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HomeMy WebLinkAbout2004-0681.Sinclair.07-04-20 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2004-0681, 2004-0682 UNION# 2004-0671-0001,2004-0671-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Sinclair) - and - The Crown in Right of Ontario (Ministry of Northern Development and Mines) Loretta Mikus Gavin Leeb Barrister and Solicitor Lisa Compagnone Counsel Ministry of Government Services March 31, June 27, August 25,26 & 30, November 4,2005; February 28, March 13 & 27, April 20, May 3, June 16, July 18 & 20, 2006. Union Employer Vice-Chair 2 Decision The grievor, David Sinclair, had been in employed by the Ministry of Northern Development and Mines since May of 1989. On April 28, 2004 he resigned his position as Server Operator with the Informational Technologies Services branch of the Ministry. His attempt to rescind that resignation was unsuccessful. The employer took the position that Section 19 of the Public Service Act gives it sole discretion to decide whether to accept or rescind a resignation. Further, it asserted, the Grievance Settlement Board does not have the jurisdiction to challenge that decision. The Union took the position that the employer was aware of the grievor's psychiatric history and that he had just been released from the Algoma Psychiatric Centre on April the 20th, after a twelve-day involuntary admission. When he tendered his resignation on April 28th, he was still exhibiting symptoms of the manic phase of his condition. He was not competent to form the subjective intent to resign from his job. In the alternative, it was submitted, the employer had a duty to accommodate the grievor, which duty included satisfying itself that the grievor was in a stable mental state sufficient to form the required intent to resign. It should have been evident to those who witnessed his behaviour that he was not. The union and the grievor were seeking reinstatement, with full benefits and seniority. THE FACTS There is very little disagreement on the details of the events that occurred between April 7 and April 28, 2004, when the grievor tendered his resignation. The grievor's version of the events is somewhat hazy and incomplete but he does not take issue with the employer's more fulsome account. The only dispute concerns how to interpret those events. After his graduation from the University of Waterloo in 1983, the grievor worked for three years as an unclassified employee for the Ministry of Natural Resources. He left for 36 months and returned to the Ministry of Northern Development and Mines. In 1990 he won a competition for a position in the newly created office in Sudbury and became a Systems Operator, the position he held to the date of his grievance. 3 In 1998 the government created virtual identities by merging the IT requirements of several ministries with common goals and structures. The land resource cluster, where the grievor worked, was joined with the Mini stry of Natural Resources, the Mini stry of the Environment and the Ministry of Food and Agriculture. These clusters were under the supervision of the newly created Ontario Operations ChiefInformation Officer (OOCIO) and, within each cluster, was a management supervisor who provided direction to clients regarding managing, collecting and storing data as well as providing a place to store the data. The Core Cluster Management Services provided support for the OOCIO regarding architectural and strategic planning internally and for clients and industries with respect to training and development services externally. The Business Solutions Development Branch worked with clients to investigate business requirements relating to the development and requisition of new information technology systems and upgrading existing systems and information technology services. Finally there was the Information Technology Services which managed the infrastructure and provided support, security, and assistance. It was in this latter group that the grievor was employed. He was a system administrator, and his job was generally to maintain the service infrastructure, perform backups on the server, monitor event logs, create accounts, configure hardware and provide assistance with the software programs. When he began he was classified as a S04. In 2000 or 2001 he was part of a Systems Operator reclassification which resulted in a reclassification to a S03 with red circling of his salary. At that time there was about 22 staff employed but at the time of his resignation there were only 3 SO's in his office. Over the years he had worked under a series of managers and, at the time of the grievance, was reporting directly to Ray Hunt, Manager of Development and Maintenance, Land and Resource Cluster. During his employment with the Ministry of Northern Development and Mines, the grievor was diagnosed with Bi-Polar Affective Disorder (BP AD). His first onset of symptoms occurred in December of 1994 when he was admitted for ten days to Women's College Hospital in Toronto, treated with anti-psychotic drugs and discharged. In February of 1995 he was admitted to the St. Thomas Psychiatric Hospital. His behaviour was described as fluctuating between normal and bizarre. He tried to return to work in April but was sent home and told by Mr. Storozuk, his manager at the time, to provide a medical certificate verifying his fitness to return to work. The grievor obtained a letter restricting him from excess stimulation or pressure, from working with 4 large groups of people and from working at a location too far from his home. He was referred to Dr. Kumar, a psychiatrist with the Algoma Health Centre in Sudbury. He was next off work in the fall of 1999. He was not hospitalized but was under the care of Dr. Kumar until January or February of 2000. He was returned to work on somewhat restricted duties but no medical certificate was requested by the employer. About three months after his return to work he and Mr. Taylor, his manager, agreed that he should not work with any servers for a period of time. The next exacerbation of his condition occurred in December of2001. He became more and more anxious and distressed and displayed numerous manic symptoms. His manager at the time was Franco Merino. He was off work and received pay for 120 days under the short-term illness plan (STIP), which expired on September 2, 2002. He was then placed on a leave of absence with pay so that he could complete an application for long term disability benefits (L TIP). He was initially denied those benefits but was subsequently approved and received payments from the insurer until his return to work. An independent medical consultation was conducted in September of 2002 by Dr. Debow, a psychiatrist at Mount Sinai Hospital in Toronto. He recommended further psychiatric care and a review of the grievor's condition in three months. The grievor approached Mr. Hunt in February or early March about returning to work and was told he would have to see Dr. Debow for an update on his fitness to return to work. He saw the psychiatrist on June 23, 2003 and Dr. Debow found him to be in complete remission and ready to return to work on a graduated basis, beginning with half days and increasing to full time hours over a three month period. In July, a Rehabilitation Employment Return to Work Agreement was executed between the grievor, Mr. Hunt and the insurer. By October the grievor was working full-time hours. Unfortunately, on April 7, 2004, the grievor suffered a relapse and presented himself at the Sudbury General Hospital emergency department and, after waiting about seven hours to see a physician, he walked out of the hospital and went back to work. On April 8th he phoned a friend, who recognized immediately that he was not well and called 911. The grievor testified that four uniformed people responded to the call but he could not recall whether they were police officers or paramedics. By then he was in what he described as a crisis state and feeling suicidal. The ambulance took him to the Sudbury General Hospital where he was quickly transferred to the 5 Algoma Psychiatric site and involuntarily admitted. He remained in that status until April 20th. He recalled very little about the days preceding his admission, and did not recall speaking to Mr. Hunt or anyone else about being sick and/or going home. While he was in the hospital he was visited by Mr. Hunt and his spouse as well as Mr. Firth, Mr. Hunt's direct supervisor. He remembered Mr. Hunt bringing him coffee and cigarettes and discussing with him that, in an effort to avoid admitting his relapse to the other staff, he asked that it be marked as vacation. He does not remember much of his first week in the hospital. He did understand that it was a safe place for him to be while he was ill. He told Mr. Hunt that he had been admitted because of a problem with his medications but did not offer any further details. He did not recall any discussions with either Mr. Hunt or Mr. Firth about returning to work at that time. The grievor explained that during his admissions to the hospital, there were always grey areas in his mind about events of the first few days. He testified that usually, during an involuntary admission, patients are released after three days but that, in the past, he had been admitted for as long as thirty days. He is not always aware of the underlying process during those admissions. On April 20th, he was advised that he was being released. There had been some discussion about moving him to a step-down unit, which would have allowed for more freedom of movement but, instead, he was discharged with no transition. When he was asked who decided he should be released from the hospital, he testified that there is a point during every admission where a patient begins asking about his release and he had reached that point. He stated it was not necessarily an informed decision but simply a desire to be free. Often a request to be discharged is merely a reaction to the surroundings and to the other patients on the ward. When he was released he felt great because he had, in the past, had the sense he would never be released and he was "ecstatic" that he was free. He was given an appointment to see Dr. Kumar on May 18th, almost a month after his discharge. He had discussed his return to work with Dr. Kumar while he was in the hospital and had told him he was looking forward to beginning work on a new project and a scheduled trip to Toronto. He did not ask Dr. Kumar for a note explaining his absence or his fitness to return to work because he did not think it was necessary. Mr. Hunt knew he had been in the hospital and, in any event, the grievor did not think he was ill. 6 He returned to work the next day, that is Wednesday, April 21st. He had not advised anyone he would be returning and reported for work almost directly from the hospital. His only recollection of that day was a discussion with Mr. Firth in which he suggested that the grievor should not attend the Toronto meeting the following day. The next day was uneventful. The grievor was feeling good and was glad to be back at the office. Friday, April 23, was a similarly uneventful day. The grievor was, however, disappointed about the cancellation of his Toronto meeting because it would have given him an opportunity to meet with the other ministry personnel about his new project and because it would have been his first work trip in some time. He felt that ifhe was healthy enough to work in the Sudbury office, he should have been healthy enough to go to a meeting in Toronto. He had no doubt about his ability to represent the Ministry at the meeting. He was off duty on Saturday but on Sunday he went to the office and moved one of the servers. He had been told some time earlier, before his admission to the hospital, that there were plans to move the server and he took it upon himself that day to do it without ensuring that all of the necessary safeguards had been put into place. Although Mr. Hunt's instructions to move the server had been given no particular time frame, the grievor decided it would be better to do it sooner rather than later. He acknowledged that it was usual to give notice of a server move but, because it was a Sunday and no one was working, he decided to proceed. He stated that prior notice of a move would have been a courtesy but was not mandatory. On the next day, that is Monday, April 26th, he met Mr. Firth as he was entering the building, who told him he was not happy with the fact that the server had been moved nor with the manner in which the move had been conducted. The grievor described the conversation as "somewhat testy". He did not acknowledge any problems with the move and felt Mr. Firth was making more of the issue than was warranted. He was upset because he felt he should have been praised for his initiative in completing the move by himself when it was usually a two-person job. As far as he was concerned, the server had only been inconvenienced for five minutes and that did not warrant the friction that seemed to exist between them during this conversation. The grievor recalled another conversation later that day with Mr. Firth in which Mr. Firth told him he was smoking too much, drinking too much coffee and taking too many breaks. The grievor testified that Mr. Firth had told him he was acting "a little manicy". Mr. Firth suggested he should be careful because the "optics aren't good". The grievor understood Mr. Firth to be telling him to 7 reduce his breaks in front of the building so others would not notice how many breaks he took in a day. The grievor felt this conversation was the result ofMr. Firth's concern about complaints from the server that would reflect negatively on him. That conversation only lasted about ten minutes. The following day, April 27th, Mr. Hunt and the grievor had a conversation mid-morning about the weekend move and Mr. Firth's reaction to it. The grievor described Mr. Hunt's response as "hostile". He was very unhappy with the server move. The grievor's recollection of the discussion was not clear but he did remember feeling unsettled. He had been asked to perform a task, he had done it well and he was now being severely reprimanded. He felt that Mr. Hunt's response was punitive. He went back to work after that conversation to await a previously scheduled staff meeting for two 0' clock. However, just before that meeting was to begin, he was told it had been cancelled and that he was to attend a meeting with Mr. Hunt. At that meeting he was reprimanded by Mr. Hunt for drinking too much coffee, smoking too many cigarettes and for other behaviour that Mr. Hunt described as improper. Mr. Hunt told him he had received complaints from others in the office that he was loud and disruptive. The grievor felt he had been subjected to a "bait-and-switch" tactic by being asked to meet to discuss one issue and being confronted with other, more serious issues. A meeting that had been scheduled to discuss server issues had been replaced with a meeting to discuss personal performance and behavioural concerns. In his view it was an extension of the morning discussion that had, in the interval, become openly hostile. It was not the standard of dialogue he had expected from Mr. Hunt and he was very upset. The meeting was short, about ten minutes, and ended with no resolution. The grievor felt the issue about his breaks had been dealt with the day before by Mr. Firth and that there had been no need or reason for Mr. Hunt to raise it again. At the conclusion of the meeting the grievor told Mr. Hunt he was going home sick. At that point he had no more trust in him. He told Mr. Hunt that ifhe wanted to send him to their "shrink", that would be fine with him. Until then no one had raised any issues regarding his mental health. The grievor went home and at some point called in to clear his voicemail. On it was a message from Mr. Hunt cancelling his meeting in Toronto for the following Thursday. That upset the grievor further because he felt he was being persecuted. He described the message as terse, as if the argument at the office had been transmitted through the voicemail. 8 The next day, April 28th, he went directly to the OPSEU office to talk to someone about the previous day's events. He spoke to Dennis Boyer, a staff representative and he described to him the hostile environment of the previous day. He was feeling under immense stress because of the meeting with Mr. Hunt and his voicemail message and wanted advice on how to handle any future developments. He believed he was going to be disciplined. He spent about two hours with Mr. Boyer and returned to work at about eleven in the morning. The first words from Mr. Hunt were "where were you", in what the grievor described as a hostile voice. Mr. Hunt had confronted him in the hall and had made no effort to hide his annoyance from others in the office. The grievor told Mr. Hunt he had been at the OPSEU office and he was told by Mr. Hunt to attend a meeting at one 0' clock. The grievor asked if he could bring Mr. Michel Lavoie, a union representative because he did not feel strong enough to handle another meeting like the one of the previous day. Mr. Lavoie, Mr. Hunt and, at Mr. Hunt's request, Ms. Sue Lepage from Human Resources met that afternoon. They discussed the grievor's breaks, his behaviour in the office, the "bait-and- switch" tactics of the previous day and the fact that the grievor had been late that morning despite Mr. Hunt's clear directions of the previous day. The grievor felt even more persecuted than he had felt the day before. The only difference between the two meetings was the fact that there were more people in attendance. The tone of the meeting was more formal and more serious and it lasted about twenty minutes. The grievor felt this meeting had ended, as had the previous one, with no resolution, and that the parties had agreed to disagree. He was emotionally devastated and felt under attack. He had worked overtime on the weekend to move the server and his work had been totally unappreciated. The office had traditionally enjoyed a casual protocol concerning the comings and goings of staff but now there were rigid rules about start times and breaks, but only for him. As far as the complaints about his frequent breaks were concerned, he testified that he was not always needed at his desk and that he always had his cell phone so he could be summoned when needed. They had always been responsible for completing their own work within that flexible work arrangement. Now he had been placed on a rigid routine, denied access to the computer room specifically and to the building generally after hours. He did not understand the justification for these new rules. He felt they had been devised just for him and were punitive in nature. He was told by Mr. Hunt, in what he described as an unprofessional and unwarranted tone of voice, his hours would now be 0830 to 1630. The grievor recalled feeling tremendous emotional distress. He felt someone was out to get him. He 9 thought Ms. Lepage had been included in the meeting to bolster management's actions against him. The grievor felt that the employer should have recognized the hostile or poisonous work environment that had developed, especially given the content and tone of the meeting. When the meeting concluded, he went back to his office, wrote out a letter of resignation, placed it in Mr. Hunt's mailbox and left the building. The grievor felt he had no alternative but to escape the tension and stress of the workplace. He felt he had been set up for failure and he had to get away from the oppressive environment. Resignation was his only solution. It did not occur to him that he should speak to Mt. Lavoie or Mr. Boyer. He stated that when he was discharged from the hospital he had no "fight or flight capabilities". He did not think he was severing his employment relationship because he understood that he had a ten-day window in which he could reconsider his decision. That, in his view, matched the leave of absence provision in the collective agreement which provided for a ten-day leave of absence without approval before his position could be considered abandoned. He also based his understanding of the ten-day grace period on a previous discussion with Ms. Sheila Willis, who was the Assistant Deputy Minister at the time and who had advised him of the requirements of the collective agreement and the Public Service Act. He dated the effective date of his resignation as April 30th because that was the end of the week and seemed as good a time as any. He was asked why he wrote out a resignation instead of just leaving the premises. He said that, when he was sick, his "look ahead" window was not very clear. When he left the office he did not take any personal items with him. He had no specific recollection but assumes he went directly home. He knows he made a phone call from home that evening and later went to an ex- girlfriend's home. The next day he went to Huntsville and made a couple of phone calls from Huntsville, one to Mr. Hunt's home in which he spoke to Mr. Hunt's spouse, Kelly, to request that she ask Mr. Hunt to call him so he could talk about returning to work. She said she would pass on the message but the grievor never heard from either of them. He made more phone calls from the cottage in Huntsville but could not recall who they were to or their subject matter. He did speak to Maureen McNaughton, a business consultant in the grievor's section, but is unsure whether that call was made that day or the next. She was in his trusted group of friends and he thought it might get back to the employer from her that he wanted to come back to work. She had spoken to management on his behalf in the past when she had felt concerned about his 10 mental health. When the grievor spoke to Mr. Boyer the next week, he asked the grievor to produce the phone bill to verify the phone call to Mr. Hunt at his home on April 29th. That phone bill contained the call to Mr. Hunt's home as well as fifteen other calls, which the grievor said were unusual for him. He characterized it as a phoning frenzy. He returned to Sudbury on Sunday evening and on Monday morning he went to the office to see whether the pass codes had been changed and whether he could return to work. He did get into the building but could not get into the office. On Wednesday he received an acknowledgment of his resignation. There was a meeting on May 3rd with Mr. Hunt, Mr. Firth and Mr. Degagne, the HR Director. The grievor does not recall much of the meeting. He was concerned about losing his eyesight because of the computers, although he could not recall why that was part of the discussion. On May 5, the grievor updated Mr. Boyer on the events that had taken place and they formulated a letter to send to Mr. Hunt. The letter, composed by Mr. Boyer and signed by the grievor, stated as follows: With regard to my note dated April 28, 2004, and the subsequent meeting with you, Rick Firth and Cleo Degagne on May 4, 2004, please be advised that I rescind my letter of resignation said to be effective April 30, 2004. I acted in the heat of the moment and subsequently have realized my error. I anticipate returning to work on May 6, 2004 and await your confirmation. I would appreciate receiving your approval to consider May 3-6, 2004 as vacation. The grievor received a response dated May 5, 2004, in which he was told, " I have considered your request and hereby advise that your resignation will stand". He was told to contact the pay and benefits representative with respect to his legislated severance, vacation and pension credits. The letter was signed by Mr. Hunt and a copy was sent to Mr. Boyer. When he received that letter the grievor became even more distraught. On May 6 he wrote a letter to Mr. Degagne with reference to a letter he had sent the previous June in which he had questioned the employer's practices with respect to confidentiality of medical information. He noted that he had never received a response to that letter and said as follows: Is it possible that there is a link between the above and the fact that R. Firth and R. Hunt are of the impression that my drinking of coffee and smoking of 11 cigarettes constitutes manic behaviour? Coincidentally, both gentlemen seem to enjoy similar pursuits. He wrote that letter because Mr. Firth had suggested on the Monday following his return to work that he was acting a bit "manicy". The grievor testified that when he is ill he is hyper-sensitive to his diagnosis. At that stage of his illness he does not want to believe he is ill and agreed that he might have reacted in a more sensitive manner than he otherwise would have if he had been well. Much of what happened that day and the following day might have been the result of that hypersensitivity. Because there was a letter in his personnel file containing his diagnosis, and because he knew Mr. Degagne was aware of it, he wondered if other people had been improperly told of his condition. The grievor testified that after he had spoken with Mr. Boyer about the events leading to his resignation, he prepared a grievance dated May 6, 2004 which stated that the nature of the grievance was psychological torture and abuse. He asked for the resignations ofMr. Hunt, Mr. Firth, Ms. Lepage and Mr. Degagne. He wrote that grievance at home but when he discussed it with Mr. Boyer, he agreed to amend the grievance to the form and substance of the ones before me in the instant case. One of those grievances stated: The employer has unjustly terminated me (constructive dismissal) by refusing to allow me to rescind my resignation letter of April 29/04 contrary to any article of the cia that may be applicable and any Act that applies. The second grievance stated: The employer has contravened article 3.1-3.2 of the collective agreement and any other articles that may be applicable. It was the grievor's evidence that his first grievance showed the tremendous pressure he was feeling at the time as well as his true feelings about the events that had transpired. In cross-examination, the grievor was questioned about a reference in his medical documentation concerning his failure to follow the prescribed medication regime. He agreed that was the case but explained that it was never a conscious decision to stop taking his medications but rather a gradual weaning of the dosage, which had resulted in his blood levels being outside of the therapeutic range. As well, when he is in a manic phase, he might not take some of his mediation as a symptom of his condition and not as a deliberate decision to refuse to follow his 12 doctor's orders. Also, the comments in the medical notes that recorded his acknowledgment of his failure to take his drugs might not be accurate since he is not the most reliable source of information during those periods. He agreed there are numerous symptoms of his condition and that those symptoms have a range from mild to severe. When it was suggested to him that he is able to make decisions about his treatment even during those episodes, he stated that while he does and can consent to treatment, it is not always an informed consent and depends on his state of mind at the time. That confused state is often the reason he has been admitted involuntarily to the hospital. He agreed that in the depressive phase his symptoms can include poor concentration, flat affect and poor motivation. In the manic phase he experiences flight or racing of ideas and guarding of his feelings and responses to questions about his well-being. He also agreed that the discharge notes in April of 2004 stated that he was feeling better, that his energy level had increased and his motivation was excellent. He agreed to a follow-up appointment with Dr. Kumar and was showing insight and judgment. That latter comment, he stated, was another example of the process of being a psychiatric patient. He was in a secure or locked ward and compliance was rewarded by a move to another floor with more privileges. Patients' conduct is often related more to that end than recovery. Patients take their medications regularly for the same reason. After his discharge he was to see Dr. Kumar on May 18th but the grievor could not recall whether he had seen him between his discharge from the hospital and that visit. When he and Dr. Kumar did discuss these events, Dr. Kumar noted the significant negativity the grievor was showing. The grievor had no recollection of that appointment. It was suggested to the grievor that he had asked Mr. Hunt to intervene with respect to the server move on the weekend. The grievor had no specific recollection of having done so. He allowed that he had been angry over the reprimand he had received about the move, which he believed was unwarranted. He agreed that Mr. Hunt had raised performance issues with him but maintained that the afternoon meeting with Mr. Hunt had been a "bait-and-switch" tactic that left him frustrated and angry. He suggested there may have been some paranoia involved but could not determine whether it was a feeling or a thought process. He did feel he was being "ganged up on" and that there were too many battles on too many fronts with too many people, such as the movement of the server, the smoking and drinking coffee, the excessive breaks and his 13 lateness. He had a hazy recollection of the discussion with Mr. Firth and Mr. Hunt on May 5th when he told them he was through with the OPS and allowed that he might have used words to that effect. He also could not recall whether he had asked for the meeting later that day or whether he had asked for his job back that day. He did remember feeling a paranoid fear of losing his eyesight because of his work on the computers. When it was suggested to him that his only concerns at the time were for his eyesight, he objected, stating that he was familiar with the benefit package and that was not his only concern. He agreed that he had never had any problems with his eyesight but stated that when he was not well he drew his own conclusions and he was expressing his chronic fears about losing his eyesight at the time. He was questioned about the references in the medical notes to his drinking. At first he stated he had been drinking very little during these events. He admitted, however, that by Alcoholics Anonymous standards, he is an unhealthy drinker. He considers himself a social drinker or a binge weekend drinker. He acknowledged that he had been going to various nightclubs on a regular basis and that he contributed to a party atmosphere by buying drinks for others. In the 4- 5 weeks post discharge he did not recall drinking excessively. However, he provided an American Express bill for May/June of 2004, which showed expenditures of $1200.00 at a nightclub in Sudbury where he apparently treated numerous patrons to drinks. He spent $1500.00 on a leather jacket that he threw away in April, just before he was admitted to the hospital. At the same time he threw his bike off the balcony apartment. When he received his severance package, he spent most of it within three weeks, the largest portion to replace a vehicle he had given away just prior to these events. He gave $1000.00 to an acquaintance. Ultimately he had to borrow money from his brother to pay for his medication. It should be noted at this time that the employer objected to the evidence of the American Express statements, arguing that they should have been introduced during the grievor's examination in chief, not in re-examination. The Union took the position that the grievor is somewhat hampered in his presentation of the facts since he continues to suffer from symptoms of his condition and his memory at the time of these events and now is faulty. When the grievor was asked in cross-examination about his spending during the time before and after his resignation, he recalled his American Express bills and produced them for the next day of hearing. It was my ruling that the evidence was properly before me since it resulted from follow- up questions put to the grievor about examples of excessive drinking that led to excessive 14 spending that had been raised in cross-examination. The Employer submitted that since its cross-examination had been concluded it had no opportunity to cross-examine the witness on this new evidence. I ruled that any disadvantage could be remedied by allowing her to cross-examine the grievor on the credit card statements and accepted the evidence. In any event, the grievor's recollection of the credit card statement was stimulated by the questions put to him during the hearing, and I would have admitted them in the interests of a full and fair hearing. As a result of that ruling employer counsel asked the grievor several additional questions about his post- grievance conduct relating to that issue. He was asked if he remembered being at the nightclub on April 26, 27 and 28,2004. He recalled being at the club but could not confirm it was on those dates specifically. When it was noted that the amounts spent were large, he stated it was at least three times more than usual, although he had spent $300.00 before during another manic episode. The money was spent on friends and strangers and for entertainment such as exotic dancers. One expenditure on the statement was for $612.80 on April 2ih. The grievor said he had seen a similar expenditure in the past but had not become aware of it until after his discharge from the hospital. Mr. Dennis Boyer testified on the grievor's behalf. He has been a staff representative with OPSEU since 2001and has known the grievor since 2003. He had, in the past, assisted the grievor in providing medical releases to the employer and in securing L TIP benefits. He noted that the grievor had always been very protective of this information and concerned about the amount of detail requested by and given to the employer. Mr. Boyer had been involved in discussions with the employer over the grievor's return to work in 2003. He described the meeting with the grievor on April 28, 2004 as follows: the grievor came to the office without an appointment at about 0930 hours. Mr. Boyer was preparing for another meeting but when he heard the grievor speaking to the secretary, he could tell he was agitated and decided he should deal with him immediately. The grievor's agitated state was evident in his body language. Mr. Boyer knew from experience that when the grievor was upset, he developed a tic. On this day the tic was obvious. Because he was so upset Mr. Boyer invited him to step outside for a cigarette while he told him what was wrong. While they were outside the grievor began discussing issues about a discipline he feared was imminent. He felt they were going to "come after him" and was extremely upset. The grievor was at the OPSEU office until almost 1100 hours. He and Mr. Boyer came into the office, went back out for a cigarette and 15 returned to the office at least two more times. The grievor told him he had moved a server over the weekend and that he had had words with his supervisor about the manner in which the move had been done. Mr. Boyer did not think he was acting like someone who was expecting discipline. He was more upset than one would have expected in those circumstances. It took Mr. Boyer more than an hour to calm him down. Finally they were able to develop a safety plan or strategy for what might happen when the grievor returned to the office. If he was called to any meeting with the employer that might result in discipline, he was to contact Michel Lavoie, if possible. The grievor was content with that plan because he approved of Mr. Lavoie's non- confrontational demeanour. Mr. Boyer and the grievor enacted some scenarios concerning likely confrontations with the grievor asking for a break to get representation. If that occurred, he was to return to the meeting with Mr. Lavoie, hear the employer's concerns and immediately file a grievance. The plan also included an agreement that the grievor was to make an immediate appointment with his psychiatrist or, failing that, to attend to the emergency department at the hospital. Mr. Boyer included the latter because the grievor had told him about his recent admission to the hospital and that his follow-up appointment was not until May 18th. Because of Mr. Boyer's familiarity with the grievor's medical history, he felt the grievor should see his psychiatrist that day or the next. He was concerned that the grievor was having adjustment problems with his medications. He had never seen the grievor so preoccupied. He seemed to be "flying all over with ideas" and Mr. Boyer had a difficult time getting him to focus on the safety plan. The grievor's behaviour was unusual and unlike anything Mr. Boyer had seen in the past. The grievor would talk about one thing and then move on to something else. Then he would return to the topic as if there had been no interruption. It was as if he had too many ideas in his head and he would lose track of them. He had seen the grievor enthusiastic before, but never so distracted, which is what prompted him to include the grievor' s psychiatrist in the safety plan. Once they had a plan in place, the grievor seemed calmer and ready to return to work. Mr. Boyer had been with the grievor for approximately lI1z hours. He felt comfortable about the grievor's return to the office and had no concerns about the grievor's or anyone else's safety. He believed any further contact between the union and the employer would occur only if the grievor was disciplined. Mr. Boyer was out of the office until the following Wednesday. When he returned the grievor was waiting for him with coffee and cigarettes. He told Mr. Boyer that he had resigned. He 16 described the events of April 28th and handed him a grievance he wanted Mr. Boyer to process. That was the grievance alleging psychological torture and abuse. It was clear to Mr. Boyer that the grievor had not intended to resign his employment. He told Mr. Boyer he had attempted to contact Mr. Hunt on Friday evening but could not reach him. He had gone to the OPSEU office on Monday morning looking for Mr. Boyer. Apparently he had waited in the parking lot all day for Mr. Boyer to return and he had come into the office to use the washroom intermittently. He was not his usual jovial self and the staff were somewhat alarmed by his conduct. They asked Mr. Boyer to speak to hum about the use of the OPSEU office, particularly when no staff representatives were present. Mr. Boyer relayed these concerns to the grievor and he apologized for any discomfort he had caused. Mr. Boyer then drafted the letter referred to earlier and faxed it to Mr. Hunt. The letter did not make mention of the grievor's mental state because he was not prepared to admit that he was unable to form the intent to quit and because Mr. Boyer was concerned about the grievor's sensitivity concerning his medical condition. Mr. Boyer intended to argue the grievor had resigned under duress but he fully expected Mr. Hunt would take the grievor back to work. Mr. Hunt was aware of the grievor's medical issues and had been sympathetic in the past. Mr. Boyer believed they had enjoyed a good relationship and knew they were friends outside of the office. When Mr. Boyer was advised that the Employer would not accept the grievor's request to rescind his resignation, he persuaded the grievor to replace his initial grievance alleging torture and abuse with the two grievances before me. Dr. Kumar testified for the grievor as his personal physician and as an expert in the field of psychiatry. He first became involved with the grievor in 1995 when he was referred to him by the St. Thomas Psychiatric Hospital after he had been diagnosed with paranoid disorder- persecutory type, with a differential diagnosis ofbi-polar disorder-manic phase. Since May of 1995 the grievor had seen Dr. Kumar in 4-6 week intervals at the outpatient clinic at the hospital. As well, he had treated him during his admission to the hospital in June of 2002 for a 9-day period and in April 2004 for 12 days. Dr. Kumar explained that the disease is called bi-polar because patients display symptoms at opposite ends of the spectrum. It is essentially two illnesses in one person. The most common symptom is depression or a lowering of one's mood. More rarely one sees the upswing in mood. 17 It is a chronic condition that recurs periodically over one's lifetime although it can be treated effectively with medication. The treatment is intended to treat the symptoms during exacerbations rather than preventing episodes. During a manic phase, a patient experiences a lack of judgment and insight. They enj oy a feeling of positive confidence, have a fantastic memory and ability to concentrate and feel all-powerful, even slightly superhuman. They require less food and less sleep. Their thoughts seem to come too fast for them to comprehend, they talk fast and loudly, beginning many conversations on many topics but never finishing them. They indulge in spending sprees and deliberate defiance of social conventions, such as driving too fast. They can be reckless and even dangerous during these times. During their depressive stages they exhibit feelings of helplessness and hopelessness, loss of appetite and a need for excessive amounts of sleep. They can become suicidal. These patients have an inability to deal with stress and are more prone to physical illness during stress. They have increased vulnerability. The stress does not have to be defined or even real but is based on what the patient feels is stressful. In 1995, the grievor had been placed on Epival 500mg, twice a day, which continued for most of 1995. During that time his blood levels were within the treatment range, which indicated compliance with the treatment plan. However, since then there has been a history of intermittent non-compliance with his medication and his refusal and/or failure to submit to blood tests to monitor his drug levels. He has experienced periods of hyper mania when he had to take time off work and periods of depression when he was prescribed anti-depressant drugs. His admission to hospital in 2002 was caused by his non-compliance with his drug regime, which resulted in disturbed, aggressive and manic behaviour. He caused a disturbance at a cottage in the Huntsville area and was admitted to the hospital and then transferred to the Sudbury hospital on an involuntary admission. His condition improved with medication and he was discharged after ten days. He has continued to have difficulty complying with his medication treatment plans and has used alcohol and marijuana intermittently. He does not believe alcohol has any adverse effect on his condition and his continued drinking has created additional problems. Dr. Kumar's DSM diagnosis was as follows: AXIS I Bi-polar Effective Disorder - recurrent in nature, with episodes of manic and depression. There have been periods of incongruent delusions -NIL -NIL AXIS II AXIS III 18 AXIS IV AXIS V Stress at work, non-compliance with medication. GAP - Variable between 35 and 81 In a letter written to the grievor's counsel in April of 2005, Dr, Kumar said the following: Mr. Sinclair is disabled by his mental illness. It has been shown over the last ten years it can be controlled, but is not completely amenable to treatment. He has had periods when, even when he has been compliant with medication, he has had a hard time coping with distress. In my professional opinion, Mr. Sinclair's behaviour was influenced by his Bi- Polar Affective Disorder between April 5 and April 21, 2004, which may have affected his capacity to decide to resign his employment on or about April 28, 2004. Dr. Kumar was involved in varying degrees with the grievor's return to work after all of his absences due to illness. The grievor was away for more than a year in 2002 and his return to work was the result of a return to work rehabilitation agreement between the grievor, the insurer and Dr. Kumar. Dr. Kumar was asked whether alcohol abuse was a precipitating factor in the grievor's absences. He testified it was a strong mood-altering substance and that the grievor was both not compliant with his medications and using alcohol. With conditions like Bi-Polar disorder, the treatment is directed to the symptoms. Alcohol has a tendency to mask and/or exaggerate them. Dr. Kumar explained that the treatment of the symptoms depends on their severity and on the individual patient. In the manic phase, a person is usually having thought problems involving tangential thinking, such as talking around a point but never getting to the point. It is often accompanied by unusual spending, difficulty sleeping and appetite disruption. It can be any behaviour that is unusual or exaggerated for that individual. If the symptoms become severe they are associated with psychotic or delusional behaviour. These symptoms can be mild or severe. They are not usually changeable but rather subject to a sliding reduction or acceleration. The manifestation of those symptoms in the grievor was set out in a letter written by Dr. Kumar to the insurer in support of his application for disability benefits in 2002. In that letter, Dr. Kumar reviewed his 9- day admission of June, 2002, and his continued out-patient treatment. He described the grievor's various symptoms as depressed mood, poor concentration, poor energy, psychomotor retardation, flat affect, poor motivation, slow speech, monotone, tearful, poor interest, poor appetite and limited functional ability. He also noted that in a previous manic phase the grievor had spent excessively and had considered declaring bankruptcy. 19 With respect to his most recent admission to the hospital, Dr, Kumar testified that the grievor had failed to attend an appointment on April ih and had been admitted the next day to the psychiatric unit at the hospital, which is considered a locked ward. He was discharged on April 20th, and Dr. Kumar advised the grievor to take a few weeks off before attempting to return to work. The grievor told him that he might return earlier because he was scheduled to travel to Toronto to attend a meeting. At the time of his discharge the grievor was co-operative, but Dr. Kumar had concerns about him returning to work too quickly. He needed time off to think about what had occurred over the past few weeks. He also had concerns about the grievor's lack of insight into the seriousness of this relapse and the fact that his true condition might be masked by his medication. Dr. Kumar testified that in his opinion the consumption of alcohol during this time impaired his judgment and interfered with his compliance with treatment plans, which would have affected the grievor's performance and his illness. Dr. Kumar also stated that Mr. Hunt's firm approach with the grievor on April 27 and 28 could have been perceived by the grievor as psychological trauma, which could have been very damaging. It was not a nurturing or supportive environment. It was also Dr. Kumar's opinion that the complaints about the grievor taking too many breaks, drinking too much coffee and smoking too many cigarettes were signals that the grievor was not in a calm state. They were indications of recklessness and agitation. The evidence of the grievor's spending sprees after his resignation was also a signal to Dr. Kumar that the grievor was not acting rationally. He was of the view that anyone in the circumstances should have recognized the grievor's obvious agitation. This conduct was typical manic behaviour, with grandiose gestures and generous acts accompanied by no rational or logical thinking. It was as if he was trying to buy friends with his money and indicated significantly impaired judgment. The fact he spent his severance money as quickly as he did indicated more of the same reckless behaviour, in Dr. Kumar's opinion. Dr. Kumar was asked about his medical notes concerning the grievor from September 1, 2004 to February of 2005 with respect to his application for disability benefits. Dr. Kumar testified that it was clear the grievor had experienced difficulty at work after his release from the hospital. In previous post-discharge periods from the hospital, it had taken him a long time to recover. Dr. Kumar felt his past history of slow recovery was significant and suggested it indicated a similar need for time to recover after his discharge in April of 2004. He was of the opinion that the 20 grievor should have been on sick leave during that time. When he was asked why he had not contacted the employer this time, Dr, Kumar testified that he is subject to a strict code of confidentiality and that it was up to the patient to contact the employer in these circumstances. The grievor had expressed concerns previously about the release of private medical information and Dr. Kumar was reluctant to ask him for a release at the time. It was his opinion that the grievor was very likely suffering from symptoms of his illness during the period of time just prior to and after his admission and discharge from the hospital. He was exhibiting reckless behaviour, not thinking through the consequences of his actions and feeling pressured by his manager, especially since had relied on him in the past for support. When he was asked why the grievor could think clearly enough to contact his Union to try to minimize the consequences of what he believed were to follow, Dr. Kumar stated that bi-polar disorder is recognized as a severe mental illness and is grouped under the heading of a psychotic disorder. Whether in a manic or depressive state, a patient can still experience periods of clear thinking during which they can act appropriately. The disorder itself is replete with contradictions. As well as the manic phase, which has been described, a patient can feel depressed and suicidal, all within moments of enduring a manic phase. Patients can often navigate through a consent and capacity hearing over an involuntary admission by exhibiting short periods of clear thinking, even during a manic or depressive stage. They can appear to be well but it is the collateral information that is required in coming to a diagnosis. If a patient is in the hospital, a doctor could rely on the patient's chart and the observations of staff. If the patient is at home, the observations of friends and family are important. It is not usually the patient who tells his doctor that he has been spending lavishly or cheating on his wife or acting in any other inappropriate manner. They lose sight of the boundaries, especially with respect to alcohol, drugs and sexual behaviour. It is only through the collateral information that a doctor can have a more complete picture of a patient's conduct. Dr. Kumar was asked whether the grievor was fit to return to work at the present time. He stated that the grievor had been feeling well but that he needed some accommodation. He agreed, however, that before February of 2006, he would have been unable to return to work. He acknowledged that he had not seen him between his discharge and his scheduled appointment on May 18, 2004 and that the notes in his file were based on the grievor's narration of the events that had occurred. He also acknowledged that his notes did not contain any concerns about the 21 grievor's lack of insight or judgment. He stated that he did not always note those observations during a routine visit. His concerns would have to be serious to be specifically recorded. An assessment would be based on the mental status examination of the patient and collateral history, if available, such as hospital notes. The mental status examination is based on the patient's appearance and behaviour, including speech volume and context, affect, hallucinations, delusions, cognitive function, insight and judgment. Dr. Kumar was cross-examined extensively about the fact that his clinical notes did not contain any comments about the grievor being in an ill state. He noted that he did not always record his observations, although he did conduct a mental status examination on every visit. On May 18, 2004, he had noted that the grievor was in control, with no signs of mental illness. Dr. Kumar had no concerns about his insight and judgment or his ability to make an informed consent about his medical decisions. He stated, however, that patients with bi-polar disorder are able to "fool" their physicians by telling them what the patient thinks they want to hear to make them believe they are healthy, especially in a manic phase when they can control their mannerisms, behaviour and grandiose ideas. Although there is no specific training to teach a doctor how to determine whether a patient is being truthful, the best defence is to be aware it can happen. A doctor can order blood tests to obtain objective proof of compliance, but only through experience with a patient does a doctor learn what to accept and reject from a patient's account. It was stated to him that those clinical notes and the blood tests done at the time would suggest the grievor was doing well. Dr. Kumar stated that might be true based on his clinical notes but does not take into account collateral information that would not have come from the grievor. When it was suggested to Dr. Kumar that spending his entire severance on a new vehicle and moving in with his father was not irrational behaviour, Dr. Kumar agreed but stated that, in these circumstances, the fact that it was spent so quickly and the pattern of spending at the time indicates irrational thinking. Dr. Kumar agreed the grievor had been admitted to the hospital in the past due to alcohol consumption and non-compliance with medication plans. Dr. Kumar stated that it was not necessarily a matter of abstinence but, more significantly, what the pattern of consumption was, which would affect behaviour the day after and might cause blackouts and withdrawal symptoms, impairment of judgment and legal charges. He noted that an earlier consultation by Dr, Debow commented on the grievor's drinking patterns, which suggested a chronic problem. It was pointed out to Dr, Kumar that the grievor was able to explain to Dr. 22 Kumar what he had done, including his efforts to obtain help from the Union, which indicated an ability to understand consequences. Dr. Kumar agreed but stated that understanding was only obvious after the fact and did not speak to his state of mind at the time the events were unfolding. Mr. Michel Lavoie has been a Union Steward since 1992 and is presently the Vice-President of the local. He had worked on the same floor as the grievor for some time and knew him fairly well. They had both been Union Stewards, and Mr. Lavoie had assisted the grievor personally over employment issues in the past. The first time occurred in 2001, when the grievor and Mr. Hunt had had some discussions over work schedules. Mr. Lavoie attended a meeting with Mr. Hunt and the grievor and he described the meeting as cordial and friendly. The matters were resolved. He had seen Mr. Hunt and the grievor go outside the building together for cigarette breaks and was aware they enjoyed a friendship outside of the office. The grievor had spoken to Mr. Lavoie in the past about issues between he and Mr. Hunt but he had always opted to meet alone with Mr. Hunt and had always been able to resolve any problems without outside assistance. On April 28th the grievor appeared at Mr. Lavoie's office and asked him to accompany him to a meeting with Mr. Hunt. His demeanour was very serious, unlike his usual talkative self. Attending the meeting were Mr. Hunt, Ms. Lepage, the grievor and Mr. Lavoie. Mr. Hunt asked the grievor where he had been that morning and the grievor responded that he had been at the OPSEU office with Mr. Boyer. The grievor reminded Mr. Hunt that he did not have a specific start time because of the flexible work arrangement. Mr. Hunt then asked the grievor if he had been to see his doctor recently. The grievor seemed surprised and told Mr. Hunt that he did not appreciate being called into the office for one reason and being questioned on another, that is, his state of health. That ended any discussion about his health and the meeting continued with discussions about his work schedules. The meeting lasted about lI1z hours and during that time Ms. Lepage made some comments about health issues and past misunderstandings. Mr. Hunt was very serious, which was unusual because he had always been friendly in previous meetings. Ms. Lepage was even more serious and was very firm with the grievor. One discussion concerned unscheduled breaks. Schedule 6 employees work a minimum number of hours each day but on no set schedule. Mr. Lavoie did not recall any specific direction for the grievor to adhere to a fixed schedule. When it was suggested to him in cross-examination that 23 Mr. Hunt had been clear about his expectations for the grievor regarding his hours of work, Mr. Lavoie could not recall either the discussion itself or the directions. Mr. Lavoie's recollection of the details of the meeting was vague. When he was shown the notes he had taken during the meeting, his memory did not improve. The evidence of the other attendees at the meeting is internally consistent and I accept their accounts as more reliable in the circumstances. Mr. Ray Hunt testified about the events preceding and following the grievor's resignation. He is presently on secondment to the Ministry of Health as a Regional Operations Support Manger. His home position remains as a manager with the Ministry of Northern Development and Mines. He had met the grievor in about 1998 when he was managing the staff of the Ministry of Natural Resources and had developed ties with the Ministry of Northern Development and Mines. His relationship with the grievor outside of the office began in Toronto in the fall of 1998 and continued during the time they worked together in the Sudbury office. They corresponded by mail and e-mail, met at cluster meetings and enjoyed dinners after the sessions. He also invited the grievor to his home in Bowmanville. They enjoyed mutual friends, socialized often and the grievor helped Mr. Hunt renovate his basement. Mr. Hunt described his observations of the grievor just before his admission into the hospital on April 8, 2004. For a few days before that admission the grievor appeared to be glossy-eyed and was out of his office or away from his desk frequently. He moved very slowly and seemed lethargic. He told Mr. Hunt he had a lot of things on his mind and his thoughts were racing around. On April ih the grievor appeared at the office wearing army fatigues and disappeared for hours at a time. He was not outside having a cigarette or at Tim Horton's across the street. He had a blank look on his face. He could not stay on topic and changed the conversation frequently. Mr. Hunt had noticed similar behaviour in the summer of 2002. The grievor was on sick leave at the time and had visited Mr. Hunt at his home. He did not seem to be able to react to things and his face remained expressionless. At that time he had spoken about joining the Hells' Angels motorcycle gang. There is no doubt that Mr. Hunt had been aware of the grievor's medical condition and his previous absences from work. Mr. Hunt met with the grievor on April 6, 2004. He had looked for him in the office unsuccessfully and had called his cell phone to learn he was on a smoke break. They met outside the Tim Horton's and Mr. Hunt described the grievor as being "gloomy-faced with glazed eyes". 24 Mr. Hunt told him he was concerned about him, but the grievor insisted he was fine. Mr. Hunt tried to persuade the grievor to see his doctor but the grievor refused, again insisting he was well. Mr. Hunt advised him to take advantage of the five days off over the Easter weekend to rest, relax and forget about work. They parted with the grievor insisting that he was fine. Mr. Hunt said he was concerned about the grievor because he was usually cheerful and enthusiastic but he had been depressed and unhappy recently. His demeanour and choice of clothes were reasons for concern. The grievor called Mr. Hunt on April 9th to tell him he had been admitted to the hospital and Mr. Hunt visited him about 8 or 9 times while he was a patient. The first time he visited with his spouse and Mr. Firth, another time with Ms. McNaughton and several times he was alone. The grievor was glad to see Mr. Hunt and they spoke about what had happened over the last few days, including the grievor throwing his bike off his balcony. Mr. Hunt had observed during the first visit that the grievor did not seem to be at full capacity. He was slow and lethargic and his thoughts still seemed to be rolling around in his head, although he did not appear to be as gloomy as he had been. On the following Monday he visited the grievor for over an hour. The grievor seemed better and began talking about his work assignment. He asked that his time in the hospital be marked as vacation to avoid having to explain to his coworkers about his most recent episode. Mr. Hunt visited the grievor almost every day and noticed some improvement on every visit. He was not aware of his discharge on April 20th until he was told he had appeared at work the following day. He asked the grievor how he was feeling and told him that ifhe had any problems to call him. The grievor seemed cheerful, happy to be back at work, dressed appropriately, interacting well with staff and catching up on his e-mail. Mr. Hunt checked on him periodically during the day. He acknowledged that in the past he had requested independent medical proof of the grievor's fitness to work and had made inquiries about his scheduled appointments with his physicians. He did not feel that was necessary in these circumstances. The grievor had told him that he had been admitted to the hospital because of a "glitch" in his medications. Mr. Hunt had observed the grievor steadily improve while he was in the hospital and believed he was fit to return without the need for a medical certificate. The grievor's previous absences had involved extended periods of time away from the work setting and Mr. Hunt had wanted to satisfy himself that the grievor would be able to handle his work assignment. If that included accommodation, he wanted that accommodation to be clearly approved by the grievor's physicians. On the other hand, this most recent hospitalization was of a very short 25 duration, the grievor's absence from work was equally short, and, in Mr. Hunt's opinion, there was no need for accommodation. Therefore, there was no need for an independent medical assessment. On April 22nd, Mr. Hunt met with various members of the server groups to discuss, among other things, changes to the grievor's work assignment. The grievor was told that he would be primarily involved with security issues and that those changes would be effective immediately. It would be his responsibility to identify security issues, to assess the security risks and to produce an action plan to deal with those risks. The grievor seemed excited about the change, told Mr. Hunt that he had had previous experience in security and was eager to begin these new responsi bili ti es. Prior to his admission to the hospital the grievor had been scheduled to attend a meeting in Toronto the following day. Mr. Hunt told him that someone else would be attending that meeting. It was Mr. Hunt's evidence that the grievor continued to perform his duties over the next few days without difficulty. He responded to and initiated e-mail messages to various people regarding equipment and security issues in an appropriate and professional manner. Mr. Hunt was away from the office on Monday, April 26th and, when he returned on Tuesday, he was told that the grievor had moved a server over the weekend and that because of the move, the service had been disrupted. Mr. Hunt recalled that sometime earlier in February or March, as part of the future plans to consolidate computer services, discussions had taken place about eventually moving the servers, but no time frames had been discussed. He was told that the grievor had moved the server without prior notice and without insuring that the move would not disrupt service. Mr. Hunt was made aware of the move when the grievor told him that he was in trouble with Mr. Firth and he asked Mr. Hunt if he would look into the matter for him. Mr. Hunt said he would and also told the grievor that he would arrange a 2 p.m. meeting with the server group to make sure that everything was operational. Mr. Hunt said the grievor was visibly upset and told Mr. Hunt he did not feel he deserved Mr. Firth's criticism. Mr. Hunt said that, unlike his flat expressionless face prior to his admission to the hospital, the grievor was articulate, able to communicate and maintain his train of thought and clear about his concerns. 26 Mr. Hunt spoke with Mr. Firth, contacted the manager of the server that had been moved and discovered that the move had been made without prior consultation, without an action plan and without a sign offby someone in the program area. In fact, there had been no interaction with anyone involved in the move. Mr. Hunt attempt to find the grievor but he was not in the office. He did not see him until around 1 :30 in the afternoon when he asked him to come to his office. He also notified the other servers that the 2 p.m. meeting had been cancelled. It was his intention to discuss additional performance issues with the grievor at that meeting. Apparently there had been complaints that the grievor took an excessive number of breaks during the day, wandered around the office disrupting other staff, spoke in a loud and angry tone of voice and disappeared periodically throughout the day. Mr. Hunt told the grievor that he agreed with Mr. Firth and that he had been wrong in moving the server in the manner in which had done it. He also told the grievor about the complaints about his breaks and his disruptive behavior. He outlined his expectations regarding the grievor's attendance and told him that he was to be in the office between 8:30 a.m. and 5 p.m. every day and that he was entitled to two 15 minute breaks and a one-hour lunch break. Mr. Hunt told the grievor that if he was going to be late, he was to call Mr. Hunt or his administrative assistant. There was some discussion about general office behavior, again related to Mr. Hunt's expectations of the grievor. Mr. Hunt testified that as the meeting progressed the grievor became more and more angry with him and began acting in a disrespectful and unprofessional manner. It was at this point in the meeting that Mr. Hunt told the grievor that he was revoking his access to the building after hours. He knew that the office had enjoyed flexible work hours and that it was not unusual for employees to be in the office during the evening hours, sometimes even after midnight. He could not recall ever having revoked an employee's privileges in this manner. However, given the level of hostility and anger and the insubordination shown by the grievor, Mr. Hunt felt it would be a risk to allow the grievor into the building after hours. When Mr. Hunt said this to the grievor, he stood up quickly and spoke in a deep angry voice to Mr. Hunt. He took a step forward and Mr. Hunt was afraid that he was going to do something physical. He thought the grievor was going to come across the desk and attack him. Instead, the grievor told him that he was going home sick, walked out of his office and slammed the door. At some point in the conversation Mr. Hunt recalled the grievor swearing and telling Mr. Hunt he wished he and Mr. Firth would "stay the fuck out of his business, especially his health". Mr. Hunt told him he was not there because of health issues but because of performance issues. It was during 27 this meeting that Mr. Hunt advised the grievor that he had been placed in the Attendance Awareness Program, although, at the hearing, he was unable to recall why he had found that necessary . Mr. Hunt's opinion was that the grievor reacted angrily to the fact that he had taken Mr. Firth's side over the server move. At the commencement of the meeting the grievor began telling his side of the story, believing that he should have been given credit for the work he did rather than being criticized. He was very clear about what he did and what he thought should have happened. Mr. Hunt told him that he disagreed and at first the grievor was upset but, as the meeting progressed, became more and more angry. As Mr. Hunt discussed his interactions with other staff and his frequent breaks and his tone of voice, the grievor was clear and articulate and had no trouble focusing on what was being said to him. Mr. Hunt did not raise any health issues during that meeting because, as far as he was concerned, the grievor was upset and his reaction was not health related. Mr. Hunt had asked him on the day he returned to the office and every day following how he was feeling and the grievor always said he was fine. His conduct during this meeting was very different from his behavior before his admission to the hospital. As he became more and more upset, his responses became more vocalized, his tone of voice changed and he persisted in interrupting Mr. Hunt. He put his feet on his desk and, out a cigarette and acted as if he were going to light it, clearly as a sign of disrespect. He was smirking and laughing at Mr. Hunt. In Mr. Hunt's view, this was the grievor's way of defying authority. Because Mr. Hunt had to put his foot down, the grievor had reacted badly. His reaction was unrelated to his health issues because, throughout the discussion, he was focused and able to stay on topic. Hs behavior that day was totally opposite to his behavior prior to his admission. During the meeting he was focused, clear and articulate. The grievor left the office and Mr. Hunt left him a voicemail message advising him that he would not be attending the meeting on April 29 in Toronto. The next morning the grievor was not in the office at 8 a.m. and had not left any messages for Mr. Hunt. He arrived at about 1130 in the morning and, when Mr. Hunt reminded him that he was supposed to call him or his administrative assistant if he was going to be late, the grievor told him he had been at the OPSEU office. Mr. Hunt advised him that that was not work related and told him he wanted to speak to him in his office. The grievor asked if he could bring Mr. Lavoie to the meeting and Mr. Hunt decided that he would ask Ms. Lepage, an HR consultant, to attend as well. 28 Mr. Hunt began the meeting by repeating his expectations of the grievor regarding his work breaks, the process to be followed in the case oflateness or absence, the revocation of his access cards, his behavior at the office and his lack of productivity. The grievor asked whether others were subject to the same restrictions and Mr. Hunt told him that these expectations applied to him and told him not to be concerned about others in the office. The grievor raised the issue of his health and Mr. Hunt told him they were not there to discuss his health, but rather performance concerns. In Mr. Hunt's opinion, there were no health issues involved, only performance and attitude problems. There was some discussion about the Toronto meetings and the server move, but most of the discussion concerned Mr. Hunt's expectations of the grievor. Mr. Hunt felt it was important for him to discuss these expectations with the grievor because he had clearly ignored their discussion of the previous day concerning lateness. He had been absent for the first three hours of work following that discussion, without contacting Mr. Hunt or anyone else at the office. Mr. Hunt wanted to repeat those expectations so that there could be no misunderstanding. He decided to include Ms. Lepage in the meeting only because the grievor had requested to include Mr. Lavoie and Mr. Hunt thought it would be more productive if each of them had an impartial observer. Mr. Hunt described the meeting as confrontational. There were no positive responses from the grievor and every time Mr. Hunt raised a concern, the grievor disagreed. He was becoming more and more visibly agitated and forceful as the meeting progressed. Mr. Hunt also felt that the grievor began displaying more disrespect for him as a manager. His unwillingness to recognize his authority was obvious in the fact that the very next morning he had refused to follow Mr. Hunt's directions of the previous day regarding lateness. It was Mr. Hunt's opinion that the performance issues discussed on April 28th did not relate in any way to health issues. They related to his tone and demeanor with other staff, his interactions with Mr. Hunt, his unprofessionalism, his lack of productivity and his disruptive behavior generally. The meeting did not end well. There was no resolution and the grievor left even more angry and upset than he had been at the beginning of the meeting. After the meeting Mr. Hunt was involved in a teleconference with senior account representatives when his office door opened and the grievor placed a piece of paper in his in-tray and walked out 29 of the office. It was the grievor's resignation. He quickly concluded his teleconference and went to speak to Ms. Lepage. They reviewed the grievor's resignation letter and the provisions of the Public Service Act and determined that they had the delegated authority to except the grievor's resignation. Mr. Hunt advised the grievor they were accepting his resignation effective on the date set out in his letter. The next time he saw the grievor was on May 3rd when he met him and Mr. Firth outside of the office. The grievor asked Mr. Hunt whether the Ministry had accepted his resignation and Mr. Hunt told him that it had. The grievor said then the he guessed his work with the OPS was over and that it was time to move on. He asked if he could meet with Mr. Degagne, and at that meeting the grievor asked whether he could be put on the payroll so that he could apply for benefits. He was told it was too late since he was no longer an employee. At no time did he ask for his job back. Throughout that conversation Mr. Hunt described the grievor as pleasant, polite, talkative and calm. On May 4th, Mr. Hunt saw the grievor outside of the building and asked him about returning his access card, cell phone and credit card. The grievor did not have them with him but returned later that day to give them to Mr. Hunt. According to Mr. Hunt, he was again calm, polite, talkative and cooperative. The next day he received the grievor's request to rescind his resignation. Mr. Hunt declined the grievor's request for two reasons. The first was that the request had come after the effective date of the resignation. The primary reason, however, was based on the operational needs of the office and on and their vision and strategic planning for the future. They would not need three systems operators, and the decision was made that the money spent on the grievor's employment would be redirected and his position eliminated. In cross-examination Mr. Hunt acknowledged that he would have expected the grievor to know the proper procedure to follow when moving a server and stated that he believed he had done it on a whim. He also conceded that he had discussed performance issues with the grievor in the past and that the grievor had accepted his comments, for the most part, without complaint. Sometimes Mr. Hunt could satisfy the grievor's concerns, other times he could not. In those circumstances, he would direct the grievor to perform his duties and he complied without complaint. 30 He was asked about the grievor's conduct after his return to work and stated that he had received complaints from others that he was disruptive, agitated and angry. He would sit at his computer to do something and then walk away without completing what he had started. His behaviour was unprofessional and "seemed to be brewing". When asked ifhe had received similar complaints in the past about the grievor or any other employee, he replied no, but, stated that no one else had ever been that angry. He testified that Mr. Firth had told him to leave the matter alone, that it had been dealt with and it was over. Mr. Hunt, however, did not want to let it go. He had never had an employee show such disrespect for him before and he was determined to investigate the matter further. He had never had an employee step up to him in a threatening manner and then slam his office door on his way out. As far as Mr. Hunt was concerned, the grievor, by putting his feet up on the desk and pretending to light a cigarette, was telling Mr. Hunt that he was in charge, not Mr. Hunt. When asked why he chose to raise the attendance issue with the grievor at the time, he replied that he saw an opportunity to deal with all the outstanding issues and was surprised that the grievor became more angry during that discussion. Mr. Hunt testified that he had known the grievor for many years as a co-worker and a friend. He would never have expected him to become so angry about these small issues Mr. Hunt had raised. He had hoped that when the grievor left the meeting, he would have gone home and reflected upon his reaction and returned the next day calmer and ready to continue discussions about these performance issues. Given the direct instructions on what to do in the event of absenteeism and lateness, and, given the fact the grievor arrived at work more than three hours late, Mr. Hunt felt he had no choice but to speak to the grievor about his refusal to follow orders. Mr. Hunt insisted that he had not taken the grievor's actions personally and that he realized the grievor was angry generally. He said that things ignited immediately the next day and the grievor asked for his Union Steward. Mr. Hunt did not give the grievor an opportunity to explain his behaviour. He was intent on outlining his expectations and did not want to be distracted by extraneous issues. The grievor tried to take over the meeting by talking about other issues, including his health. Mr. Hunt insisted that they were not there to talk about his health but about his performance. He did not ask the grievor why he was so angry but assumed it was because of the server move. He also testified that he had cancelled the grievor's travel plans for Toronto and his access to the building out of fear that his anger would make him do something harmful to the Ministry. When Mr. Hunt received the grievor's letter of resignation on April 28th, he immediately cancelled his Ministry American Express card. The next day he took steps to cancel his other 31 corporate cards. He assumed the grievor meant what he had written and had resigned from his employment. He was asked whether he ever considered the grievor's state of health. He stated that, in his opinion, he grievor's mental illness was not in play. He was "totally different from April 6 & ih. He was clearly able to make decisions. He never considered getting an opinion from either Dr. Kumar or Dr. Debow. Dr. Debow testified in his capacity as an expert in psychiatry and as a physician who had examined the grievor and had personal knowledge of his circumstances. He had been asked to provide an independent psychiatric assessment of the grievor' s fitness to return to work following an extensive absence from work, from December of2001, and saw him in September of 2002. Dr. Debow based his report on previous medical reports, including the Women's College admission, the St. Thomas Psychiatric Hospital Discharge summary and Dr. Kumar's records and notes on the grievor's past examinations and admissions. He also interviewed the grievor personally. Dr. Debow did not feel at the time that the grievor met the diagnostic criteria of maj or depressive episode. He noted that those symptoms would have included depressed affect, psychomotor agitation, retardation, feelings of worthlessness, excessive or inappropriate guilt, diminished ability to concentrate and/or suicidal thoughts. It was his opinion that the grievor was suspect for consideration of substance induced mood disorder (alcohol). Although the grievor was not exhibiting symptoms of a manic phase, Dr. Debow noted that he did have some symptoms and behaviors consistent with the delusional disorder, such as being defensive, guarded, evasive, humorless and acting in a manner disruptive and disturbing to others. Dr. Debow did not see any symptoms usually associated with the manic phase, which he described as including euphoric mood, excessive levels of energy, decreased need for sleep, loud speech, dominance during discussions, distractibility and flight of ideas. In response to specific questions Dr. Debow noted that the grievor had features of substance induced mood disorder and problematic substance abuse. His conclusion was that the grievor would not be able to perform the functions of his j ob regarding communicative behavior and control of his emotions. He required accommodation and continued psychiatric treatment. Dr. Debow noted that the prognosis for the symptoms of guardedness and defensiveness exhibited by the grievor, given the chronic and recurrent nature of his disease, was guarded. At the time Dr. Debow recommended a review of the grievor's condition after three more months of psychiatric treatment. 32 Dr. Debow saw the grievor in June of 2003 in a follow-up consultation concerning his fitness to return to work. It was his assessment that the grievor was showing no subjective signs or symptoms of the manic-depressive disorder and that he could return to work in a modified fashion for three half days a week initially and increasing over three months to full-time hours. Dr. Debow noted in this consultation the grievor's continued use of alcohol and queried whether that might be a factor in his history of mood disorders. Dr. Debow was provided with the details of the grievor's conduct before his admission on April 8th through to his resignation on April 28, 2004. Based on the information provided to him Dr. Debow's report read, in part, as follows: . .. it is my opinion that the claimant, Mr. Sinclair, was able to make an informed decision to resign from his employment. In that regard, it seems on April 28, 2004, he was able to complete a meeting and able to clearly type out the resignation letter indicating that he was competent and able to understand the issues of conflict. It seems that he felt that he understood that resignation had a 10 day window, indicating he was competent to understand that he had resigned and that he felt that there was a 10 day window. During this period of time, there is no objective evidence that he had a clinically significant mental health disorder that would interfere with his ability to understand the nature and intent of his resignation and in that regard, I am of the opinion that he was able to make an informed decision to resign from his employment. When Dr. Debow was asked whether it was possible that the grievor might have been prevented from making an informed decision one day because of his medical condition and be able to make informed decisions the next day or a day later without medical intervention, Dr. Debow responded as follows: It is highly unlikely that Mr. Sinclair's condition would have prevented him from making an informed decision one day, but resolved itself within a short period of time without any medical assistance. There is no objective evidence that the claimant has rapid cycling mood disorder, but has always been diagnosed as bipolar disorder without rapid cycling. Rapid cycling of mood conditions such as bipolar disorder may change within hours, but there is no objective evidence that the claimant had any symptoms in keeping with this condition. Although, for the most part, Dr. Debow agreed with Dr. Kumar's description of bipolar disorder, including the symptoms of the two extremes, there were some aspects of Dr. Kumar's expert opinion that Dr. Debow disputed. For example, he would not concur with Dr. Kumar's comments with respect to the reliability of a patient's account, including Dr. Kumar's suggestion that patients would deliberately mislead their physician about their conduct. Dr. Debow was of 33 the view that the patients were relating what they believed to be true and that the challenge was not in determining the truth but rather in coming to a diagnosis. Another area of disagreement concerned the consumption of alcohol by a patient with bipolar disorder. Dr. Debow testified that approximately 50% of patients with bipolar disorder have substance abuse problems and that its clinical significance was dependent on the amount the patient consumes. He disagreed that the consumption of alcohol would have any effect on the medication prescribed but allowed that, even if it did, it would act more as a sedative than a stimulant. He also stated that its effects could mimic the manic phase and encourage patients to take more risks but stated that would be the effect on anyone, not just someone with bipolar disorder. When he was asked in cross- examination about his consultation report in which he expressed concern about the effect of the grievor's drinking, Dr. Debow stated the comment was not made as a direct observation of the patient but rather as a general comment of what might occur in any patient. Cleo Degagne is the Director of Human Resources for the Ministry of Northern Development and Mines and is responsible for the implementation and maintenance of the human resource programs of the Ministry as well as the implementation of new and emerging programs related to staff. He was the senior human resource consultant from 1999 to 2001, when he took over the position as Director. His involvement with the events giving rise to this grievance included attending a meeting on May 3rd, after the grievor's resignation. He was asked to attend the meeting at the request of the grievor with regard to questions he wanted to ask about benefits. He testified that his only recollection of the meeting was that he had advised the grievor to file a request for WSIB benefits. In cross-examination he was asked whether it had been his understanding that the grievor was seeking benefits for a workplace injury or illness. Mr. Degagne's response was "not at all -- he was looking for benefits". When he was asked whether, as the senior human resource consultant, he was aware of the fact that WSIB benefits are payable only for workplace injury or illness, his response was "not really". Ms. Sue Lepage has been an HR consultant with the Ministry since 1977. She has been assigned the responsibility to advise the land resource cluster on matters of matters of discipline, labour relations, recruitment and occupational health and safety issues. She had known the grievor before the events giving rise to this grievance and was active in his return to work in 2002. When she met with the grievor on that occasion she described him as emotionally upset and depressed, unable to maintain a coherent conversation and unable to control his 34 thought processes. After that meeting the grievor applied for long-term disability benefits and was ultimately returned to work. She too was aware of the grievor's medical history. She was asked by Mr. Hunt to attend a meeting on April 28th regarding the grievor's behavior. He had told her about the meeting the previous day, including his attempt to discuss performance issues with the grievor and his instructions with respect to absences or lateness. She was aware that the grievor had arrived at work several hours late the next morning despite the directions of the previous day. She was also aware that he had requested a Union Steward for the meeting. She had been told that the meeting of the previous day had ended abruptly, without resolution, and that the grievor had left the office. She also understood that Mr. Hunt intended to continue his discussion with the grievor about his absences from the workstation, his lack of productivity and his loud and disruptive behavior. When the meeting convened she observed that the grievor was visibly upset and angry and it was obvious he had no intention oflistening to Mr. Hunt's concerns. His tone was very aggressive, assertive and angry. Mr. Hunt began by informing the grievor and Mr. Lavoie that he intended to discuss the performance issues he had raised the day before. He then asked the grievor where he had been for the morning and why he had not followed the procedure outlined the day before. When the grievor told him that he had been at the union office, Mr. Hunt made it clear that was not considered work and that he should have complied with the instructions of the previous day. Mr. Hunt then reiterated the grievor's hours of work, advised him that he was not going to tolerate any more disruptive behavior in the workplace and that, if he continued to be disruptive to others and continued speaking in that angry tone of voice, Mr. Hunt would send him home. The grievor attempted to interrupt Mr. Hunt. In a very assertive voice he told Mr. Hunt he had been lied to and that he was sick and tired ofMr. Hunt and Mr. Firth interfering with his health issues. Ms. Lepage asked the grievor why he was so angry and suggested it might have been because of a miscommunication. The grievor asserted that he was angry because he had been lied to and that he been scheduled to attend a team meeting and, instead, Mr. Hunt had decided to meet privately with him. Ms. Lepage was asked whether she was aware of the grievor's recent health problems. She testified that she knew the grievor had been discharged from the hospital, that he had expressed happiness at being back at work, that he been hospitalized because of a "blip" in his medications 35 and that he had been doing fine on his return to work. The performance issues raised by Mr. Hunt were unrelated to his medical condition. She had no concerns that his obvious anger might be the result of his mental disorder. She had been advised that his stay in the hospital had been brief and that Mr. Hunt, who had observed his progress during his hospital stay, was satisfied that he could return to work. She also compared her observations of the grievor on April 28th with those of her meeting with the grievor in 2002. She described them as two opposites. In 2002 he was unable to carry on a conversation and was emotional and prone to crying. He was not angry. During the meeting on April 28th he was very angry, very aggressive and at one point she was concerned that he might lash out physically. It was a very confrontational meeting. The grievor was red in the face, yelled at Mr. Hunt and clearly had no intention of taking any direction from him. She had never observed similar conduct from the grievor in the past. For example, when Mr. Hunt told the grievor that the server move on the weekend had been unauthorized, the grievor asserted that he could work whenever he wanted. In cross-examination Ms. Lepage was asked whether she had been concerned about the grievor, especially considering that he had just been discharged from hospital. Her reply was that she was concerned about performance issues. She testified that Mr. Hunt had visited the grievor in the hospital and that he and Mr. Firth had been pleased to see him back at work. She understood that the grievor was happy to be back too and that he was doing well. When it was suggested to her that the grievor, within days of his discharge, was showing extreme anger, was abusive to his supervisor and had left the office sick, her response was that, by this conduct, he had made it clear that he was not going to accept instructions or directions from Mr. Hunt. She did not consider his behaviour had any relation to his stay in the hospital. Ms. Lepage characterized the grievor's actions as insubordination when he did not report for work on time on April 28th. When it was suggested to her that the grievor was acting as if he were in charge and that he could do whatever he wanted, Ms. Lepage maintained that he was angry at Mr. Hunt's attempts to instruct him on how to perform his duties. Ms. Lepage was asked whether she gave any thought to verifying the grievor's mental state by contacting Dr. Kumar or Dr. Debow when she was told that he had resigned his position 15 minutes after the meeting. She replied that the grievor would not have been released from hospital if he had been ill. She was well aware ofMr. Sinclair's history and noted that there had been many situations where they had had to support him in the 36 past. The grievor's behavior on April the 28th was insubordination and total disrespect for his supervISOr. It was pointed out to her that he only been back at work for three days when he moved the server completely against the rules and contrary to proper procedure. She agreed that was not necessarily a sign that he was doing well but stated that she was not going to pass judgment on that. She was also asked if the grievor was working well considering that Mr. Hunt had received complaints from workers about his loud and disruptive behavior. She insisted that the grievor had been doing well. When she was reminded that Mr. Firth had told the grievor that he was taking too many breaks, smoking too many cigarettes and drinking too much coffee during working hours, she responded by saying that the fact people smoke and drink too much is not necessary work-related, although she did concede that his frequent absences from his workplace were indications that he was not doing well. Further, when it was suggested to her that calling the grievor to a meeting over performance issues within five days of his return to work was an indication that he was not doing well, Ms. Lepage stated that the grievor's conduct was the result of his reaction to being given direction from his supervisor. Finally, Ms. Lepage was asked whether she had had any involvement in the past concerning performance issues with the grievor. She recalled that in 1999 a meeting had taken place with his former manager because the grievor had disagreed with the directions he had been given regarding changes in the workplace. The manager had received a number of complaints that the grievor was not providing service and, at the end of the meeting, the grievor agreed to meet the expectations of his manager without anger or dispute. SUBMISSIONS OF THE PARTIES Mr. Leeb, counsel for the union, submitted that the question for this board to determine is whether the grievor, voluntarily and free from undue influence, made a decision to end his career with the Ministry of Northern Development and Mines on April 28, 2004, or whether his decision lacked the necessary objective and subjective intent to be valid. If this Board finds that it was not valid, the grievor should be reinstated. The parties are agreed that if the grievor is to be reinstated, he should be placed on sick leave and compensated accordingly, retroactive to April 28,2004, pending confirmation of his fitness to return to work. The parties will attempt to agree 37 on the grievor status and compensation and the Board should remain seized in the event there are any difficulties. The union based its argument for reinstatement on several grounds, including the interpretation of section 19 of the Public Service Act. Its primary ground, however, was that the grievor lacked the subjective and objective intention to resign his employment. The grievor understood that he had 10 days to reconsider his decision. It is irrelevant whether he was right. What is relevant is that when he submitted his resignation he believed that he could change his mind within those 10 days. The unchallenged evidence was that his understanding was based on a discussion with an assistant deputy minister. Mr. Lavoie testified to the same understanding. There is no evidence to support an objective intent to resign. Indeed, the evidence was that the grievor attempted to rescind the resignation the next day and again later, a clear indication that he did not intend to leave his position. Again, the uncontradicted evidence showed that he attempted to contact Mr. Hunt at his home the next day to rescind his resignation. We did not hear from Mrs. Hunt about that discussion and this Board must accept the grievor's account as true. A second basis for the union's position, and further proof of the grievor's subjective intention, it was said, was that the grievor lacked the capacity to form the intention to quit his employment. The state of his mental health at the time rendered him unable to appreciate the consequences of his actions. A review of the evidence will show clearly that the grievor's behavior before and after his admission to hospital was nothing less than bizarre. He acted in ways Mr. Hunt and Ms. Lepage had never seen before. He was loud, aggressive, assertive and defiant. He felt he was under attack by the employer and was being subjected to rigid performance rules that applied to no one else in the office. The grievor felt extreme stress and pressure. For reasons never fully explained, Mr. Hunt decided this would be an appropriate time to advise the grievor that he had been placed in the Attendance Awareness Program, even though he admitted that there was no reason to do so. The grievor felt he is no alternative but to leave the oppressive atmosphere of the office. He was exhausted. What he did next was engage in a three-day drinking binge. The medical evidence has shown that the grievor has a persecutory complex and over these two days he became convinced that the employer was" out to get him". The bait-and-switch tactic was proof of that. Forno apparent reason, the grievor blurted out that he was tired of Mr. Hunt and Mr. Firth interfering in his health issues, another sign of his feelings of persecution. 38 The Board has heard from Dr. Kumar and Dr. Debow about the symptoms of bipolar disorder. The grievor's conduct after his admission and discharge from hospital are classic manifestations of those symptoms. Dr. Kumar was of the opinion that grievor was suffering from an exacerbation of his condition, which affected his ability and capacity to decide to resign from his position. Dr. Debow disagreed. The union submitted that in reviewing the evidence, it is clear that Dr. Debow was evasive, argumentative and contradictory in his evidence. He disagreed with Dr. Kumar over the effect of alcohol use or abuse in patients with bipolar disease, despite his own previous comments to the contrary. Although neither physician examined the grievor immediately after his discharge from the hospital, Dr. Kumar did see him three weeks later, spoke to him directly about the events that had transpired and has a more lengthy and detailed knowledge of the grievor. Where there is a dispute in their evidence, Mr. Leeb submitted, the Board should prefer that of Dr. Kumar over that of Dr. Debow. In the alternative, it was the union's position that the grievor was incapable of forming an intention to resign his employment because he was under duress. The grievor has asserted that he felt he had no alternative but to resign his job. It was his only escape from an intolerable situation. It was the union's assertion that in those circumstances it cannot be said that an employee is quitting his job by choice. He is not exhibiting his true desire but is being forced to act, or feels he is being forced to act, in an involuntary manner. The grievor testified that that was how he felt during the meeting on April 28th. The grievance he handed to Mr. Boyer is further proof of his state of mind at the time. He felt he was being subjected to psychological torture and abuse. The union also took the position that the employer failed to accommodate the grievor's disability. They were aware of his medical condition and they have had experience with relapses, absences and return to work protocols. They knew he had been admitted to the hospital on April 8th, discharged on April 21st and returned to work on April 22nd. They knew or ought to have known about the symptoms of his condition because they had access to previous medical reports and consultations. They also had an obligation to educate themselves about the disease to better understand his needs. Instead, they ignored the obvious signs of his distress. First, on his own initiative, without any assistance and without the necessary safeguards, the grievor took it upon himself to move the server over the weekend contrary to procedure and protocol. That was unusual. When he was criticized for that move, he overreacted, which set off a series of events 39 that culminated in his resignation. He thought he deserved a pat on the back and was very upset that Mr. Firth was unhappy with him over the move and concerns about too many breaks. His statement that Mr. Firth had told him that he was acting "manicy" was unchallenged. He became even more upset when he was told that Mr. Hunt agreed with Mr. Firth. In fact, he became angry and began acting in a manner that Mr. Hunt described as extremely abusive, disrespectful, and even physically aggressive. Mr. Hunt testified he had never had anyone challenge his authority in such a manner, and had never seen the grievor acting so inappropriately. Mr. Hunt was very firm with the grievor and attempted to set down rigid attendance rules to deal with complaints about his disruptive behavior, frequent breaks and lack of productivity. The grievor's response to these events should have been an indication to Mr. Hunt that he was not well. On some level the grievor knew this himself and he went to Mr. Degagne to tell him that he was going home sick. He felt that he had been set up, that Mr. Hunt had engaged in bait-and-switch tactics and that he was out to get him. That was why he decided to seek help from Mr. Boyer. Even with a safety plan and the assistance ofMr. Lavoie, the grievor continued to feel persecuted and became, according to Mr. Hunt and Ms. Lepage, even more disrespectful, aggressive and angry, to the point that they believed he might physically assault Mr. Hunt. The grievor's solution to the situation was to write out his resignation and leave the building. By the next day he had changed his mind and called Mr. Hunt's home to ask for his job back. He also spoke to Maureen McNaughton in the hope she would relay his desire to return to his position. During the days that followed the grievor continued drinking heavily and spending money recklessly, consistent with behavior that was influenced by his illness. The unchallenged evidence of the grievor clearly paints a picture of an individual who is not well. His return to work was problematic almost from the beginning and deteriorated to the point that he felt compelled to leave the workplace. There can be no doubt that his conduct was influenced by his bipolar disorder. Mr. Boyer's evidence supports the union's position. He saw the grievor on April 28 and described him as extremely agitated. He spent over an hour with him, much of that time enacting scenarios and devising a safety plan. He was concerned about the grievor and incorporated a promise to see his doctor into that safety plan. His description of the grievor is consistent with the picture of an individual who is not well. Dr. Kumar was of the opinion that the grievor was exhibiting the symptoms of the manic phase of his bipolar disorder. He stated that the grievor would have felt psychological trauma during 40 the meeting on April 28th when Mr. Hunt took a firm stand with him. The grievor was displaying symptoms of being unrestrained by rules and unappreciative of their consequences. That was manifest in what Mr. Hunt described as insubordination, aggression and defiance. Dr. Kumar also testified that drinking alcohol can distort a patient's thinking and affect the absorption of his medications. Dr. Kumar also testified it was possible for an individual with bipolar disorder to engage in seemingly rational behavior while in the midst of an exacerbation of symptoms. The union asserted that it was the meeting of April 27 that was the most enlightening. It was at that meeting that restrictions were placed on the grievor that did not apply to anyone else in the office. He was given fixed hours of work with set times for breaks. His access to the building was revoked after hours. He was reprimanded for improperly moving the server, for taking too many breaks and for disrupting others in the office. Mr. Leeb reminded the Board that the grievor was confronted with these issues only days after he'd been involuntarily admitted to the hospital for a psychiatric disorder. It is not hard to understand why he felt he was being attacked. His only response was to leave immediately. He went home sick. That should have been a sign to the employer that he was not well. Instead his actions were seen as insubordinate and confrontational. The grievor tried to raise his health issue during the meeting with Ms. Lepage as well but was told that was not the purpose of the meeting. It is almost as if, asserted the union, the employer made a decision not to allow the grievor's mental health to enter into the discussion and detract from its agenda. With respect to the issue of remedy, the union asked that, if this Board should decide that the grievor is still an employee, he be reinstated as ifhe were on sick leave as of April, 2004. He would have been eligible for 75% of his wages for six months under the short-term sick leave plan and then 66% of his wages until his return to work. That is the minimum payment he would have been entitled to if he had been found to be unable to work due to illness. If the medical evidence supports a return to work at some point, he would be entitled to retroactive wages to that date. The parties will attempt to agree on those issues depending on the outcome of the award. 41 If the union arguments on the grounds set out in this award are not successful, it reserved its right to submit argument on the interpretation and application of s. 19 of the PSA, including a breach of the Charter of Rights and Freedom, Ms. Campagnone, counsel for the Ministry, took the position that the grievor voluntarily resigned his employment and throughout this hearing has never denied that was his intention at the time. The grievance he filed does not claim that he did not resign but rather objects to the fact the Employer did not let him rescind his resignation. That, asserted the Ministry, indicates his subjective and objective intention to resign. Even if there was an obligation on the part of the employer to accommodate the grievor's disability, that does not alter the fact that he resigned from his position without requesting accommodation. In the circumstances there can be no suggestion that the employer refused to accommodate the grievor. This Board does not have the jurisdiction to review the employer's decision not to allow the grievor to rescind his resignation. The jurisprudence is clear on that issue. Section 19 of the Public Service Act allows an employee to resign from his or her employment with two weeks notice. The grievor, in his resignation, waived that two-week notice period when he set out the effective date of his resignation. The Act requires that the request to rescind that resignation must be given in writing and before the effective date. The grievor's request was not made until after the date he chose to resign and, notwithstanding the fact that this Board cannot interfere with the Minister's discretion, was not in accordance with the Act. It was said that the facts also support the employer's position that the grievor intended to resign when he presented Mr. Hunt with his letter of resignation on April 28. The most accurate description of the grievor's condition between April 6th and April 28th is found in Mr. Hunt's testimony and should be given the greatest weight. He observed the grievor before his admission to hospital and described him as being glossy-eyed, slow speaking, unable to concentrate, expressionless and inappropriately dressed. He suggested the grievor see his doctor because he was concerned about his well-being. When the grievor was admitted to hospital Mr. Hunt visited him almost daily and observed first-hand the improvement in his condition. By the time the grievor was discharged from the hospital he was more articulate, able to complete a thought and 42 discussion, glad to be back at work, dressed appropriately and he seemed to be doing much better. That was evident in the exchange of e-mails between Mr. Hunt and the grievor and the fact that the grievor seemed to fit back into the work routine without any problems. The grievor was given a new work assignment and seemed content. Then, on the weekend, the grievor, on his own initiative, moved a server. The move was not done according to procedure and proved to be inconvenient and disruptive. When the grievor was criticized for that move by Mr. Firth, he felt he was being reprimanded when he should have been applauded. He asked Mr. Hunt to intervene on his behalf with Mr. Firth, which indicated that he was able to focus, understand the consequences of his actions and appreciated the fact that Mr. Hunt could be an ally. When Mr. Hunt told him that he agreed with Mr. Firth, the grievor became upset. When Mr. Hunt raised performance issues with him, including prolonged smoke breaks and staff complaints about his loud and disruptive conduct, the grievor became angry. When Mr. Hunt cancelled the staff meeting and replaced it with a one-on-one meeting with the grievor, Mr. Sinclair felt he had been the victim of a bait-and-switch tactic. His reaction to Mr. Hunt's concerns was not caused by any medical condition but rather by the grievor's refusal to accept criticism. That became even more evident when Mr. Hunt advised the grievor that he would be subject to new rules with respect to his attendance at work. His angry reaction raised more concerns with Mr. Hunt, sufficient enough to cause him to decide to limit his access to the building. There was no doubt in Mr. Hunt's mind throughout all of these exchanges that he was dealing with an employee who refused to take direction from his supervisor. Although the grievor was angry and upset, he was articulate, he was able to stay focused, he understood Mr. Hunt's concerns and he knew what Mr. Hunt wanted to do about them. The employer did not dispute Mr. Boyer's description of the grievor as agitated. That agitation was not the result of the grievor's mental illness, but was the reaction of an employee who was annoyed at his supervisor for criticizing his performance. Both Dr. Kumar and Dr. Debow testified that the grievor's symptoms during a manic phase would not be resolved quickly. And yet, Mr. Boyer testified that after about an hour and a half with the grievor he was able to calm him down enough to send him back to work with a safety plan. The grievor's state of mind at the time was sufficiently well to allow him to concentrate on the safety plan and take comfort in it. When the grievor arrived at the office and was confronted by Mr. Hunt, he understood the consequences of what was to transpire and his need to have Mr. Lavoie accompany him to the meeting. It is clear from the grievor's behavior that he was capable of making decisions in his 43 own interest and of acting on those decisions. He was angry but he was able to maintain his focus throughout the two days. As well, the grievor insisted that he was fine and did not need any medical intervention. He has always been sensitive about medical issues and raised concerns about them on April 27 and 28 only to assert his well-being. The employer had no intention of raising any medical concerns because it was satisfied that the grievor's conduct was unrelated to his medical diagnosis. The grievor's subsequent conduct supports his intention to quit his job. He resigned on April 28th but made the resignation effective April 30th. On May 3rd he told the employer that he was "through with the OPS". There is no evidence that he asked anyone whether he could come back to work until he wrote that letter with Mr. Boyer's assistance. In that letter he did not say that he never intended to resign but rather that he had quit in the heat of the moment. At no time did the grievor say that he did not intend to resign. All of that evidence indicates a subjective and objective intention to resign. A letter of resignation was submitted, the grievor left the office before the end of the day, he did not return for several days, he did not ask for his job back and he returned the indices of the job. He never denied resigning but characterized it as an error. The fact that it might have been being an error in judgment or that he regretted what he had done does not negate the fact that he intended to resign his position and he did. He may have felt that he was being persecuted and emotionally devastated by the turn of events, but his response to these events was to resign. It was submitted that the grievor had the mental capacity to appreciate the consequences of what he had done. Dr. Kumar testified that during the grievor's hospital stay and his examination in mid-May the grievor exhibited good judgment and insight. Nowhere in Dr. Kumar's office notes does he raise any concerns about the grievor. Even when the grievor told him that he had resigned his position, Dr. Kumar did not feel concerned enough to make any notations about the grievor's mental health. Dr. Debow, on the other hand, did not believe the grievor's mental capacity was affected by his bipolar disorder when he resigned his position. At best, Dr. Kumar testified that the grievor "might have been influenced". It was asserted that there is simply no medical evidence to support the union's position that the grievor was incapable of forming a subjective intent to resign his employment because of a pre-existing mental condition. 44 The only evidence before this Board shows that the grievor did not like being spoken to about performance issues. When his supervisor attempted to manage these performance issues by giving him clear and firm directions, the grievor reacted with anger and aggression, to the point that his supervisor feared a physical attack. The grievor's reaction was a direct result of the employer's criticism. Mr. Hunt's evidence should be given the greatest weight. He has known the grievor for many years and has observed firsthand his behavior before, during and after this most recent admission to hospital. He was in the best position to determine the nature of the grievor's conduct on April 27 and 28, which he described as aggressive, abusive, confrontational and defiant. REASONS FOR DECISION There have been several issues raised during this hearing with respect to the events of April of 2004. The primary question for this Board, however, is whether the grievor voluntarily resigned from his position on April 28, 2004. It was the union's position that he lacked the capacity to form such an intention and his resignation was therefore invalid. The employer took the position that the grievor intended to resign, wrote out a letter of resignation, gave it to his supervisor and left the building. He may have regretted that decision later, but there is no doubt, it was said, that he intended it at the time. Boards of Arbitration have considered this question numerous times and have developed guidelines to assist them. The starting point must be that an employee has a right to quit or retire from employment. Arbitrators, however, have been prepared to review that decision against clear and unequivocal facts to support or reject the voluntariness of the resignation. In reaching a conclusion on that question, arbitrators have developed a view that there is a subjective and objective element to a resignation. First, an employee must form an intention to quit his employment and second, carry out an act that is inconsistent with future employment. This test has been developed in recognition of the fact that uttering the words "I quit" during an emotional outburst or in a fit of anger or out of frustration might lead to the conclusion that the words were not a manifestation of the employee's intentions. A review of the case law shows that the arbitrators were not considering intent in the abstract, but gathering the subjective element of intent from the aspect of what the grievor actually did. Arbitrators have accepted resignations as valid where the employee gave notice as required under a collective agreement, refused to work, 45 took another job, handed in uniforms and picked up or completed documents indicating termination of employment. Arbitrators have not found resignations valid where an employee left work in ambiguous circumstances, had a valid excuse for being absent and took no other steps indicating a termination of the relationship. Arbitrators have also recognized that some resignations might be the result of excessive pressure by the employer and have considered whether provocation on the part of the employer would invalidate the resignation. There is a consensus among arbitrators, however, that if it can be established that an employee tendered a valid resignation of his/her employment, that act will be characterized as final and irrevocable. What is clear from the case law is that each case must be decided on its own set of facts. In the instant case, that requires a review of the events that occurred prior to and after the grievor's resignation within the context of his medical history, past and recent. The employer has asserted that there is no medical evidence to show that he was suffering from the symptoms of his Bi- Polar Affective Disorder and, therefore, no grounds upon which this Board could find that he was incapable of forming the intention to quit because of his mental illness. Obviously I cannot diagnose the grievor's condition during the month of April of 2004. That is the task of a trained medical physician. What I can do, however, is compare the grievor's conduct against the evidence I do have about the symptoms of the disease generally and the actual symptoms exhibited by the grievor in the past to determine whether his conduct on the days in question was consistent with those symptoms. The union has contended that the employer ought to have known that the grievor was acting in a manner totally at odds with his previous behavior and ought to have recognized that he needed help. If the union is correct, it seems to me that the fact the grievor did not see a doctor on April 27 or 28 cannot and should not defeat his grievance. If he was too sick to appreciate what he was doing, he was no doubt equally unaware of his actions. Since we do not have the benefit of a medical opinion at the time, we can only reconstruct the events in an effort to discover his true intentions at the time. There is very little dispute about the actual events giving rise to the grievance. He had been involuntarily admitted to the hospital for 12 days. He was discharged on April 20th and returned to work immediately. The employer testified that he appeared to be handling his return to work well, was looking forward to a change in his duties and, according to Mr. Hunt, was "fine". However, on Sunday, April 25th, five days after his discharge from the hospital, he moved a 46 server. Notwithstanding the fact that he had worked there for numerous years and had moved servers in the past, and, notwithstanding the fact that he knew such a move required two people and safeguards to ensure a smooth transition, he performed the transfer alone, without the necessary safeguards. As a result, there was an interruption in service, which resulted in criticism from Mr. Firth. That was the first sign that something was amiss. Why did he decide at that time to move the server and why did he do it alone? The grievor felt he should have been applauded for his efforts and was very upset over the fact that Mr. Firth had chastised him. He sought Mr. Hunt's intervention and become more upset when he was told that Mr. Hunt agreed with Mr. Firth. That, in my view was another signal from the grievor that all was not well. His reaction to the criticism was, by all accounts, unusual for him. When he went to the to the 2 p.m. meeting with Mr. Hunt, he was upset that a regular staff meeting had been cancelled and replaced with a one-on-one meeting between him and Mr. Hunt. That meeting was even more difficult for the grievor than the earlier one. He was reprimanded for drinking too much coffee, smoking to many cigarettes, taking too many breaks and being loud and disruptive with other staff. The grievor's view was that the meeting was hostile, a bait-and-switch tactic, unnecessary and lacking resolution. He told Mr. Hunt he was going home sick and suggested that, if the employer wanted him to see their shrink, that would be fine with him. Again, his conduct at this meeting was unusual. He accused Mr. Hunt of tricking him into an unfair meeting. According to Mr. Hunt's version of the meeting, there was also detailed discussion about the grievor's hours of work, including the procedure to be followed ifhe was to be away from his desk during work hours. The tone of the meeting deteriorated. Mr. Hunt testified that the grievor became more and more irate him and began acting in a disrespectful and unprofessional manner. It was at this point that Mr. Hunt told him that he was revoking his after-hours access to the building. Mr. Hunt's evidence was that, given the level of hostility and anger and the insubordination shown by the grievor, Mr. Hunt felt he would be a risk. Mr. Hunt even testified that he thought the grievor might attack him. When the grievor said he wanted Mr. Hunt and Mr. Firth to stay out of his business, especially his health, Mr. Hunt told him that they were not there to discuss his health. Mr. Hunt also told the grievor at this time that he was being placed into the attendance awareness program, although no reason was given at the hearing for that decision. Twice the grievor raised his health as an issue, albeit indirectly. Twice Mr. Hunt ignored his comments and even told the grievor bluntly that they were not there to discuss his health. I find it difficult to understand why Mr. Hunt was so convinced that the grievor's behaviour was unrelated to his mental health in the circumstances. 47 Mr. Boyer saw the grievor after this meeting. He described the grievor as agitated, evidenced by an obvious tic. It took him lI1z hours to calm the grievor down enough to return to work. The grievor felt he was going to be disciplined and left only after he and Mr. Boyer had devised a safety plan. It was obvious to Mr. Boyer that grievor was not well and he persuaded the grievor to include an immediate visit to his psychiatrist in that safety plan. The next day another meeting took place between the grievor and Mr. Hunt, with Mr. Lavoie and Ms. Lepage in attendance. According to Mr. Hunt, the meeting was confrontational. The grievor disagreed with everything Mr. Hunt said and became more visibly agitated and forceful as the meeting progressed. He displayed more and more disrespect for Mr. Hunt. Ms. Lepage described the grievor as aggressive, assertive and angry. He was visibly upset and had no intention oflistening to Mr. Hunt's concerns. When she asked the grievor why he was so angry, he told her he had been lied to and referred to the bait-and-switch tactic of the previous day. It is interesting to note that both Mr. Hunt and Ms. Lepage testified about previous meetings with the grievor concerning performance issues. Both agreed that, when they had raised concerns with the grievor in the past, even when he disagreed with their concerns, he did not get angry, he was not disrespectful and he complied with their directions. And yet neither of them thought for a moment that the grievor's overreaction to their criticism might be caused by something other than a refusal to accept criticism. Mr. Hunt testified that he had observed the grievor prior to his admission and described him as being expressionless, unable to concentrate and gloomy-eyed. His behavior after his discharge was the opposite. As far as Mr. Hunt was concerned, the grievor had been admitted because of a "blip" in his medication, had been discharged, had returned to work and had adjusted well. Ms. Lepage accepted Mr. Hunt's conclusions that the grievor had been doing well upon his return. That seems at complete odds with the fact that within five days of his discharge he had moved a server contrary to protocol and, when criticized for that move overreacted. Mr. Hunt had received complaints about the grievor from other employees concerning his disruptive behavior. He had been observed taking too many breaks, drinking too much coffee and smoking too many cigarettes. Mr. Hunt had concerns about how the grievor would represent the Ministry in Toronto and cancelled both of his trips. In fact, by the meeting on April 28, he viewed the grievor as a serious threat to him personally and to the Ministry generally. Against the backdrop of those complaints and concerns, Mr. Hunt felt justified in 48 imposing working conditions on the grievor that had never been required in the past, not only with respect to the grievor but with respect to any employee under Mr. Hunt's supervision. That is hardly the description of one who is adjusting well on his return to work. Both Mr. Hunt and Ms. Lepage characterized the grievor as an employee who simply refused to take direction. He was disrespectful, insubordinate, angry and even, it was feared, physically aggressive. Both Mr. Hunt and Ms. Lepage had known the grievor for a considerable period of time and, in Mr. Hunt's case, as a personal friend outside of the office. There is no evidence from either one of them that the grievor had ever acted in such an inappropriate and unacceptable manner. There is no evidence from either of them that he had, in the past, reacted so negatively and so violently when confronted with performance issues. In short, there was no explanation for the grievor's behavior and yet, both Mr. Hunt and Ms. Lepage insisted he was acting out against criticism. Both testified that it never occurred to them that there might be other factors at play, in particular the grievor's mental health. It is hard to imagine in these circumstances how Mr. Hunt could have believed the grievor had been doing well. It begs the question why, when the grievor mentioned his mental health, it never occurred to either Mr. Hunt or Ms. Lepage to question whether that might explain his otherwise inexplicable behavior. Mr. Hunt came to the conclusion that the grievor's mental health was fine based on his comparison of the grievor' s conduct before his admission into hospital and his behaviour during the discussions on April 27 and 28,2004. Clearly Mr. Hunt believed he was in a position to assess and evaluate the grievor's mental state based on his personal observations of the grievor pre- and during admission. There is, however, no evidence before me that Mr. Hunt was aware of the bi-polar nature of the disease or the symptoms associated with the manic phase. He based his diagnosis on his observations of the grievor during a depressive phase, which was, at the least, presumptuous and at the most, simply wrong. Ms. Lepage accepted his opinion without question and, as far as I am aware, made no effort to educate herself about the grievor's disease. Even if I were prepared to accept Mr. Hunt's and Ms. Lepage's opinion of the grievor's reaction to the events of April 26 to April 28 inclusive as having some reasonable and rational basis, recognizing the emotions at play during these meetings, that does not explain why neither of them made any effort to make inquiries about the symptoms of the grievor's condition. Here was an employee who had worked at the Ministry since 1985, who had accepted criticism and direction in the past without incident, who was known to suffer from Bi-Polar Affective Disorder, who had been absent from work in the past because of that illness, who had been 49 admitted to the hospital weeks before these meetings, who had been discharged from the hospital just a week before these events and who, for apparently no reason, reacted violently to being confronted with performance issues. The grievor, according to Mr. Hunt and Ms. Lepage, had never been so angry, so aggressive or so disrespectful in the past. At one point there were concerns that he would physically assault Mr. Hunt. I agree that the grievor did not like what he was being told and he acted out in what only be described as an inappropriate and disrespectful manner. The obvious question that no one asked, however, was why. Why did he take these criticisms as a form of persecution? Why did he feel they were out to get him? Why did he act so rudely to Mr. Hunt and Ms. Lepage? It was clearly out of character for him. He had never shown such anger, aggression, assertiveness and outright hostility before, not even when ha had been confronted with performance complaints in the past. He was friends with Mr. Hunt and was welcome in his home. Why did he suddenly see him as an enemy? What prompted the suspicions about his motives? Neither Mr. Hunt nor Ms. Lepage wondered about those questions. They viewed the grievor as a disgruntled employee and never had regard to what he was actually doing and saying. Even when the grievor tried to raise his mental health as an issue, it never occurred to either Mr. Hunt or Ms. Lepage that he might be asking for help. Not only did they consider it irrelevant, they made it clear to the grievor that they were there to discuss performance issues, not his health. If that was the grievor's cry for help, it was clearly ignored. As stated previously, the question for this Board is whether, when the grievor submitted his written resignation to Mr. Hunt on April 28, 2004, he was competent to form the intent to quit. Since I do not have the benefit of a physician's report during the critical period of time, I must consider the grievor's conduct against the evidence of the symptoms of Bi-Polar Affective Disorder to ascertain whether his ability to think rationally and logically was impaired by those symptoms. The Board received evidence from Dr. Kumar and Dr. Debow about the symptoms ofBi-Polar Affective Disorder. Dr. Kumar testified that the grievor had suffered from periods of hypermania and depression in the past and had been noncompliant with his medications. He described Bipolar Affective Disorder as two illnesses in one with symptoms that included, during the depression phase, poor concentration, low energy, psychomotor retardation, flat affect, poor 50 motivation, monotone speech, poor appetite, no interest and limited functional ability. In the manic phase patients experience a lack of judgment and insight, spend excessively, enjoy a feeling of positive confidence, have a fantastic memory and ability to concentrate and feel all- powerful, even slightly superhuman. Their thoughts seem to come too fast for them to comprehend; they talk loudly and begin but never complete many conversations. They indulge in spending sprees and deliberate defiance of social conventions. They can be reckless and even dangerous. In reviewing the evidence about the grievor's conduct post-discharge Dr. Kumar was of the opinion that the complaints about him smoking too much, drinking too much coffee and taking too many breaks were signs that he was not in a calm state but were clear indications of recklessness. The evidence of the grievor' s spending pattern after his resignation was also a signal that he was not acting rationally. Dr. Kumar opined that anyone in the circumstances should have recognized the grievor's obvious agitation. That was, according to him, typical manic behavior with grandiose gestures and generous acts, accompanied by a lack of rational or logical thinking and was a clear sign of impaired judgment. Dr. Kumar described Bi-Polar Affective Disorder as replete with contradictions. He stated that a patient could exhibit all of the symptoms of the manic phase and, within minutes, seem depressed and suicidal. They can exhibit periods of rational and logical thinking in the midst of either phase. They can navigate through a consent and capacity hearing over an involuntary admission during a manic or depressive phase. Dr. Debow described the symptoms of the depressive stage of Bi-Polar Affective Disorder as including flat affect, psychomotor retardation, a sense of worthlessness, excessive or inappropriate guilt, diminished ability to concentrate and suicidal thoughts. He described some of the symptoms of the manic phase as being defensive, guarded, humorless, acting in a manner destructive and disturbing to others, euphoric mood, excessive levels of energy, decreased need for sleep, loud speech, dominance during discussions, distractibility and flight of ideas. Dr. Debow did not see the grievor in April of 2004 and based his opinion on the grievor's mental state when he resigned on the information provided to him for the hearing. It was his opinion that the grievor was able to make an informed decision to resign from his employment. He stated, in part as follows 51 ... in that regard, it seems on April 28, 2004, he was able to complete a meeting and able to clearly type out a resignation letter indicating that he was competent and able to understand the issues of conflict. It seems that he felt that he understood that resignation at a 10 day window, indicating he was competent to understand that he had resigned and that there was a 10 day window. During this period of time, there is no objective evidence that he had a clinically significant mental health disorder that would interfere with his ability to understand the nature and intent of his resignation and in that regard, I am of the opinion that he was able to make an informed decision to resign from his employment. I should state here that where the evidence of Dr. Kumar and Dr. Debow is in conflict, I prefer the evidence of Dr. Kumar. In the first place, Dr. Kumar has been treating the grievor since 1995 and has, in my view, a more thorough understanding of the grievor's state of health. He has seen him through bouts of the manic and depressed phases of the disease and can relate his behaviour in April of 2004 within the context of those observations. As well, and more importantly, Dr. Kumar was co-operative, objective and honest in his testimony. He was challenged on the lack of comment in his clinical notes during the grievor's visit on May 18th and acknowledged that he did not always record his observations. When asked for an opinion, he was candid and agreed there were limitations on his opinions because he had not seen the grievor until 3 weeks after he resigned. Dr. Debow, on the other hand, was expansive and co-operative in his examination-in- chief but was guarded and argumentative in cross-examination. Despite the clear comments in his 2002 and 2003 consultations about the grievor's use of alcohol, he insisted that the consumption of alcohol would have no effect on a patient with Bi-Polar Mfective Disorder. Finally, I simply do not accept his opinion of the grievor's conduct. He stated that the grievor was able to complete a meeting. The evidence about the grievor's behaviour during the meetings of April 27 and 28,2004, is in direct contradiction to that comment. The grievor left the first meeting because he said he was sick and, given the account of his conduct at these two meetings, it can hardly be said he handled himself well. I prefer Dr. Kumar's assessment of the grievor's activity and the effect of his disease on his conduct. It is more consistent with the symptoms of the disease generally and the behaviour of the grievor specifically. Both psychiatrists agreed those symptoms included lack of judgment and insight, excessive spending, feelings of being all- powerful, exerting dominance over conversations, speaking in a loud voice, defiance of social conventions and recklessness. The grievor exhibited all of those symptoms on April 2ih and 28th and the days following. It was said he was loud, unable to concentrate on his job, defiant and disrespectful and reckless. He tried to dominate the conversation with Mr. Hunt and showed a reckless and defiant disregard for convention by putting his feet up on Mr. Hunt's desk and 52 pretending to light a cigarette. Mr. Hunt admitted that the grievor acted as if he were in charge, which Mr. Hunt considered to be insubordination. If an employee, called into a meeting to discuss performance issues in the normal course of events, acted in a similar manner, one would view his conduct as disrespectful and insubordinate and deserving of discipline. However, this is not the normal course of events. This employee has a long history with this employer and, as far as I am aware, has never been accused of this form of inappropriate behaviour in all that time. He has been spoken to about his performance in the past and, whether he agreed or not, complied with directions. He also has a longstanding history of mental illness. He has suffered from relapses from that mental illness and the employer has been aware for many years about the nature of the disease. When he overreacted to criticism in the manner he did, the employer, specifically Mr. Hunt and Ms. Lepage, should have considered his medical history to consider whether he was exhibiting signs of another relapse. When he tendered his resignation, they should have given some thought to the events of the two preceding days and asked themselves whether the employee they had known for many years would knowingly quit his job. More significantly, when he called Mr. Hunt's home the next day to ask about coming back to work, Mr. Hunt should have recognized the grievor's confused state of mind and made the connection with his medical condition. In the circumstances, and having regard to the actions of the grievor during the time in question and the evidence regarding the symptoms of Bi-Polar Affective Disorder, I have no hesitation in concluding that the grievor was exhibiting enough of the classic symptoms of his disease to render him incapable of forming the subjective intent to resign from his position. He felt persecuted and believed the only way he could escape the poisonous work environment was to leave. He prepared a letter of resignation based on these feelings. He believed he had no alternative. It was argued that the grievor was capable of understanding the consequences of his actions because he went to see Mr. Boyer and he called Mr. Lavoie to the meeting on April 28, 2004. He understood that he needed assistance and where to get that assistance. That should be seen, it was said, as proof of his mental competence. I reject that argument. He did seek help from the union on both occasions but Dr. Kumar's evidence was that patients in either phase of the disease are able to manoeuver through competency hearings. The fact that he seemed aware of 53 things at some points in time over the 7 days after his discharge does not negate the fact that for much of that time he was engaged in conduct that was unacceptable and uncharacteristic. He conduct during the meetings on April 27 and 28 is clear proof that he was unable to control his emotions and acting in a reckless and defiant manner. The evidence has shown that the grievor has needed time to recover from his relapses and, during the time at issue in this grievance, his capacity to think rationally and logically was impaired for some time before and after the date of his resignation. The parties provided me with several cases that supported the legal principles that ought to be applied in the instant case. They were agreed about the requirement for a subjective and objective indication of an intention to resign but disagreed on the application of the facts of this case to that principle. While these cases were helpful, it is the facts of this case that must dictate the result. I am satisfied, based on the evidence before me, that the grievor was experiencing an exacerbation of the manic phase of his Bi-Polar Affective Disorder and that exacerbation interfered with his ability to form the requisite intent to resign his employment with the Ministry of Northern Development and Mines. In a previous interim decision I had order the grievor be reinstated to the status of sick leave and be paid accordingly. I understand he has returned to the workplace. If there are outstanding issues regarding compensation, the parties may contact the GSB to arrange a hearing date. Dated at Toronto this 20th day of April 2007