Jaffrey that the attendance review and , employment equity issues are separate for Tuesday's meeting, but I would be happy to discuss any concerns with her, Kathi, and Kathy MacPherson from the QRT In fact, I do have a meeting with them next week. 26 While I promise to keep my composure next Tuesday with Kathi, of course I have never heard of eyestrain as an issue of her being off I have only heard of infection, inappropriate/non-compatible medicine as reasons, as well as passing out. The attendance review meeting was eventually scheduled for Tuesday, February 8, 1994, and the grievor attended WIth a Union Steward. She requested that she be allowed to tape record the meeting because of difficulties she had taking notes. Mr Levine and Ms. Blackmore objected and suggested that since a tape recorder was not allowed in grievance meetings, it should not be allowed at this attendance review meeting. It was agreed that they would adjourn the meeting so that Ms. Blackmore could seek advice. On March 15, 1994, Mr Levine wrote a memo to Ms. Blackmore about the grievor stating as follows: My understanding is that Kathi will be off for the rest of this week, all of next week and come in half days the following week to allow her infected back to heal. Thus I believe we will need to reschedule our meeting with her While I still have many concerns re: the proposed approach in delaying the attendance review, I remain open and flexible. In other words we will see what happens, but my instinct tells me Kathi will feel/is feeling very powerful, and subsequently very demanding. Will up date you on her health status when it is made clearer to me. The Infected back referred to In Mr Levine's memo relates to the accident in which the grievor's guide dog pulled her to the ground. ~~. The attendance review meeting never did take place. On July 5, 1994, Mr Levine wrote a memo to Ms. Blackmore about the gnevor stating as follows. "Kathi just walked into my office, with crutches and a cast, having just broken her leg. Kathi has no recollection of falling or hurting her leg, only that it started to hurt last night. Started to flare up and enlarge. The Doctors x-rayed, however, due to the inflammation, did not see anything. < '. 27 My question is should I be encouraging her to fill out a worker's compensation form? I worry Kathi might "later on" allege something happened to her leg in the office or during working hours. Any thoughts? The grievor felt that Mr Levine's memo was unfair and inaccurate. The grievor did tell him that she was not sure when she hurt her leg but told him that it was probably during a gay prIde parade she had participated in. She never suggested to him that it happened at work and never discussed any worker's compensation claims with him. On June 9, 1994 the grievor filed another grievance which stated as follows: I grieve that Andre Lafantasie, manager, finance and administration, the deputy minister's designee did harassment me at the stage 2 grievance of the Collective Agreement in that the said Andre Lafantasie attempted to introduce transcripts of the informal hearings held on February 24/94, March 25/95 and April 5/94 without notification or permission from the grievor written or oral. At stage 2 no permission was given to Andre Lafantasie by the grievor or the grievor's representative to introduce written or oral evidence from the informal hearings. The three dates referred to in the grievance involved meetings about her WDHPP complaint which the grievor, Mr Levine, Ms. Renwick, Ms. Blackmore and Mr Ethier had attended. Her understanding was that the diSCUSSIOns were informal and separate and distinct from any grievance dISCUSSIons. NothIng that was said in the WDHPP meetings was to be used in any subsequent gnevance meetings. She took her tape recorder to those meetings and transcripts were made from her tape recordings, although It was agreed they would not be official transcripts of the meeting. Those transcripts, in her VIew, were not to be used outsIde of those meetings. She gave the tapes to the Mimstry officials as a courtesy so that they could prepare the transcripts. When she arrived at the Stage 2 grievance meeting, Mr LafantasIe told her that he had been gIven the tapes, provided the transcnpts and stated that he wanted to discuss them. When the grievor asked him who had 0 . 28 given him the tapes, he stated that he could not remember The grievor felt that the fact that Mr Lafantasie had been given the transcripts and tapes of the WDHPP meetings Jeopardized the validity of the Stage 2 grievance meetings. The grievor had given those tapes to Meriyn Green, the manager of probationary services and she filed a grievance dated the same day, that is July 9, 1994, alleging that Ms. Green had provided transcripts of the informal hearings to Mr Lafantasie without notification or permission. In that grievance she was seeking a written apology from Merlyn Green, a withdrawal of the transcripts and an expunging of all information relating to the matter regarding her grievance. The fifth grievance filed by the grievor is dated the same day that is June 9, 1994, and alleges that at a meeting on June 3, 1994, Mr Lafantasie stated "if you're interested in opportunities it would be unfortunate if all discussion of job opportunities suddenly comes to a standstill because we're involved in an adversarial sltuatIOn." During the meeting the grievor expressed concerns to Mr Lafantasie and Ms. Blackmore over the failure of the Ministry to accommodate her disability but, more importantly, concerns over job opportunities that had been demed her and comments that had been made about her because of her disability Mr Lafantasie told her that he could not discuss the Job opportunities in that meetmg because It was convened solely to deal with her grievance. The grievor understood him to mean that If she proceeded to a Stage 3 meeting, she would not recelve any more job opportunities. She felt threatened and that If she "dIdn't play ball, she wouldn't get ahead." Indeed, after that meetmg, according to the grievor, no further job opportunities were ever . offered to her She was seeking a written apology from Mr Lafantasle specifically retractmg hls " 29 words and the threat she read mto those words. It was during the Stage 2 grievance meeting that the grievor discovered that Mr Levine had provided some information to the internal investigation unit involving the WDHHP complaint that the grievor took exception to. On June 27, 1994, she filed a grievance alleging that Mr Levine "introduced false documentation to an internal investigation." The investigator's report on the WDHPP complaint stated. "documentation indicates prIor to request of attendance review respondent had spoken to complainant informally on several occasions regarding her attendance" The grievance claims that the grievor was never advised of any documentation regarding attendance on her personnel file. Nor had there been any indIcation of progressive discipline for attendance. The ninth grievance filed by the gnevor is dated September 14, 1994, and alleges that Rosemary Proctor, Deputy Minister of Community and Social Services, at a Stage 2 grievance meeting on September 8, 1994, attempted to harass her by designatmg Mr Lafantasie to act as her designee at that meeting even though she was aware that the grievor had two outstanding grievances against Mr Lafantasie for harassment and threatening. It was her view that, considenng their history, nothmg could be accomplished by his attendance at a Stage 2 grievance meeting. _. The gnevor was asked whether she used her disability to advance her position at probatIOn services. She replied that she had no need to do so Her reviews in the past had been excellent, she had been nommated for an award and Mr Levme had written a letter commendmg her as a valued employee. I In her view she dId not need to rely on her disability to ensure success m her job. She filed her I I - . . 30 harassment complamt agamst Mr Levme because she belIeved that his actions m keepmg a secret file containing negative and derogatory comments without ever advising her about his opinions was unfair She also felt that the comments he had made were based on her disability and hIS unwillingness to meet her accommodation needs. Her view was confirmed by a memo dated February 22, 1994, by Mr Levine to Merlyn Green and Ms. Blackmore on the "discrimination issue" It stated as follows: Attached you will find some of my personal thoughts on the complaints as outlined by Kathi. I would prefer at this time my responses not be shared with Kathi or David Ethier Merlyn, I hear you with respect to Management's responsibility to resolve these types of complaints, and I am all for it. I am fine with you meeting with Kathi and whomever, however, I am feeling that I need to slow down the process for now and that I need to speak to Employee Equity advisors myself for direction/education. I am not prepared to involve myself in a meeting with Kathi and her Union rep. I know the calibre of the two, and Kathi's own goal is not so much as to discredit me but to gain a promotion. She feels that if she can make enough noise, and bring her disability into it, we will give her something to quiet her down. On the one hand she complains about lack of accommodation in the work place, yet on the other hand, I am to approve a request for her to work at home to accommodate her when there is bad weather She is just not being consistent. Quite honestly, I am feeling harassed myself, on the receiving end of a complaint that has absolutely no merit. I am also feeling harassed due to threats of grievance and ultimatums that she better get the adoptions jobs, or the court duty position, or else. I need to explore the issues and find out what is involved in E.E. Investigation. If it will be all encompassing WIth both sides of the Issue looked into, I would be content with the fonnal process. If the mvestigation would only look into the matter from the complainers prospective, I will look into a counter complaint of harassment by Kathi. _. With all ofthe necessary training gomg on with Harassment Discrimination, I don't want this to open season on Management. I will keep Thursday open. Thanks (I needed to vent a bit!) , When the gnevor read that memo she became very upset. She lost all confidence in Mr Levine. She felt that he resented the fact she needed to be accommodated and belIeved that her complaints , i 31 were not legitimate. In cross-examinatIon the grievor conceded that prior to 1994 she and Mr Levine had had a good working relationship. He advocated a leave of absence for her when she was in an unclassified position and needed time off for medical reasons and assured her that her Job would be waiting for her when she returned. In addItion he assisted her in preparing for interviews for other positions, including developmental opportunities. When it became clear that the grievor was going to need some computer equipment in order to assist her to do her duties, Mr Levme told her that he would get her whatever she needed. In fact, in 1992 Mr Levine nominated her for an award and helped her to write her acceptance speech. Between 1990 and 1994 Mr Levine also gave the grievor permission to work at home when she was unable to or when it was too difficult for her to come into the office. The grievor allowed that, until 1994, she thought Mr Levine was supportive of her efforts and it was not until she saw his file that she realized that, while he appeared to be supportive to her face, he was making comments behind her back that were negative and non-supportive. She described her feelings as "devastated" She also conceded that there had been no problems between them until the attendance reVIew meetmg was scheduled for February 8, 1994 It was very shortly thereafter that she approached Mr Levine about the illegal adoptions project and the series of complamts and grievances began. She disagreed WIth counsel's suggestIOn It was not until February of 1994 that she raised complamts about the lack of accommodatIOn. She said that she had ongoing difficultIes from the time the eqUIpment was first set up and had several conversatlOns WIth Mr Levme about those dIfficulties. ~ 32 In cross-examination, when asked whether Mr Partridge had actually offered her the illegal adoptions project job, she stated he said "he would like to have me if it was okay with Marc and Merlyn." She allowed that Mr Partridge never told her that he would not consider anyone else for the job, nor did he promise it to her in clear terms. She was disappointed when she realized that she was not gomg to be given the job. She was later angry when she heard that Ms. Fong had been awarded the job, primarily because of what Mr Levine had said to Mr Partridge. She acknowledged, however, that Ms. Fong was the more senior probation officer and at least as qualified as she. She denied the suggestion that she wanted that Job in order to avoid her attendance review With respect to her complaints about the failure of the Employer to provide the necessary equipment, the grievor was asked what equipment she felt she needed and did not receive. She specifically mentioned lighting and a tape backup system, although she was unsure of the necessity for it. Her answer was that she did not know what she needed and that "they", meaning the assessors, would know what was available and what was necessary She was asked about her concerns regardmg the lack of adequate desk space. It waiher belIef that the recommendation was for 11 feet of desk space but that she received consIderably less. Her evidence was that she did not recall specifically but was sure that she had complained about the lack of desk space. , She was asked about the three days of trammg the Ministry had purchased for her She explamed . . . 33 that one of those days was for the installation of the equipment. The second day the trainer was unable to train her on the ScreenReader or CCTV and was only there for a short time to install the CCTV That was the extent of her training. It was her opinion that she had not been adequately trained to use the CCTV and that most of the things she learned were self-taught. She never learned how to use some of the equipment. She made general requests for additional training but no specific demands regarding any of the equipment. At the time she received all of this computer equipment .- she described herself as computer illiterate and stated that she "did not even know where to put the discs" She agreed that she had had four days of training m 1994 from a programmer who was attempting to operate the large print feature. However, the grievor testified that she was in considerable pain at the time and did not absorb much of that training. She never requested any specific piece of equipment but stated that she felt it was the Employer's responsibility to provide what was necessary once she had explained her needs. She herself was not and could not have been aware of all of the aids available to assist her in her accommodation. She was asked about the reference in her first grievance to the failure to provide adequate space for her and her equipment. She acknowledged that she never specifically asked for any of the three larger offices but stated that before she could submit a request she was told that the offices were distributed on the basis of seniority She acknowledged however that she was moved from a smaller office to a larger office and the PO doing court officer duties, although semor to her, was transferred to her office. , With respect to her concerns about the leave of absence for gmde dog trammg, she agreed that she :- 34 had been granted leave with pay both times but took issue with the efforts of the Employer to require her to use vacation time for half of the leave. She knew that she was entitled to the full leave and was not prepared to compromise. She pointed to Mr Levine's memos on the subject, which she interpreted as his efforts to deny her leave. It was her view that she was granted the leave reluctantly and only because the Employer had no alternative. It was suggested to her that many of her problems happened in quick succession following Mr Levine's request in January of 1994 for an attendance review meeting. The grievor conceded that there were several things happening on or about that time. The attendance review meeting was scheduled for February 8, 1994, but was adjourned because of the issue concerning the tape recorder It was suggested to her that the very next day she approach Mr LeVIne about the illegal adoptions job and, in fact, told him that she hoped there would be no hard feelings about what had happened the preVIOUS day The next day the meeting was held with Ms. Jaffrey and Mr Levine about accommodation issues. It was suggested to her that was the first time, that IS, February 10, 1994, that Mr Levine had heard that the grievor had complaints about the Employer's accommodation attempts. The grievor dIsagreed, saYIng that there had been ongOIng dIfficulties from time to tIme since It had been set up and that she had complaIned about those dIfficultIes on an ongoing baSIS. _. It was also suggested to the grievor that between February and AprIl of 1994, when the court duty officer position became an issue, most of the alleged harrassment by Mr Levine took place. She objected, statmg that the relatIonship between them had been strained before that and that there had been a gradual deterioratiOn m the relationship preceding February of 1994 She did concede, 0 35 however, that their relationship became more strained after that time. The grievor also conceded that she consIdered the attendance reVIew meeting to be disciplinary in nature. She was alarmed and felt that Mr Levine was looking for a response from her that would correct her attendance problems when it was, in fact, out of her control. She felt mtimidated by the fact of the meeting and especially by the fact that she was advised to bring a Umon Steward. She denied that her attitude toward Mr Levine became defensive at that time but described it as more guarded. With respect to the illegal adoptions position, the grievor conceded that Mr Partridge did not promise her the job but maintained that he told her so long as Mr Levine and Ms. Green approved he would "like to have me." She was excited after her discussion with Mr Partndge because she could conceive of no reason Mr Levine or Ms. Green would refuse to release her Mr Mark Levine is presently the Acting Program Supervisor with the Ministry of Community and Social Services. He was the gnevor's supervisor from December of 1988 to August of 1994, which included her early years of employment as an unclassified PO He was her superVIsor when she -~ underwent her kidney transplant 10 1989 As an unclassified employee, the practice would have been for her to resign and reapply for a position when she was fit. Mr Levine advocated on her behalf for a leave of absence, which was ultimately approved. She was off duty for mne months and, when she returned, resumed her former posItlon. Mr Levine testified that his role as supervisor was to support her She was an excellent probation officer and he wanted her to have one less worry dur10g ---- - -- ----- -- --.. -- - ------ ----- ----- --.. --.. -- ;; 36 her recuperation. He was a member of the selectIOn panel that ultimately granted her a classified position in 1990 When Mr Stuart-Vanderburg did the assessment of the grievor's needs, Mr Levine approved all of the equIpment on the list without question, which involved an expenditure of in excess of $30,000 00. In fact, Mr Levine completed the initial application to the Employment and Accommodation Fund or Quick Response Team (QRT) as it was called to begin the process. He agreed that it took too long for the equipment to be finally set up for the grievor and testified that, although he had no control over that process, he did send e-mail and memos in an attempt to speed up the installation. Until the grievor received the new equipment, she had been able to do her job, but with great difficulty When the equipment arrived the grievor identified her first priority as learning the DEC system, which is the main communication system and includes e-mail and word processing. She did receIve some training on that system. As far as Mr Levme was aware, the only additional request made by the grievor concerned the lighting in her office and he approved the purchase of a special lamp. He was aware that three days of training had been purchased by the Employer and that additional days could be provided If necessary The first day of trammg was spent primarily setting up the eqUIpment. The focus was to get all of the eqUIpment fully operatIOnal on the DEC system. The gnevor was satisfied WIth that traming for the time being and was not interested in training on Lotus or the voice synthesizer Although the grievor testified that her work station was too small, it was Mr Levine's evidence that the desks were arranged according to the specIficatIOns m the report. The grievor was moved 'to a larger office to accommodate the eqUipment. As far as Mr Levine was aware the grievor was content with that new office space. He 37 testified that had it been necessary and had he been asked he could have moved the grievor to a larger office. Mr Levine testified that initially the grievor was content to be trained primarily on the DEe system whIch involved e-mail and word processmg. As her eyesight deteriorated she became more interested in using the full capacity of the equipment and he supported her efforts. He suggested to her that they block off a week for her training and he had arranged for another P 0 to oversee her work load for that week. He was unsure of how many days training the grievor actually received. He knew that the trainer was unable to attend for a couple of those days, but believed that she had received training for the other three. As well, he said there was ongoing training to expand the capacity of the grievor's voice for the ScreenReader Mr Levine stated that he never refused a request for training from the grievor He was asked whether the grievor ever told him that she could not do her job because she had not been properly trained. He testified that she told him that she had difficulties with the eqUIpment and that she had to use her own magnifier She never told him that she could not operate the equipment or do her job. Once all of the equipment was installed, she , made no complaints to Mr Levme about eIther the equipment or the training. Mr Levine discussed the illegal adoptIOns manager's positIOn. The practIce was for a supervisor to canvass other supervIsors to see who should be offered a development opportunity It was his eVIdence that the grievor mformed him that she was aware of the position and that she had spoken to Mr Partridge'about It. Mr Levme he told her that there was someone else in the department who had more seniority and was more deserving of the position. He told her that it was not appropnate = 38 at that time to promote her because there were concerns about her attendance. He denied telling Mr Partridge that the grievor was unreliable. When Mr Partridge asked him whether the grievor could be made available for the posItion, Mr Levine told him that there was someone else in the department he felt was more deserving and had more seniority He said nothing negative about her to Mr Partridge. Mr Levine told the grievor that he had suggested someone else for the position and that, since she was involved In an attendance review, it was more appropriate to wait until that review was completed before she transferred to another position. Mr Levine denied any suggestion that he had deliberately sabotaged the grievor's efforts to obtain other developmental opportunities. It was his evidence that in the early 1990's, a summer position for a classification officer in the custody area became available and the grievor was not successful in her bId for the position. Mr Levine felt that she should have been selected and told the grievor that he would write a letter on her behalf. He subsequently wrote a memorandum to the supervisor involved, dated January 16, 1991, in which he expressed concern about the process and the fact that he was not consulted prior to the selection. He admitted to a bias In the grievor's favour and suggested that she had the skills, abilIty and desire to functIOn In the pOSItIon. He further stated the grievor would have been the logIcal choice for the position and that, gIven her disability, whIch had not affected her job performance or output, obtaimng the postIon would have made her lIfe much _. easIer WIth respect to travelling. He concluded by commenting that the grievor received the deCIsion maturely and professionally , Mr Levine testified that the court duty officer position was traditionally assigned to PO's on an 39 rotating annual basis. The minimum time m the job in the past had been one year The P 0 m the job was retiring and he advIsed the staff of the position and asked those who were interested to contact him. Mr Levine selected Theresa Dompierre. Her contract position was expiring and Mr Levine felt that the court duty officer position would be a good developmental opportunity for her He felt that it would be least disruptive to the department's case load to place Ms. Dompierre in the job. The grievor generally supervised 30 to 50 clients at anyone time and her files would have had to be transferred to another P 0 Ms. Dompierre had no files and could step into the job immediately, with no disruption to the workload. He prepared an e-mail for the grievor dated April 18, 1994, in which he explained the operational requirements of the job and his rationale for awarding it to Ms. Dompierre. He advised the grievor that, because of her interest in the position, he was only assigning Ms. Dompierre to the role for six months and that, should her health improve, she would be considered for the position. Ultimately he never sent that memo because on the day he wrote it he received the WDHPP complaint in which the grievor made 18 allegations of discrimination and harassment against him. As a result of that complaint he decided not to send the memo to the grievor but maintained that it accurately explained his reasons for his decision. In his memo he suggested that there would be "scramblIng" to find someone to cover the grievor when she was absent from court. He explained that, even though there was a rotational back-up list of PO's, if the Court Duty Officer was absent the Employer had to ensure that th1! replacement appeared in court on time, dressed appropriately and prepared for the day's cases. As well, that PO's workload would have to be rescheduled and/or reassigned, depending on the length of the absence. If the absence was long enough to necessitate a reasSIgnment of some of the replacement's appomtments and/or meetings, as many as five or six case loads could be mterrupted. Smce the grievor's = " 40 absenteeism rate was higher than any other P 0 in the department, Mr Levine decided that it would be inappropriate to assign her to the court duty officer position at that time. He was asked whether the grievor explained to him that the start time of 10 o'clock would allow her more time for I appointments without loss of actual work time. Mr Levine testified that the court duty officer position required the attendance of the officer at court before 10 a.m. There was work to be done I before court started and the grievor's belief that her mornings until 10 o'clock were free was simply I I incorrect. I I He was asked about the May 1994 Reference Check Form which the grievor found so offensive. He I maintained that the information in the check list was accurate, in particular, the paragraph concerning I appraisals. The personal problems mentioned in that paragraph dealt with her marital separation and custody dispute. He agreed that he had not raised any of those issues in his performance appraisal of the grievor because they were not issues at the time. He did discuss the grievor's attendance and late reports at staff meetmgs on an on-going basis. The grievor always used her personal and medical problems as excuses for those absences and late reports and Mr Levine testified that he always expressed sympathy and concern for her He noted that he mentioned many of her strengths and in some sections of the check form praised her as a PO However, even at the hearing, he was -. of the opimon that he would not rehire her He explained that these check lists are prepared for each mdividual competitIOn and are used solely for that competition. Tlns check list would not have been used against the grievor for any other job competitions. Mr Levine was asked about the grievance dated August 22, 1994, in which the grievor alleged that 41 he had harassed her earlIer that month in connection WIth the postIng for a supervIsory posItion. Mr LevIne's evidence was that the gnevor had been away at gUIde school for three or four weeks and during that time he had been offered a developmental OppOrtunIty at the head office. The posting was for his position as acting probation and parole supervisor He knew that the grievor had always been interested in supervisory positions and that she would be unaware of the postIng because she had been away He contacted Human Resources and asked them to extend the postIng for one more day to give her an opportunity to apply for the Job. On the morning of her return he called her, told her about the job opportunity and wished her good luck. When he was asked why he would have done that given his negative comments about her previously, he testified that, at that point in time, there had been grievances filed against him alleging dIscrimination and harassment. He had also been accused of denying her development opportunities in the illegal adoptions project and the court duty officer position. He contacted her about this posting because he did not want to be accused of denYIng her a similar opportunity He acknowledged that he was on the selectIOn panel for the pOSItion but stated that when he contacted the grievor, did not know that he would be asked to sit on the panel. In November of 1993 Mr Levine had prepared a memo to the Human Resources Department on the need to InItiate an attendance reVIew WIth the gnevor His comments in the memo were for ~~ discussion purposes and he was seeking some assistance on how to proceed. Up to thIS pomt the gnevor had never told hIm that her work was suffermg because of a lack of accommodatIOn. He was asked about hIS comment about the grievor's custody problems and her daughter He explamed that on the morning of the memo, that is November 30, 1993, the grIevor had passed out m the foyer 42 downstairs. He was very upset for her Another staff went with her to the hospital and to look after her guide dog. He was concerned at the time about her welfare. He agreed that the comment was inappropriate and apologized for including it. He said that at the supervision meetings with the grievor she had expressed concerns about her daughter, especially when she was with her father, and told him that they were involved in a custody dispute. She asked him to prepare a letter for the court saying that she was a good worker and that she had good attendance. He told her that he would write her a letter of support but would not say that she had good attendance at work. She was very angry and upset and Mr Levine felt she was disappointed in him. Several issues arose with respect to the leaves of absence for guide dog training. Mr Levine testified that she asked him what he thought of her chances of getting a leave of absence to attend at guide school training. He told her that he dId not know but he would support her He expressed concerns that the Ministry might only grant a partial leave and that the grievor might need to use some vacation. The grievor told him that she had done her research on this issue and that she was entitled to the leave and that if she dId not get It, she would file a grievance. That prompted the memo of May 4, 1993, to Ms. Blackmore. At the tune of the request he was unaware of any Ministry policIes regardmg thIS type of special leave and of any legal requirements respectmg It. Ultimately the decisIOn was made to grant her the leave and he supported It. The reason for the memo was that, gIven the novel nature of the request, he needed more mformation from Human Resources before he could deal with it. He explamed that part of the process of any request for a leave of absence is to conSIder alternatives and precedential impact. After he had done hIS research he supported the leave and agreed that it was a component of accommodation. He explained that when he used the - 43 term "excessive" in the memo he was refernng to the fact that the grievor was unsure of the length of the training and suggested it could be three, four or five weeks in duration. She also made it clear that it was "coming to her" and that he had no legal right to deny it. Her comments prompted hIm to look at her request in its entirety and raised a question in his mind as to whether or not, even if it was as much as five weeks m duration, it was a reasonable use of the time. Ultimately he decided it was. He approached the Deputy Minister with the request for leave and his recommendation that it be granted. Mr Levine was asked about Ms. Green. His directions to her had been to monitor the attendance for the whole office whenever he was away He explained that P O.s are in and out of the office regularly and that people rely on e-mail to a great extent. It was important to know where parole officers were to the extent possible and that was the reason for monitoring their attendance. Ms. Green's e-mails concerning the grievor became a performance issue with Mr Levine. He felt that she was spending too much time on them and asked her to speak to him directly rather than sendmg him e-mails. There was an attendance board in the office on which the staff were to sign in and out. Ms. Green's role was to check the board and remind staff to sign in and out. He never asked her for e-mails about the grievor specifically He also did not need as much informatIOn as was contained - in those e-mails, in any event. That was why her use of e-mmls became an Issue. All he wanted to know was whether staff was signing In and out as required. He spoke to her about the fact that there was too much detail m the e-mail messages but not about the content or the references to the grievor , He told Ms. Green to stop momtoring the gnevor through e-mail and sImply to mark in the attendance book when she was absent from the office. Ms. Green Ignored his dIrective and 44 contInued to send e-mails. He agreed that, although the grievor and Ms. Green had a good relationship in the past, at some point Ms. Green became jealous that the grievor was receiving special attention. He denied categorically ever saying "don't fall for that crap" as alleged by the grievor He could not remember any incident similar to the one described by the grievor but allowed that it might have happened because he did often stay behind after the meetings to talk to the P Os. The complaint was investigated during the WDHPP investigation and one witness was unclear about what she had heard but believed that it was "don't fall for that" Another witness heard no comment. Mr Levine challenged those fmdings and hired his own attorney He initiated a gnevance of his own under the Public Service Act, the outcome of which was "something I could live with" We were not told the actual details of the settlement. Mr Levine was asked about the attendance review meeting scheduled for February 8, 1994 He had done attendance reviews with two other staff members to highhght attendance problems In a non- diSCIplinary manner, to explore potential solutIOns and to Identify further accommodatIons that might be needed. He was aware of the grievor's health problems before he scheduled the review but felt that, given her absenteeism record, an attendance review was appropriate. Attendmg the meeting were Mr LeVIne, Ms. Blackmore, the grievor, and a Umon representative. When the gnevor stated that she wanted to tape the 'meeting, they were unsure of the proper procedure. There was some debate amongst them about the use of a tape recorder and it was agreed I 45 I to adjourn the meeting until they could seek advice. Mr Levine testified that at one point the grievor I consented to continue the meeting without a tape recorder but that he insIsted that the meeting be adjourned to determine whether she should be allowed to tape that or any future meetings. He denied refusing the grievor the assistance of an employment equity representative. He told her that, at the first meeting she could have the assistance of a Union representative and that if, during the meeting employment equity issues arose, he would call in a representative from that department. The goal of the meeting was to deal with attendance problems, not employment equity issues. In the interval between that meeting and the rescheduled meeting, harassment and discrimination charges were filed by the grievor against Mr Levine, one dealing with the attendance review specifically Mr Levine decided that there would be no advantage in proceeding at that time. The grievor complained that the employee attendance history report given to her prior to the meeting was in small print that she was unable to read. Mr Levine testified that he had asked Ms. Green to provide her with a copy and that it was generally understood by all staff that any documents given to the grievor were to be enlarged. He did not feel that It was necessary to gIve any speCIfic instructions to Ms. Green to that effect and, unfortlmately in this case, it was not done. The grievor however did not complain to Mr Levine about the size of the pnnt until the ghevance meeting. He was asked about the Stage 2 grievance meeting with Mr Lafantasie in which the grievor alleged Mr Lafantasie threatened her Mr Levme dIsagreed that Mr LaflmtasIe's remarks were intended to be a threat. The only comments he heard about job opportumties from Mr Lafantasie were in a . 46 supportive way He was attempting to resolve the grievances and explained to the grievor that part of the resolution might include job opportunities for the future. The grievor and the Union took the position that before there could be any discussion regarding job opportunities and settlement of the grievances, there would need to be an admission of guilt on the part of the Employer Mr Lafantasie tried to explam to her that he needed more information and was unable at that time to make any fmding of guilt. His comment about future job opportunities was made within that context and was not meant as a threat. Mr Levine explained his memo of July 5, 1994, in which he worried that the grievor might "later on" file a workers compensation claim for her leg injury Because she could not remember the details of the accident and, more specifically, where it happened, Mr Levine was simply trymg to protect her and the Mirustry At the time there had been grievances filed against him by the grievor but he testified that he would have done the same thing with any staff member in that situation. In cross-examination Mr Levine denied that his attitude changed toward the grievor at the end of 1992 because of her increasing demands for accommodation. He dIsagreed with the suggestion that he viewed the grievor as manipulative and unreasonable. He explained that a memo written by him to the grievor dated January 12, 1993, was an expression of hIS concerns regarding the procedure for taking time off. He was aware that she was required to take time off for medical appomtments but was concerned about the fact that she did not intend to return to the office from an eye doctor's appomtment. He raIsed Issues concerning the appropnate tlme off for a doctor's appointment versus taking a SIck day or compensatmg day when an appointment as longer than usual. He suggested that l --- - 47 if a doctor's appointment went beyond two hours, for example, an employee should take compensating time off or a vacation day He pointed out that in the memo he stated that he intended to bring SImilar issues to the entIre group and that hIS main goal was to be fair He agreed that when the grievor initially asked him for time off to attend guide dog school, he was unsure about the proper response. After he had discussed the request with others he was happy to support the leave. He acknowledged that he never considered them issues of accommodation because the grievor's request was for special and/or compassionate leave. She herself did not characterize it as accommodation and neither did he. He was asked whether he was frustrated with the glievor and her demands when he wrote the memo of November 30, 1993 The subject heading of that memo is" Same Problem, Different Staff" He explained that he was referring to the attendance problem. Two other staff members in his department were causing him similar concerns; one regarding attendance, the other, punctuality That was his explanation for the heading on the memo. He denied being frustrated with the grievor and her demands. He knew the reasons for her absences from work and never questioned their legitlmacy When he wrote that memo he was very upset and concerned for the grievor She had, that day, famted, at the office and his concerns were entIrely for her well being. His decision to conduct an attendance reVIew was based solely on those concerns and its main purpose was to make her aware of his concerns and to consider accommodation issues. When he referred in the memo to creatmg a "cnsIs", he thought perhaps the fact of the attendance reVIew would make the grievor take a realistic assessment of her health and accommodation needs, which would have an impact - 48 on her attendance. He was asked about a memo to the gnevor dated April 2, 1993, about her attendance. In it he reminded the grievor that he had asked her to "do some thinking" as a follow-up to a previous conversation. He also pointed out that the contents of this memo applied to all probation staff. He quoted the collective agreement regarding hours of work and emphasized that those working hours were not to be completed on a flexible basis but rather within the parameters set by the Employer He also made a reference to five compensation days that recognized the occasional need for work to be done outside the regular scheduled hours. He then went on to say the following: While I accept my responsibility to be sensitive about employees special needs and accommodation, I need to look at other issues as well. As the employer I have an obligation to run the office. Staff do not have the authority to absent themselves from the work place without my prior authorization. Also, I need to know where staff are should an emergency arise in the office. Except under unusual circumstances, most medical appointments are booked in advance. It should be incumbent on Staff, when they are scheduled during a work day, to discuss these with me first, and this is usually the case. Also, to discuss how and when they will be making up the time. Should an emergency appointment come up, staff should be contacting me to advise of such and request permission to leave. IfI am impossible to reach (i.e. away at lunch), my expectation is to leave a message for me. Again this applies to all staff, and if this is expected of others, attending dental and medical appointments, the rules should be applied consistently In recognition of your disability I am willing to explore a number of options: _. - staggering your work hours so you may attend medical first or last thing in the day; - determine if a particular doctor is seen or could be seen at a set time every week and making an agreement to absent you from the work place on the pre-scheduled time and having a set, regularly scheduled day when you make up the hours; - I ask you to propose alternatives as only you know what would be most suitable; - Request someone from Employment Equity to meet with me or both of us to see if there are any other ways we can assist you in the work place; --~- ---------- --- ------ ---- - 49 Again, I remind you that Schedule 6 again is not flex hours, however, in reviewing the new HR Guidelines and Directives, I have found alternatives which may suite your needs, i.e., establishing a flex schedule. We talked about the issue of using taxis from time to time in your getting around. I am looking into this issue, in an effort to assist you further I can see paying for a taxi to assist you when returning from a meeting, but would think it would be your responsibility after a doctor's appointment to return to the office, at your own expense, as quickly as possible. In order for me (management) to assist in the accommodation of yourself, I feel you must be upfront about your needs. I would like to suggest that we meet again informally We should be able to find a Fair way to mesh my needs and accommodate your special needs. Mr Levine stated that when he wrote that memo he was getting pieces of information at a time from the grievor and wanted a more complete explanation of her needs. She was away for extended , periods of time and he was concerned that she was flexing her hours in order to meet her needs to be absent. He denied being frustrated at the time, stating he was looking for a solution that would be fair to both of them. He was asked about his memo of February 4, 1994, in which he made reference to losing his composure and to the fact that he was unaware that eye strain was an issue in the grievor's attendance. He stated that when he wrote that memo he was disappointed that the grievor felt she had not been accommodated. To some extent he felt that she had been less than honest with him. She had never complained to him that she had to take time off because of eye strain from working ~~. at the computer He said that if another employee had come to him with a similar complaint, he would have told them to take some tIme off away from the computer He acknowledged that when he wrote that note he must had been upset or angry, not so much WIth the grievor but WIth the events , as they were unfoldmg. 50 He was asked about his memo of February 22,1994 He stated that he wrote that memo after he had received the details of the WDHPP complaint. He saw the grievor's complaint as a personal attack against him. When he referred to the "calibre of the two", referring to the grievor and her Union representative, he meant that they were strong-willed and determined people who were set on getting their way At the time he wrote that memo he was upset by the grievor's allegations and believed that she had filed the complaint In order to achieve a promotion she otherwise would not have been entitled to. He was still of that view at the hearing. He was not suggesting that she was using her disability for that purpose, but rather using the discrimination and harassment charges in such a manner Ms. Jean Blackmore referred to in the memos is now Ms. McDermitt. So as not to confuse anyone, I have decided to refer to her by her former name in this award. She was a human resource consultant for the Ministry of CommunIty and Social Services at the time of the grievance. She is now a human resource consultant for the Ministry of Transportation in St. Catharines. It was her evidence that it was not unusual for supervisors to keep personal files on their employees as an aid in supervision and performance appraisals. The notes cover many subjects and are not usually seen by the employee. Their contents cannot be used for disciplinary purposes. ~~. She had discussions with Mr Levine about the guide dog school leave of absence. He contacted her because he had never been faced WIth a request of that nature and asked for her assistance. She sent 111m a packet on speCIal leaves and compassIOnate leaves but was unable to provide him WIth any precedents on leaves for the grievor's purpose. She stated that Mr Levine was always supportive 51 of the leave and the only issue was the duration of the leave and the procedure to use in approving it. Mr Levine wanted to be careful not to make an arbitrary decision and wanted as much information as the grievor could give him. As well, the decision to approve a leave such as this would be made at a senior executive level and, therefore, as much information as possible was necessary in order to persuade them to approve the leave. The discussion in the memos about using vacation time for part of the leave and the personal versus professional need for a guide dog were simply meant as discussion of all options. There was never any suggestion that the grievor would be denied the leave. She was asked if she was aware that the grievor had filed a WDHPP complaint against Mr Levine at the time that he was deciding whether to award her leave. She stated that it would have continued to be his responsibility in those circumstances. He was still responsible for managing the office and, at that point in time, the allegations had not been proven. She was asked in cross-examinatIon whether, in considering the grievor's request for a leave of absence to attend guide dog traming school, she considered the issue of accommodatIOn to the pomt of undue hardship. She stated that was why the leave was approved. It was pointed out to her that was the first tIme in the proceedmgs that the leave was characterized as accommodatlon. She stated that she considered accommodation as part of her thought process but that any leave had to be characterIzed under the collective agreement and so it was never stated expressly as accommodation. , She was also involved in the attendance review meeting between Mr Levme and the gnevor Mr 52 Levine had contacted her because he had concerns about the effect of her frequent and lengthy absences on the operations of the department and service to the clients. The purpose of the meeting was to assist the grievor to perform work on a regular basis and to meet the operational needs of the department. They were also hoping to find a balance between the operational needs and her personal needs and determine a prognosis for future attendance. She did not invite anyone from Employment Equity at the time because it was their view that the first meeting would be useful in establishing the attendance problems and some of the issues mentioned previously They intended, at some point, to have some one from Employment Equity attend the meetings. When she attended the attendance review meeting she was unprepared for the grievor's request that she be allowed to tape the meeting. She had never been at a meeting where a tape recorder had been used. In fact, at a preVIOUS meeting with the Union, the Employer representative had been told not to use a tape recorder by the Union. In any event, it was suggested that both sides could take notes. The grievor explained that this was her method of taking notes and agreed to provide the Employer with a transcript of the tape. Ms. McDermott suggested they adjourn the meeting so that she could consider the request. She was not prepared to deny it. She testlfied that If the gnevor was entltled to have the tape recorder, that was acceptable to her, but she wanted to mak~ some mqUIries. It was her belief that a tape recorder would be mhibiting and would constrict the conversation between the parties. She testified that human nature is such that most people are less willing to be open when I I they know that their conversation is being taped. She did not agree with the suggestion that the I grievor refused to contmue to partIcipate in the meeting unless she was allowed to use the tape I recorder She maintained that she adjourned the meeting, even though the grievor was prepared to . " 53 proceed without the tape recorder Mr Rick Partridge has been the coordinator of the Crown Ward Review and Private International Adoption Program since 1992. He explained that the temporary position arose in his department because their investigation into the illegal adoption and sale of babies had become so much larger than anticipated that the person assigned to doing it was unable to handle it without assistance. The job involved interviewmg adoptive parents and birth mothers, examining files, reviewing social worker reports, writing briefing notes for the Minister and, when necessary, testifying in court. Because the secondment was only for three months, it was not posted. Mr Partridge spoke to Ms. Renwick and asked her if she could identify some candidates who would be interested. She asked for more information about the position and then contacted the various supervisors. Four days passed and Mr Partridge had heard nothing about any interested candidates. There was mounting pressure to handle the work load and he was becoming concerned that no one was going to apply for the job. That day he got a call from the grievor asking him to consider her He knew her reasonably well and felt she had the basIC skills for the job. Because of the nature of the secondment he needed someone quickly and told her that she would have to receive permission from her supervisor to be released as quickly as possible. He conceded that he might have given her the impression he would consider her for the job because he dId~tell her that she was qualified. However, he denied promising her the job. The next day he received a phone call from Ms. Fong. He told her the same thing he had told the gnevor about needmg somebody quickly and needing the consent of her supervIsor She said she had already spoken to Mr Levme and he had approved her transfer He had worked with the grievor at the Etobicoke office when she was a volunteer and an unclassified - 54 PO He had also worked with Ms. F ong and felt she had more experience and depth than the grievor If no one else had applied for the job he would have considered the grievor, however, it was his view that Ms. Fong was the best candidate for the job. She had 20 years experience compared to the grievor's much shorter service. He described the grievor as a "diamond in the rough" and stated that she would have needed more support in writing reports. He needed someone who could walk right into the Job and felt Ms. Fong was the better candidate. He called Mr Levine to confirm Ms. Fong's assertion that he had approved her transfer Mr Levine was supportive of Ms. Fong and they dIscussed her outstanding vacation credits and confirmed that she could begin the job immediately after her vacation. They did discuss the merits of the candidates, but not in any depth. They both agreed that Ms. F ong had more experience than the grievor Because he knew both candIdates, he did not feel the need to discuss their relative abihties with Mr Levine. He stated there was no question in his mind that Ms. F ong was the better candidate, especially with respect to report writing. He testified that Mr Levine made no negative comments about the grievor and that, if he had, he would have remembered them. In fact, he saId he had never heard any negative comments about the grievor If Mr Levme had said anything negative, he would have remembered It as bemg mconsistent WIth his ImpreSSIOn of the gnevor In fact he testified that when he was contacted to testify at the hearing he was surprised and even saddened to know that there were performance iSsues involved because it was his belief that there were no problems or complaints WIth the grievor's performance. He conceded that rus knowledge of the gnevor's report wrIting skills was based on his assessment of her writing skills as a volunteer He agreed that he had asked her to train other volunteers to write reports but stated that the standard expected from a volunteer was less than that expected from a P 0 Smce that time he has had no contact with the grievor and could not say 55 whether her writing skills had improved in the mterval. He denied ever telhng the grievor that if Ms. Renwick and Mr Levine were prepared to release her she could "come on down--I'd love to have you." He said that it was unlikely he would have said that without knowing whether there were other candidates. He was asked about the e-mail memo from Mr Levine to him dated February 9, 1994, in which he advised Mr Partridge that he had at least two interested staff, one of whom he was prepared to release. It also stated that he would not recommend the grievor at that time for a variety of reasons. He could not recall the memo initially but did remember that Mr Levine had told him the grievor was behind m her work. It was pointed out to him that his memo to Ms. Renwick about the grievor's interest in the Job was sent at 12.22 P.M. and Mr Levine's response was sent at 1 44 P.M. It was suggested to him that it was unlikely Ms. Fong would have called him by then given the short interval of time. When it was suggested to him that Mr Levine actively advocated Ms. Fong for the job, Mr Partridge disagreed. In his view, all Mr Levine was saying was that he had two interested people in his department, one he was not willing to recommend for an unspecified reason. He testified that he spoke to Mr Levine after he had made his deCISIon to award the job to Ms. Fong. He also testified that his usual practice is to keep a formal personnel or HR file which contains appraisals, ment mcreases, letters of commendatIOns, length of servIce~-classIfication and related employment data. He also keeps another, less formal file which contams notes of meetings with staff and staff supervIsory dIscussions. To the best of hIS knowledge, the supervisors in Toronto were expected to keep SImIlar supervISOry files. He SaId that there was no obhgation on him to show an employee that file unless somethmg arose concernmg the contents of that file at which pomt he 56 would then make the employee aware of the file and allow for a rebuttal. The final witness for the Ministry was Ms. Laurie McEvoy, who has been an Employment Accommodation Consultant with the government since October of 1992. She began workmg With the Ministry of CommunIty and Social Services in 1991 as a project consultant dealing with the technical accommodation of persons with disabilities. Her duties included planning and leading a comprehensive consultatIon process and developing a policy proposal on the delivery of work place and technical accommodation. She also developed a consumer directed model for providing employment accommodatIOn to workers with disabilities. Since October of 1992, she has been a project leader with the QRT and an Employment Accommodation Consultant (Sensory and Physical Disabilities). She provides employment and accommodation services to persons with disabilities and theIr managers through hands on functional analysis of the disability and on-sight analysis of the job requirements, tasks and the environment. As well, her duties include researching, testing and evaluating accommodation solutions and documenting those results in an educational report. Before that, from 1988 to 1991 she worked with the CanadIan National Institute For The Blind as National Manager, Technical AIds Services. She estabhshed consumer directed standards, developed staff trammg programs and co-ordinated the services of twelve technical aIds, service centres and stores. For a year before that she worked for BetaCom Systems as a Manager in the Ontario Region. Her duties mcluded managing, marketing, sales and customer education services and techrucal training on advanced 'technologICal products for persons With dIsabilities. Her work WIth Issues of dIsabihty began m 1982 and includes membershIp in several organIzations dedicated --------.- 57 to that end. Ms. McEvoy had received a memo dated October 14, 1992, from Mr Bryson Boright, Information Systems Branch, that stated as follows: I just spoke with Kathi. Apparently, Kevin Huber of Micro Computer Science Centre has been out for one day of training. Unfortunately it seems most ofthe day was focused on use of the voice synthesizer Kathi would have preferred to use the PS2 and other devices, rather than the voice synthesizer at this time. Apparently Kevin said his firm could return for the remaining training at Kathi's convenience. No date has been set. Betacom it seems only stayed for approximately 15 minutes for the Vista component. Micro Computers Science Centre was authorized for three days training, Betacom was approved for one-half day Basic training on use of the IBM PS2 or other equipment does not seem to have occurred. Consequently Kathi is not using her PS2 etc. It sounds as if she is presently relying on a DEC terminal until training is resolved. She does agree that the training needs to be staggered over a period of time rather than concentrated. Lori. Could you call Kathi, touch base with her, and then discuss her needs with Micro Computer Science Centre and Betacom. The first written communication between the grievor and Ms. McEvoy was an e-mail dated October 14, 1992, in which Ms. McEvoy mtroduced herself to the grievor, apologized for introducing one more person into her support team and promised to do her best to deal with all of the outstandmg issues. Ms. McEvoy also stated that, while she knew that the grievor had received the recommended equipment, she could not determine what, if any, software training the grievor had received. She ~. asked the grievor to write back about the issues that were outstandmg or to call her office but suggested that she would be in and out of the office frequently and that the grievor should leave a , message. 58 On March 8, 1993, Ms. Watts wrote to Mr Boright about the ScreenReader traming. In the memo she stated. I contacted Mr Chai from Micro Computer Sciences today to ask about training on the ScreenReader with DEC. Recent eye surgery has left me with reduced vision and I am now finding it difficult to read my computer screen. Mr Chai advises me that before ScreenReader training with DEC can be arranged, a profile of the DEC program must be written for acceptance by the ScreenReader I am also told that both you and Lori (7)? are aware of this need and have been attempting to complete this task. Can you give me any idea as to when this might be completed? I find it increasingly difficult to complete my work on the computer because of my sight and would appreciate any update you can provide regarding this situation. Thank you for your consideration. The next written communique between the grievor and Ms. McEvoy is found on March 10, 1993, some five months later In a memo at 1.52 p.m. on March 10, 1993 Ms. McEvoy wrote to Ms. Watts introducing herself as the employment and accommodation consultant and discussing the potential for developing a ScreenReader profile. She stated that they realized that the DEC screens were to be changed, which would affect any profile that was subsequently written. She suggested that they schedule a meeting with Microcomputer Science Centre, another vendor and Ministry systems staff. The memo continued as follows: .I will keep you infonned as we proceed and hope that you can provide us with input to the _~ project along the way Can you let me know if you are using the WP-Plus or the VAX WordPerfect Editor? And which functions do you use in DEC most often (i.e. E-mail, word processing, etc.)? Regarding your Immediate needs, are you able to function with the Vista System and your CCTV at all? I would be interested in knowing if you are having any problems with the quahty of image of your CCTV? If you feel your Vision and the lack of the screen reader profile affecting your ability to perfonn, we could discuss some tnterim options until a ScreenReader profile IS available. 59 In the memo Ms. McEvoy asked whether changes in the grievor's vision had affected her use of the large print program, VISTA. She also mentioned that, if the grievor believed she could benefit from the CCTV, Ms. McEvoy would schedule tlme to explain the operations to her Ms. McEvoy also commented on the ScreenReader but suggested it had limited uses. She mentioned that ScreenReader could be customized but that, through her research she had determined that there had been no profile developed for the type of application required by the grievor and therefore questioned any reason to investigate further She also noted that the grievor's training from Micro Computer had been paid for and that the grievor should proceed with the two remaining days of training so that she could learn the functions of ScreenReader and use it for basic reading and writing tasks. She also suggested that she would explore other ways to provide training on the DEC e-mail system and ScreenReader That memo was in response to a memo earlier that afternoon from the grievor to Ms. McEvoy in which she stated the following: "I don't really understand the logistics of it all, and I'm pretty close to computer illiterate. I make vel)' little use of the CCTV, not because it is oflittle use, but because I haven't found the time to experiment with it and really get to know all its applications. I make use of my E-mail on a continual, daily basis. I also use the word and document processing several times daily, since I keep my case notes and forms related to clients in files within this option. _. I understand that there are approx. four others waiting for a DEC profile for the ScreenReader Please include me in the list of those anxiously awaiting the completion of this. When I visited John Stuart-Vanderburg on Yonge St. to view equipment available, John was (and still is) on the DEC system and is hooked up to a ScreenReader I remember this , because he demonstrated it to me. Is this not useable with my system for some reason? Like I say, I know very little about computers, and maybe there is a reason why John's program cannot be applied to mine. --- ----.--- 60 Please let me know if there is anything I can do to assist in the progress of this much-- needed task, please let me know By memo dated March 15, 1993, Ms. McEvoy wrote to the grievor about the ScreenReader traimng. In it she said that she had arranged for Kevin Huber to come in for orientation with a systems officer and hoped that he could do some training for the grievor before the end of the week. She acknowledged that one day would not give her tremendous information but that it would be of some help. She also suggested that she could try to alleviate the glare problems with lights and filters and suggested they schedule a meeting sometime the next week or the week after that. On May 19, 1993 the grievor wrote to Ms. McEvoy regarding the gel paper That memo stated as follows. As promised, here is the info on the gel paper/film. Contact: P.S. Production Services 65 Heward Building B CINE Village Toronto, Ontario M4M 2T5 Tel. (416) 466-0037 Fax (416) 466-9612 Ask for someone in purchasin grip or lighting equipment (sic) My brother tells me that they will have what you need. He also says that you might want to check out something called neutral density gel. I get the impression, though, that neutral density stuff is without colour _. Apparently gel can be purchased in rolls or sheets. Hope this helps you out. On February 2, 1994 the grievor wrote to Ms. McEvoy regarding the ScreenReader profile. That memo stated as follows: Hi! Haven't talked to you in a while. 61 I just received a newsletter from Microcomputer Science Centre Inc., which indicates that they have now developed a profile for ScreenReader for WordPerfect Dos 6.0 Isn't this the profile we have been waiting for my equipment? And if so, how do I get it. I would also like to know the status of my request re - lighting - some kind of glare-cutting screen for my computer (we looked at different colours of gel paper) - other accommodation issues My eyesight continues to deteriorate and my accommodation problems, particularly my lighting issue are becoming more crucial. Ms. McEvoy responded that same day apologizing by for not replying earlier to her questions. She stated that she was the only person available to do accommodations for employees with disabilities and was trying to deal with urgent cases; Le. contracts or people with no accommodation at all. It was her hope to return to people who had their primary accommodations met but not their secondary ones. Even though she now had the assistance of another half time disability specialist and systems officer, she acknowledged that she was still very far behind in her work load. She then advised the grievor of two research projects that she was supervising, one on the development of the ScreenReader profile and one on the V AX editor She suggested that their programmer visit the gnevor to record how she was functioning and to get her input in developing the profile. She also told the grievor that she had bought some gel paper and had determined how to mount it on the computer screen but would have to come and check exact measurements and colours before she _. could actually make the screens. She suggested that the grievor purchase additional lamps if necessary Again she apologized for leavmg the follow up to the grievor and expressed a hope that the services would improve in the following year , 62 By memo dated November 3, 1994, Ms. McEvoy wrote to Mr Paul Valanaser regarding the grievor In it she stated as follows: Thanks Paul: Yes, we should always address both the manager and the employee on any request for a staff person's time for the accommodation. You may need to provide some extra background as this is anew manager (I wonder what tasks Kathi is using ScreenReader for). You and Glen may want to try to replicate the problem on your machine or ask manager and employee to have the time to replicate problem on her machine before we ask for the training time but both need to be relatively soon. She met with the gnevor four times in her office in May, 1993, February, 1994, and in June of 1994 She testified that all the equipment recommended by Mr Stuart-Vanderburg had been purchased for the grievor and in her office when she visited her in March of 1993 She agreed that one of the grievor's concerns was the hghting in her office and that the issue for her to address was the removal of the glare on the computer screens. The Stuart-Vanderburg report recommended removing the lights in the grievor's office. Ms. McEvoy simply turned them off. Mr Stuart-Vanderburg recommended "pink" lights or softer light for the grievor's office. Ms. McEvoy did not agree that the lights would have to be "pink" because that would not have reduced the glare but simply given It a different tint. She agreed that the grievor did not have clear access to her window blinds but stated that her suggestion to the grievor was that they be closed at all tlmes m any event because they allowed too much light into the office. She does not remember the grievor raising that issue with her again. They dId discuss the use of a lamp on several occasions. The first time Ms. McEvoy suggested they could took at different hghts and that they bring some in to test. She also suggested that the grievor should have one that could be lowered below eye level. Ms. McEvoy told her to pIck out a light and . = 63 that the office would order it. She stated that the grievor misunderstood her and brought in her own light. It was never Ms. McEvoy's suggestion that the grievor purchase the light herself. On another occasion Ms. McEvoy brought light bulbs to the grievor and let her decide which ones she would use. She was asked about the grievor's complaints regarding the gel screens. Ms. McEvoy stated that when she first visited the gnevor she brought some theatre gels to use as a contrast on the computer screen. They tried them over the monitor and they did softened the image. Ms. McEvoy wanted to test the gels to see if the contrast would help. They selected a black background with a white foreground and attempted to design a frame for the gel paper that would fit on the screen. Ultimately the grievor did not receive any gel screens because Ms. McEvoy was not convinced that they would have helped with the problem of glare. With respect to training, Ms. McEvoy testified that the Ministry purchased 3 days of training from the equipment supplier and one from another software company She noticed that the grievor had one day of training on August 24, 1994, on the CCTV She stated that the days were ultimately used at the end of March but did not know the reason for the delay She said that there was also a half day of traimng on VISTA, a large print program that have would allowed the gnevor to read the screen more easily Ms. McEvoy said she visited the grievor on one occasion and watched her using it and that everything seemed to be satisfactory On her second visit, in February of 1994, she found that the gnevor was havmg trouble operatmg the LYNX system ffild VISTA. She explained that LYNX was an attachment that allowed the grievor to project an image on to the screen. It allowed . 64 for a split screen and accommodated an enlarged image. On the first and second visit Ms. McEvoy felt that the grievor was able to use LYNX without any problems. There was no manual in her office so they reviewed the commands and Ms. McEvoy left her With a list of instructions. She discovered during a later visit that there were problems in operating the system that had not previously been obvious. It was Ms. McEvoy's evidence that the grievor's personal computer was completely compatible with the DEC system. When she visited the grievor in May of 1993 she noticed that the grievor was using the CCTV but that it was not attached to the automatic viewmg table. The viewing table was electronically attached to the CCTV and a camera eye would enlarge the image to the screen so as to project a larger image or text on the screen. The document is placed on the table and it moves automatically to adjust to the screen. However, there were problems with the table breaking frequently She left it to the grievor to decide whether she wanted it operational. Ms. McEvoy could not explain why the two had not been connected origmally She was asked for her assessment of what equipment the grievor needed to perform her duties. She stated that she was lookmg for barrIers that would prevent a person from particIpatmg fully in the workplace. As far as she was concerned, the grievor had all of the equipment necessary to eliminate those barrIers. In fact, m Ms. McEvoy's view, the-S'creenReader was not only unnecessary, it complicated the process for the grievor It was difficult to learn and required extensive preparation. When asked what she would have done differently, she stated that her focus would have been on elImmatmg the automatIC viewmg table and the ScreenReader She would have spent more time trying to elIminate the glare and would have sought more information from the grievor about her ~---- ------ . 65 prognosis. She also would have introduced the equipment more slowly and allowed more time for training. UNION ARGUMENT Mr Roland, counsel for the grievor, took the position that the central focus of this case is the allegation of the grievor that she was discriminated against because she suffers from a handicap as defined under the Human Rights Code. That discrimination had its focus in the actions of Mr Levine and took many different forms in accelerating dimensions between 1992 and 1994 / The primary issue is the complaInt that the Employer failed to accommodate the grievor's handicap to the point of undue hardship in a timely and complete manner This failure, although less pernicious in motivation, indicates a lack of effort on the Employer's part to find adequate people to provide the accommodation necessary Ms. McEvoy was over-worked and unable to provide the needed services. From her evidence it is clear that she went from crisis to crisis and the grievor's requests for help became lost as a result. Additionally Ms. McEvoy simply did not have the facilities to respond to the gnevor's needs. There was a confUSIon as to who was to delIver what to whom causing a disjointed and mcomplete attempt at accommodation. ~. Mr Roland took the positIOn that this case is a paradox; it is simple and yet complicated. The simplicity is that, due to the fact that the Employer failed to provide a coherent, effective and expeditious accommodatIOn, tenSIOns arose between her and her supervisor The grievor was unaware of the tensions untIl she saw his pnvate file, when it became clear to her that the tensions - 66 arose in 1992 and 1993 but became more serious in 1994 That tensIOn took the form of discrimination at every turn and was rooted in the fact that she consIstently insisted on her rights. The complexity of the case is seen m the mteractIon of the events as they unfolded. The grievor suffers from a deteriorating condition. Her need to be off work is entirely legitimate and the Employer has raised no questIon about that legitimacy m these proceedings. AddItionally the gnevor's accommodation reqUIrements arose from various medical problems. She suffered from kIdney faIlure and ultimately had to undergo a transplant. At the time of the hearing she IS experiencing difficulty WIth reJection of that transplant. As a secondary problem her eyesight deteriorated to the point where she was legally sight impaired. She required more surgery as a result. The grievor needed the protection of a guide dog and required time off for traIning. The first guide dog had to be returned but not before he caused serious injury to the grievor Because of the problems with the grievor's CIrculatory system, she ultimately had to undergo a below knee amputation. The negative accumulation of all her problems necessitated frequent and lengthy absences from work that obviously had an effect on Mr Levine. As an additional element the grievor required accommodation to continue to perform her duties as a probation officer She was an intellIgent, hard working, ambItious person who wanted to mcrease her skills and improve her statIon at the Ministry She wanted to apply for posItions that would have allowed her to be transferred somewhere to further those ambItions. Her dIsability weIghed against her in thIS regard, at least m Mr Levine's eyes. All of the attempts the gnevor made to Improve her statIOn were ultimately frustrated by Mr Levine. Had the gnevor's accommodatIOn requests been 67 dealt with in a timely and competent manner, many of the problems that flowed as a result might have been avoided. Because they were not, the confluence of all of these problems resulted in outright discrimination, which, in Mr Roland's submission, takes us back to the simple aspects of the case. Mr Roland submitted that the documents discovered by the grievor later in the relationship are captured in the grievances dated June 27, 1994 and September 14, 1994 Those grievances deal with what the grievor consIdered to be false documentation regarding previous discussions Mr Levine had with her over her attendance problems and the existence of this "secret file" separate and apart from any official personnel file. The Ministry takes the position that the separate file is simply an informal notation or the "jottings" of a supervisor A closer review, however, shows that it is not an innocent file. It contains perrucious and insulting material, for example, the reference to "doggy school" It is a file in which nasty things were SaId. A nasty, discriminatory file in which it appears several people committed in wrIting their impressions of the grievor It was Mr Roland's position that the documents and exhibIts tell a long and sad story, It began with the posItion in the illegal adoptions project. Mr Partridge was upset when he was _. confronted with an e-mail from Mr Levine's secret file because it challenged his story and supported the gnevor's view What really happened IS that the gnevor found out about the Job and spoke to Mr Partridge. He knew her personally, knew that she was an excellent employee WIth good wntmg skIlls and told her that he would love to have her on the job He told her to get approval from her supervisor However, to get that approval, she had to speak to Mr Levine who, as soon -----~--- ----------- ~ 68 as he heard that the grievor was mterested m the position, wrote a memo to mterpose someone else into the position. It was clearly an attempt to sabotage the grievor's bid to get the job. As a result, Mr Partridge sent a memo to the grievor in which he stated "I was made aware of the fact that another individual had expressed an interest in this pOSitIon" The question, of course, arises as to how was she made aware of that fact. She had to have been contacted by Mr Levine. He did not want the grievor to get that job opportunity and covered up his attempts to sabotage her with a memo Mr Roland suggested that the timing of their e-mails confirms the grievor's story Mr Partridge wrote to Mr Levme at 12.22 P.M. on February 9, 1994, about the grievor's interest m the illegal adoptions project. Approximately 22 minutes later Mr Levine advised Mr Partridge by e- mail that there were at least two other people interested in the job and that he would not recommend the grievor The reason that Mr Levine was not prepared to recommend the grievor is found in his memo of January 7, 1994, which sets out Mr Levine's desire for an attendance review meeting and contains further comments WIth respect to the grievor's sick time and "sickly appearance" It is clear from the Employment Specialist's Competition Check Form of May 16, 1994, that Mr Levine's attitude towards the gnevor had become discriminatory There are clear statements of his attItude wIthm that check form. He made reference to her handIcap and attributed her negative attitude and mabihty to accept constructive critIcism to her physical condition. -~. The memo of November 30, 1993, IS further proof of hIS attitude towards the gnevor He blamed the gnevor for her problems and suggested that, because of her disability, she was an unfit parent. During thIS tIme the grievor was stlll of the VIew that Mr Levme was supportive of her efforts and ~ 69 was totally unaware of his attitude towards her His memo of May 4, 1993, regarding the guide dogs is further proof of his discriminatory attitude towards the grievor He considered the leave excessive and commented on the element of "personal use" that the grievor would derive from the use of the guide dog. He also commented on the fact that the guide dog would not help the grievor write her reports or do her job any better He clearly resented the fact that she was going to require more time off. His resentful attitude towards her absences from work is clearly expressed in this memo. He was, at this point in time, dealing with a severally handicapped employee and he still did not understand the duty of accommodation. He commented in a later memo that the grievor "has sympathy on her side" but failed to acknowledge that she also had the law on her side. While conceding that he might have to accede to the grievor's wishes, it was his view that they were "stuck" doing what she asked because of her threats. Mr Roland suggested that memo be compared with Mr Levine's memo to the grievor of May 21, 1993, in which he expressly stated he was totally supportive of her request. However, unbeknownst to the grrevor, Ms. Renwick expressed concerns about the possible effects of having a guide dog in the work place and referred to It as the "Kathi aftermath" Following that werea series of memos by Ms. Green indicatmg her negative attitude towards the gnevor The memos continued over a six month period of time, contained derogatory comments about the grievor and culmmated m a comment about tension in the work place that Ms. Green attributed 'dIrectly to the gnevor There IS no eVIdence that Mr Levine took any steps to deal with Ms. Green's attitude or to put a stop to her e-mail comments. He either agreed with her attitude or ~ 70 shared the same ideas. There is no evidence to suggest the contrary It is clear that Ms. Green did not feel that her comments about the grievor would be unwelcomed by Mr Levine, otherwise she would never have continued to send these types of memos over such a long penod of time. Meanwhile Mr Levine's attitude continued to exhibit itself in additional memos. He described the grievor as feeling "powerful and demanding" and suggested that she was "gearing up for a fight" Three months later he suggested that he was concerned that the grievor would allege a weB claim over the injury to her leg. It is clear that only because the grievor obtained access to Mr Levine's file was she aware of his attitude towards her His true state of mind is evidenced throughout these memos. He was resentful and vindictive. In his view, despite the grievor's allegations of harassment, it was he who was being harct.5sed. Prom the time the grievor was first hired until the beginning of 1993, the grievor and Mr Levine appeared to work well together It is in January of 1993 that whatever stress or tension had existed between them became exacerbated. It worsened and worsened over the next two years, as the grievor's physical condition worsened. It IS equally clear from the evidence that the grievor was not accommodated to the point of undue hardship. While the Employer did purchase extensive equipment for her, the fact is that they did not do enough to provide her WIth sufficient traIning on the eqUIpment to make it useful. A photograph provided to the Board shows clearly that the blinds m the room were closed. The gnevor needed to close them at all times and, m fact, had to put up black bristol board in order to ehmmate the glare 71 on the TV screen. She never got the proper lighting in her room and no explanation was ever given for that failure. Ms. McEvoy conceded that she is not an expert on accommodation and was frank in her admission that, at the time, she was stretched to the limit. The QRT was a pilot project that was under staffed and dealt with things on a cnsis basis. There were long periods between visits to the grievor and obvious difficulties with the division of responsibility between the supervisor and the QRT All of that interfered greatly with the grievor's effective use of the equipment. The report of Mr Stuart- Vanderburg about the grievor's accommodation needs appears on its face to be an assessment based on an understanding of the grievor's handicap. He seemed to have appreciated the grievor's deteriorating eye condition and recommended that equipment be bought to accommodate that condition. It is equally clear that Mr Stuart-Vanderburg and Ms. McEvoy had different understandings about the grievor's requirements. Some of the items suggested by Mr Stuart- Vanderburg were not necessary, in Ms. McEvoy's opinion. As a result, a situation was created whereby the grievor needed to insist more and more on better accommodation for her handicap, which then generated more resel1tment between her and her supervisor, Mr Levine. Ms. McEvoy's memo of February 1994 indIcates that she herselfrecogruzed that she had been unable to provide the necessary assistance to the gnevor and expressed some hope that in the future she would be able to proVIde more A review of all of the memos concerning the grievor's training on the eqUIpment is clear proof that the Employer never met her needs. While they purchased the equipment promptly they did not take the necessary steps to ensure that the gnevor could make use 72 of that equipment. That is another failure to accommodate. With respect to the Court Duty Officer position, Mr Nelson took the position that the Employer's reasons simply do not withstand scrutiny, especially if they are read in the context of accommodation to the pomt of undue hardship. Mr Levine thought that it would be least disruptive to give the position to someone else and suggested that the grievor could have the position in the future if her health should improve. That is simply inconsistent with the duty to accommodate. To suggest that It would be less disruptive to award the job to another PO is simply not true. It was more disruptive for the grievor to take frequent absences from her duties, thereby requirmg the Employer to reschedule appointments and reassign continuing files to another parole officer The Court Duty Officer position had a built-in rotational system that allowed for emergency absences. It would have been easier for someone to fill in for the grievor when she was absent from work at the courthouse than it was for him to redistribute her responsibilities for her ongomg files. What is clear is that at the time of this memo Mr Levine had developed a negative attitude towards the grievor No matter what she had requested and for whatever reasons, Mr Levine was simply not prepared to do anythmg for her The Union asked lor a declaratIOn that the grievor had been discrImmated agamst and an order that the Employer cease and desist that discrimmation immediately It also asked for a declaration that the Employer had failed to accommodate the grievor, especially during 1993 and 1994 The Union was also seekmg a declaration that the Employer should have awarded the two Jobs at issue to the grievor and a declaration that the reason the grievor was denied those transfers was due to 73 discrimination. It asked that the Board remain seized in the event that there were any difficulties in implementing its award. In support of its position the Union relied on the following cases: Re The Crown in Right of Ontario (Ministry of Government Services) and Ontario Public Service Employees' Union (KimmellLeat) (1991), 21 L.A.C. (4th) 129 (W Kaplan), Re Ministry of Health and OPSEU (Stones) (1996), GSB #782/93 (Saltman); Re Town of Midland and OPSEU (Ken Strain) (1995) (July 28, 1995) unreported (Owen Gray). EMPLOYER ARGUMENT Mr Mason, counsel for the Employer, took the position that the Union had failed to prove discrimination and a failure to accommodate the grievor to the point of undue hardship and, therefore, asked that the grievances be dismissed. Dealing first with the illegal adoptions project, the Employer took the position that the grievor mistakenly believed that Mr Partridge had offered her the job and that Mr Levine unfairly interfered WIth that offer by making derogatory comments about her and by interjecting Ms. Fong into the competition. However, Mr Partndge's evidence was clear He did not promIse the grievor the job. He simply said that she was the first one to contact him and that he would consider her He knew the grievor and had worked with her in the past. He said that he did not need Mr Levine's input and that he made the decision that Ms. Fong was the more SUItable and appropriate 'candidate on his own initiative. Mr Partndge did not remember Mr Levine making any derogatory comments about the 74 grievor Mr Levine testified that, as is the usual procedure, he was informed about the position and asked to propose a candidate. He proposed Ms. Fong because he believed that she was the most suitable candidate. He also frankly acknowledged that he was not prepared to release the grievor He had already decided that an attendance review was necessary and did not believe it would be appropriate for her to change jobs in the circumstances. That was a reasonable management position. Ms. Fong had more seniority than the grievor and was a more suitable candidate. There has been no suggestion by the Union that she was not. The Union has merely criticized the methods used in awarding her the job. Even if the process was hurried and cursory, it was not discriminatory nor improper With respect to the grievances concerning the failure of the Employer to accommodate, Mr Mason took the position that the grievor received all of the equipment that had been suggested by the Quick Response Team assessment. Although the grievor claimed to be dissatisfied with the equipment, she was unable to say With any specifiCity what was lackmg. Mr Levme proposed the purchase of the equipment, at a cost of more than $30,000 00. There was no delay or resistance in meeting that initial request. The Ministry also purchased training by the supplier of the equipment and provided the grievor with the services of Ms. McEvoy While Ms. McEvoy might not be considered an expert in the field of accommodation, she is clearly knowledgeable about accommodation matters and did attempt to asSist the grievor m every way possible. The grievor mamtamed that she was unable to learn how to operate all of the equipment. It was Ms. McEvoy's evidence that the grievor did not ~ 75 need to know it all. Perhaps, if there was a mistake, it might be that the Ministry provided too much equipment too soon. Ms. McEvoy did not necessarily agree with all ofMr Stuart-Vanderburg's report. The issue is not whether Mr. Stuart- Vanderburg's report was followed to the letter, but rather whether the grievor was accommodated. If the Union contends that the Ministry failed to accommodate the grievor because it failed to comply with Mr Stuart-Vanderburg's report in its totality, the onus was on the Union to call Mr Stuart-Vanderburg to defend his report. Mr Mason also pointed out that Mr Stuart- Vanderburg saw the grievor very early in the process while Ms. McEvoy worked with her over a period of time, visited her office and had first hand knowledge of the her needs. The Employer challenged the Union's position that the grievor's lighting needs were never met. It was recommended that she work in a dark room with only a desk lamp to avoid glare on the screen. The grievor was told to order one. She was not expected to bring one in herself. The Ministry was prepared to pay for the lamp. Ms. McEvoy blocked the wmdow m an attempt to keep out hght. The fact that she did not agree WIth the Vanderburg report regardmg the pInk tubes does not mean that the Ministry failed to accommodate the gnevor It was Ms. McEvoy's opinion, based on her experience and knowledge of the grievor, that the pink hghts were not reqUIred. The grievor relied heavily on the fact that Ms. McEvoy failed to provide gel screens for the computer Those gel screens were not recommended in the Vanderburgh report, but were suggested by Ms. McEvoy She expenmented with them but was unable to deSIgn a method of attaching them 76 to the screen. The fact is that the Union called no evidence to show that the gel screens would have made a difference. Accommodatlon is an experimental process that requires adaptation to the circumstances. In this case the gel screens were not easily adapted to the grievor's situation. The Employer's failure to provide those screens is not a failure to accommodate. The Union appears to be taking the position that every suggestion or recommendation concerning accommodation became a necessity That is simply not the case, as can be seen by the ongoing efforts of Ms. McEvoy Each suggestion was proposed in an attempt to meet some of the concerns of the grievor A failure to meet all of those needs is not a failure to accommodate, as the Union would suggest. With respect to the grievor's claim that she did not receive sufficient training, the Employer asserted that the grievor was simply not satisfied with the training she received. That is not the same as saying that it was inadequate. From the memos it is clear that the grievor did not avail herself of all of the training time purchased by the Employer She claimed that she was WaIting for Ms. McEvoy or the Employer to schedule the training. Nevertheless, there was some onus on her to ensure that she received all of the necessary training to operate the equipment. Accommodation is a two-way street and an employee must show slgns of cooperating Wlth and asslst10g the Employer 10 the process. -~. The grievor also rehed on the fact that the IBM ScreenReader was never properly functional. The eVIdence was clear that the ScreenReader did not work well WIth the government's e-mail system. From Ms. McEvoy's memos we know that the Mimstry was trymg to develop Its own profile to allow the two systems to operate together The Ministry cannot be held accountable for the fact that 77 it was unable to design software to meet that need. It was the posItion of the Employer that it had made an extraordinary effort in this regard and cannot be seen to be wanting. The Employer noted that the Union offered considerable criticism about the efforts of the QRT in accommodating the grievor's disability needs. It claimed that the QRT was underfunded and overworked and too slow to respond. It read some of the comments in Ms. McEvoy's memos as admIssions of that state. However, what is clear from the memos, argued the Employer, is that the basic accommodation was m place and the grievor had some training on the equipment. Additional training had been bought and paid for The grievor was not left alone to deal with the equipment as was suggested by the Union. Ms. McEvoy was always available as a resource. She however did not have to be in constant attendance in order to fulfil her obligations with respect to the grievor The Ministry of Commumty and Social Services is the only Ministry with a similar office or department and it did the best it could in the circumstances. The Employer argued that there is some onus on an employee to participate and co.operate in hislher accommodation. Not all of the problems the grievor encountered were the Employer's fault. The evidence is clear that she could have had more trammg had she asked. She had been prOVIded WIth the manuals and could have and should have been referring to those manuals. ~. With respect to the grievor's second grievance concerning the Court Duty Officer position, the Employer took the pOSItIon that Mr Levme's reasons were based on bona fide business , conSIderations. It was his VIew that, if the grievor had taken the pOSItion, he would have had to transfer her case files, whereas the person who took over the job had no ongoing files to redistribute. 78 That person could start immediately with very little disruption to anyone's work load. It was also reasonable for Mr Levme to be concerned about the grievor's attendance. It was his evidence that it would have been easIer to reheve a parole officer than the Court Duty Officer Although there was a stand-by schedule for emergency relief, the person scheduled on stand-by would have had to transfer his or her case load for the period of the absence, which would have been as disruptive as transferring the grievor's. His decision was not discriminatory but a reasonable exercise of management functions. The issue is not whether the Employer was right or wrong in its deCIsion but rather whether the decision was discriminatory With respect to the third grievance regarding Mr Lafantasie, the grievor objected to the fact that Mr Lafantasie used notes from the WDHPP meeting. Grievance number 4 deals with a similar complaint regarding Merlyn Green. Mr Mason took the position that there was nothing improper in either Mr Lafantasie or Mr Green using whatever information they had in attempting to deal with the gnevance. Additionally, it took the position that there was no evidence that the notes were used as a method of harassment. The Employer asserted that, with respect to the grievance alleging that Mr Lafantasie threatened her by stating "if you are mterested in opportunities It would be unfortunate if all discussion of job opportunities suddenly comes to a stand still because we're involved in an adversarial situation." Mr Mason took the position that, within the context of the entIre conversatIOn, the grievor's characterizatIOn of hIS comment as a threat was SImply incorrect. The partIes were at a Stage 2 , gnevance meeting to attempt to resolve the grievor's outstandmg complaints. The grievor inSIsted, 79 before consIdering any discussion of settlement, on an admission of guilt from the Employer She insisted throughout the meetmg that, unless the Employer was prepared to acknowledge its discriminatory practices, there could be no settlement. Mr Lafantasie's comment is made within the context of that discussion. What Mr Lafantasie meant by the comment was that, given the grievor's and the Union's position, there could be no discussion of Job opportunities or settlement of the grievance. The grievor claims that Mr Lafantasie threatened to end "all discussion of job opportunities." The Employer took the position that the tape discloses that what Mr Lafantasie said was "if any discussion of job opportunitIes." In any event, it was not meant as a threat but was expressed as a concern, within the context of that meeting, that all discussion would be curtailed given the grievor's position. The next grievance deals WIth the allegation that Mr Levme kept a false and secret file on the gnevor In fact, there were no false documents within that file, but it was kept secret from the grievor The evidence from the witnesses was clear It was standard practice to keep a supervisory file separate and apart from a personnel file. Not all information about an employee should or could be placed mto a personnel file. The fact is that Mr Levme never used the documents m the file agaInst the gnevor but rather used them to defend himself in the WDPPH complaint. The fact is that Mr Levine was entitled to keep a separaTe file and his deciSIOn to do so is not a violation of any term or provlSlon of the collective agreement. Mr Levine was accused of harassing the grIevor when he asked the Human Resources Department to keep the supervisory job competition open and then called the grievor to advise her of the posting. r 80 It was the grievor's evidence that she believed that Mr Levine did it intentionally to "set her up." Mr Levine's evidence showed that, at that point in time, the grievor had filed several grievances against him as well as a WDHPP complaint. In those circumstances it is just simply incredible to believe that Mr Levine would have done anything that would have precipitated or prompted another grievance. This grievance is based on the grievor's interpretation ofMr Levine's action, and not based on fact. The next grievance involves the grievor's allegation that Mr Levine discriminated against her by making false and derogatory statements in a check list for a job competition. The form filled out by Mr Levine was completed according to usual practice. Mr Levine stated the facts and his opinion of the grievor and stands by that opinion today His comments that the grievor's work had suffered was a conclusion of fact based on his review of her work performance. It cannot be said that he acted in a discriminatory fashion in the circumstances. The ninth grievance deals with the claim of the grievor that the Deputy Ministry of Community and SOCIal ServIces harassed her by assigrung Mr Lafantasie to a Stage 2 gnevance meetmg. It was the grievor's contention that the Deputy Minister knew that she had two outstanding grievances against Mr Lafantasie and that her decIsIon to appoint him to handle the grievance meeting was harassment. The Employer took the position in the first instance that it was questionable whether the Grievance Settlement Board had any jurisdiction to consider that issue. Even if It did, the grievor admitted that , she did not object at the time and agreed to go ahead with the meetmg. The proper tIme to protest would have been then. The fact IS It is doubtful that the Deputy Minister knew anything about the 81 grievor or her gnevances. In any event, there is no evidence before thiS Board of the motives of the Deputy Minister and the mere fact that she designated Mr Lafantasie to attend at the grievance meeting is not proof of the allegations. Mr Mason took the position that this grievance, however, is significant in that it casts doubt on the grievor's perception of events as they were unfolding. The tenth grievance filed by the grievor is similar to the previous one regarding Mr Levine's "secret" file, however, this one alleges that Mr Levine use the file in violation of the rules of progressive diSCIpline. The fact is that Mr Levine did not diSCipline the gnevor He never used the information in that file to her detriment, but rather, used it to defend himself against her complaints about him. Finally, the last grievance concerns the length oftime in processing the grievor's grievances and is simply reflective of the process of all grievance arbitrations. Arismg of those issues are several additional issues concerning the allegations of discrimination and harassment. For example, the grievor's allegations with respect to the guide dog leave have been shown to be unfounded. The leave to attend guide dog school was granted. The WItnesses stated that when the request was first made it was new and there were no policies or procedures upon which they could rely There was some delay in working out the details of the leave-but there was no suggestion that she would not be granted the leave and, m fact, was granted the leave as requested. The Uruon attempted to make Issue of the fact that the Employer had to consider the request at all. However, the grievor's request for time off to attend school to be trained in the use of a guide dog IS not as clear a case for accommodation as some of the other grievor's claims. Although the grievor 82 was required to do some travelling in her Job duties, that travelling could be minimized. Not all people with sight problems use a guide dog and it is an indIvidual decision. It is not surprising that, when the request was first filed, the Employer wanted some time to consider the request within the context of the working environment. The grievor, according to the Employer, made much of the attendance monitoring of Joyce Green. There is no evidence that Mr Levine asked Ms. Green to scrutinize the grievor as closely as the memos indIcate she did. In fact his evidence IS that he spoke to her about those memos and made it clear that he did not need that much information. He did, however, ask her to keep track of all of the employees in the office so that he would know when they were out of the office and where. If Ms. Green's memos are inappropriate or improper, there is no evidence that Mr Levme either solicited or approved of them. The Employer also referred to the grievor's evidence regarding Mr Levine's comment while crossing the street; namely, "don't fall for that crap." Mr Levine denies making the statement. There were no WItnesses called to corroborate the gnevor's claim, nowithstandmg the fact that she was WIth a fellow employee at the time. The Employer took the position that the onus was on the grievor to -~. prove that Mr Levine made the statement and she failed to do so The Employer took the position as well that the attendance reVIew process has been considered by the GSB before and has been found not to be a violatIOn of the collective agreement. The gnevor was of the view that because Mr Levine knew of her medical condition, it was unnecessary to ~ 83 conduct such a review However, the purpose of the attendance review is not simply to verify the reasons for the absences but rather to work with the employee to attempt to minimize those absences. The grievor considered this attendance review as an affront, as an insult, and as disciplinary action. The meeting was called for February 8, 1994 and it is clear that very shortly thereafter the grievor began filing the first of her numerous grievances. That was the chief cause of the deterioration in the relationship between Mr Levine and the grievor, not the attendance review in and of itself. As well, the grievor contended that she had been denied the assistance of an employment equity officer durmg the attendance review meeting. The evidence, however, is to the contrary She was advised that this meeting was simply to discuss her attendance and that, when employment equity issues arose, she would be more than welcome to invite someone to assist her The fact is that the meetings never got to that point because the grievor did not participate. Once the grievances and the WDHPP complaint were filed, the performance review was forgotten. Nevertheless, contended the Employer, performance reviews are a reasonable exercise of the Employer's duties and, in this particular case, was not discnmmatory The gnevor also interpreted the Employer's initIal reaction to a tape recorder at that meetmg as harassment. The evidence however shows that Mr Levine and Ms. Blackmore were not expecting _. a tape recorder and were somewhat taken aback when the grievor requested it be used to record the meeting. The meeting was adjourned in order to deal with the issue and ultimately the decision was made to allow the tape recorder The grievor mterprets that incident as another example of harassment, whIch IS not the case. It was not unreasonable m the CIrcumstances for Mr Levine or Ms. Blackmore to be surpnsed and to ask for some time to consider the request. , 84 The Employer pointed out that the grievor placed much emphasis on Mr Levine's comment in a November memo about creating a crisis to emphasize to the grievor the need to make changes in her life. Mr Levine's evidence is that what he meant was that he needed to impress upon her the seriousness of her attendance problems. That again cannot be interpreted to be discrimination or harassment but simply the grievor's perception or interpretation of a memo When read within the context of that memo, Mr Levine's meaning is clear In summary the Employer took the position that until 1994 the grievor and Mr Levine had a good working relationship. The problems surfaced when Mr Levine raised the attendance review The Union has suggested that those problems arose earlier but the grievor's own evidence is that Mr Levme supported her He was responsible for extending her unclassified contract while she was off ill, he organized a gift from her co-workers in the department, he supported the purchase of the eqUIpment for the grievor and was instrumental in Its prompt delivery The Union points to Mr Levine's memos as evidence of his bad attitude towards the grievor Those memos do show that Mr Levine reached a point ofirritatlOn and possibly even resentment towards the grievor, but from the evidence, it is clear that that was more of a personal nature than professional. The grievor was filing grievance after grievance and had made some 18 allegations against Mr Levine under the WDHPP It is not surprising that Mr Levine became defenSIve m hIS dealings with her The grievor has interpreted Mr Levine's personal response to these grievances and complaints as discrimination. The Employer took the position however that a review of the evidence shows that that was not the case and that'the gnevor received all of the assistance the Ministry could provide and that Mr Levine was supportive of that assistance, at least in the early stages. 85 The Employer relied on the following cases: Re Board of School Trustees, School District No. 23 (Central Okanagan) et al v Renaud et al.; Ontario Human Rights Commission et al Intenreners (1992), 95 DLR (4th) 577 (SCC); Re Ministry ofthe Attorney General and OPSEU (Fernandez) (1993), GSB #2644/92 (W Kaplan) and Re Ministry of Correctional Senrices and OPSEU (R. Rolfe) GSB #1116/89 (1990) (M. Watters); In reply Mr Roland took the position that while it might have been reasonable for Mr Levine to exhibit some defensiveness regarding the grievor, that did not give him license to cross the line into outright discrimination because of handicap. He also suggested that the memos and Mr Levine's evidence show more than simple resentment but rather outright hostility DECISION As can be seen from the preceding, this has been a lengthy and difficult case. The grievor has suffered from serious health problems since at least 1989 At the time of the hearings her health had deteriorated to the point that another kidney transplant is a distinct possibility, perhaps even probability Her eyeSIght continues to be very poor and she is confined to a wheelchair It is her belief that all of these medical problems have been exacerbated by the actions of the Employer, and in partIcular, Mr Marc Levine. -She has filed eleven grievances concernmg what she characterizes as acts of omIssion and commIssion by the Employer She smcerely believes that she has been treated unfairly by the Mirustry in general and Mr Levine in particular Because these issues are so Important to her, I have decided to address each allegation so that she can appreciate the fact that I understood and considered her complamts m a thorough and comprehensive manner taking into ---~----- . .- 86 account each allegation separately and as part of the whole. For that reason, I have decided to include each grievance in its entirety, in the order in which they were presented at the hearing. EXHIBIT #1 This grievance, dated April 18, 1994, alleges the following: I grieve that I have been discriminated against by the Ministry of Community and Social Services in the person of Marc Levine, Supervisor, Probation Services, 1000 Finch Ave. W Stet 201, Downsview, Ont. M3J 2V5, in violation of the collective agreement including but not limited to article A 1 I and violation of the Human Rights Code, Set 10(1), Part A sec.4(I) and 4(2). I grieve too that I was denied my right to Union Representation in violation of the collective agreement. It ask, as remedy, for the following: 1 That I be given the position of Manager, Illegal Adoptions Project that I was denied due to my disability, or a comparable position. 2. That I receive proper job accommodation for my disability as set out by the needs assessment completed by John Stuart-Vanderburg ofthe Quick Response Team and any updated assessments, including but not limited to: computer equipment, visual aids, clerical assistance, proper lighting, spacial requirements and complete training on all computer related equipment. 3 That all harassment of myself by my supervisor, Marc Levine, because of my disability and job accommodation needs cease and desist immediately 4 That my Supervisor, Marc Levine, be required to participate in a course/program related to accommodation of/sensitivity towards disabled employees. 5 That my attendance records be corrected to accurately reflect my Sick tlme off. 6 That my attendance record and personnel file include recognition of the fact that my sick time off is significantly related to my lack of proper job accommodation in the workplace. 7 That I receive an apology in writing from my supervisor, Marc Levine on behalf of himself and the Ministry for his discrimination of me and for the emotional hardship and stress that he has caused me as a result of his harassment and discrimination. . 8 That my Supervisor Marc Levine take steps to repair the damage done to my credibility, reputation and future career development opportunities because of his Ln . " 87 inappropriate comments and discriminatory actions. 9 That I be allowed proper Union representation as is my right under the collective agreement. EXHIBIT # 2, dated April 18, 1994 I grieve that my Supervisor, Marc Levine, 1000 finch Ave. W., Suite 201, Downsview, Ont. M3J 2V5, has discriminated against me in that he has awarded the position of court duty officer to Theresa Dompierre, a contract employee rather that accepting my application for the position. The remedy requested. That the grievor be awarded the position as requested. EXHIBIT # 3 dated June 9, 1994 I grieve that Andre lafantasie, Manager, Finance and Administration, the Deputy Minister's designee did harass me at the Stage 2 grievance meeting of the collective agreement in that the said Andre Lafantasie, Deputy Minister's designee, attempted to introduce transcripts of the informal hearings (held on Feb 24/94, March 25/95 and April 5/94 without notification or permission from the grievor written or oral. At Stage 2 no permission was given to Andre Lafantasie by the Grievor or thegrievor's representative to introduce written or oral evidence from the informal hearings. The remedy requested. 1 The withdrawal of the said transcripts 2. A written apology from the Deputy Minister or the Deputy Minister's designee Andre Lafantasie 3 That all record of my grievance be expunged of information relating to the matter EXHIBIT # 4 dated June 9, 1994 I grieve that Merlyn Green, Manager, Probation Services did aid andabet harassment of me by Andre Lafantasie, Deputy minister's designee 10 that the said Merlyn Green provided transcripts of informal hearings held on Feb 24/94, March 25/94 and April 5/94 to Andre Lafantasie, Deputy Minister~"s designee without notification to or permission from me written or oral. The remedy requested. , 1 A written apology frmn Merlyn Green, Manager, Probation Services " 88 2. Withdrawal of the said transcripts. 3 That all record of my grievance be expunged of information relating to the matter EXHIBIT # 5 dated June 9,1994 I grieve that on June 3/94 at 2195 Yonge St. Andre Lafantasie the Deputy Minister's designee at the Stage 2 meeting did state; " If you're interested in opportunites it would be unfortunate if all discussion of job opportunities suddenly comes to a standstill because we're involved in an adversarial situation" The remedy requested. I A written apology from Andre Lafantasie, the Deputy Minister's designee, specifically deleting his words and its threat, 2. All record of his threat be expunged from any records and further that I receive a written apology from the Deputy Minister indicating that such a threat by Andre Lafantasie or the Deputy Minister will not hold future consequences for me. EXHIBIT # 6 dated June 27, 1994 I grieve that the Ministry of Community and Social Services in the person of Marc Levine, Probation Supervisor, Ministry of Community and Social Services, 1000 Finch ave. W., Ste 20 I, Downsview has introduced false documentation to an internal investigation. The investigator's report states: "Documentation indicates prior to request of attendance review respondent has spoken to complainant informally on several occasions regarding her attendance" whereas on the matters referred to the grievor was never advised of any documentation being kept, _informally or formally, did not receive copies of such documentation, nor is there any reference to any concerns or copies of documentation regarding attendance on the grievor's personnel file, there has been no indication whatsoever of a progressive discipline for attendance. The remedy requested. 1 That documents referred to be withdrawn from the investigation as well as from any other proceedings _. 2. That all records be expunged of said documentatIon 3 That the grievor receive a written apology from Marc Levine, Probation Supervisor, Min. of Community and Social Services, 1000 Finch Ave. W, Ste 201, Downsview EXHIBIT # 7 dated August 22, 1994 " I grieve that the Ministry of Community and Social Services, in the person of Marc Levine, former Supervisor, Probation Services, 1000 Finch Ave. W., Ste 201, Downsview, Onto M3J = 89 2Z5 did harass me on August 2/94 in violation of the collective agreement. The remedy requested. 1 That all harassment of me by Marc Levine, Former supervisor, Probation supervisor and the Ministry of Community and Social Services cease and desist immediately 2. A written letter of apology from Marc Levine for his ongoing harassment of me and written assurances that such an incident will not occur again. 3 A written assurance from the Deputy Minister the harassment of me from Marc Levine or my complaints of same will not have consequences for me, either personally or in my endeavours to further my career EXHIBIT # 8 dated August 22, 1994 I grieve that the Min. of Community and Social Services in the person of Marc Levine, Probation Supervisor, 1000 Finch Ave. W., Ste 201, Downsview did make false and derogatory statements against me in a written reference for job competition CRP- T AO 4/94 The remedy requested. 1 That the discriminatory statements and actions of Marc Levine, Former Supervisor, Probation Services, cease and desist immediately 2. A written apology from Marc Levine for the false and derogatory statements made against me in his written reference dated May 16, 1994 and for its possible detrimental effect on my reputation, credibility and possible career advancement. 4 A withdrawal of said reference from all files and records. 5 A written letter of apology from the deputy Minister along with assurances that the discriminatory comments and actions by Marc Levine will cease and desist immediately and that his comments and actions will not hold future consequences for me personally or in my endeavours to further my career EXHIBIT# 9 dated September 14, 1994 _. I grieve that Rosemary Proctor, Deputy Minister, Ministry of Community and Social Services, did on September 8, 1994, at a Stage 2 meeting designated Andre Lafantasie, Manager, Finance and Administration, to act as Deputy Minister's designee being aware that the grievor had two outstanding grievances in process agamst Mr Lafantasie for harassment and for threaten mg. , The remedy requested. ; 90 1 A written apology from the Deputy minister, Rosemary Proctor, for her harassment ofthe grievor in this incident. 2. That Andre Lafantasie, Manager, Finance and Administration, not act as Deputy Minister's designee in any future matters concerning the grievor EXHIBIT # 10 dated September 14, 1994 I grieve that Marc Levine, former Supervisor, Min. Of Community and Social Services, Probation Services, did harass me and violated the rules of Progressive discipline by keeping a separate and secret file apart from my personnel file in which he collected information and used that negative information to my detriment. I was not advised of the existence of such a file, given copies of any documentation on that file, nor was I given access to or advised of the existence of any negative documentation concerning me whatsoever This "secret" file was submitted as evidence to a formal investigation. The remedy requested. 1 A written apology from Marc Levine for his harassment of me and for his keeping of a separate file apart from my personnel file and using information from that file to my detriment. 2. That I be given the file in question . and that copies of said file and documentation therein be expunged from any files or records in existence. 3 That no separate and secret file apart from my personnel file be created or kept in the future and that I be given fair access to and knowledge of documentation being kept or collected regarding myself. EXHIBIT #11 dated September 14, 1994 I grieve that its a violation of natural justice that it will take the process to resolve my conflicts under my statutory and collective agreement rights two or more years to resolve. The remedy requested. _. 1 A speedy and fair resolution to my conflicts under my statutory and collective agreement rights. Before dealing with the mdIvidual grievances, it should be noted that there was no dispute between the parties that article A of the collective agreement permIts the Union to enforce the Employer's obligations under the Ontario Human Rights Code in these proceedmg. There was also no dispute that the gnevor suffers from a dIsability as defined in the Code and that the Employer has a duty to c . 91 accommodate her disabilIty to the point of undue hardship. That duty to accommodate was described by Mr Justice McIntyre in Re Ontario Human Rights Commission and Simpson-Sears Ltd. (1985), 23 D.L. R. (4th) 321 at page 335 as requiring the Employer to "take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer" As well, a brief explanation of the arbitration process would be helpful to understand the basis upon which my decision is founded. Arbitration has been described as an adjudicative process designed to resolve disputes arising from the administration, application, interpretation or alleged violation of the terms of the collective agreement. The jurisdiction of an arbitrator arises from the collective agreement and is limited to applying the express terms of the collective agreement. In this case, the grievances before me involve general and specific allegations of discrimination and harassment because of handicap. Those allegations, if proven, are contrary to the express provisions of the collectIve agreement and properly within my jurisdiction. As well, there are grievances involving discrete acts that do not so clearly fit within the confines of the collective agreement and are therefore not so clearly proper subJect matter for a grIevance. Smce, m my VIew, the general allegatIOns of harassment, dIscrimination and failure to accommodate are the primary allegations, _. I have decided to deal with those gnevances first and conSIder the grievances involving discrete acts or omIssions that the grievor alleges resulted in diSCrImination and harassment in light of those findmgs. It IS my opInion, based on the evidence before me, that the Employer has failed to accommodate the ----- ------ ---- --- '" 92 grievor in many ways. There can be no doubt that at the beginning of the grievor's health problems, starting with her kidney transplant, the Employer and, in particular Marc Levine, was supportive of the grievor and took steps to accommodate her disability At Mr Levine's recommendation it granted her, an unclassified employee, a leave of absence for her transplant and guaranteed her a job when she was fit to return. She was given a classified position while on her leave of absence, even though she the Employer knew of her medical condition. As well, when it became clear that the grievor could not do her work without technological support, the Employer, and again Marc Levine in particular, approved without question the expenditure of more than $30, 000 00 The problem is that, once it purchased the equipment, it essentially abandoned the grievor While it is true that the Employer purchased training for the grievor, it is obvious that the training was inadequate in all respects. Much of the initial training time was spent setting up the equipment. The grievor testified that she was computer illiterate at the time and yet it appears that she was left alone to master a complex arrangement of computer, CCTV and ScreenReader Even something one would have thought could be easily corrected, that is the lighting and glare problems, were never dealt with in a satlsfactory manner The grievor told Mr Levine and Ms. McEvoy that she was havmg trouble with the eqUIpment but it appears no one actually spent the time to ascertain what she could do Ms. McEvoy testified that, when she first observed the grievor using the computer and CCTV, she seemed to be comfortable and competent. Later visits however showed that the grievor was havmg trouble WIth the VISTA and LYNX programs, that the VIewing table was breaking frequently and that the ScreenReader was not operational. What was not clear from her evidence IS what, If anything, was done to assist the grievor with these problems. __________u_ , I . 93 According to Ms. McEvoy, some of the accommodation recommended by Mr Stuart-Vanderburg was unnecessary For example, it was Ms. McEvoy's opinion that the ScreenReader would be of little assistance to the grievor and, as a result, she showed little interest in the grievor's problems with it. As well, she was not convinced that the gel screens or "pInk lights" would have helped the lighting problems of the gnevor Unfortunately, she never explained to the grievor why she did not follow through with what the grievor believed was necessary in order for her to do her work. The grievor was not in the positlon to determine what she needed. Throughout that period of time she was suffering from numerous medical problems and she was unable to fulfill her obligations as a P02. She thought that if all of the equipment recommended by Mr Stuart-Vanderburg had been provided and if she had been properly trained in its use, her problems with her work would have been eliminated. Instead she found herself sitting in front of several thousands of dollars of technological equipment she was unable to use. In hindsight, Ms. McEvoy acknowledged the obvious. The grievor should have been introduced to this new technology gradually and should have been given more time and trainmg to learn each new piece of equipment before being expected to master something new In summary, the Employer Failed to accommodate the grievor by neglecting to provide her with the required training on the computer and related equipment. The grievor has asked that she be given the accommodatIOn set out In the needs assessment done by Mr Stuart-Vanderburg, including computer eqmpment, visual aids, clerical assistance, proper lighting, spacial requirements, and complete traimng. The eVIdence before me is that the grievor dId receive all of the equipment ~ . 94 recommended by Mr Stuart-Vanderburg. Neither the grievor nor Ms. McEvoy suggested any additional equipment was needed. There is no question that the grievor needs and is entitled to any additional training available to ensure that she can actually use the computer and related equipment. The Employer is also obliged to attempt, to the extent possible, to adjust the lighting in her office to avoid glare on her computer screen. That might, but does not necessarily, include gel screens or "pink hghts" The second grievance alleges that Mr Levme discriminated against the grievor by denying her the court duty officer position. Setting aSIde for the moment the allegations of discrimination, Mr Levine, as the grievor's supervIsor, failed in his duty to accommodate the grievor when he denied her the position of court duty officer She explained to him that the position would eliminate her problems in visiting clients and attending at meetings. The court was across the street from her home and it would have been much easier for her to handle her workload if the travel requirements were reduced or eliminated. Mr Levme appears to have focussed on the operational requirements of the office without any consideration of his obligation to accommodate the grievor's genume and practical reasons for wanting the position. Even if it would have been more disruptive to award her the position, there was no suggestion that doing so would have been an undue hardship. There is no doubt that, whatever positIOn the grievor held, there were going to be frequent absences from work necessitating dIsruptIons to the operations of the office. There is no doubt, as well, that the court duty officer posItion offered the gnevor some relief from her constant battle to do her job. To , the extent that she could be assIgned to a permanent SIte without the need to travel, the benefits to her far outweighed any operatIOnal concerns of Mr Levme. What is clear from his evidence is that : . 95 he never considered her request for the position as an accommodation issue, and he should have. Several of the remaining grievances allege that Mr Levine harassed and discriminated against the grievor because of her handicap. Specifically, grievance #1 alleges that she was denied the position in the illegal adoptions project because of her handicap, grievance # 2 alleges that she was denied the position of court duty officer because of her handicap, grievance # 7 alleges'that Mr Levine harassed her when he suggested she apply for the temporary supervisory position when he knew that he would not give her a good recommendation, grievance # 8 alleges that Mr Levine made false and derogatory statements about her, and grievance # 10 alleges that Mr Levine harassed her by keeping a secret file that he used to her detriment. The grievor relies, to a large extent, on the e-mail memos in Mr Levine's files. Discrimination is a distinction, intentional or not, based on grounds relating to the personal characterIstics of a person, whIch has the effect of imposing obligatIons or disadvantages on such an individual not imposed on others or which WIthholds or limits access to opportunities, benefits and advantages available to others. The Code prohibits discrimination on the grounds of handicap and, more specifically m thIS case, diabetes. Did Mr Levine treat the grievor m a manner that imposed obligations and/or disadvantaged her because of her handicap? Having conSIdered the eVIdence of the parties, the e-maIl memos and the hIstory of the relationship between the grievor and Mr Levme, I am satisfied that he dId. I do not believe that he did so mtentIOnally or with malIce. Nevertheless, decisions he made concerning the grievor and memos : 96 he wrote about her show that her handicap was always a factor in his deliberations. Initially he was supportive and sympathetic to the grievor He advocated for her leave of absence in 1989 and approved WIthout question all of the computer equipment recommended by Mr Stuart- Vanderburg and the QRT Even though the grievor maintains that she complained to Mr Levine about the equipment, I accept his evidence that he did not realize that some of her difficulty in completing her assignments was directly related to the lack of accommodation.. Between June of 1990 when she returned to work as a classified P02 and late 1993, Mr Levine does not seem to have taken issue with her numerous absences from work. When he decided in late 1993 that an attendance review was in order, he had clearly become frustrated with the situation. His memo to Ms. Blackmore is proof of that. He believed that her work had suffered and that she was no longer reliable or dependable. He felt that the grievor needed to take better care of herself. He was concerned about confronting her and described her as having a "strong temperament" He expected the dIscussion would be "messy" The grievor was offended and considered the attendance review to be disciplinary in nature. Mr Levine was aware of the reasons for her absences and had never questioned them in the past. She felt the attendance review was meant to punish and harass her for those absences. However, Mr Levme's deCISIon to conduct an attendance reVIew does not constItute discrimination. As her supervisor and the manager of the entire department, he was entitled to -~. discuss with the grievor the fact of her absences, the prognosIs for future attendance problems and what could be done to Improve her attendance. Discrimination means the act of making a distmction agamst, or in favour of, a person based on a prohibited ground rather than on individual merIt. Provmg dlsnmmation reqUIres eVIdence that, in this case, the gnevor was treated more unfavourably - 97 than others without a handicap If Mr Levine had ignored the grievor's attendance record and allowed the absences to continue without question, he would have been treating the grievor more favourably than others whose legitimate absences were above the departmental average but were the subject of attendance reviews. In these cirumstances, the grievor's attendance record was consIstently higher than the department average. It was not only reasonable but understandable that Mr Levine decided to conduct an attendance review in the circumstances. In doing so, I do not believe that Mr Levine mtended to discriminate and harass the grievor However, their relationship after that steadily detenorated such that allegations and counter allegations were filed and they became parties in two adversarial processes; namely the grievance procedure and the WDHPP complaint. Mr Levine became more critical and negative about her as her need for assistance and accommodation increased. The first actual dispute involved the temporary position in the illegal adoptions project. The grievor alleges that Mr Levine discriminated against her by awarding the position to another In my VIew Mr Levine's concerns about her attendance and her work performance were legitimate. She did have a history of frequent and, in some instances, prolonged absences from work. The grievor herself conceded that she was having dIfficulty getting her work done but attributed it to her inability to master the computer equipment. Regardless of the reasons, Mr Levine was not acting in bad faith ~.. when he deCIded she would not be the best choice at that time for the Illegal adoptions proJect. Mr Partridge was lookmg for someone who would be reliable. Mr Levme believed that the gnevor's unsatisfactory work and attendance record weIghed agamst her and told that to Mr Partridge. Mr ' Levine was not discnminating agamst the grievor in domg so. Unlike the court duty officer position, -------- - ______n__ _~__________ 98 there was no evidence that the duties of this position were more suited to someone with the grievor's disability and that the Employer ought to have awarded it to her on that basis. Mr Levine did not believe he could recommend the grievor for the position and, in the circumstances, his opinion was not unreasonable or discriminatol)' However, it is clear that he did not recommend her for the position because of her handicap. There was no evidence that he considered whether, with accommodation, the position could have been adapted for her Instead of explaining to her and to Mr Partridge about his concerns and discussing the possibility of accommodating the job requirements to her disability, he simply dismissed her request. By doing so he put the grievor at a disadvantage because of her handicap. So much was happening at this time that the grievor began to feel that she was being harassed on all fronts. She was denied two positions because of her handicap. She became aware of e-mail memos that seemed to attack her because of her handicap. People, and Mr Levine m particular, were presenting a supportive and sympathetic front while concealing a malicious and unsupportive attItude. She found out that Mr Levine had written memos about her that indicated rus frustration and anger WIth her demands. She found out that Ms. Green had been writing memos to Mr Levine about her that were insulting and demeaning. She knew that Mr Levine had specifically said he _. would not hire her again and yet received a phone call from him suggesting that she apply for a temporary supervisory position. She perceived that phone call to be harassment. However, that phone call must be considered m light of the circumstances at the time. The grievor had filed a , WDHPP complaint against Mr Levine contaimng eighteen allegations of discnmmation and harassment. She had also, by this time, filed numerous grievances with SImilar allegations. When = 99 Mr Levine called her, he testified he was just making sure she had no grounds for another grievance regarding denial of the position. I accept his explanation. I do not believe, given the outstanding allegations against him, that he would have intentionally put himself in the position of bemg charged with additional allegations by "setting her up" I do not believe he intended to harass her However, this incident indicates the level to which their relationship had deteriorated. Each of them were so mistrustful of the other that everything they did was suspect. Several of the outstanding grievances do not, on their face, involve the application, administration or alleged violation of any terms of the collective agreement. They are illustrative of the grievor's increasing suspicions that she had become the subject of a concentrated course of harassment and discrimination with disastrous consequences to her future. F or example, grievance # 3 alleges that Mr Lafantasie harassed the grievor by introducing transcripts of the WDHPP investigation at a Stage 2 grievance meeting. The grievor understood that anything said for purposes of the WDHPP complaint was not to be used for any other purpose. She was upset and angry that, without her knowledge or consent, the information supplied at the WDHPP investigation had become part of the grievance process. Even if the grievor is correct and assurances _. were gIven to her about the privileged nature of the WDHPP investigation, there is no evidence before me that the deCIsion to use that information at the Stage 2 meeting was mtended to harass her At most, It was a breach of an undertaking to treat certain informatIon in a certam manner That breach, if that IS what it was, IS not a VIOlatIOn of any express term of the collectIve agreement and for that reason, the grievance is dismissed. 100 For the same reasons, grievance # 4 is dismissed. Whether or not the information gained during the WDHPP complaint was improperly used at a grievance meeting, there is no provision of the collective agreement prohibiting its use. Neither is there any evidence that the decision to supply the mformation to Mr Lafantasie was based on any intention to harass the grievor Grievance # 5 alleges that Mr Lafantasie threatened the grievor at a Stage 2 grievance meeting. I have listened to a tape recording of the conversation and, based on that recording, do not believe that Mr Lafantasie's comments were meant as a threat. It is true that he said "If you are interested in opportunities it would be unfortunate if any discussion of job opportunities suddenly comes to a standstill because we are involved in an adversarial situation" In the grievance the grievor alleges that Mr Lafantasie said "all discussion" The tape recording provided to me was very difficult to understand and I cannot say with certainty which version is correct. Whatever version is correct, that statement must be considered within the context of the meeting. There are two primary purposes to grievance meetings; namely to attempt to resolve the matter or, failing that, to discover the relative posItIons of the parties so as to prepare for arbitration. It is common, in settlement discussion of a Job postmg grievance, to suggest a ",ithdrawal of the grievance in exchange for an offer of another position. A settlement almost always requires a compromise by both parties. Mr Lafantasie was attemptmg to settle that matter by discussing developmental opportumties m general and the gnevance m particular At the meeting m question, the gnevor and her Umon Steward took the pOSItion that there could be no diSCUSSIOn of settlement without an admiSSIOn from the Employer that the grievor had been discriminated agamst. They were adamant that, without an admission of guilt, they were not prepared to dtscuss settlement. It was within that context that Mr Lafantaste made ; 101 his remark about the adversarial process. It was clear to me after listening to the tape, that he was frustrated with the grievor's position and was trying to persuade her to reconsider I do not believe he meant his remark as a threat but simply as a statement of fact. As long as she continued to demand an admission of guilt, the Employer could make no offers of settlement, which precluded any discussion of or offers of future developmental opportunities. This grievance is therefore dismissed. The next grievance, Exhibit # 6, accuses Mr Levine of introducing false documentation during the internal investigation of her WDHPP complaint. Whether the mformation was false or not is irrelevant to my considerations because there has been no violation of the collective agreement. The mformatIon at issue was part of the internal investigation of a complaint filed in accordance with the Employer's policy against discrimination and harassment. Any exchange of information was done pursuant to that investigation. There is no provISion m the collective agreement the grievor can rely on as having been violated. If the information given by Mr Levme m responding to these allegations was indeed false, it is for the internal investigation team to determine the truth. It is not a matter for a grievance under the collective agreement and the grievance is therefore dismissed. Gnevance # 8 allegesthat Mr Levme made false and derogatory comments about the grievor m a written job competition check hst. The grievor asks that the check list be purged from all of her files. Agam, I find no provisIOn of the collectlve agreement prohibIting the completion of a competition reference check lIst by a supervisor This document is a management tool utihzed by the Employer to assist in its selection of candidates for job competitions. The posItion at issue was = . 102 not subject to the posting proVISIOns of the collective agreement and was entIrely at the Employer's discretion. If the Employer chooses to rely on the recommendations of its managerial employees in deciding who should be offered a developmental opportunity, it is free to do so The allegation, in this case, is that the statements in the reference were false and derogatory The comments made in the reference were, for the most part, consistent with what one would expect from a supervisor about an employee and were consistent WIth the VIews expressed previously by Mr Levine about the grievor Even if the opinions stated were false, as claimed by the grievor, they are not a violation of the collective agreement and therefore outside my jurisdIction. Grievance # 9 alleges that the Deputy Minister, Rosemary Proctor, harassed the grievor by designating Mr Lafantasie to act as her appointee to a Stage 2 grievance meeting when she knew or ought to have known that the grievor had two outstanding grievances against him alleging harassment. The collective agreement does not dictate who the Employer can or should assign as its deSIgnee any more than it dictates to the Union who it can designate to accompany a grievor to a meeting. That IS an internal matter to be determined by the parties. While It might not have been the best choice, the fact of the matter is that the Deputy Minister's right to chose her designee is unfettered. As well, aside from the grievor's assertion that the Deputy Minister's choice was meant as harassment, there was no evidence before me that woul,fallow me to make such a determmatIOn. Given the number of employees and the number of grievances filed in the Ministry, It is more likely that the Deputy Mimster made her selectIOn of her deSIgnee in accordance with her usual practice WIthout any regard to or knowledge of the issues or the parties and for no other reason. This gnevance is dIsmIssed. .. 103 That brings us to grievance # 10 whIch alleges that Mr Levine vIOlated the rules of progressive discipline by keeping a secret file that the grievor was never advised existed and was used to her detriment at the WDHPP investigation. It is this file that has caused the most difficulty for the grievor because it contained memos that proved to her that the Employer, and Mr Levine in particular, were never supportive of her and, in fact, were secretly conspiring against her This file included several memos from Mr Levine to Ms. Blackmore or Ms. Renwick that were Mr Levine's musings on the grievor and her needs. They were, in some instances, his thought processes for dealing with the gnevor and the problems he believed she created. Mr Levine invariably did the right thing. The problem is that these memos show how unprepared he was to deal with an employee with the multitude of problems the grievor was experiencing. Even when he did the right thing, like granting her request for leaves of absence to attend guide dog school, his memos show that he never understood the duty to accommodate. When the grievor asked for time off to attend gUIde dog school, he felt that the grievor should bear some of the responsibility for the leave by using her vacation. In fact, he seemed to resent the fact that she did not. He also felt that, smce the use of a guide dog had personal component, the Employer should not have to bear the full cost of the leave. When he sought advice from hIS superiors, the result was disappointing to say the lea:st. There is no evidence that Ms. Blackmore or Ms. Renwick made any effort to explain or enlIghten Mr Levme about his duty to accommodate. Ms. Blackmore testified that she considered the leaves to be a matter of accommodation but that is never expressed in her memos to Mr Levine. At no time did anyone explaIn to Mr Levine that his personal views of the grievor's request were inappropriate m fact or Improper m law Mr Levme IS a'young man who had never had to deal with the complex Issues presented by the grievor He was clearly over hIS head. It would appear he was never ~ ~ 104 adequately trained in issues of dIsability and accommodation. As a result, he did not recognize that the grievor's request for the court duty officer position should have been considered as an accommodation issue. He based his decision to deny the leave on operational requirements alone, which was improper He supported the purchase of a large sum of money for computer equipment but never took any steps to inquire about the grievor's use of that equipment. He appeared to be unaware of the grievor's ongoing diSCUSSIOns with Ms. McEvoy about her problems using the equipment. In fact, it would appear from the lack of knowledge about the grievor's problems that he did not consider the computer equipment to be IDS responsibility at all. As the grievor's immediate supervisor, he should have made it his responsibility to ensure that the grievor's need to be accommodated was being met in all areas. His failure to do so is, in my opinion, directly due to his lack of knowledge of disability and accommodation issues. The file in question was a secret from the grievor However, as far as I am aware, nothing in that file was ever used for disciplinary purposes. It has been well estabhshed that an employer who attempts to discipline an employee by relying on documentatIOn of action that has never been brought to the attention of the employee does so at its peril. It is not a violation of the collective agreement for an employer to maintain an employee file pertaining to ongomg performance issues that are never intended to be the subject of disciphne. In the mstant case, I do not believe the file was intended to harass the gnevor In the first place, she was unaware of the file and therefore could not have felt harassed by It. As well, Mr Levine never intended that the gnevor see the file. If he ) The gnevance is wanted to harass her, he would have used the contents of the file to do so. dIsmIssed in so far as It alleges a VIOlatIOn of natural justIce aIld harassment. ,. . 105 The "secret' file does however give us some insight into Mr Levine's thinking. It indicates clearly that, at some point, Mr Levine did begin to dIscriminate against the grievor not through malice but through ignorance and inexperience. As the grievor's needs grew, Mr Levine became more and more frustrated with them and with her attitude about them. She was secure in the knowledge that she was legally entitled to be accommodated. When Mr Levine was indecisive or unsure, she made it clear to him of her rights and her intention to enforce them one way As her needs grew, so did her inability to perform her duties. I accept Mr Levine's evidence in this regard. It is hard to imagine how the grievor could have continued to handle a full workload in her condition. There was no evidence that her workload was ever reduced to accommodate her condition. Indeed, the grievor acknowledged that she was having trouble doing her work but blamed it on her problems with the computer Mr Levine began to lose his sympathY-for the grievor and believed she was using her disability to obtain promotions she would otherwIse not be entitled to His attitude towards the grievor led Ms. Green to believe that her memos about the grievor would be acceptable. While Mr Levine testified that he dId not ask for those memos and, in fact, asked Ms. Green to stop sending them, they continued for at least six months. He did nothing to educate Ms. Green about the disability or accommodation issues. As a supervisor, it was his responsibility to ensure that the people he supervIsed were famIhar WIth and understanding about these issues. His failure to deal WIth Ms. Green and her attItude towards the grievor are further examples of his~discriminatory attitude and his faIlure to accommodate. The full range of hIS responsibility to accommodate included not only makmg physical alteratIons to the gnevor's workplace but also ensuring the understanding and cooperatIon of her co-workers. ~ 106 While the grievances about Mr Levine's "secret" file, the reference check list and the internal investigation have been dismissed the actions giving rise to the grievances do support the grievor's allegations of discrimination. His personal memos about the grievor speak for themselves. They are clear proof of his frustration with and eventual antIpathy towards the grievor While some of those feelings were no doubt personal, they affected his professional conduct towards the gnevor Every decision he made about the grievor was tainted by his attitude towards her and her disabihty He commented on her frequent absences, her inabihty to perform her duties, her lack of focus and dedication and her inability to accept criticism. While they may have been legitimate observations they were, nevertheless, as a result of her disability He acknowledged that when he advised her that, " if her health improved, he would consider her for the court duty position and in the reference check list. And yet, those criticisms created bamers for the grievor that did not exist for other employees without disabilities. I do not believe Mr Levine intentionally discriminated against the grievor Nevertheless, he did and the grievor is entitled to a declaration to that effect. The last grievance filed claims a VIolation of natural justice that these proceeding have taken such a long time to process. While I understand the grievor's frustration with the process, the fact is that grievances often take a long time to be heard and decided. She asked that she receive a speedy and fair resolution to her grievances. WhIle I cannot comment on the tIme It took to actually begin the hearings, I can apologize for the delays inherent in the system. The gnevor IS entltled to a declaration that grievance # 1 allegmg dIscrimmation and a failure to , accommodate is allowed as IS grievance #2 allegmg discrimination in denying the court duty officer IS 107 position to the grievor As well, she is entitled to a declaration that Mr Levine discriminated against her on the basis of her handicap. REMEDY Fashioning a remedy to address these violations is problematic. As stated previously, the grievor's health has deteriorated since the grievances were filed and since the hearing. At this time I doubt that she is in a position to return to work immediately Even if she were, it is difficult for me to know what she will need in the way of accommodation when she does return. It would appear, from the evidence, that the grievor has been supplied with ail of the equipment available to assist her in performing her duties. At a minimum she will require extensive training on the computer She is entitled to whatever training is necessary to allow her to perform her duties to the extent that the technology will allow It might be that, even if she is able to use the computer to its fullest extent, it will not be enough. That determination will have to be made at a later date. She is also entitled to be supplied with any additional equipment that may have been developed in the interval if it is determined that it will be of assistance to her A new needs assessment should be done for the grievor to ensure that a comprehensive and realistic accommodation can be designed to remove any barriers to the grievor's ability to perform her duties as a P02. _. Another clear example of the failure to accommodate mvolves the denial of the court duty officer pOSItIon. The grievor has asked that she be awarded the positIOn. Agam, given the length of time , that has elapsed since the grievance was filed and this decision, I am unable to do so When the grievor is able to return to her position ofP02, the Employer shall review the grievor's situation and, ,. ;, 108 If the same reasons exist to award her the position as she stated at the hearing, she should be placed m the position as soon as is practical. That leaves the issue of discrimination. Mr Levine was not the grievor's supervisor at the time of the hearing. He present position is, as I understand, temporary in nature and I assume he will be returning to his former position at some time. It is clear that whatever position he holds, he continues to be lacking in a fundamental understanding of discrimination and the duty to accommodate. To be fair to him, he received little assistance from his supervisors. Ms. Renwick's memo of the "Kathi aftermath" indicates why The title of the memo and the questions regarding concerns of allergic reactions and dog bites show her lack of understanding of the issues. As his supervisor, she not only did not assist the grievor but encouraged him in his own attitude. Ms. Blackmore stated that she approved the leave of absence for guide dog training as an accommodation issue. Yet, at no time in her memos or in Mr Levine's evidence did the word "accommodation" arise. If indeed she did consider the duty to accommodate in her deliberations regarding the leave, she never advised Mr Levine. Again, as a human resource consultant, she should have made it clear to him that, irrespective of what they characterized the leave, it was their duty to approve it. Instead she encouraged him in his comments about vacation and personal.use. _. In those respects, the Employer has shown a glaring need for education and instruction on the issues of disability and the duty to accommodate. Mr Levine, Ms. Blackmore and Ms. Renwick are to be provided WIth counselling and instruction on these matters so that, when the grievor returns to work, they are in a better positIOn to deal with her concerns and the concerns of other employees with f+ ~ 109 disahihties. The actual counselling and instruction must he comprehensive enough to provide them with an understanding not only of theIr legal responsibilities but also of the personal and professional commitment necessary to provide a workplace free from discrimination. The Employer and the Union should attempt to agree on the appropriate instruction. If they are unable to agree, I will remain seized of the issue as well as any other difficulties encountered in the implementation of the award generally Signed this 6th day of November, 1997 oretta Mikus, Vice-Chair