HomeMy WebLinkAboutVan Woudenberg 19-03-12
IN THE MATTER OF AN ARBITRATION UNDER THE COLLECTIVE BARGAINING
ACT, 2008
~ BETWEEN ~
SHERIDAN COLLEGE INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING
(“EMPLOYER or COLLEGE”)
~ AND ~
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (LOCAL 0244)
(“UNION”)
~AND~
MAXIMILIAAN VAN WOUDENBERG
BOARD OF ARBITRATION: Deborah Leighton, Chair
Ann Burke, Employer Nominee
Pam Munt-Madill, Union Nominee
APPEARANCES:
For the Employer Daniel J. Michaluk, Hicks Morley
For the Union Avril Dymond, OPSEU
Hearings were held for these matters on September 8, 9, October 26, November 16 and December 8, 2016, March
27, September 14, 2017, January 10, 11 31, February 1, 2018, Executive session December 4, 2018
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DECISION
Introduction
[1] Dr. van Woudenberg was a full-time professor in the Department of Humanities and Social
Science at the College at the time of the hearing. There are three grievances before us. In part
one of the decision, we will address the grievance filed on May 4, 2015, alleging, in sum, that the
grievor was wrongly disciplined for failing to communicate with the College between August 6
and September 8, 2014 and, that the College discriminated and failed to accommodate the
grievor in the return to work process which began in February 2015 and ended with his return to
work in the spring term. In part two, we will address two further grievances. On May 15, 2015,
Dr. van Woudenberg grieved that he was wrongly disciplined for failing to attend a meeting at
the College on April 28, 2015 and, the discipline was evidence of further discrimination ,
harassment and reprisal. And, on June 29, 2015, he grieved that the College was continuing to
harass him, in part, by not paying expense claims promptly. Further, he claimed that the
College’s treatment of him was evidence of reprisal for filing a grievance against several senior
managers and administrators on February 20, 2015.
[2] On August 29, 2016, we issued a decision dismissing three grievances dated November 6,
2014, February 19, 2015 and February 20, 2015, assessing the evidence of the College’s
endeavors to get updated medical information from the grievor during the summer of 2014 and
up to his return to work in February 2015. The Union alleged that this process harassed and
discriminated against the grievor. The College took the position that it had a right to seek the
information, and that while it might have caused the grievor stress, the evidence did not support a
finding of harassment and discrimination. A majority of the board agreed with the College that it
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acted within its management rights and there was insufficient evidence to support a finding of
harassment and discrimination against the grievor.
PART ONE: THE MAY 4, 2015
THE DISCIPLINE GRIEVANCE
[3] The Dr. van Woudenberg’s failure to communicate with the College from August 6 to
September 8, 2014 was subsequently the reason for discipline issued on April 29, 2015. The
disciplinary letter provides in part:
For the period between August 6, 2014 and September 5, 2014 the college
made repeated attempts to contact you regarding your absence including letters
to your home address which you acknowledge receiving. The College had also
previously attempted to contact your medical practitioner, at your request, to
obtain the necessary medical documentation to substantiate your absence.
Nevertheless, the college received no communication from you, your medical
practitioner, or the union on your behalf between July 25, 2014 and September
7, 2014. Your absence combined with the lack of communication represented a
substantial breach of the collective agreement and the very foundation of the
employment relationship. Furthermore, the College was forced to make
difficult and abrupt staffing arrangements so that your absence and lack of
communication minimally impacted students. Consequently, you were put on
notice by letter dated September 5, 2014 that the College intended to terminate
your employment if you did not return to the workplace immediately and
provide justification satisfactory to the College for your absence and lack of
communication.
You eventually contacted the College on September 8, 2014 and attended a
meeting on September 10, 2014 with Hasan Malik, Dean Faculty of
Humanities and Social Sciences, David Howe of OPSEU, Local 244 and Ryan
Piper, Human Resources Portfolio Manager. At that meeting you told the
College that you were medically disabled from attending work and also had
been medically disabled from communicating with the College. Furthermore,
you had been to see your medical practitioner and had asked him to send the
College the information which had been requested to substantiate your absence.
You produced medical documentation dated August 14, 2014 which you claim
your doctor sent to the College on August 21, 2014. The College did not
receive this documentation until September 8, 2014 when you sent it by email.
The College had previously sent correspondence to you reaffirming that it was
ultimately your responsibility to ensure that the college received the required
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medical documentation but you claimed on Septem ber 10th that you were
medically disabled from meeting this responsibility.
[4] The final paragraph of the disciplinary letter provides as follows:
Consequently, the college has considered your conduct and is hereby issuing
you a five-day unpaid disciplinary suspension. The suspension will be served
from April 28, 2015 to May 4, 2015 inclusive. It is hoped that this action will
convey to you the severity of your misconduct as future incidences of this
nature will likely result in your termination.
[5] The Union grieved on Dr. van Woudenberg’s behalf alleging that the College had violated
Article 4 and 11 of the collective agreement.
[6] The parties tendered the following agreed statement of facts . We also heard viva voce
evidence from witnesses of the College and from the grievor. We have reviewed the evidence
carefully and will refer to it as needed in our reasons for the decision. The documents referred to
in the Agreed Statement of Facts have not been included here.
AGREED STATEMENT OF FACTS
a. The grievance and record of evidence
1. The document attached as Tab A is an accurate copy of the 4 May 2015 grievance with which
the Board is seized - “the Grievance.”
2. The parties confirm their agreement that all evidence admitted in the hearing of Dr. van
Woudenberg’s three “return-to-work grievances” may be relied upon in the determination of the
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Grievance. This document refers to the “Book of Documents – van Woudenberg Return to Work
Grievances” as the “RTW Book.”
b. The grievor – background and historical workload
3. Dr. van Woudenberg works in the English and Communications Department. At the time of
the Grievance, Dr. van Woudenberg was the second most senior person in
Communication/Literature cluster in the Department.
4. Before April 2014, Dr. van Woudenberg he had taught 77 courses in 16 different course
subjects. He had developed one course. He had performed committee duties, sat on a hiring
committee and had performed other functions in keeping with his classification as a professor.
5. Dr. van Woudenberg had typically taught four courses (and not more than four courses) a term
in the Fall and Winter semesters, and between one and three courses in the Spring/Summer
semesters. He had typically been asked to teach on one campus per term. In a few instances, he
had been asked to teach on two campuses during a single term. All his courses had been
scheduled between 8:00 am and 6:00 pm, and all of his courses (other than a course he had
taught entirely online) had employed the lecture model of teaching, including labs.
6. Dr. van Woudenberg was also a union steward and received partial release from his workp lace
duties to perform union duties between late 2008 and late 2013. The weekly hours of teaching
contact release varied from three to 14 during this period. Additionally, the College restricted Dr.
van Woudenberg’s total weekly workload hours to 41 (inclusive of union release time) for this
period as is the College’s practice with stewards for whom the Union requests release time.
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7. As stated above, between Fall 2004, when he started his employment with the College and
Winter 2014, Dr. van Woudenberg taught 77 courses. Of the 77 courses that Dr. van
Woudenberg had taught, 56 courses (73%) had been taught on his home campus in Oakville (or
via online delivery). The balance were taught in Brampton. Dr. van Woudenberg had never
taught at the Mississauga campus.
c. Grievor took leave from April 2014 to late February 2015
8. Dr. van Woudenberg was ill and took leave from work from late April 2014 to late February
2015. The parties agree that Dr. van Woudenberg was entitled to short-term disability benefits
under Article 17 during this period
d. Medical opinions related to leave of absence accepted as valid
9. Dr. Rick Black was Dr. van Woudenberg’s family physician during the period of absence. He
authored three relevant documents in the summer of 2014:
(a) a medical note dated April 24, 2015 – an accurate copy of which is included at Tab 13
of the “RTW Book”;
(b) a medical note dated June 5, 2015 – an accurate copy of which is included at Tab 18
of the RTW Book; and
(c) a letter dated August 14, 2014 – an accurate copy of which is included at Tab 33 of
the RTW Book.
10. Dr. Gnam, also issued a report pertaining to Dr. van Woudenberg’s absence in January 2015
– an accurate copy of which is included at Tab 130 of the RTW book.
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11. The parties agree that the medical notes and reports identified in the paragraphs above
convey valid opinions. The parties further agree that Dr. Black’s August 2014 letter and Dr.
Gnam’s January 2015 report accurately describe the information provided by Dr. van
Woudenberg as well as the other information that forms the basis of the opinions.
e. There were grievances outstanding at the time the grievor returned from leave
12. Dr. van Woudenberg filed grievances on 19 February 2015 and 20 February 2015 that
address his treatment by the College to 20 February 2015. At that time, the parties had a
difference about the terms on which Dr. van Woudenberg would return to work. At that time, Dr.
van Woudenberg was concerned that the College seemed unwilling to accept medical evidence.
He also found the work environment to be hostile.
13. The College’s return to work plan at the time is described in the document at Tab 160 of the
RTW Book Dr. van Woudenberg’s objection to the College’s return to work plan is described in
the document at Tab 164 of the RTW Book.
f. The parties met in person on February 23rd for a return-to-work meeting
14. The parties attended a return-to-work meeting on 23 February 2015. Sheik Azaad, Paula
Seeley, Ryan Piper, Stephanie Samboo, David How and Dr. van Woudenberg were in
attendance.
15. The attendees considered, among other things, the medical note attached at Tab 170 of the
RTW Book. The note said that Dr. van Woudenberg was fit for “light duty” and said “4 hours
per day for 1 week, 6 hours per day for a week then aim for full time with reassessment.” Mr.
Azaad expressed concerns about the note. He said he was unclear as to what it meant.
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16. The College produced a time-table attached at Tab 171 of the RTW Book as a proposed
workload for Dr. van Woudenberg. The timetable included, five courses in total, with:
(a) courses at three campuses;
(b) one course (LITT 15436G) that employed a hybrid lecture/online model of learning;
(c) two sections scheduled from 4:00 pm to 5:00 pm;
(d) one section scheduled from 6:00 pm to 7:00 pm.
17. The timetable included COMM 19999: Essential Communication Skills. Dr. van
Woudenberg had never taught the second half of this course before.
g. The grievor raised concerns about workload after the meeting
18. On 23 February 2015, following the meeting, Dr. van Woudenberg sent Mr. Piper the email
attached at Tab 178 of the RTW Book. In part, he stated, “I herewith confirm that in my ten
years at Sheridan College, I have never taught the 7B (second half) of Comm 19999: Essential
Communications Skills.”
19. On 23 February 2015, Dr. van Woudenberg received a SWF that made out 42.78 hours but
did not include new course preparation time in the calculation. The SWF is set out at Tab 179 of
the RTW Book.
20. On 25 February 2015, Mr. Azaad sent Dr. van Woudenberg the letter at Tab 182 of the RTW
Book. The “Temporary Accommodated Work Plan” at Tab 181 of the RTW Book was attached
to the letter. The letter and its attachment established that Dr. van Woudenberg would work four
hours a week in the week of February 23rd doing non-teaching work, six hours a week in the
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week of March 1st doing non-teaching work and would return to regular duties on March 9th
pending confirmation of medical fitness.
21. On 26 February 2015, Mr. Piper responded to Dr. van Woudenberg’s earlier correspondence
by sending the email attached at Tab 182 of the RTW Book. Mr. Piper directed Dr. van
Woudenberg to speak with Associate Dean Samboo (his supervisor) about his lack of experience
in teaching the second half of COMM 19999. Mr. Piper also responded to an inquiry Dr. van
Woudenberg had made about dealing with his absence in the summer of 2014 by stating, “the
College is of the view that it is appropriate to delay addressing the matters of your absence until
you are medically cleared to return to the full duties of your position.” Mr. Piper’s email did not
advise Dr. van Woudenberg that he may be subject to discipline.
22. On 27 February 2015, Dr. van Woudenberg responded to Mr. Azaad’s earlier correspondence
with the email attached at Tab 183 of the RTW Book. Dr. van Woudenberg expressed concern
his workload would likely near fifty hours per week, which he said was more than he had taught
in the past and could possibly affect his health.
23. On 27 February 2015 Dr. van Woudenberg also sent Associate Dean Samboo the email
attached at Tab 184 of the RTW Book. Dr. van Woudenberg raised concerns with two of the
courses he was scheduled to teach. In regards to LITT 15436G: Detective Fiction, he noted that
the textbooks had changed since he last taught the course and that he had never taught it as a
hybrid course with an online component. In regards to COMM 19999: Essential Communication
Skills, Dr. van Woudenberg indicated that he had never taught the second half of the course and
would need certain information from the professors teaching the first half in order to properly
evaluate the students.
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24. On 2 March 2015, Associate Dean Samboo issued an amended SWF to Dr. van Woudenberg.
Dr. van Woudenberg later referred the amended SWF to the WMG. He communicated this to
Associate Dean Samboo in the 6 March 2015 email to Associate Dean Samboo that is attached at
Tab 188 of the RTW Book.
h. The grievor submitted medical evidence from Dr. Black on March 5th
25. On 5 March 2015, Dr. van Woudenberg sent the letter at Tab 186 of the RTW Book to Mr.
Azaad attaching the medical note from Dr. Black at Tab 187 of the RTW Book. The medical
note purported to clear Dr. van Woudenberg for fulltime teaching duties on March 9th and also
listed the following restrictions to prevent a relapse:
(a) “not working past 40 hours per week”;
(b) “not offering classes that run past 4pm”;
(c) “not developing any new courses this first semester back but rather teaching courses
that [Dr. VanWoudenberg] is quite familiar with already/has already taught;
(d) “teaching courses on one campus only/not driving to multiple campuses in during the
week to teach”; and
(e) “not taking on more courses to teach than the number [Dr. Van Woudenberg] has
typically taught on average.”
i. The grievor was placed on STD on March 9th
26. On 9 March 2015 Mr. Piper provided Dr. van Woudenberg with the letter attached at Tab B.
The letter conveyed:
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(a) that the College did not accept the restrictions articulated by Dr. Black but would
observe them pending clarification;
(b) pending clarification, the College would attempt to find alternative duties for Dr. van
Woudenberg; and
(c) in the interim, Mr. van Woudenberg would be placed on STD.
27. When he was returned to STD, Dr. van Woudenberg felt this undid the graduated work
exposure he had undertaken earlier in the semester.
28. On 10 March 2015, Dr. van Woudenberg responded by sending the e -mail at Tab 191 of the
RTW Book to Mr. Piper and Ms. Seeley. Dr. van Woudenberg took the position that the med ical
document he provided was “sufficient” and that the College acted unreasonably and breached the
Collective Agreement by placing him on leave. He also took the position that it was improper for
Mr. Piper, Ms. Seeley and Mr. Azaad to administer his return to work because they were
respondents to several of his grievances.
29. On 10 March 2015, after receiving and reading Dr. van Woudenberg’s e -mail, Mr. Azaad
wrote Dr. van Woudenberg to facilitate the seeking of clarification from Dr. Black. Mr. Azaad’s
letter is at Tab 189 of the RTW Book. The attachment to Mr. Azaad’s letter is at Tab 190 of the
RTW Book.
30. On 11 March 2015, Dr. van Woudenberg wrote Mr. Piper to request confirmation of certain
facts. The document at Tab 193 of the RTW Book is a copy of this letter.
31. On 11 March 2015, Mr. Piper responded. Mr. Piper’s response is recorded in the document at
Tab 192 of the RTW Book. Mr. Piper provided a response. He also said, “I am unable to
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comment on your workload for the Spring semester. I recommend contacting your manager in
that regard.”
32. Also on 11 March 2015, Associate Dean Samboo wrote Dr. van Woudenberg to indicate that
the College did not have available work consistent with its restrictions but would look for such
work. The document at Tab C is an accurate copy of this e-mail.
33. On 12 March 2015, Dr. van Woudenberg wrote Ms. Samboo the email that is attached at Tab
194 of the RTW Book. He said, “I am reporting back to work. In absence of the College having
assigned duties for today, 12 March 2015, please advise on my workload for today.” He also
said, “Please advise on the scheduled meeting to discuss my SWF and teaching duties for the
Spring Semester.”
34. Ms. Samboo responded the same day by sending the e-mail at Tab 195 of the RTW Book.
She said, “As per my email to you yesterday, please do not engage in any work related activities
until further notice from the College. As I have been notified by HR and Disability Services that
you are on STD, so please direct all communications to HR and Disability Services.”
35. Dr. van Woudenberg felt that he was being given confusing instructions with respect to who
he was meant to contact, and that he was being set up to fail in his endeavour to communicate
with the College.
j. Process of resolving situation continued from early March
36. On 13 March 2015, Dr. van Woudenberg wrote Mr. Azaad the email attached at Tab 196 of
the RTW Book. Dr. van Woudenberg informed Mr. Azaad that Dr. Black had been away from
his office and would potentially be unable to provide the requested information to the College by
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March 17, 2015, as requested. He therefore asked that the College contact Dr. Black directly
regarding the requested deadline.
37. Dr. van Woudenberg also sent the email at Tab 197 of the RTW Bo ok to Mr. Piper on 13
March 2015. He expressed his view that he had been cleared to return to full -time duties and as a
result the College could not place him on STD and therefore his current leave should be treated
as a paid leave of absence.
38. On 16 March 2015, Dr. Black sent the College the letter at Tab 199. The letter stated that Dr.
Black was in agreement with the RTW plan recommended by Dr. Greene and that he was
unclear as to what other clarification the College required.
k. The parties met in person on March 17th to address the situation
39. The parties agreed to meet on March 17th. The document at Tab 198 of the RTW Book is
some correspondence between the parties that was sent in advance of the meeting.
40. Mr. Azaad emailed Mr. Piper the document at Tab 200 of the RTW Book in advance of the
meeting. Mr. Azaad concluded that none of Dr. van Woudenberg’s assigned courses were
consistent with his medical restrictions. The Union agrees that Mr. Azaad’s conclusion was
correct.
41. The parties met on March 17th as planned. Dr. van Woudenberg attended, as did Mr. Piper,
Mr. Azaad, Ms. Seeley, Associate Dean Samboo, Mr. David How (as representative) and Ms.
Leslie Butler (as note-taker).
42. At the meeting the Union asserted various work options, includin g “teaching any course
between 8:00 am and 4:00 pm and “curriculum development.” The College expressed its belief
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that these suggestions were inconsistent with Dr. Black’s stated restrictions, to which the Union
disagreed. The Union also suggested research related to the College’s goal of becoming a
university and then simply “research” and also work in the General Arts and Sciences program.
The College found these suggestions vague. Ms. Samboo also expressed that she did not have
work, could not introduce Dr. VanWoudenberg to the classroom in week nine of the semester
and was not responsible for the General Arts and Science Program (which was the responsibility
of Ms. Janet Shuh).
43. The meeting turned to the subject of Dr. Black’s input. In response to a statement by Mr.
Azaad that it was a shame that Dr. Black did not provide clarification, Dr. van Woudenberg
invited Mr. Azaad to phone Dr. Black. He said, “Getting more medical is the College’s problem.
Just call him. Say, ‘Hi. This is Sheik.” Mr. Azaad sa id the College does not have a practice of
speaking to doctors on the telephone. “The argument went on, with Dr. van Woudenberg
asserting (correctly) that the College had called Dr. Black’s office in the past to confirm the
office’s receipt of a facsimile.
44. The meeting ended shortly after Ms. Butler asked, “Can the College say that it has looked for
work in good faith?” and Mr. Piper responded, “Yes, the College has looked for work in good
faith and will continue to look.”
l. The grievor and AD Samboo had a SWF meeting on March 18th
45. Dr. van Woudenberg and Associate Dean Samboo agreed to meet on March 18th.
46. On 17 March 2015, Associate Dean Samboo sent Dr. van Woudenberg the email on the
second page of Tab 201 of the RTW Book. In the email, Associat e Dean Samboo proposed a
workload for May/June and invited discussion of it at the pending meeting.
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47. Dr. van Woudenberg responded in the email at page one of Tab 201 of the RTW Book,
confirming his attendance at the meeting and what he believed would be discussed at the
meeting, which included “the schedule and the proposed workload for my first semester back
teaching in regard to the recommendations of my health practitioner, Dr. Black.”
48. After the meeting, Ms. Samboo sent Mr. Piper the email attache d at Tab 203 of the RTW
Book. She also sent the email attached at Tab 204 of the RTW Book to Mr. Piper. The email
ends, “Currently, I am looking for work that would fit within the 5 restrictions recommended by
his doctor. To this end, I see tutoring at the Library and Learning Centre as a possibility, but I
would first need to get approval from the Director at the Library before any work can be
assigned to Maximiliaan in this area.”
m. On 19 March 2015, the College advised of its intention to restore STD be nefits for the
prior summer
49. On 19 March 2015, Mr. Piper sent the email at Tab 205 of the RTW Book to Dr. van
Woudenberg. He advised Dr. van Woudenberg that STD benefits would be provided for the
period of August 9, 2014 to September 7, 2014 and stated , “There are other outstanding matters
pertaining to your absence which will be addressed in the future.” The letter made no mention of
the potential for discipline nor did it note a need for a Union representative.
50. On 20 March 2015, Dr. van Woudenberg responded by sending the email at Tab 206 of the
RTW Book. Dr. van Woudenberg alleged contradictions and errors in Mr. Piper’s
correspondence.
n. The College made an inquiry about accommodation
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51. On 23 March 2014, Mr. Piper e-mailed Vice-Provost William Holmes about potential
accommodation in work related to the College’s objective of becoming a university. Vice -
Provost Holmes responded, “I am not sure there are any relevant duties that can be derived from
the material in the notes below.” The correspond ence between Mr. Piper and Vice-Provost
William Holmes is attached at Tab D.
52. On 25 March 2015, Mr. Piper e-mailed Ms. Shuh about potential accommodation in the
General Arts and Science Program. Ms. Shuh responded that there were no “program -related
projects currently underway that would benefit from an English Literature’ background.” The
correspondence between Mr. Piper and Ms. Shuh is attached at Tab E.
53. On 24 March 2015, Ms. Samboo advised Dr. van Woudenberg that the College was
continuing to search for duties that fit within his identified medical restrictions. Her e -mail is
attached at Tab F.
o. The College decided to seek input from Dr. Gnam in late March
54. Also on or around 25 March 2015, the College decided to seek assista nce from Dr. Gnam.
Mr. Azaad wrote Dr. van Woudenberg the letter attached at Tab 207 of the RTW Book to inform
Dr. van Woudenberg of its plans. The letter advised Dr. van Woudenberg that it had forwarded
the most recent input it had received from Dr. Black and Dr. Green to Dr. Gnam (which it had, in
fact, done without asking for Dr. van Woudenberg’s express permission).
55. Dr. van Woudenberg’s next (and responding) correspondence to Mr. Azaad is at Tab 214 of
the RTW Book. Dr. van Woudenberg made a number of allegations, including an allegation (at
paragraph f) about Mr. Azaad’s refusal to “call his health practitioner Dr. Black.”
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p. The College offered a temporary assignment on March 31st
56. On 30 March 2015, Dr. van Woudenberg sent Associate Dean Samboo the email at Tab 208
of the RTW Book requesting permission to participate in certain aspects of College life,
including participating in training and voting in Union elections.
57. The same day, Mr. Piper responded by sending email at Tab 209 of the RTW Bo ok. Mr.
Piper indicated that Dr. van Woudenberg was allowed to vote and go on campus to do so, and
indicated that the College was prepared to explore other duties that Dr. van Woudenberg might
be able to perform.
58. Mr. Piper made inquiries about potential accommodations to Danielle Palombi, Manager,
guard.me Tutoring Centres Library and Learning Services. The document at Tab 211 of the
RTW Book are two e-mails from Ms. Palombi to Mr. Piper about these inquires.
59. On 31 March 2015, Mr. Piper offered Dr. van Woudenberg temporary accommodation in the
college’s Learning Centre (a tutoring centre that employs, among others, co -op students and peer
tutors) from April 6th to April 24th. The offer is recorded in an email attached at Tab 217 of the
RTW Book.
60. Dr. van Woudenberg found this assignment demeaning.
q. The grievor initially declined offer, raising a collective agreement conflict
61. Over the next several days Dr. Woudenberg sent the College several communications:
(a) The e-mail to Associate Dean Samboo and Mr. Piper attached at Tab 212 of the RTW
Book (in part, advising of availability from [sic] work).
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(b) The e-mail to Mr. Piper attached at Tab 213 of the RTW Book.
(c) The e-mail to Mr. Piper attached at Tab 215 of the RTW Book.
62. In the third e-mail above (Tab 215), Dr. van Woudenberg thanked the College but said the
temporary accommodation suggested by the College was not in keeping with the Collective
Agreement. Dr. van Woudenberg also said that the College had not addressed the duties he ha d
suggested at the meeting on March 17th.
63. Dr. van Woudenberg then wrote the following additional communications to the College and
others:
(a) The 6 April 2015 e-mail to Associate Dean Samboo and Mr. Piper attached at Tab
216 of the RTW Book (to advise of ability to work and claim there was work available
for him to do).
(b) The 7 April 2015 e-mail email to Associate Dean Samboo and Mr. Piper attached at
Tab 218 of the RTW Book (to advise of readiness to work among other things).
(c) The 7 April 2015 email to Mr. How, Mr. Piper and others.
r. The grievor then agreed to temporary accommodation in good faith
64. On 7 April 2015, Mr. Azaad sent Dr. van Woudenberg a summary of the College’s position
in the letter attached at Tab 220 of the RTW Book. Mr. Aza ad said that the work assigned for the
spring semester within Dr. van Woudenberg subject to Dr. Gnam’s (pending) feedback. Mr.
Azaad said that the accommodation the College offered in the Learning Centre was “suitable.”
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65. On 9 April 2015, Dr. van Woudenberg wrote again to advise that he was awaiting duties. Dr.
van Woudenberg’s letter is attached at Tab 221 of the RTW Book.
66. On 10 April 2015, Dr. van Woudenberg wrote Mr. Piper the e-mail attached at Tab 222 of
the RTW Book. He said, “Although I do not feel legally obligated to do so, and as a sign of my
good faith, I will work the next two weeks in a tutoring capacity.”
67. On 14 April 2015, Dr. van Woudenberg started working at the Learning Centre. His duties
consisted of assisting students, one-on-one on writing projects, when needed, with the rest of his
time spent reading. He was assigned to work from 9:00 am until 4:00 pm, from Monday until
Friday. He worked 35 hours a week. Nine hours of his week were then credited as STD for a
total of 44 hours a week.
s. At the end of April, the College imposed discipline for the prior summer
68. On 24 April 2015, Mr. Piper invited Dr. van Woudenberg to a meeting to discuss outstanding
matters related to Dr. van Woudenberg’s absence in the summer of 2014. He expl ained:
You have been in the workplace performing duties seven hours per day for the
last nine working days and are scheduled to begin teaching when classes
resume in May. You have also stated several times that you believe yourself to
be medically cleared for full-time work. It now appears reasonable to proceed
in addressing the outstanding matters of your absence in 2014. Therefore, a
meeting has been scheduled for Tuesday April 28th at 9:30 in B237 (HR).
Stephanie Samboo will be attending also. You are invited to have a union
representative present.
69. Mr. Piper’s e-mail is attached at Tab G.
70. Dr. van Woudenberg responded by indicating he was happy to meet, but requested the
meeting be rescheduled without Mr. Piper’s involvement. Mr. Piper denied this request. Dr. van
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Woudenberg’s correspondence is attached at Tab H. Mr. Piper’s correspondence is attached at
Tab I.
71. Dr. van Woudenberg did not attend the meeting, and Associate Dean Samboo sent the letter
attached at Tab J. She issued Dr. van Woudenberg a five-day unpaid suspension for being absent
without communicating with the College.
72. Dr. van Woudenberg sent the e-mails attached at Tabs 224, 225 and 226 of the RTW Book
on April 30th and May 1st. He then grieved on May 4th.
t. Dr. Gnam gave [sic] issued a supplementary report on May 5th
73. Dr. Gnam issued a supplementary report in response to the College’s inquiry on May 5th. A
copy of the report is attached at Tab K.
THE SUBMISSION OF THE COLLEGE
[7] Counsel argued that the evidence proves that the grievor had the capacity to communicate
clearly on September 8, 2014. He argued that he should have done this in August. When advised
of the problem of inadequate medical information he should have responded. Or, if he could not
communicate with the College, he could have had his Union do it for him: either would have
been permissible.
[8] In counsel’s submission, the question then is why Dr. van Woudenberg did not communicate
with the College. The August 6 letter from Mr. Piper that the College needed medical
documentation was clear. The letter stated in part:
the college has no basis by which to continue your access to short -term
disability benefits thus your access will cease as of the end of day August 8,
2014 unless medical documentation is received substantiating that you are
21
totally disabled from work. Please note that it is your responsibility to ensure
that the College receives the medical documentation necessary for you to
access short-term disability benefits and to substantiate your absence from
work.
[9] The letter from the College dated August 18 was more explicit stating as follows in part :
On August 6, 2014, the College sent you a letter advising that the College had
received insufficient medical documentation to substantiate your absence and
would be discontinuing your access to short -term disability benefits effective
end of the day on August 8, 2014.
The College has received no medical documentation since its letter of August
6, 2014...
The College considers you away without leave and failure to return to work or
provide medical documentation substantiating your absence from work could
impact your employment status.
[10] Counsel said that the grievor’s reason for not communicating was that it was impossible
because of his medical condition. Counsel submitted that we should not accept this as true. He
went on to argue that this statement was inconsistent with the grievor’s letter of September 8,
2014, that it was inconsistent with his testimony and that there was no medical evidence that he
was incapable of taking some action to communicate with the College either by himself or
through his Union.
[11] Counsel argued further that the grievor’s evidence is that he did not want to contact the
College, that he thought it would be stressful and he wanted to avoid stress. Sometimes disability
can interfere with a person’s ability to communicate , but, not in this case: the grievor’s action has
more to do with the ongoing issue he has wit h the authority of the College than with disability, in
counsel’s view.
22
[12] Counsel argued that there was no explanation for the length of delay between August 6 and
September 8 and that it cannot be found to be reasonable. This could have been grounds f or
termination. Nevertheless, the College decided on a five-day suspension. One of the reasons for
mitigating against termination was that the grievor’s letter of September 8 did include a promise
to communicate better with the College , which showed some remorse.
[13] However, in the discussion meeting on September 10 the grievor defended his actions and
showed no remorse. In counsel’s submission discipline is meant to modify behaviour and failure
to show remorse is significant. It signals that the message with the discipline must be loud and
clear so that the grievor understands his actions were wrong.
[14] Counsel also noted that the onus for the defense of incapacity to communicate with the
Employer rests with the Union. The case law shows that the test boils down to whether the
medical condition is severe enough that the grievor should be excused for the behaviour that
amounts to alleged misconduct. Counsel therefore asks us to sustain the discipline.
THE SUBMISSION OF THE UNION
[15] Counsel stated that the letter of discipline gave four reasons for the five-day suspension:
a) the grievor’s absence from August 6 to September 5, 2014 was a substantial breach of
the employment relationship;
b) the grievor’s silence in the same period also resulted in a substantial breach of the
employment relationship;
c) there was no medical evidence to justify the absence;
23
d) the College was forced to make difficult and abrupt staffing arrangements with very little
notice.
[16] Counsel submitted that absence itself cannot be culpable because Dr. van Woudenberg
could not have attended the workplace, since he was ill. This was subsequently documented by
medical reports and the grievor’s benefits for this period were reinstated.
[17] Regarding Dr. van Woudenberg’s silence, counsel argued that there were two kinds of
communications expected by the College. The College was asking for medical information to
justify continuing his benefits and they were expecting to hear from the grievor. Counsel submits
that the evidence is clear that the grievor attempted to have the medical information sent to the
College from his doctor’s office. He was first notified that the medical information had not been
received by the College on August 6. He contacted his doctor’s office and understood that it was
then going to be forwarded to the College. On August 18, he learned that the College had still not
received the information from his family doctor. He contacted the office again and was assured
that it would be sent to the College. On August 29, he was informed that it had still not been
received by the College and that his lack of communication was totally unacceptable. It was not
until September 5 that the College states that if there is no personal communication or the
medical information is not forwarded, the grievor’s employment could be terminated.
[18] Counsel contends that the grievor took reasonable steps to get the medical information to
the College throughout this period. His efforts to get his doctor to forward the medical
information are documented in the family doctor’s clinical notes on August 6. The family
doctor’s report was dated August 14. While the grievor’s efforts to get the medical information
to the College failed, he had no way of knowing until the College informed him that they had not
24
received the report. In addition, he gave the College consent to contact his family doctor directly.
The grievor believed that he had complied with the College’s request for additional medical
information.
[19] Counsel argued that the College never asked for a personal communication from the grievor
until August 29. In just a little over a week, with a long weekend in between, the grievor
contacted the College. This letter was specific and clear that if the grievor did not contact the
College, he could have his employment terminated. The grievor testified that up until this point
he had thought the request for medical information was tied to an “administrative” requirement
so that he could continue to receive his benefits. Counsel also submitte d that if the College had
wanted expedient communication, they could have called the grievor. In fact, the College did try
to call on August 18, but they had an old number in the system, which had not been updated and
therefore did not reach the grievor. The disability management office of the College had his
correct telephone number but nobody from that office called.
[20] Counsel also argued that there is ample medical proof for the grievor’s failure to
communicate with the College. The medical letters stated April 25, June 5, August 14 and the
Independent Medical Examiner’s (IME) report provide proof that the grievor had difficulties
communicating with the College because of his illness. The IME doctor states that he must base
his opinion on the family doctor’s notes and the interview with the grievor that occurred on
December 9, 2014. He states that he thus cannot opine for certain that the grievor was incapable
of asking for medical information from his doctor. The doctor said, “what I can state, however,
is that it is clinically plausible that Mr. van Woudenberg avoided what he perceived to be
stressful interactions with the Employer, based upon the perception and expectation that such
25
interactions would exacerbate his symptoms.” Counsel observed that, in fact, the grievor did ask
for medical information from his doctor.
[21] Counsel acknowledged that the short notice to the College that the grievor would not be
returning to work in September was unfortunate , but predictable. She also emphasized that the
College had a medical note indicating that the grievor might not be back until the end of July.
[22] In response to the Employer’s submission, counsel argued that the College’s focus on the
grievor’s belief that stress would make him sicker and therefore he avoided it was a ‘want’ not a
‘need’ shows no understanding of what stress can do to a sick person as opposed to what stress
does to a healthy person. Finally, counsel argued that the grievor has always maintained
innocence and cannot apologize for something that is not wrong. The College should not
discipline someone for being disabled.
[23] Counsel submitted in closing that the College has the onus to prove just cause and that the
discipline must be proportionate to the misconduct. The College cannot punish people for being
off sick. Therefore, the union asked us to reinstate the five days, with no loss of seniority.
THE REPLY SUBMISSION OF THE COLLEGE
[24] Counsel for the College argued in reply that the grievor was disciplined for failure to
communicate. He acknowledged that the College cannot impose discipline for failing to provide
medical information. The College has no dispute with that principle. Counsel also stated that it
was clear that the College had the right to ask for further medical information. In response to the
Union’s argument that the College did not expressly ask for personal communication or warn the
grievor of potential discipline if he did not communicate, counsel asked us to reject the idea that
the grievor needed to be warned.
26
ANALYSIS
[25] The issue before us is whether the grievor’s failure to communicate with the College from
August 6, 2014 to September 8, 2014 amounts to misconduct that satisfies just cause to
discipline Dr. van Woudenberg with a five-day suspension. It is well established in arbitral
jurisprudence that we must consider the following questions in deciding this issue: first, we must
decide whether the alleged misconduct occurred. The next question is to consider whether
discipline is warranted given the misconduct itself. If discipline is warranted, the next step in the
analysis is to assess whether the discipline is proportional to t he misconduct. Finally, the analysis
requires that we consider any aggravating or mitigating circumstances. Section 48 of the Ontario
Labour Relations Act gives us the express authority to substitute a lesser penalty, if appropriate.
[26] If an employee is absent from work without permission or without a legitimate reason for
the absence, he or she may be disciplined, and if the problem is persistent , the individual may
even be discharged. (See Brown and Beatty, 7:3100.) Dr. van Woudenberg took a leave of
absence because he was ill beginning in late April 2014. His family doctor provided t wo medical
notes to support his absence on April 24 and June 5. In his letter of June 5, the doctor stated that
the grievor was “disabled from his regular work at this time and for the foreseeable future.” The
doctor also indicated that he would reassess the grievor in 4 to 8 weeks. The College knew that
Dr. van Woudenberg was ill, when it asked for further medical information on July 7. The
doctor’s letter in response to the College was dated August 14 and not sent until August 21. But
most importantly the College never received it and there was no evidence to explain why. By
August 6, the College contacted the grievor and made it clear it needed the medical information
or the grievor’s benefits could be discontinued. The grievor followed up with the family doctor
27
after the August 6 letter and again on August 18. However, he did not call the College
personally.
[27] The question for us is whether this is misconduct. The majority of the board thinks not. The
grievor was ill throughout this period as confirmed by his family doctor . The IME report notes
that part of the illness includes lack of motivation.
The clinical information provided suggests that Mr. van Woudenberg’s
(diagnosis omitted) at its worst fell in the moderately severe to severe range.
This disorder, particularly in conjunction with even mild depressive symptoms
can result in significant impairment in mo tivation, functional cognitive
impairments due to the intrusiveness of ruminations, and could have resulted in
levels of impairment that would interfere with his ability to participate in each
of the specific activities posed …in the questions above.
[28] The doctor was responding to the College’s question as to the level of impairment and
functionality of the grievor between the period of July 3 and September 7, 2014. The questions
were specifically; 1) whether the grievor was medically precluded from receiving information
from the College that was communicated to him regarding his work absence, 2) whether he could
understand the information requested by the College to substantiate his medical condition, 3)
whether he could communicate with the College with respect to his absence from work and 4)
whether his disability allowed him to manage the delivery of information from his health
practitioner to the College with respect to his level of disability and/or absence from work. The
doctor continues his opinion stating that:
mental impairments alone were unlikely to have completely disabled Mr. van
Woudenberg from requesting that information be provided by his health
practitioner to the College. Mr. van Woudenberg reported that he requested that
such information be provided by his health practitioner in a timely manner
although this apparently did not occur.
28
[29] Thus while Dr. van Woudenberg, in the IME doctor’s opinion, was unlikely to be
completely disabled from requesting information from his family doctor, the nature of this
disorder can lead to significant impairment in motivation and functional cognitive impairments
that could affect his communication with the College significantly.
[30] Dr. van Woudenberg’s own evidence suggested this was the case. T he grievor testified that
any communication from the College caused him extreme stress which aggravated his
symptoms. Hence, he avoided email and worked on recovery. However, the evidence is clear that
he tried to comply with the College’s request to get medical information. This is confirmed in the
family doctor’s clinical notes on August 6 and the doctor’s report written on August 14.
[31] We have carefully considered the evidence and the submissions of the parties and the
majority must conclude that the grievor does not deserve discipline, in the circumstances. It was
unfortunate that the College did not receive the report mailed on August 21 from the doctor’s
office. It would have been wise for the grievor to pick up the phone, fax or email someone at the
College to say the report was on the way. But given the grievor was ill, we are not willing to
conclude that by not calling he was absent without permission. As mentioned earlier, subsequent
medical information confirmed his illness throughout this period.
[32] We also accept the grievor’s evidence that he believed the College needed proof of ongoing
disability in order to continue his benefits. That is what the August 6 letter stated. He also
testified that when he received the August 29 letter , he was shocked by the clear message that his
lack of contact was completely unacce ptable to the College. He said it was a very low point in
his illness.
29
[33] For the reasons given above, a majority of the board must conclude that the discipline is not
warranted, and this part of the grievance is granted.
THE DISCRIMINATION AND HARRASSMENT
THE SUBMISSION OF THE UNION
[34] Counsel submitted that the College discriminated against and harassed Dr. van Woudenberg
throughout the return to work process, in violation of Articles 4, 7 and 11 of the collective
agreement. When the grievor was cleared to return to work, the College created an onerous SWF,
that included more work than the grievor traditionally had done in the past. This was beyond the
collective agreement requirements. Further , when the grievor returned from nine months of
short-term sick leave the Employer had extensive medical information about his needs. However,
the College sought additional medical information without the grievor’s permission from the
IME doctor. It should have sought clarification from the grievor’s family doctor, or at the very
least, sought his consent to ask the IME doctor for a further opinion on accommodation for the
return to work. Thus, in counsel’s submission the College did not act in good faith and did not
have reasonable grounds to ask for further medical from the IME doctor. Counsel urged us not
to rely on any of the information in the second report from the IME doctor . Counsel argued that
the family doctor’s opinion should be preferred.
[35] Further, counsel argued that the eventual accommodation resulted in 35 hours of work and
in order to meet the 44-hour schedule the grievor was required to take nine hours of sick credits
per week. This, alone, is evidence of discrimination in counsel’s view: 35 hours in a SWF is
within a normal work range and the grievor should have received full pay without having to use
sick credits to top up.
30
[36] Thus, the Union urges us to find that the College has violated the grievor’s rights under the
Ontario Human Rights Code, R.S.O. 1990, chapter H.19, as amended (Code) and the collective
agreement, by discriminating, harassing and failing to accommodate him in the return to work
process between February 21 and May 5 and seeks the following orders:
a) restoration of sick credits;
b) a declaration that the SWF for the return to work amounts to harassment ;
c) a declaration that the College failed to provide an adequate accommodation in a timely
way to the grievor;
d) a declaration that the College misused the grievor’s medical information by seeking
further medical information from the IME doctor which amounts to harassment and
discrimination and a breach of privacy;
e) $10,000 in damages for the breaches of the Code.
THE SUBMISSION OF THE COLLEGE
[37] Counsel contended that the Union has not provided enough evidence to prove that the
College had harassed and discriminated against Dr. van Woudenberg or failed to accommodate
him in the return to work process. The first return to work meeting occurred on February 10,
2015. The grievor returned to work on a graduated plan in mid-February as recommended by the
IME doctor. This work hardening was to end on March 9, which would allow the grievor to
begin teaching in the second half of the winter term.
31
[38] Counsel submitted that after the first return to work meeting, Dean Samboo prepared a SWF
that was to begin after March break and on completion of the work hardening. She looked for
courses assigned to non-full-time staff and for those that the grievor had already taught. This
made it difficult to assign the SWF, particularly because it was already halfway through the
winter term. She put together a SWF and presented it at the second RTW meeting on February
23. The grievor responded to Dean Samboo after this meeting by letting her know that he had
not taught the second half of one of the courses and therefore it would be a new preparation for
him. Dean Samboo sent a corrected SWF to the grievor on March 2.
[39] Counsel argued that the corrected SWF was a bona fide and reasonable attempt to
accommodate the grievor and ought to have been accepted.
[40] However, on March 5, the grievor provided a letter to the College from his family physician
which cleared him to return to work for regular duties on a full -time basis, with a list of medical
restrictions. The College did not agree with these work restri ctions, and in the interim sought
advice from the IME doctor. More importantly, counsel explained that the family doctor’s letter
delayed the finding of a suitable teaching schedule.
[41] Counsel submitted that following the February 23 return to work me eting, Dr. van
Woudenberg went to see his psychologist on February 27. She provided a letter to the family
physician, which recommended certain additional accommodations for the grievor’s return to
work to full time. These restrictions were included in the family doctor’s letter of March 5.
[42] Counsel argued that there were reasons for the College to reject the conditions listed by the
family doctor in the March 5 note. The letter is completely different to the letter the family
doctor provided in February. Further, the opinion itself lacks substance. The reason for the
32
conditions given is to prevent a risk in relapse. Also, the letter describes certain working
conditions rather than focusing on medical limitations. Counsel argued that a medical note will
be insufficient if it merely states that an employee would benefit from particular working
conditions, rather than clearly substantiating limitations for medical reasons.
[43] Counsel argued that the restrictions in the March 5 letter were not sound and should not
have got in the way of Dr. van Woudenberg’s return to work. These are outlined in paragraph 53
below. The conditions contained in the letter amounted to a preference for certain working
conditions. The amended SWF, he argued was made with care and compassion and with
consultation of the grievor. Thus, in counsel’s view the grievor should have gone back to work.
[44] Regarding the Union’s submission that the Employer ought to have relied on the family
doctor’s medical information and not sought a further opinion from the IME doctor, counsel
argued that the College did attempt to get clarification on the March 5 letter from the family
doctor. The doctor did not respond. However, March 9 was the start of the second half of the
winter term, and it was not possible to find suitable teaching after the start of classes. It was too
late for the students. The College argued that it did make further efforts to accommodate the
grievor and subsequently a tutoring assignment was identified consistent with the r estrictions
listed by the family doctor on March 5th.
[45] In response to the Union’s argument that the College had breached Dr. van Woudenberg’s
privacy by seeking further information from the IME doctor, counsel argued that this was an
expansion of the grievance. Privacy in this context is about two different th ings he argued: acting
without consent and using the least invasive process. Harassment is defined as vexatious conduct
known or ought to be known as unwelcome. Therefore, a privacy claim cannot be embodied in
33
the in a harassment claim. There was no issue of a breach of privacy raised at the filing of the
grievance
[46] However, counsel also argued that if we do consider the claim for a breach of the grievor’s
privacy, the Union conceded during argument that a paper review by the IME doctor of the
family doctor’s letter would have been proper if the College had the consent of the grievor. In
counsel’s view there was implicit consent and therefore no violation of privacy. The College was
reasonable and acted in a transparent way in seeking an opinion from the IME doctor about the
family doctor’s list of restrictions. The grievor did not take umbrage until after the IME doctor’s
opinion came back.
[47] In response to the Union’s argument that the accommodated position in the Learning Centre
resulted in a 35-hour week schedule and was therefore discriminatory, the College argued that it
had the right to assign up to 44 hours a week to the grievor. The College complied with the
doctor’s restrictions of no more than 40 hours a week and no hours beyond 4 PM. These
restrictions led to a 35-hour week workload. Counsel observed that the number of hours assigned
was not a function of the opening or closing of the Learning Centre; it was because of the
restrictions recommended by the family doctor for accommodation. Since he worked fewer hours
than a normal workload, he was compensated appropriately. Counsel relied on O.N.A. and
Orillia Soldiers Memorial Hospital, 169 D.L.R.(4th) 489 (ON.CA) for the proposition that the
duty to accommodate does not include a duty to top up to full pay.
[48] In conclusion, the College urged us find that the union had not met its onus to prove
discrimination and harassment of the grievor. Further the College had accommodated the
grievor and therefore this part of the grievance should be dismissed.
34
REPLY SUBMISSION OF THE UNION
[49] Counsel for the Union argued in reply that arbitrators are given enormous latitude in
interpreting the scope of a grievance. Therefore, the board should consider the Union’s
submission on the grievor’s alleged brea ch of privacy as part of the grievance. Counsel noted
that the Union had advised the College of this issue early in the process in its particulars.
ANALYSIS
[50] The issue before us in this part of the grievance is whether the College discriminated,
harassed and failed to accommodate the grievor from February 21 to May 4, 2015. Having
carefully considered the evidence and submissions of the parties, a majority of the board have
decided that the union has not met its onus to prove these allegations and we must dismiss this
part of Dr. van Woudenberg’s May 4 grievance.
[51] The period at issue in this grievance is from February 21 to May 4, 2015. The evidence of
the first few weeks of February is before us only to provide context. Both the IME doctor and the
grievor’s family doctor cleared Dr. Van Woudenberg to work full-time after a period of work
hardening. To this end, the parties met on February 10 and February 2 3. The challenge for the
College was in identifying work for the grievor given the winter term was half finished. The task
was to identify a suitable teaching load for Dr. van Woudenberg to begin after the winter break
so that he could start on March 9.
[52] We accept the evidence from Dean Samboo that she looked for courses that were assigned
to staff who were not full time professors and that the grievor had already taught. She
acknowledged in her evidence that she made a mistake in the first SWF: she was unaware that
35
the grievor had not taught one of the courses that she had identified and that therefore it was a
new preparation for him. She sent a revised and corrected SWF to the grievor March 2.
[53] The IME doctor had advised in his opinion that afte r work hardening Dr. van Woudenberg
could go back to full-time teaching duties, with no restrictions. His family doctor cleared him for
work in February, without conditions. However, on March 5, Dr. van Woudenberg provided the
College with a letter from his family doctor that stated certain accommodations would assist the
grievor in his return to work. The medical note provided as follows:
(a) “not working past 40 hours per week”;
(b) “not offering classes that run past 4pm”;
(c) “not developing any new courses this first semester back but rather teaching courses
that [Dr. van Woudenberg] is quite familiar with already/has already taught;
(d) “teaching courses on one campus only/not driving to multiple campuses in during the
week to teach”; and
(e) “not taking on more courses to teach than the number [Dr. van Woudenberg] has
typically taught on average.”
The March 2 amended SWF did not meet this list of accommodations. The College did not agree
with the family doctor’s recommendations for various reasons and sought clarification from him.
When no clarification was forthcoming, they sought a further opinion from the IME doctor.
Unfortunately, this created delay and ultimately meant it was too late for the grievor to take up a
teaching position.
[54] The College argued that the amended second SWF was a bona fide attempt to accommodate
the grievor and ought to have been accepted. However, the College subsequently identified an
accommodated position in the Learning Centre with a 35 -hour week schedule. This position
complied with the family doctor’s March 5th listed conditions for return to work. The grievor
36
was not happy with this position, because he thought it was not suitable. He took it under
protest. The College did explore other avenues of accommodation, co ntacting the Vice-Provost
and the Associate Dean in the Faculty of Humanities and Social Sciences to see if “meaningful
work” could be found for the grievor. There was nothing suitable, given the grievor’s expertise.
[55] It can be difficult to prove a case of discrimination and harassment. The onus here is on the
Union to show on a balance of probability that the College has discriminated and harassed the
grievor in the return to work process and that it failed in its duty to accommodate him. Having
carefully considered the evidence, we are of the view that the College worked diligently in
difficult circumstances to find a teaching assignment suitable for the grievor. Whether Dr. van
Woudenberg should or should not have taken the workload identified in t he second SWF, is
moot. Since his family doctor added significant restrictions to what was required for
accommodation only days before the grievor was to return to full time teaching, it is
understandable that another SWF could not be identified in time.
[56] The College sought clarification of the conditions required by the family doctor from the
IME doctor. We are not persuaded that this was done in bad faith , as suggested by the Union.
The family doctor’s February medical note cleared the grievor to wor k without restrictions after
the work hardening was complete. The IME doctor’s first opinion was that the grievor would be
able to return to fulltime work without conditions. Then the family doctor’s note on March 5
contradicted his earlier medical opinions and required specific working conditions. This was four
days before the grievor was to begin teaching. Given this new opinion, the College tried to
clarify first with the family doctor and then sought a further opinion from the IME doctor. This
was a reasonable response to contradictory medical notes.
37
[57] However, while waiting for further clarification, as noted above, the College identified an
accommodated position consistent with the family doctor’s March 5th restrictions. The grievor
did not like the accommodation, but this is not part of the test for satisfying the duty to
accommodate. The law does not entitle grievors to what they like or ‘want’. Employers are
required to accommodate the grievor’s ‘needs’ up to the point of undue hardship. Thus, we find
there is no evidence to support a finding that the grievor was not accommodated properly in the
return to work, nor was there any evidence of discrimination against him. For all of the reasons
above, we find that the College satisfied its duty to accommodate the grievor.
[58] Counsel for the Union also claimed that by asking for a further opinion of the IME doctor,
the College breached the grievor’s privacy. We are of the view that the College is correct that the
allegations of a breach of privacy are an expansion of the grievance. There is nothing in the
grievance to suggest that the grievor complained about a breach of his privacy. The principle we
must apply here is well established in arbitral jurisprudence ; grievances are meant to be given a
broad and liberal interpretation. They should not be defeated on a technicality. However, it is
also clear that parties should not be permitted to raise what is essentially a new matter after the
grievance procedure is finished or at the hearing. In these circumstances, we are persuaded that a
breach of privacy complaint cannot be subsumed under allegations of harassment and
discrimination. But if we are wrong, there is evidence that the grievor consented to the further
opinion. Counsel for the Union conceded during argument that a paper review of the doctor’s
letter would have been proper if the College had the consent of the grievor. The grievor was
aware that the College was going to seek clarification from the IME doctor and his letter to the
College on April 1 is proof of implicit consent. Dr. van Woudenberg’s letter to the College
provides in part:
38
On 25 March 2015, Dr. van Woudenberg was informed by the College that the
reports of Dr. Black and Dr. Green would be forwarded to Dr. Gnam for
review.
At this time, we request that the College confirm that the reports forwarded to
Dr. Gn am as noted in paragraph two (2) of their 25 March 2015 letter, includes
all documentation provided to the College during the period from the IME on
09 December 2014 to 30 March 2015….
We request that the College confirm that it will provide the treating health
practitioners, Dr. Black and Dr. Green, with a copy of Dr. Gnam’s medical
opinion upon receipt of the review.
The evidence before us is that Dr. van Woudenberg was not shy about voicing his
disapproval or disagreement with the College throughout the return to work process.
Had he objected to this as a breach of privacy on April 1, he would have said so. He was
clearly consenting to the further opinion of the IME doctor. He made no complaint until
he got the opinion, which disagreed with the family doctor’s conditions. Thus, we are
not persuaded that the College breached the grievor’s privacy.
[59] The last issue to address is Union counsel’s argument that the accommodated position in the
Learning Centre, which led to a 35 five -hour week work schedule, was discriminatory because
the grievor was required to take top up in order to have full pay. We are not persuaded by this
argument. The duty to accommodate does not include a duty for the employer to pay top up to
full pay. In Orillia Soldiers Memorial Hospital, (supra) the Ontario Court of Appeal, held that,
where compensation is paid in exchange for work performed, it is not a breach of the Code to
restrict the benefit to those able to work. In considering the appellant’s argument, the court stated
that the Code does not impose a duty upon the employer “of simply topping up the wages of the
disabled employees. That in my view is not the type of accommodation contemplated by section
11 (2) and in fact is inimical to the principles underlying the Code.” (para. 54) The court said
39
further that “simply topping up the wages of the disabled employees and paying them as if they
are not disabled is nothing more than reverse stereotyping…” The court stated that:
the duty is on the employer to take all steps short of undue hardship to
accommodate the needs of the person discriminated against so that they can
compete equally with the other employees. It is by attempting to accommodate
their actual characteristics so as to bring them within the workplace
environment that the employer complies with the Code.
A majority of the board are of the view that the College satisfied this duty and accommodated
the grievor into the best position they could identify, given his family doctor’s conditions for
returning to work full time. These conditions, not the position , led to a 35-hour work week. Since
the College was entitled to a 44-hour work week, for the grievor to receive full pay, he had to top
up with his own credits. Counsel for the union suggested that a 35 -hour SWF was not uncommon
and counted as full time. However, the grievor was not doing a teaching assignment under a
SWF, which has its own special formula for assessing a professor’s workload. The grievor was
working in a position that paid him for hours worked at the College in the Learning Centre.
There was no preparation or work outside the hours completed at the Centre. For all of these
reasons, we do not find that the 35-hour work accommodation breached the Code.
[60] In conclusion of Part 1 of this decision, we grant the grievance in so far as it challenged the
five-day suspension meted out on April 29, 2015. We hereby order the College to reinstate the
five days lost for the suspension and compensate accordingly. There shall be no loss of seniority.
In so far as the grievance alleged discrimination, hara ssment and a failure to accommodate the
grievor, this part of the claim is dismissed.
PART TWO THE DISCIPLINE GRIEVANCE OF MAY 15, 2015 AND THE
HARRASSMENT AND DISCRIMINATION GRIEVANCE OF JUNE 26, 2015
40
THE DISCIPLINE GRIEVANCE
[61] Dr. van Woudenberg was issued a five-day suspension on May 11, 2015, for not attending a
meeting on April 28, 2015. In its discipline letter, the College said that the grievor’s refusal to
attend was “unreasonable and an act of insubordination.” The Union takes the position that there
is no just cause for a five-day suspension or the way it was meted out. The grievance alleges that
the College has violated Articles 4, 6, 11 and 14 of the collective agreement. More particularly,
the grievance provides as follows:
it is grieved that this discipline is a continuation of the campaign. The
employer engaged in a violation of Dr. van Woudenberg’s entitlements to be
free from unjust discipline and to be free from reprisal because Dr. van
Woudenberg sought to avail himself of his rights of the collective agreement
and/or his rights under the Human Rights Code.
Neither was there an act of insubordination, and if there was a failure to foll ow
a request, the discipline is out of proportion.
[62] The evidence is not in dispute. After the period of work hardening and working in an
accommodated position in the winter term of 2015, Dr. van Woudenberg returned to full-time
work. He had been cleared to return by his family doctor and February 2015. The College invited
him to attend a meeting on April 28 to explain his absence in the summer of 2014. The letter
explained that the College had delayed addressing the absence until Dr. van Woudenberg was
medically cleared to return to work. The grievor was also invited to have a Union representative
present. The email was sent at 5:34 PM on Friday, April 24.
[63] Dr. van Woudenberg replied on April 27. He stated that given the ongoing arbitration and
his complaints against Mr. Piper and others for harassment, he should not be required to attend
the meeting with Mr. Piper present. He states that it would not be prudent, and it is not
unreasonable to separate him from Mr. Piper. Mr. Piper responded to the grievor advising that
41
the meeting was not to address matters pertaining to any of Dr. van Woudenberg’s grievances.
He also wrote that there was no reason for him to be excluded, given these meetings are a part of
his job duties. Dean Samboo also sent Dr. van Woudenberg an email stating: “please note that
you are required to attend tomorrow’s meeting with the College at 9:30 AM. Dr. van
Woudenberg did not attend the meeting. In his response to the Dean and Mr. Piper’s emails of
April 27, he wrote on April 28 in part as follows:
… It is Dr. van Woudenberg’s position that Mr. Piper recuse himself from all
matters pertaining to the grievances and Dr. van Woudenberg’s sick leave. In
the interest of his health and well-being, Dr. van Woudenberg will not be
meeting with Mr. Piper at this time.
Please schedule a meeting accordingly with advance two business days’ notice.
[64] Dr. van Woudenberg testified at the hearing that he did try to get union representation on
Monday, but no one was available. He also stated that he was concerned about his health if he
attended the meeting. He testified that he thought he could reschedule since meetings at the
College were regularly rescheduled. He also said by the time he got the Dean ’s email on the
morning of the meeting, it was too late for him to get to the College. And, as quoted above, he
sent his email of April 28 to the Dean and Mr. Piper.
[65] There was also evidence of the College’s attempts to investigate the harassment complaints
made by Dr. van Woudenberg against senior staff of the College in a grievance dated February
20, 2015. The grievor declined to participate in the investigation.
THE COLLEGE’S SUBMISSION
[66] Counsel submitted that the evidence shows that Dr. van Woudenberg was back at work and
that he said he was healthy. He had been back to work for approximately nine days full time and
42
was scheduled to teach in the summer term, when the College asked him on April 24 to attend a
meeting on April 28. He disobeyed a clear order by not attending that meeting. Counsel argued
that this was willful disobedience. Thus, the issue is whether the grievor was justified in refusing
to obey the College’s direct order.
[67] Counsel argued that Dr. van Woudenberg provided shifting and multiple justifications for
not attending the meeting. He first said in his letter that it was not prudent to meet with Mr.
Piper. He then suggested it was because of his health. He was concerned that it would be bad for
his condition. Then at the hearing he said for the first time that he needed Union representation,
which was not available. However, counsel argued it was clear from his first response to Mr.
Piper that he was not going to attend the meeting on April 28.
[68] Consequently, counsel urged us to find that the grievor did not want to attend this meeting.
He did not seek a leave of absence and t here is no evidence that he consulted his doctor at this
time. Yet in 2014, he did seek a leave in a similar situation. In this case, there is no medical
evidence to support his personal concern about his health or that he was unfit to attend. In fact,
on cross-examination he testified that he was better, and he wanted to stay healthy.
[69] In summary, counsel urged us to find that the College had provided clear evidence of just
cause for the discipline. There was a direct order from Dean Samboo to the grievor to attend the
meeting. The grievor admitted that he understood the order. There is evidence of willful
defiance of the order and there is no valid excuse. Insubordination is a serious offense. There
were no attempts to comply with the order and there was a defiant message that he would not
attend the meeting, copied to the president of the College . There was no remorse for his
behaviour and the grievor testified that he thought the College owed him an apology for the
43
discipline. Counsel urged us to find the discipline of five days was reasonable and appropriate in
all the circumstances.
THE UNION’S SUBMISSION
[70] Counsel for the Union submitted that it was important to consider this discipline in the
context of Dr. van Woudenberg’s employment history. He is a long-term employee with 12 years
of service and, up until his illness and leave, he was discipline free. The grievor testified that he
checked his email in the morning and not on weekends. He also testified that he thought it w as
possible to reschedule the meeting set for April 28 and that he did not fully understand that it was
a disciplinary meeting.
[71] Thus, counsel argued that there was no just cause for discipline in this case. The College
overreacted to Dr. van Woudenberg missing this meeting. He was concerned about his health and
the possibility of a relapse because of who was in attendance. Further , he had difficulty finding a
steward that was available on Tuesday. He also stated in evidence that when he finally got the
message that the meeting was going forward on the 28 th, it was too late for him to get to the
College on time. Since the grievor was not expecting the meeting to be a discipline meeting, the
Union argued he was unaware that he was thwarting important comm unication. This has not
been an ongoing problem for the grievor. He has attended meetings, for example his IME and
work at the Learning Centre.
[72] Counsel argued that the purpose of progressive discipline is for an employee to improve his
or her conduct. Even if some discipline is warranted here a five -day suspension is excessive. It is
a minor infringement to miss a meeting in counsel’s submission. Further , the Employer ignored
the grievor’s ongoing health issues. Counsel stated that the grievor was not taking advantage of
44
his disability. She argued further that the discipline is part of the pattern of harassment and
discrimination that the grievor has suffered from the College.
[73] Counsel also submitted that by requiring Dr. van Woudenberg to serve the five-day
suspension on Fridays for five consecutive weeks, on a day that he was not teaching, in effect he
was doing 100% of the work required of him for 80% of the pay. This is in violation of article
11.01. Counsel argued further that management is not allowed to fine employees. In effect this
amounts to a fine.
[74] Counsel argued in in summary that there was no just cause for discipline in this case. In the
alternative, if there was cause, the penalty is excessive. It is not proportional to the misconduct
and the College failed to use progressive discipline appropriately. Further there were mitigating
factors that the board should consider in assessing the grievance. The central mitigating factor
was the grievor’s health: he was prompted to miss the meeting because of his concern that it
would affect his health.
[75] Further, the College violated Dr. van Woudenberg’s human rights because it knew about his
health and they failed to consider it before they disciplined him. It is the Union’s position that
this grievance is part of a continuing pattern of harassment and discrimination. This single
discipline is enough to prove harassment against the grievor.
[76] The Union is seeking the following orders:
a) that the grievance be granted and that the grievor’s record be expunged with
full backpay and no loss of benefits;
45
b) if we find that there is some misconduct, the discipline should be reduced to 1
to 2 days suspension;
c) if we find that the misconduct warrants a five -day suspension, we should
nevertheless order that the grievor be given pay for the five days suspension
that he served on consecutive Fridays;
d) damages for the breach of the grievor’s human rights in a range of between
$1000 -$10,000.
THE COLLEGE’S REPLY SUBMISSION
[77] Addressing the issue of when the five-day suspension was served, counsel for the College
argued that Article 11.01 G1 allows work outside of the College for example at home. The
College has the right to schedule for bona fide purposes and in this case the five-day suspension
on Fridays minimized the impact on students. When the grievor stated in evidence that he
worked Monday Tuesday and Thursday, what he was really telling the board was that he taught
on those days. Thus, we should not be persuaded that there was anything wrong in the way the
suspension was scheduled.
ANALYSIS
[78] Having carefully considered the submissions of the parties, we have decided that there is no
evidence to support a finding that the College harassed and discriminated against the grievor
when it disciplined him on May 11, 2015. Neither is there evidence of reprisal. We are persuaded
that the College had ample reason to discipline the grievor for failing to attend a disciplinary
meeting on April 28, 2015.
46
[79] The evidence is undisputed that Dr. van Woudenberg was directed to attend a disciplinary
meeting on April 28 and failed to be there. The issue is whether the grievor was justified in not
attending. We agree with the College’s submission that the grievor provided shifting and
multiple justifications for not attending. His first reason was that it was not prudent. He had
made a direct complaint against Mr. Piper in his grievance dated February 20, 2015 accusing him
and others of harassment and discrimination. So, he did not think he should have to meet with
Mr. Piper. Then he raised his concern for his health. However, there was no medical evidence to
justify this explanation. Moreover, it was raised on the day of the meeting. Then at the hearing
into this matter the grievor testified that he had needed union representation which was
unavailable. He also testified that he got Dean Samb oo’s email on the morning of the meeting,
and it was too late to get to the College.
[80] These later explanations are inconsistent with the tone and content of his response to the
Dean and Mr. Piper on April 28, minutes before the meeting was scheduled to proceed. In his
email he wrote “in the interest of his health and well-being, Dr. van Woudenberg will not be
meeting with Mr. Piper at this time. Please schedule a meeting accordingly with advance two
business days’ notice.” The purported justification of not being able to obtain Union
representation for the meeting, was not raised until the hearing, and is not credible. Likewise, his
claim that he did not understand the purpose of the meeting is not credible, especially given his
later justification for not attending because he was unable to have union representation with him
at that meeting.
[81] Had Dr. van Woudenberg been unable to find a union representative for the meeting, he
would have stated this in his response to the Dean and Mr. Piper on April 28 and made a request
to reschedule. Had he done this, it is unlikely that the College would have disciplined him. The
47
whole process of setting the meeting had been rushed. The grievor did not get an email sent by
Mr. Piper after 5pm on April 24 until April 27. Dr. van Woudenberg’s evidence is that he does
not look at work emails once the workday ends. He does not look at emails over the weekend.
Had he stated any of this on the Monday or even on Tuesday, it would have been unlikely that
the College would have disciplined him for missing a meeting. He was not simply disciplined for
missing a meeting as the Union has argued: he was disciplined because he refused to attend.
[82] Thus, we must conclude that Dr. van Woudenberg disobeyed the College’s direction to
attend the disciplinary meeting on April 28. There is no valid excuse for the behaviour. Having
found clear evidence of the misconduct the next question is whether a five-day suspension is
appropriate in all circumstances. Union counsel asked us to consider that the grievor’s
employment history of 12 years was discipline free until his illness began in 2014. A long
employment history free of discipline certainly can be a mitigating factor in a discipline case.
However, it can sometimes be an aggravating factor . He knew better than to ignore the
College’s direction. In early September 2014, when he was required by the College to attend a
meeting on his undocumented absence between August 6 and early September, he testified that
his lawyer told him he must attend or risk termination. The principle of obey now and grieve
later is a fundamental rule in a unionized workplace.
[83] We did not uphold the discipline grieved on May 4, 2015. The grievor was given a five-day
suspension for failure to communicate with the College between August 6 and September 8,
2014. As noted earlier in this decision, the majority of the board concluded that there was enough
medical evidence that the grievor was not healthy, to conclude that he was not responsible for
failing to communicate with the College. The Union counsel was right when she stated that there
are few justifications for an employee to disobey a direct order. She noted that health can be a
48
reason. However, unlike the first grievance we have no evidence before us to explain that his
behaviour was due to ill health.
[84] Counsel for the Union argued that the discipline is so out of proportion to the misconduct
that it is clearly harassment, discrimination and reprisal. A five-day suspension is a significant
penalty and the Union has suggested it is heavy-handed. However, it was clear from Dr. van
Woudenberg’s first response on April 27 that he had no intention of attending the meeting.
Further, as noted above the grievor did not respond appropriately to the Dean and Mr. Piper on
April 28. He was defiant. There was no recognition that he was at fault. And there was no
recognition or remorse shown by the grievor at the hearing. On cross -examination Dr. van
Woudenberg acknowledged that he understood the order. Nevertheless, he disobeyed it.
Considering the defiance and the lack of any remorse, we are persuaded that a significant
suspension is appropriate and reasonable. Thus, we are not persuaded that the discipline was so
out of proportion that it supports a finding of discrimination, harassment and reprisal. However,
a majority of the board are prepared to reduce this discipline to a three -day suspension. The
College considered the earlier five-day suspension in deciding the penalty here. Since,
subsequently, we did not uphold the first discipline, it is appropriate to reduce this five-day
suspension to three days.
[85] Counsel also argued that the College failed to consider the gri evor’s health during the
scheduling of the meeting and before issuing the discipline, therefore violating his rights under
the Code. The grievor raised his concerns about his health as a reason for not attending and we
have already dismissed this explanation because there was no evidence tendered to support it.
The medical evidence that the College was relying on when it scheduled the meeting and
subsequently issued this discipline, was that the grievor was healthy and he was back to full time
49
duties. At this point, there was therefore no duty to accommodate the grievor in attending a
discipline meeting or in issuing discipline.
[86] The Union took issue with how the discipline was meted out on five Fridays. Dr. van
Woudenberg was teaching on Monday, Tuesday and Thursday. He was therefore required to
work 100% but paid only 80% for five weeks. Counsel argued that this was a breach of Article
11.01 K2 and in the alternative, that it amounted to a fine, which is not permitted under
management rights. Counsel for the College argued that the Employer has the right to schedule
for bona fide reasons. In this case, the discipline was scheduled to minimize the impact on
students.
[87] A majority of the board are persuaded that scheduling the suspension on five Fridays was
reasonable to minimize the impact on students in the course. There was no reason for Dr. van
Woudenberg to work or prepare for class on any of those days. Therefore, the board fin ds that
scheduling the five days of suspension on Fridays did not discriminate against the grievor .
[88] In sum, we have decided that discipline was warranted, but have reduced it to a three-day
suspension. The College is hereby ordered to reinstate the two days, with appropriate
compensation, and with no loss of seniority. Finally, the allegations of discrimination,
harassment and reprisal are not supported by the evidence and are hereby dismissed.
THE HARASSMENT AND REPRISAL GRIEVANCE OF JUNE 29, 2015
[89] In this last grievance before us, Dr. van Woudenberg claims that the College has breached
Articles 4, 6 and 25 of the collective agreement by failing to pay out two expense cheques in a
timely way. The Union takes the position that this failure is part of a pattern of harassment in
reprisal for filing a grievance naming senior administrators and managers in a grievance dated
50
February 20, 2015. The Union is not alleging a breach of the grievor’s human rights in this
grievance. The College takes the position that the grievance, based on admitted speculation,
should be dismissed as such.
[90] The facts are for the most part not in dispute. Dr. van Woudenberg submitted a May
expense claim form on May 28. Dean Samboo approved the claim on June 1 and forwarded it to
her assistant, who forwarded it to Finance by June 2. Two people in Finance processed the claim
and it was entered into the system on June 28. The cheque was issued on July 2. Dr. van
Woudenberg testified that normally he received expense reimbursement within 2 to 3 weeks after
putting the claim in. He checked his mailbox sometime around the three-week mark and he had
not received the cheque.
[91] Dr. van Woudenberg filed his June expense claim on June 25, 2015. He filed a grievance on
June 29 alleging that the College had failed to pay these expense claims in a timely manner, and
this is part of a pattern of harassment and reprisal. He was on vacation from June 30 to
September 8 and away from campus. He did not receive the May cheque until October 6, and he
received the June cheque some time sometime in September after he came back from his
vacation. The May cheque had been misdelivered. Instead of being put into the grievor’s mailbox
it had been put in an assignment box for students with his name on it.
[92] At the grievance meeting on October 1, Dean Samboo learned for the first time that the
grievor had still not received reimbursement for his May expenses. She asked someone in her
office to look for the May expense cheque. Once it was found , the College made its formal
response to the grievance and stated since the cheque had been found, it considered the matter
resolved. The grievor responded that “in light of the College’s failure to address the issue of
51
reprisal, the grievance dated 26 June 2015 is herewith forwarded to arbitration.” There are two
dates on the grievance form, both June 26 and 29.
THE UNION’S SUBMISSION
[93] Counsel for the Union submitted that the failure to pay out two expense claims in a timely
manner proves a pattern of harassment and reprisal. The grievor did not receive his May claim
filed approximately May 28 until October 6. He did not receive his June claim until sometime in
mid-September. She submitted that no one seemed to know why the two claims cheques went
missing. She submitted that this is a small part of a large pattern where documents go missing for
example medical information. And that it cannot be because of mere negligence: it is so
persistent and pervasive. Counsel argued that the case law makes it clear that even small
aggressions can amount to a pattern of harassment.
[94] In counsel’s submission, the harassers in this case are Dean Samboo and human resources
employees. The Dean should have followed up on the cheque earlier. She created an
environment where the grievor runs into difficulty. And there are a great many incidents. She
argued further that it is improbable that both these cheques went missing unless they were
intended to go missing. She argued that while it might not be clear who intended it, the grievor
has suffered harsh treatment, beyond what is normal.
[95] Thus, the Union is seeking a declaration that there has been a violation of Articles 46 and
25. It is not about the money because the grievor has received his expenses. Essentially, counsel
asks the board to make a declaration that this late expense payment is a reprisal for participating
in the grievance process. It is not about a breach of the Code in this instance.
THE COLLEGE’S SUBMISSION
52
[96] Counsel for the College argued that the single issue before us in this case is whether the
College committed a reprisal or an act of harassment because it did not issue a che que to the
grievor for May expenses on or before June 29. Counsel argued further that only evidence that
could have come near supporting a claim about the length of delay had to be in existence on June
29, 2015. The evidence is clear that normally the grievor received a cheque two to three weeks
after submitting an expense claim. Sometimes it could be longer, as the grievor admitted. The
grievor filed his grievance four weeks after he made the claim.
[97] Counsel submitted that it is difficult for the College to respond to the Union’s argument
without them specifically identifying who they think has reprised against the grievor. They did
call the one person who dealt with the expense claim and who might have had a motive to
interfere with it. The evidence of Dean Samboo was that she approved the claim on June 1
forwarded it to her assistant who took it to finance who received it on June 2. That is all that the
Dean had to do with the expense claim . There is no evidence to connect the delay in sending this
cheque to a reprisal.
[98] The June claim is not arbitrable in counsel’s submission. The June claim was filed June 25,
four days before Dr. van Woudenberg filed his grievance. And the grievor left for vacation on
June 29. He was away for over two months and out of contact with the College . He came back
sometime between September 8 and 11 and found the June cheque in his mailbox. Counsel
argued that the grievance should be dismissed.
ANALYSIS
[99] Having carefully considered the evidence and the submissions of the parties, we find that
there is no evidence that in paying out these expense claims, the College harassed Dr. van
53
Woudenberg in reprisal for filing the February 20 grievance. The allegation that the June
expense claim was late is premature. The expense claim was filed on June 25 and the grievance
is dated June 29, four days after Dr. van Woudenberg made the claim. Therefore, we have no
jurisdiction to entertain it. Even if it was not premature and therefore is arbitrable, there is no
evidence to suggest it was late.
[100] Dr. van Woudenberg’s grievance was held in abeyance, since he was on holiday from June
30, until after the first week of September when he returned to the College. However, a College
administrator emailed the grievor on July 17 to tell him that she had followed up with Finance
about his grievance and reported on the status of the expense claims. She reported that the May
expense claim had been sent to him on July 2 and the June claim had been forwarded to him on
July 16. She then offered to have the cheques retrieved from his mailbox and sent to his home
address, if he so desired. This evidence shows that the June claim was not late.
[101] Dr. van Woudenberg testified that most expense claims were processed between two and
three weeks after being submitted. However, he acknowledged that some claims took longer. If
the average length of time to process an expense claim and issue a cheque is around three weeks,
then the May cheque was one week late when the grievance was filed. This is weak evidence on
which to find a deliberate act of reprisal and we are not inclined to do so.
[102] Dr. van Woudenberg testified in cross examination that before filing the grievance he did
not ask Dean Samboo if the claim had been approved. Nor did he ask when the Dean approved it.
And he did not seek her help to track the expense claim. He did not ask anyone in Finance about
the claim either. It is hard to conclude that he was concerned about getting the reimbursement.
54
Since, well before the hearing started, the grievor had his mone y, the only issue for us to decide
is whether this late payment was in reprisal for him filing grievances.
[103] The allegation of reprisal is serious. The Union submits that the College was deliberately
acting to thwart the grievor’s rights because he grieved that various senior administrators and
employees of Human Resources had harassed and discriminated against him. Dean Samboo was
not named in the grievance dated February 20, 2015, but she was the only senior administrator
involved with approving the May expense claim. The evidence is clear that Dean Samboo
processed the May claim and forwarded it to Finance in a timely manner. She approved it within
a few days on June 1, and her assistant forwarded it to Finance on June 2. The Dean had no
knowledge that the grievor had not received the cheque until she met with him and the Union, at
a stage to meeting for the June 29 grievance , on October 1. At this point she testified that she
directed someone to look for the cheque and shortly after it was discovered that it had been
misdirected to a student assignment box with the grievor’s name on it.
[104] There is nothing in the evidence to support the Union’s allegation that Dean Samboo
created a work climate that was hostile to the grievor. The Union said that she should have
looked for the missing cheque earlier, but she did not learn that it was missing until October 1, at
the grievance meeting. She did nothing that can be interpreted as reprisal. And there was no
evidence that anyone else named in the grievor’s Febru ary 20, 2015 grievance had anything to do
with payment for this claim. While we agree with Union counsel that small acts of aggression
may amount to harassment, there is no evidence here to support an act of aggression against the
grievor by anyone in the College.
55
[105] Having found that there is no evidence to support the allegations of harassment or reprisal
here, the grievance is dismissed.
[106] In conclusion of Part 2 of this decision, we have granted the May 15, 2015 grievance, in
part, by reducing the five-day suspension to three days, with appropriate compensation. We
dismissed the allegations that the discipline was evidence of discrimination, harassment, and
reprisal and that it was carried out in a way that discriminated and harassed the grievor. Finally,
we have found there is no evidence to support harassment or reprisal as alleged in the June 26,
2015 grievance.
[107] We would like to thank both College and Union counsels for their able submissions during
a lengthy hearing.
Dated at Toronto this 12th day of March, 2019
_______________________________
Deborah J. Leighton, Chair
_______________________________
Pamela Munt-Madill, Union Nominee, dissenting in part
_______________________________
Ann Burke, Employer Nominee, dissenting in part
"Pamela Munt-Madill"
"Ann Burke"
Partial Dissent
With great respect, I find that I must dissent, in part, with the majority in two matters before us.
For the sake of simplicity, I will follow the format of the majority decision in setting out my areas
of disagreement. I should also note that the parties to the grievances before us, agreed that the
Board could rely on the totality of the evidence we heard, in deciding each matter.
Part One: The May 4, 2015 Discipline Grievance
Discipline was imposed on April 29, 2015 in response to the Grievor’s failure to respond
appropriately and in a timely fashion to various attempts by the College to communicate with
him with respect to his continuing absence from work , which began in the spring of 2014. There
is no doubt that an obligation exists on an absent employee to keep their employer reasonably
apprised that there exists a legitimate reason for the absence and of the expected date of their
return to work. The Grievor failed to meet this obligation during his absence. By August 2014,
this was particularly problematic for the College as it was obliged to schedule classes for the fall
term of 2014.
The College made every reasonable effort to communicate with the Grievor , during his lengthy
absence, by all possible means short of having a college representative attend at his home. The
Grievor steadfastly refused to respond to these communications. It was his position that the
College should communicate directly with his physician and that all forms of communication
between himself and the College would worsen his condition. The Grievor’s tone and attitude
throughout his evidence on these points was indicative of an employee who entirely rejected the
College’s right, as employer, to be kept reasonably informed of the legitimacy of the absence
and the expected return to work. To defiantly refuse to respond to such inquiries clearly merits
discipline.
In his defence, the Union took the position that the Grievor’s failure to communicate was due to
a medical condition which rendered him totally disabled from doing so and that therefore his
failure to meet his obligation to the College was non -culpable.
I have two issues with this. First, in order to avoid a finding of culpable conduct, the Union bore
the onus to prove, by relevant evidence that, at the material time, the Grievor was totally
disabled from meeting this very basic employment obligation. During the hearing however, no
viva voce medical evidence was called to establish the Grievor’s cond ition in the relevant time
period from August 6, 2014 to September 8, 201 4. This was the case, despite the fact that the
Grievor was receiving treatment by qualified medical professionals during the relevant time.
Therefore, while it was apparently possible for the Union to call viva voce evidence from
qualified professionals of the Grievor’s condition in this period , the Board received no such
evidence upon which to make a finding that the Grievor’s medical condition in this period totally
prevented him from meeting his obligation to the College.
Indeed, the only medical evidence relied on by the Union relevant to the issue of the Grievor’s
culpability was based on an independent medical examination conducted by Dr. Gnam several
months later. The Grievor attended this examination at the request of the College, over his
many unreasonable objections and delays, months after the material time. Taken at its highest,
Dr. Gnam’s report found that, while he had no first hand contact with the Grievor at the material
time upon which to base an opinion, it was possible that the Grievor’s behaviour in August and
early September 2014 was related to his psychiatric condition. To my mind, the Union did not
meet its onus on this point.
On the other hand, the Grievor’s own evidence suggested that he was capable of
communicating with others, at the relevant time, if and when he believed it was in his interest to
do so. His self-serving evidence on this point demonstrated an attitude of entitlement and a
complete lack of recognition of the College’s authority and its responsibility towards its students.
This attitude was evident throughout the Grievor’s evidence in respect of all the matters before
us.
Taken as a whole and in the face a total lack of relevant medical evidence to support the
Grievor’s claim that he was totally disabled from communicating with the College , it is my view
that the Grievor acted intentionally and defiantly in failing to respond to the College’s many
communications. Based on the Grievor’s evidence and his manner and tone while giving
evidence throughout these many days of hearing, I am not persuaded that his failure to respond
to the College was based on a disability. I am entire ly satisfied that the Grievor’s refusal to
respond was culpable and that his evidence amply supports a finding that the Grievor’s
behaviour was intentional and consistent with a total defiance of authority. As a result, I would
have dismissed this part of his grievance and upheld the five day suspension.
Part Two: The May 11, 2015 Suspension for Refusing to Attend a Meeting on April 28, 2015
Once again, I believe the Grievor’s evidence and the documentation provided to the Board in
respect of the Grievor’s refusal to attend this meeting clearly demonstrate the Grievor’s
complete rejection of the College’s authority in the workplace. This was clearly an act of
defiance and insubordination directed at the highest levels of authority at the College. N ot only
was the Grievor’s evidence about his reasons for failing to attend contradictory but the tone and
content of the emails he sent, copied to the President of the College and others, establish
without any doubt that the Grievor was ungovernable and in tended to continue to be so. Indeed,
I found his last minute claim that he did not attend as required was because of an inability to
obtain union representation was an intentional attempt to mislead this Board. The Grievor
demonstrated no recognition that his behaviour was unacceptable, certainly no remorse, and for
that reason, I believe that a five day suspension was entirely appropriate. Nothing in the
Grievor’s evidence suggested to me that a lighter form of discipline would serve to ameliorate
his conduct in the future. For these reasons I would have dismissed this part of this grievance.
Ann E. Burke
College Nominee