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Home My WebLink About2003-0187.Waraich.09-01-09 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2003-0187 UNION#2003-0154-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Waraich) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFOREVice-Chair Michael V. Watters FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Len Hatzis Ministry of Government Services Counsel HEARINGNovember 22, 2004, February 22, February 23, October 28, November 8, November 17, 2005, April 4, April 5, June 23, September 11, October 27, 2006, April 13, May 4, May 29, June 12, June 19, August 2, 2007, April 11, April 16, June 12, 2008. CONFERENCE CALL July 8, 2008. 2 Decision [] 1This proceeding arises from the grievance of Mr. Terry Waraich dated March 25, 2003. The material part of the grievance reads: ?STATEMENT OF GRIEVANCE I grieve that the management of the Ministry of Labour has and continues to violate the collective agreement, reference to articles #2 ? Discrimination-Health and Safety ? Ontario Human Rights Code ? Ministry of Labour Statement of Principles and Policies ? Differential Treatment and by creating a Poisoned Work Environment, but not limited to the above. SETTLEMENT DESIRED Full redress. Cease and desist the above practices. To be compensated for the above violations and appropriate monies for the above violations due to duress.? [2] Briefly stated, it is the Union?s position that the grievor was subjected to differential treatment by Ms. Judith Cragg, the District Manager of the Ministry of Labour Office in Windsor, Ontario, over the period October 11, 2001 to March 25, 2003. More specifically, it is alleged Ms. Cragg singled the grievor out and placed him under a form of intense scrutiny that was not applied to other employees under her direction. This is contrasted with how the grievor was treated by other District Managers both before and after Ms. Cragg held the position. From the Union?s perspective, Ms. Cragg harassed the grievor. It argues that her treatment of the grievor was primarily motivated by the fact he had a disability and required an accommodation throughout the period mentioned above. The Union submits that this behavior, on the part of Ms. Cragg, constituted discrimination on the basis of a prohibited ground contrary to article 3.1 of the collective agreement. In the alternative, it is the Union?s further position that the conduct complained of represented a bad faith or discriminatory exercise of the Employer?s management rights under article 2.1 of the agreement. 3 [3] In summary, it is the Employer?s response that Ms. Cragg did not harass, or discriminate against, the grievor in any way that would constitute a violation of the contractual provisions referenced above. The Employer denies that the grievor was the subject of differential treatment, as alleged by the Union. On its assessment, Ms. Cragg simply requested information or clarification from the grievor, or provided direction to him, on a number of employment issues in respect of which she had legitimate concerns given her status as the grievor?s direct supervisor. [4] The above referenced articles of the collective agreement read: ARTICLE 2 ? MANAGEMENT RIGHTS 2.1For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject. ARTICLE 3 ? NO DISCRIMINATION/EMPLOYMENT EQUITY 3.1 There shall be no discrimination practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, martial status, family status, or handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC). [5] Twenty-one (21) days of hearings were held in this matter over a period of approximately three and one- half (3 ½) years. Understandably, a substantial amount of evidence was presented by the parties in support of their respective positions. Two (2) hearing dates and one (1) conference call were required to conclude closing argument. It is unnecessary, for purposes of determining this grievance, to reproduce all of the evidence and argument herein. I have, however, considered all of the viva voce evidence, the exhibits filed, the submissions presented in closing argument, and the authorities relied on at 4 considerable length prior to the fashioning of this Decision. A list of the authorities referenced in this proceeding are appended to the Decision. [6] The grievor and Ms. Diane Knight presented evidence for the Union. The grievor has worked as an Occupational Health and Safety Inspector in the Windsor District Office of the Ministry of Labour since 1992. His efforts are focused in the industrial sector. Ms. Knight has worked as an Administrative Assistant in the same office for approximately fifteen (15) years. She worked closely with Ms. Cragg in the period September 2000 to August 2003 while the latter was in the position of District Manager. [7] Ms. Cragg and Mr. Dennis Mundy presented evidence for the Employer. As mentioned, Ms. Cragg was the District Manager of the Employer?s Windsor Office in the period material to this dispute. She commenced her employment with the Ministry of Labour in 1984. She worked in a number of different positions thereafter, including Occupational Health and Safety Inspector Levels 1 and 2. Ms. Cragg currently is a Regional Manager for the Alcohol and Gaming Commission of Ontario. Mr. Mundy is currently the Manager of the Industrial Health and Safety Program. In this capacity, he is responsible for the staff in the Windsor and London offices. Mr. Mundy served as the replacement for Ms. Cragg for a period of approximately eight (8) months after the latter left the position of District Manager. Mr. Mundy possesses extensive management experience in the field. He, too, previously worked as an Occupational Health and Safety Inspector. [8] The Union referenced a large number of incidents and events in support of its position, as generally described above. Given the nature of the allegations, it is necessary to deal with each of these in turn. I have attempted, for the most part, to address the occurrences in a chronological fashion. VISIT TO GLOBAL VEHICLE SYSTEMS [9] On November 13, 2001, the grievor stopped in Tilbury, Ontario, on his return from Toronto, to register and perform an initial audit on Global Vehicle Systems. The Town of Tilbury had been in the grievor?s 5 geographic work area for a number of years. Those work areas, however, had been changed at a meeting of October 19, 2001. At that meeting, Tilbury was removed from the grievor?s mandate and assigned to Mr. Barry Norton, another Inspector who lived in the Chatham area. It is clear that work areas are assigned for legitimate operational reasons related to the effective use of resources and time. The grievor described his stop at Global Vehicle Systems as a ?routine visit? that was consistent with ?historical practices? and ?the way the business works?. [10] My findings with respect to this visit are as follows: i.The grievor should not have conducted the visit to Global Vehicle Systems on November 13, 2001 given that the Tilbury area had been removed from his area of responsibility one (1) month earlier. I accept Ms. Cragg?s evidence that Occupational Health and Safety Inspectors were expected to ?stick to their geographic areas? and that she so advised them at the meeting of October 19, 2001. Clearly, the grievor on this occasion acted contrary to her expectation and in a manner that did not accord with the earlier reorganization of work areas. I note the grievor acknowledged in cross-examination that Ms. Cragg did not tell Inspectors at the above-mentioned meeting that they retained discretion to perform work in other areas on a unilateral basis; ii.On the evidence, the grievor unilaterally elected to stop at Tilbury and engage in the visit in question. At the time, he was not responding to any specific complaint nor had he been assigned there by one of the Program Assistants working in the Windsor District Office. I am inclined to accept Ms. Cragg?s suggestion that the grievor should have conveyed any concerns he had about Global Vehicle Systems to Mr. Norton. I have not been persuaded that the matter demanded his immediate attention. There is no firm evidence that other Occupational Health and Safety Inspectors engaged in the same type of unilateral decision making as the grievor did on November 13, 2001; iii.This issue was first raised with the grievor by Ms. Cragg on December 10, 2001 and was later the subject of numerous e-mails. Ms. Cragg initially wanted to know the time the grievor arrived at, and then departed from, the premises of Global Vehicle Systems. The grievor, at the time, was unable to provide her with the information requested. Instead, he could only advise Ms. Cragg about the duration of the visit, the preparation time relating to his report, and his travel time, as recorded on the Premise/Project Form. The time totalled close to six (6) hours. It was the grievor?s evidence that start and end times are not normally included in the reports he files. While that may be the case, I accept Ms. Cragg?s testimony that an Inspector should record such information in their notebook in the event they are later required to testify in Court about the visit. I note that at the hearing, some years later, the grievor was able to recall that he arrived at Global Vehicle Systems around 9:15 a.m. on November 13, 2001; iv.The grievor on November 13, 2001 was returning from Toronto after having been away th on personal time in Western Canada. He had arrived back in Toronto on November 12 6 and elected to spend the night with his son. In my judgment, Ms. Cragg was entitled to th question the grievor about his arrival time in Tilbury on November 13, as some of that day should have been claimed as vacation if he in fact travelled back from Toronto during normal working hours. I also consider it material that the grievor would have been late for work in Windsor had he not elected to stop in Tilbury. He very likely would have arrived in Windsor about 10:00 a.m., approximately ninety (90) minutes late. I think it more likely than not that the grievor stopped in Tilbury to do the Global Vehicle Systems visit to avoid being late in Windsor. I am not inclined to accept the grievor?s explanation that he made the stop simply in an effort to change his daily routine; v.In summary, I am satisfied that Ms. Cragg was entitled, as District Manager, to make the enquires she did concerning the grievor?s visit to Global Vehicle Systems. Additionally, I find that she could properly pursue the matter after receiving what she reasonably believed to be incomplete and evasive answers from the grievor. Undoubtedly, Ms. Cragg in view of her position could legitimately seek clarification on issues she found problematic. I am unable to conclude that her efforts in this regard constituted either discrimination on any prohibited ground or harassment. I further note that the grievor was fully paid for November 13, 2001 and did not receive any discipline for the events of that day. INJURY AT KINGSVILLE STAMPING LTD. [11] On March 7, 2002, the grievor conducted an investigation at Kingsville Stamping Ltd. He was accompanied on that day by Mr. Ron Kennedy, an Engineer from the Ministry?s London Office. The grievor testified that he twisted his ankle in an unpaved parking lot at the plant. He stated that the injury did not cause him much concern or pain at the time and, as a consequence, he did not immediately report the occurrence to the Employer. It was the grievor?s evidence that his ankle became swollen during the early evening and that he, therefore, elected to contact his physician, Dr. R.L. Basur, by phone for advice. Dr. Basur provided him with an appointment for the following day, March 8, 2002. The grievor th first reported the injury to Ms. Cragg on the morning of March 8. During his appointment with Dr. Basur, the grievor was provided with a medical note advising that he was unfit for work for one (1) 7 week. The grievor was ultimately away from work until May 6, 2002. On his return, he was provided with modified duties for a temporary period to satisfy the restrictions made necessary by the injury. A WSIB claim was ultimately approved for loss of earnings benefits in respect of the period from March 8 th to May 6, 2002. I note that the OPSEU strike commenced on March 13 , approximately one (1) week after the injury, and ran till May 5, 2002. [12] My findings with respect to this aspect of the case are as follows: i.It is readily apparent that Ms. Cragg had several concerns about the injury of March 7, 2002, including the following: the witness, Mr. Kennedy, was a close associate of the grievor; the grievor did not immediately report the injury; she believed that Dr. Basur was a personal friend of the grievor; the grievor was unable to work for a period of approximately seven (7) weeks as a result of what initially appeared to be a minor injury; and the timing and duration of the injury corresponded to the period of the OPSEU strike. I accept that Ms. Cragg communicated most, if not all, of these concerns to the WSIB. I have not been persuaded, however, that she did so in an effort to ensure the claim was denied. To the contrary, as District Manager, she was entitled to question the legitimacy of the claim. Indeed, some of the information she conveyed was elicited by the WSIB documentation. In the final analysis, I am unable to conclude that Ms. Cragg?s involvement in the claim amounted to either discrimination or harassment; and ii.I remain unconvinced that Ms. Cragg?s actions reflect an attempt on her part ?to block? the grievor?s accommodation. On the evidence, she offered him modified duties in the office shortly after the injury. Similarly, she clearly recognized the duty to accommodate the grievor to the extent necessary upon his return. I accept that the medical documentation Ms. Cragg asked the grievor to have completed was for purposes of assisting the accommodation process. RETURN OF MINISTRY VEHICLE [13] Occupational Health and Safety Inspectors are generally entitled to use a Ministry vehicle, assuming availability, for travel associated with their job responsibilities. The thrust of the grievor?s evidence was that Ms. Cragg ?basically forced? him to turn in his vehicle. I initially formed the impression that this issue occurred in the May 2002 period, as the grievor stated Ms. Cragg had concerns that he was not using the vehicle to conduct work-related visits but only for trips to his physiotherapist and to get to the office and return home. The grievor testified that he ?could not stand that kind of pressure?. He further testified that he decided to return his vehicle, and to resort to the use of his personal automobile, after 8 learning Ms. Cragg had discussed his situation in respect of the vehicle with the Regional Management Team. The grievor stated that he did not want his name to be the topic of discussion at such meetings. [14] Ms. Cragg testified that she did not pressure the grievor to give up his Ministry vehicle. Her notes of February 28, 2002 record that the grievor informed her that he wanted to give it up. Ms. Cragg advised that she did not initially agree to the return of the vehicle, as she was unsure of the procedures for doing so. As a consequence, she elected to question her colleagues about the process at a monthly meeting of the Regional Management Team. Ms. Cragg stated that this group had previously addressed fleet management issues. It was her evidence that she ultimately determined the grievor could return the Ministry vehicle and thereafter use his personal vehicle with the right to claim mileage. [15] After considering all of the evidence presented on this issue, I have not been persuaded that the grievor was forced to turn in his Ministry vehicle, as claimed. Additionally, I am unable to find that he was singled out by Ms. Cragg and subjected to differential treatment. In my judgment, the evidence on this point does little to advance the Union?s position. BACKGROUND INFORMATION RELATING TO THE INITIAL INDEPENDENT MEDICAL EXAMINATION [16] A Request For Employee Health Information Form dated February 1, 2000 signed by Dr. V.S. Chawla stated that the grievor?s medical condition precluded him from performing fatal accident and critical injury investigations for a period of four (4) months. Appropriate restrictions were put in place by the Employer. These restrictions continued beyond the initial four (4) month period identified in the above- mentioned report. A similar Request For Employee Health Information Form dated August 2, 2001, also completed by Dr. Chawla, extended the restrictions for a further six (6) months. As the latter period of accommodation was to end on February 2, 2002, Ms. Cragg wrote to the grievor by letter of January 25, 2002 to determine if any additional period of accommodation was necessary or whether he would be resuming his full duties. Shortly thereafter, Ms. Cragg received a third Request For Employee 9 Information Form completed by Dr. Chawla on February 4, 2002. The report advised that the temporary restrictions were to be continued for a further period of six (6) months. It referenced the potential for acute anxiety were the grievor to engage in fatal accident or critical injury investigations. It also noted that the grievor?s medications could result in drowsiness. Ms. Cragg testified that this latter medical report caused her some concern. More specifically, she questioned whether other aspects of the grievor?s work, such as work refusals, might also lead to anxiety. Additionally, she thought that the possibility of drowsiness could put both the grievor and the Employer at risk. [17] As the above-referenced restrictions had been in place since Ms. Cragg became District Manager, she decided that it was necessary to establish if and/or when the grievor would be able to return as a fully functioning Occupational Health and Safety Inspector. Accordingly, Ms. Cragg met with the grievor and his Union representatives on February 21, 2002.At the meeting, it was agreed that the grievor would contact his family doctor to arrange a referral to a specialist and that the specialist would conduct an independent assessment relating to the grievor?s need for continued accommodation. Ultimately, Dr. A. Prakash, a psychiatrist in London, Ontario, was selected for this purpose. A date of June 5, 2002 was established for the independent medical evaluation. [18] Ms. Cragg, with the assistance of Ms. Knight and personnel from Human Resources and Labour Relations, prepared a letter for the grievor to take to Dr. Prakash. The letter dated May 31, 2002, which was addressed to Dr. Prakash, listed the following six (6) questions for him to address: ?1) Does the employee have any medical restrictions/conditions that would impede his analytical or problem solving processes? These abilities are required to effectively identify occupational health and safety hazards when making site visits to Employers to ensure compliance or while investigating the causes of accidents, injuries, fatalities, etc. These skills are also required to provide expert advice to employers, union representative, associations, etc. on the interpretation and application of the Occupational Health & Safety Act and other related legislation and regulations. 2) Does the employee have the ability to sustain periods of concentration with the need to ?think-on-the-spot? to instantly assess information and provide appropriate input/feedback to resolve issues? This would be required to be able to testify and explain the results of an 10 investigation and to defend any actions that have been taken by the Ministry as an expert witness on matters that are the subject of an inquest, prosecution, hearing, etc. 3) Does the employee have any medical restrictions that will affect his ability to maintain demeanor and personal control while interacting with volatile and distressed clients? (examples-dealing with work refusals, hazardous environments which may relate to chemical spills, fatalities, critical incidents, disagreeable employee/employer). 4) Does the employee have any medical restrictions that would affect his ability to travel to and attend site visits to conduct investigations, etc.? The employee may be exposed to all types of weather conditions such as rain, heat, cold, etc. in which he may be required to climb ladders, be on a roof, crane, bridge, etc. or may be required to crawl into confined areas such as a furnace, etc. On an average, an Inspector is required to travel to Employer sites about 10 times a week. 5) Are there any medical restrictions/needs that would limit the employee?s ability to fully meet the job requirements described in the information described above and/or in the attached documents? 6) I also request that, when identifying restrictions, you stipulate whether the restrictions are of a temporary nature or permanent.? The letter also contained the following two (2) paragraphs: ?I wish to provide you with some background information and ask you to respond to some specific questions about Mr. Waraich?s working capacity. Mr. Waraich has expressed concerns related to harassment or discrimination. I can assure you that from my perspective as a Manager, there has not been harassment or discrimination. However, management and staff including Mr. Waraich acknowledge the fact there are issues among the staff in the office. As a result, the office worked with the assistance of the Human Resources Consultant and the Employee Assistance Program Advisor. I am concerned that Mr. Waraich appears to have difficulty with stressful situations. In general his reaction to any type of assignment of what he sees as unwelcome or unattractive work or issues I raise related to the need for improved productivity or work quality have often resulted in him claiming disabling stress and absenting himself from the workplace. He also takes a combative or adversarial approach to me and his colleagues around issues. To maintain service to our clients I must be able to count on staff to be at work on a regular basis and to be able to perform the duties of their positions. I am very concerned that Mr. Waraich is experiencing difficulty coping with authority and formal procedures and sustaining the requirements of performing in this job. The job of Occupational Health & Safety Inspector is a position with unavoidable stresses and demanding clients and for Mr. Waraich?s protection and that of the organization, it is important to determine whether he can sustainably perform the duties of a position.? 11 Ms. Cragg attached a number of documents to her letter, including the grievor?s job description and a list of the demands and challenges a person in his position might confront on a day-to-day basis. [19] Ms. Cragg testified that a lot of information was included in the letter of May 31, 2002, as she wanted to provide Dr. Prakash with ?a total picture? of the grievor?s work, the nature of his medical issues, and the accommodations provided to him throughout the course of his employment. It was her evidence that, in constructing the letter, she did not intend to prejudice or negatively impact the medical assessment. Ms. Cragg observed that this was the first time she had been involved in crafting a letter of this type. [20] Ms. Cragg telephoned the grievor during the afternoon of June 3, 2002 and informed him that he needed to sign a Release to be included in the package of materials to be supplied to Dr. Prakash. She advised the grievor during the exchange that the Release would authorize Dr. Prakash to provide the Employer with a copy of his assessment following completion of the medical exam. At that juncture, it appears that the grievor told Ms. Cragg that he would need to see the information packaged for Dr. Prakash before he would sign the Release.After some initial reluctance, he agreed to come to the Office by 4:30 p.m. that day. [21] According to information supplied to Ms. Cragg by Ms. Knight, the grievor arrived at the office at 4:25 rd p.m. on June 3. He did not sign the Release at that time. He apparently suggested to Ms. Knight that the doctor performing the evaluation just had to decide ?fit or unfit? and that perhaps all of the information collected was unnecessary. It seems likely on the evidence that the grievor did not then review the content of the package. [22] Ms. Cragg met with the grievor on the following day, June 4, 2002. The grievor then advised her that he had cancelled the appointment with Dr. Prakash on the prior evening. Ms. Cragg?s notes of the meeting record that the grievor was unwilling to sign a Release which authorized disclosure of medical 12 information to the Employer. The notes further indicate the grievor asserted that he did not previously understand that medical data would be released and that he believed the examining doctor was merely going to certify him as fit or unfit for work. [23] The evidence on this aspect of the case is far from clear. On the basis of my review of same, I am unable to find that Ms. Cragg refused the grievor?s request to see the information being forwarded to Dr. Prakash prior to his unilateral decision to cancel the scheduled appointment. What is clear is that the independent medical examination did not take place on June 5, 2002 and that Ms. Cragg?s letter of May 31, 2002, together with attachments, was not ultimately delivered to Dr. Prakash. [24] My findings in terms of what occurred in this time frame are as follows: i.I have been persuaded that Ms. Cragg properly suggested that an independent medical examination was an appropriate vehicle through which to assess the extent and duration of any accommodation required by the grievor. I think it material that both the grievor and the Union agreed to this process; ii.On my reading, the questions asked in the letter of May 31, 2002 were all appropriate as they focused on whether the grievor had any medical restrictions that would prevent him from performing the job of Occupational Health and Safety Inspector; and iii.Ms. Cragg?s observations in the letter concerning the grievor experiencing or exhibiting stress and his attitude and demeanour in the workplace would have been of some assistance to Dr. Prakash, especially given the fact that anxiety had previously been identified by Dr. Chawla as being an operative medical issue. While some of the comments contained in the letter do not portray the grievor in the most favourable light, I do not think they would sway or negatively impact the considered judgment of a medical professional. I do question why Ms. Cragg felt it necessary to reference the grievor?s concerns relating to harassment and discrimination and to include her response to same. I doubt that this information would have been of much assistance to Dr. Prakash. In any event, I have not been satisfied that Ms. Cragg deliberately attempted to sabotage the independent medical examination to the grievor?s detriment. SETTLEMENT OF JUNE 7, 2002 [25] The parties attended a mediation session before this Vice-Chair on June 7, 2002 in respect of two (2) other grievances dated April 17 and October 11, 2001, respectively. The grievances were resolved on that date through a Memorandum of Settlement, the material part of which reads: 13 ????????????????????????? 1)With respect to the independent medical examination, it is agreed that the Employer will provide three (3) names of medical practitioners to the grievor. The grievor will respond with his choice of the medical practitioner within ten (10) calendar days of being provided with the list. The Employer will then advise the grievor of the date of the examination and will provide the questions to the examining medical practitioner. The Employer will provide the questions to the grievor ten (10) calendar days in advance of the scheduled appointment. ???????. It is understood that the grievor will sign a waiver authorizing the release of information regarding accommodation requirements or a prognosis to the Employer. ??????????????????????? 3) A letter is to be provided to the grievor from the Manager (see attached). ???????????????????????? [26] The letter referenced in paragraph number 3 of the above Settlement reads: ?June 7, 2002 T. Waraich Windsor District Office Windsor, Ontario Dear Terry: I regret that you feel that you were discriminated against. As District Manager in Windsor, I will continue to endeavour to ensure there is no practice of discrimination in the Windsor District Office. Yours truly, Judith Cragg District Manager-Windsor " [27] On the first day of hearing in this proceeding, a dispute arose between the parties as to the scope of evidence the Union should be allowed to present in view of the above-described Settlement. By way of a Decision dated January 7, 2005, this Vice-Chair ruled as follows on this issue: ?32 After fully considering the submissions of both parties, I find that the Union should be precluded from presenting evidence about the facts and circumstances underlying the settled grievances of April 17, 2001 and October 11, 2001. I am satisfied that the Union, however, is entitled to lead relevant evidence about events occurring in the period October 11, 2001 to March 25, 2003. I note from a reading of the Union?s Statement of Particulars that it does not intend to rely on many events in the period from 14 October 11, 2001 to June 7, 2002 to support the grievance. Indeed, the vast majority of events referenced in the Statement of Particulars occurred after the execution of the Memorandum of Settlement. I further note that the Union asserts that the Employer breached the terms of the settlement. That assertion has not persuaded me to permit the Union to go behind the Memorandum of Settlement and to hear evidence about the circumstances surrounding the settled grievances. The Union is entitled, however, to lead evidence that the settlement was breached and that such breach was part of a long pattern of discrimination, as alleged. 33I have attempted, in the circumstances of this case, to balance the interests of the parties. I have accepted the Employer?s objection to the extent that I am not prepared to receive evidence about the events and circumstances underlying the settled grievances of April 17, 2001 and October 11, 2001. As mentioned earlier, I have reached that conclusion, in large part, to ensure and promote the sanctity of final settlements. While the Union is prohibited from leading evidence about the above grievances, I am satisfied that it continues to have sufficient opportunity to establish the pattern of discrimination that it alleges occurred in respect of this grievor. If the parties experience any difficulty in preparing their respective cases as a consequence of this interim award, such difficulty can be addressed at, or prior to, the hearing on the merits. 34To be clear, this interim award relates exclusively to the extent of evidence which can be led with respect to the grievance of March 25, 2003. The parties will later have the opportunity to make representations as to what remedy, if any, flows from the evidence led during the course of the hearing on the merits of the grievance.? CLAIM FOR MEAL EXPENSES RE: PRECISION PLASTICS AND OMSTEAD FOODS [28] Ms. Cragg disallowed meal claims submitted by the grievor in respect of September 25, October 11, October 16, and October 22, 2002. On the first of these days, he performed work at Precision Plastics in Amherstburg, Ontario. Amherstburg is approximately forty kilometres (40 kms.) from Windsor. On the latter three (3) days, the grievor worked at Omstead Foods in Leamington, Ontario. Leamington is approximately seventy kilometres (70 kms.) from Windsor. The Union submits that the denial of these meal claims evidences the discrimination, harassment and differential treatment allegedly engaged in by Ms. Cragg vis a vis the grievor. [29] My findings with respect to this aspect of the case are as follows: 15 i)I am satisfied on a review of the policy relating to Travel Management and General Expenses that it is intended to reimburse employees for their actual meal costs, rather than to serve as an allowance. The relevant portions of the policy read: ? ?employees shall be reimbursed for meal costs when, during a normal meal period an employee is on travel status (or as defined under the Collective Agreement). Employees shall be reimbursed for actual meal costs not exceeding the meal rates approved by Management Board of Cabinet: Breakfast: $ 6.75 Lunch: $ 9.25 Dinner: $18.00 ????????????????????????????? The approved meal rates represent reasonable meal costs. They are guidelines for maximum meal reimbursements, and are not to be considered as meal allowances. ?????????..???????????????????.;? Under the above policy, employees are not required to file receipts with their claim. They are, however, expected to retain them for tax purposes. Clearly, an element of trust must exist between the Employer and its employees with respect to the filing of meal claims. Simply put, the Employer has to assume that the expense claimed was, in fact, incurred; ii.I am further satisfied that for an employee to be entitled to reimbursement for an actual meal expense, they must purchase the meal and incur the expense while they are working at least twenty-four kilometres (24 kms.) from their headquarters. While this requirement is not expressly provided for in the exhibits filed, I accept that it has been the prevailing practice in the Windsor District for a number of years; iii.Ms. Cragg properly denied the grievor?s meal expense claim in respect of September 25, 2002. It is apparent on the evidence that after completing his work at Precision Plastics, he returned to Windsor and had lunch at St. Clair College. That lunch was paid for by Mr. Jim Nevin, a Safety Coordinator with the aforementioned company. Clearly, the grievor was not entitled to reimbursement on two (2) grounds. First and foremost, he did not incur an actual expense for lunch as Mr. Nevin paid for same. Second, the lunch was taken within twenty-four kilometres (24 kms.) of the Windsor District Office; iv.Ms. Cragg properly denied the grievor?s meal expense claim in respect of October 11, October 16 and October 22, 2002. It is apparent on the evidence that Omstead Foods provided the grievor?s lunch on those days at its expense. Simply stated, the grievor did not incur an actual lunch expense on the days in question; 16 v.The grievor claimed, in his evidence, that when he worked at Precision Plastics, he expended monies to purchase coffee and doughnuts. I have not been persuaded to accept this claim. I think it material that he failed to inform Ms. Cragg of this expenditure when they discussed the matter on November 1, 2002. Similarly, the grievor testified that he spent money for coffee and muffins on the days he was at Omstead Foods. I note Ms. Cragg?s evidence to the effect the grievor never mentioned any out of pocket expenses when she later discussed the claims with him. Consequently, I reach the same conclusion with respect to this assertion; vi.The Union, on behalf of the grievor, asserts that Ms. Cragg aggressively monitored the grievor?s meal claims. I reject the assertion. First, I note that she approved the vast majority of his claims, including one in respect of his fourth day at Omstead Foods when he elected to have lunch at a restaurant. Second, I have not been persuaded that Ms. Cragg took it upon herself to contact either of the companies involved to check if the grievor, in fact, paid for lunch. It was her evidence that Mr. Nevin called her on September 26, 2002 and that, during their conversation, she learned that he had paid for lunch on the prior day. Ms. Cragg noted that information and subsequently reviewed the grievor?s claim for that day when it was later submitted. Ms. Knight testified that Ms. Cragg told her she spoke to someone from Omstead Foods who told her that lunch had been brought in on the three (3) days in issue at that company?s expense. It was her further evidence that while she formed the impression Ms. Cragg initiated the call, Ms. Cragg did not specifically tell her that she did. Ms. Cragg testified that she was not entirely sure how she acquired the information, but did not believe that she sought it out. Ms. Cragg did not have any notes on point. Ultimately, even assuming the issue is relevant, I am unable to conclude on the evidence that Ms. Cragg initiated the contact with Omstead Foods; vii.The Union, on behalf of the grievor, asserts that Ms. Cragg treated the grievor differently than she did other employees with respect to meal expense claims. Reference was made to Mr. B. Norton and Mr. R. Taggart, two (2) other Occupational Health and Safety Inspectors. Both Inspectors lived more than twenty-four kilometers (24 kms.) from the Windsor District Office. I was told that Ms. Cragg approved claims for both gentlemen in respect of days they worked out of their respective homes. On one (1) occasion, Ms. Knight brought one (1) of Mr. Norton?s claims to her attention. As a consequence, Ms. Cragg contacted Mr. Norton and was informed that he had purchased his lunch at McDonald?s Restaurant. This follow-up led her to conclude the expense fell within policy and the claim was accordingly allowed. The evidence is not as clear as to the specifics of Mr. Taggart?s situation. Ms. Cragg testified that Inspectors were aware that she did not like these types of claims on days when employees worked out of their residences. She stated that she, nevertheless, approved them as long as the employee was beyond twenty-four kilometres (24 kms.) from headquarters and informed her they had in fact incurred an expense. Ms. Cragg emphasized that she generally followed up on meal expense claims of this nature if brought to her attention.In my judgment, the situation existing in respect of Mr. Norton and Mr. Taggart are distinguishable. Ms. Cragg was satisfied in both instances that the Inspectors incurred an actual meal expense. In contrast, as stated above, the grievor?s lunch was paid for by others on all of the days in question. Ultimately, I was given no sound reason to reject Ms. Cragg?s statement that she tries to treat all employees the same way in respect of claims for meal expenses; 17 viii.The grievor testified that Mr. Brian Lemire, a former District Manager of the Windsor Office in the late 1990?s, led him to understand that if he was more than twenty-four kilometres (24 kms.) away from headquarters on government business, he could claim $9.25 for lunch even if no money was spent on a meal. Ms. Cragg gave contrary evidence. She recalled that Mr. Lemire?s application of the policy, when he was her Manager, was consistent with how she applied the policy as District Manager. I note that the Union did not call Mr. Lemire to confirm the grievor?s understanding of the practice; ix.In summary, I accept that Ms. Cragg, as District Manager, was entitled to question the grievor?s meal claims associated with his work at Precision Plastics and Omstead Foods and to ultimately deny same. I note that no grievance was filed at the time she did so; and x.My interpretation of the policy on meal expenses is consistent with the decision in Tratnyek. BACKGROUND RELATING TO THE SECOND INDEPENDENT MEDICAL EXAMINATION [30] As indicated above, the Memorandum of Settlement dated June 7, 2002 outlined a process to facilitate an independent medical examination. Consistent with its terms, the grievor was subsequently asked to sign a Consent which read as follows: ? CONSENT I, Terry Waraich hereby authorize Judy Cragg/or designee to release to Manulife Financials? Early Intervention Specialist my name, address and telephone number as well as information regarding my work restrictions, job duties and other work related data. The information will be used by Manulife Financials? Early Intervention Specialist to contact me directly in order to facilitate referral to the most appropriate examination/evaluation and to manage the information resulting from the Examination. The information provided by Manulife Financial to the Employer will be limited to prognosis, abilities and restrictions as they relate to job duties. ???????????????????????.? [31] The grievor testified that he initially refused to sign the Consent as Ms. Cragg refused to show him what she was releasing to Manulife. It was his evidence she told him that he could see the material only after he signed the document. The grievor stated that a few days later on October 24, 2002, during a training session, Ms. Cragg yelled across the room, in an angry tone of voice, that there was a release on his desk 18 that needed to be signed. The grievor stated that he felt ?very insulted by this? and that he was being ?pressured all the time?. The grievor did, in fact, sign the Consent later that day. He added the following wording to the Consent form: ?As per Grievance Settlement? and ?Please refer to the Settlement Letter for details.? [32] Ms. Cragg stated that the grievor had to sign the Consent so that she could properly release information to Manulife Financials? Early Intervention Specialist, Ms. Elizabeth Brown, in order for the latter to facilitate a referral to the most appropriate specialist. She observed that the selection was made more difficult as the grievor had experienced physical injuries in the past and was then on a stress related accommodation. Ms. Cragg reiterated that this was her first involvement in this type of process and, as a consequence, was uncertain about the nature and extent of documents that should be provided. Ms. Cragg spoke to Ms. Brown for purposes of getting some clarification or guidance on this point. She testified that Ms. Brown asked for information relating to work history, WSIB claims, Doctors? notes and anything else that would assist her in making an informed referral. In this regard, it was Ms. Cragg?s evidence that Ms. Brown asked her to provide as much data as she could. I accept that there is nothing in Ms. Cragg?s notes documenting this type of comprehensive request on the part of Ms. Brown. [33] Ms. Cragg subsequently forwarded a number of documents to Ms. Brown. The documents are all found at Tab 7 of exhibit #5. They included the letter and materials that had been previously prepared for Dr. Prakash. Ms. Cragg asserted it was her belief, at the time, that Ms. Brown would only use the documents to determine an appropriate physician to conduct the independent medical examination. She maintained she was not aware Ms. Brown would subsequently send all of the material to the examining specialist. Indeed, it was her evidence that she did not know what was sent to Dr. A. Rosenbluth, the physician ultimately selected to conduct the independent medical examination. Ms. Cragg asserted that she did not intend to prejudice or distort the examination when she forwarded the information to Ms. Brown. She also denied that she yelled at the grievor on the day he signed the Consent form. 19 [34] My findings with respect to the above are as follows: i.Given the conflict in the evidence, it is impossible for me to determine whether Ms. Cragg yelled at the grievor on October 24, 2002, as claimed; ii.I accept Ms. Cragg?s statement that, at the time, she simply thought Ms. Brown required the information for purposes of arranging the most appropriate referral. That is consistent with the wording found in the Consent. I think, however, that Ms. Cragg should have anticipated there was a real likelihood that the material would later be forwarded to the specialist selected. I note that she assisted in the preparation of much of the material when it was originally intended for Dr. Prakash. Clearly, it was the type of information that an examining specialist would require to complete a thorough assessment; iii.For the reasons expressed earlier, I am inclined to conclude that the information provided to Ms. Brown, and particularly the letter to Dr. Prakash of May 31, 2002, was relevant work related data. Again, I do not think it was necessary for Ms. Cragg to reference the harassment or discrimination concerns. I repeat, however, that I find it unlikely the information conveyed would taint or adversely affect an independent medical examination conducted by a trained specialist. On the evidence, it does not seem that it had this effect on Dr. Rosenbluth, on my reading of his report as found at Tab 5 of exhibit #5. INDEPENDENT MEDICAL EXAMINATION SCHEDULED FOR DECEMBER 2, 2002 [35] An independent medical examination was ultimately scheduled with Dr. Rosenbluth, a psychiatrist, for Monday, December 2, 2002 at 1:30 p.m. in Toronto. The grievor left for Toronto by car from his Windsor residence at approximately 7:00 a.m. that day. Unfortunately, there was a heavy snow storm nd on December 2 and the roads, as a consequence, were in poor condition. The grievor testified that he called Ms. Cragg one (1) or two (2) times during the early part of the drive to inform her about the road conditions. It was his further evidence Ms. Cragg called him when he was near London to advise that she had contacted Hamilton and Toronto about road conditions and that she wanted him to keep going. The grievor did, in fact, continue and arrived in Toronto at approximately 2:30 p.m., after some seven (7) hours on the road. Needless to say, he was late for the appointment. The grievor was able to briefly speak with Dr. Rosenbluth but, because he was late and the doctor had another appointment, he was told that the medical examination would have to be rescheduled. The grievor went to his son?s home after 20 leaving Dr. Rosenbluth?s office. At some point, he decided to stay the night in Toronto rather than travel back to Windsor that evening. [36] The grievor stated that he left Toronto for the return trip to Windsor at about 8:30 a.m. on Tuesday, December 3, 2002. It was his evidence that he stopped in Chatham to have lunch at approximately 12:00 noon and that he called Ms. Cragg from there. He advised that Ms. Cragg had earlier tried to reach him on his cell phone but that the call was disconnected for some reason. During their conversation, which I took to be brief, Ms. Cragg told him she had contacted his wife at their home in an effort to determine his whereabouts. The grievor testified that he arrived back in the Windsor District Office between 1:15 p.m. and 1:30 p.m. He subsequently had a conversation with Ms. Cragg in her office. He stated that she wanted to know why his travel that day had taken five (5) to six (6) hours. The grievor indicated he replied that four (4) hours and fifteen (15) minutes were taken up by travel and forty-five (45) minutes were spent having lunch. The grievor claimed that Ms. Cragg?s response was ?not polite?. He formed the impression that she did not believe he had been in the office for some forty- five (45) minutes prior to their discussion. It was the substance of the grievor?s evidence that no other Manager had ever questioned his travel time in this fashion. Similarly, he asserted that Ms. Cragg did not question other Inspectors in this way about their travel. The grievor acknowledged, in cross- examination, that he was not privy to Ms. Cragg?s conversations with other Inspectors on this subject. The grievor also noted that no other Manager had previously called his home as Ms. Cragg did on rd December 3. [37] Ms. Knight testified that Ms. Cragg told her the grievor had to attend the medical examination scheduled and that he would be disciplined if he failed to attend. It was her evidence that Ms. Cragg seemed ?almost gleeful? that the grievor could be subject to discipline. Ms. Knight maintained that Ms. Cragg did not express any concern for the grievor?s safety on December 2, 2002. She suggested that the District Manager?s real concern was to ensure he ultimately got to Toronto for the independent medical 21 examination. Lastly, with respect to the grievor?s telephone call to Ms. Cragg from Chatham on December 3, 2002, Ms. Knight stated that Ms. Cragg suggested the grievor used a pay phone, rather than his cell phone, so she would not be able to trace where the call was made from. Ms. Knight advised that she had never heard Ms. Cragg accuse other employees of lying about their whereabouts. [38] Ms. Cragg testified that the grievor left her a voice-mail message on the evening of Sunday, December 1, 2002 to advise that he would be leaving for Toronto on the following morning at about 7:30 a.m. and that he would call her once he returned home. Her notes for the following day indicate that Ms. Knight spoke to the grievor at 9:30 a.m. and that he told her it had taken him two (2) hours to reach Ridgetown due to the poor condition of the roads. Shortly thereafter, Ms. Cragg contacted Ms. Brown, the Early Intervention Specialist, and learned that travel was good between Hamilton and Toronto. She also learned, through a call to another Ministry employee, that road conditions were good east of London and, more particularly, between Paris and Hamilton. Ms. Cragg could not recall if she spoke to the grievor when he called into the office at 10:30 a.m. that morning. It was her evidence that if she did so, she would have informed him that the weather and road conditions were better up ahead. Ms. Cragg asserted that, if conditions were not better, she would not have expected the grievor to continue on the highway towards Toronto. Instead, she would likely have instructed him to stay where he was and to cancel the appointment. Ms. Cragg claimed that she did not generally expect employees to drive if conditions were hazardous. She further claimed that she would never have given the grievor a direction to continue driving regardless of the existing weather conditions.Contrary to the evidence of the grievor and Ms. Knight, Ms. Cragg stated that she did not believe she told the grievor to continue the drive to Toronto. [39] Ms. Cragg stated that she assumed the grievor reached Toronto in time for the scheduled 1:30 p.m. appointment. She noted that he never contacted her to indicate he was running late and would, 22 therefore, be unable to make the appointment at the scheduled time. Ms. Cragg testified that she fully expected to see the grievor back in the office on the following morning. [40] Ms. Cragg indicated that she spoke to Ms. Brown at 10:05 a.m. on December 3, 2002. Ms. Brown advised her that the grievor had shown up late for the appointment and that Dr. Rosenbluth could not meet with him as a consequence. Ms. Brown further advised Ms. Cragg that the grievor had not contacted her, even though he had her phone number, to say that he could not make the appointment on time. It was the thrust of Ms. Cragg?s evidence that this communication caused her some concern as she had no information as to the grievor?s whereabouts. Ms. Cragg stated that she subsequently tried to contact the grievor through his cell phone at 11:58 a.m. but was unable to connect. She then elected to contact the grievor?s home number. On reaching the grievor?s wife, she was told that the grievor had elected to spend the night in Toronto. Ms. Cragg then left a voice-mail message on the grievor?s business line stating that she had no idea where he was and asking for clarification about what he was doing. Ms. Cragg testified that she asked Ms. Knight and other support staff if they knew where the grievor was and that no one could provide her with an answer. Ms. Cragg maintained that she was, in fact, concerned about the grievor at the time and that such concern led her to take the above-described initiatives. [41] Ms. Cragg confirmed that the grievor called her from Chatham via a payphone. She denied telling Ms. Knight that the grievor likely used the payphone to ensure the location of the call could not be traced. Ms. Cragg advised that she later met with the grievor at about 2:10 p.m. It was her evidence that she was relieved the grievor was fine but was upset over his failure to contact her in a timely manner. Ms. Cragg considered that the grievor had been irresponsible in this regard. She noted that the grievor nd explained he did not call her on December 2, as he was ?extremely drained?. [42] My findings on this aspect of the case are as follows: 23 i.A substantial amount of evidence was presented relating to the grievor?s trip to and from the aborted independent medical examination. Generally, I do not find that the evidence supports the allegations advanced by the grievor; ii.I do not think that the grievor deliberately delayed getting to the appointment in Toronto. I am satisfied that he failed to get there at the scheduled time solely because of the road and weather conditions; iii.I have not been persuaded that Ms. Cragg instructed the grievor on December nd 2 to continue on with the drive to Toronto regardless of the weather and road conditions. I consider it more likely that she told him conditions were better ahead on the basis of information received from Ms. Brown and the other Ministry employee. In the circumstances, I accept that it made more sense for the grievor to continue on his drive to Toronto rather than to stop or turn around; iv.It was the grievor?s evidence that he could not recall if he called either Ms. Cragg or Ms. Brown to advise he was late and could not get to the appointment on time. After assessing all of the testimony, I conclude that he did not inform either of them of these facts; v.Given all of the circumstances, I cannot fault the grievor for deciding to nd spend the night in Toronto on December 2. He had spent seven (7) hours on the road in poor conditions earlier that day. I think he could reasonably assume that he would be taking a risk going back on the highway that night. At a minimum, however, I accept that the grievor should have left a message at the Windsor District Office to advise of his decision. Such a communication would have eliminated most, if not all, of the concern and uncertainly experienced on the following day; vi.It is apparent that up until 12 noon on December 3, 2002, the grievor had not informed Ms. Cragg of his whereabouts and the fact he had decided to stay over in Toronto on the prior evening.Given this lack of communication, and nd the poor weather and road conditions experienced on December 2, I think it more likely than not that Ms. Cragg was genuinely concerned about the grievor. On this point, I prefer Ms. Cragg?s direct evidence over Ms. Knight?s impression as to her District Manager?s lack of any concern. I find that Ms. Cragg?s concern is evidenced by the steps she took during the rd morning of December 3 to track down the grievor?s whereabouts. In this regard, I do not find that her call to the grievor?s home amounted to discrimination, harassment or that it constituted differential treatment. I am satisfied that she elected to make the call as neither she or any other employee had any information where the grievor was at that juncture; vii.I was given no reason to conclude that the grievor was not in Chatham, as claimed, when he called Ms. Cragg. Given the conflict in the evidence, it is impossible to conclude whether Ms. Cragg did or did not suggest to Ms. Knight that a payphone was used in order to avoid any tracing of the call; 24 viii.I am satisfied that Ms. Cragg, as District Manager, could legitimately be rd annoyed on December 3 at the lack of communication received from the nd grievor. More specifically, the grievor had not called on December 2 to inform her that he had missed the appointment and that it had to be rescheduled. Additionally, he had not informed her of his whereabouts on rd December 3. I accept that Ms. Cragg could properly raise this failure to effectively communicate when she spoke to the grievor after his return to the office. I also accept that she was entitled to raise the issue of travel time, although I am inclined to doubt that this was the focus of their exchange; ix.I have not been persuaded that Ms. Cragg was motivated to act as she did on ndrd December 2 and December 3because she did not believe the grievor was entitled to an accommodation. Rather, I am more inclined to think that she was anxious to obtain some final resolve to a long standing issue, this being whether there remained a need for some continuing accommodation and, if so, the nature and extent of same; and x.As mentioned above, Ms. Knight testified that Ms. Cragg, in substance, was looking forward to imposing some discipline on the grievor. On my assessment, this evidence reflected her impression and perception as to Ms. Cragg?s intent. I consider it material that Ms. Cragg did not in fact impose any discipline, or any other work- related sanction, on the grievor in this instance. INDEPENDENT MEDICAL EXAMINATION SCHEDULED FOR JANUARY 9, 2003 [43] A second appointment with Dr. Rosenbluth for the independent medical examination was scheduled for January 9, 2003 in Toronto. Ms. Knight testified that Ms. Cragg had her arrange for the purchase of a train ticket for the grievor?s travel to Toronto and that Ms. Cragg informed her that she did not want a repeat of what had occurred in December 2002. Ms. Knight claimed that Ms. Cragg wanted her to purchase a first class ticket so that the grievor would not have to claim a meal on his expense account. She stated that Ms. Cragg insisted that the cost of the ticket be put on the office?s purchasing card. Ms. Knight, in her evidence, asserted that this did not reflect the normal process and was, in fact, contrary to policy. She maintained that employees were required to use their own government assigned Amex Card to cover costs of this nature. Ms. Knight advised that this failure to comply with policy was the subject of some adverse comment in a subsequent internal audit conducted at the Windsor District Office. 25 [44] Ms. Cragg noted that the purchasing card was under the control of Ms. Knight and that it was customarily used to cover the cost of office expenses. Ms. Cragg asserted that it made sense to use the card for this purpose for three (3) reasons. First, the second medical examination was to be conducted in downtown Toronto. Second, she wanted to avoid any potential problems associated with bad weather and, third, she was the person asking the grievor to go by train. Ms. Cragg could not recall that Ms. Knight expressed any opposition to the use of the purchase card for this purpose. She also testified that she spoke to the grievor about taking the train and that he was prepared to travel in that manner. Ms. Cragg advised that she was not involved in any audit or post compliance review on this subject, as she had left her position at the time it may have occurred. [45] I have not been persuaded that anything turns on Ms. Cragg?s decision to have the grievor travel by train to the medical examination of January 9, 2003 and to expense same through the use of the purchase card. On her evidence, the grievor agreed to travel by train. It would appear that her approach to the travel served to benefit, rather than disadvantage, the grievor. [46] The grievor testified that the independent medical examination of January 9, 2003 lasted for approximately two (2) hours. He stated that he was ?shocked? when Dr. Rosenbluth asked him a question relating to his relationship with his Manager. The grievor stated he told the doctor that he did not wish to address the subject, as to do so would be unprofessional and it was not the reason why he was at the appointment. It was the grievor?s evidence that Dr. Rosenbluth then pulled out ?a thick bundle of papers? and said it was okay to discuss the aforementioned issue as he had been given all of the related information. The grievor advised that he had not previously been given the documentation, which had been forwarded to Dr. Rosenbluth, in advance of the appointment and that he did not review the bundle after it was initially produced. The grievor recalled that Dr. Rosenbluth next proceeded to ask him a few more questions as to his relationship with his Supervisor and as to whether he had made complaints about being harassed or discriminated against. 26 [47] As mentioned previously, the Memorandum of Settlement dated June 7, 2002 obligated the Employer to provide the grievor with the questions being asked of the medical practitioner ten (10) calendar days in advance of the scheduled appointment. The grievor testified that the questions addressed to Dr. Rosenbluth were never, in fact, provided to him. In response, it was Ms. Cragg?s evidence that the grievor never asked for the questions or raised any concern about not getting them. Ms. Cragg noted that the questions were the same ones as contained in the earlier letter to Dr. Prakash of May 31, 2002. She suggested that the grievor did receive the package containing that letter in early June 2002. The evidence is very unclear on this point. Ultimately, I am unable to find that the grievor did receive and/or review the questions initially prepared for Dr. Prakash. Similarly, I have not been satisfied that he received a copy of the questions Dr. Rosenbluth was asked to address within ten (10) calendar days of January 9, 2003. In my judgment, the Employer contravened the terms of the Settlement by its failure to do so. The effective obligation was on the Employer to provide the information. It was not the grievor?s responsibility thereunder to ask for same. REPORT FROM THE INDEPENDENT MEDICAL EXAMINATION [48] A summary of the results of the independent medical examination conducted by Dr. Rosenbluth was forwarded to Ms. Cragg by Ms. Brown on January 27, 2003 in accordance with the terms of the Memorandum of Settlement of June 7, 2002. The material passages read: ????????????????????????? The degree of impairment is such that the employee is considered capable of the duties of the job as described with temporary limitations in regard to attendance at critical/fatal accident investigations. ????????????????????????. Other recommendation: Treatment recommendations were made by the I.M.E. Physician. If followed, Mr. Waraich is anticipated to be capable of participating in critical/fatal accident investigations. Recommend that a copy of the I.M.E. report be released to Mr. Waraich?s treating physician in order that the treatment recommendations may be considered for implementation. A total of 10 to 15 treatment sessions would be required. Approximately half way through the treatment program, Mr. Waraich would be considered capable of attending 27 critical/fatal accident investigations with a coworker and following a few of these, attend these types of investigations on his own. ????????????????????????..? A full copy of Dr. Rosenbluth?s report was forwarded to Dr. Chawla, the grievor?s family doctor, by the end of January 2003. [49] The grievor did not ultimately meet with Dr. Chawla to address the results of the independent medical examination until mid-May 2003. The sequence of events leading up to that appointment may be summarized as follows: i.Ms. Cragg and Ms. Janice Morrow, from the Employer?s Human Resources Department, met with the grievor on February 28, 2003. Ms. Morrow asked the grievor at that time to contact his doctor for purposes of discussing the independent medical examination. It was understood that the grievor was to contact Ms. Cragg by March 5, 2003 to advise her of the date of the appointment with Dr. Chawla; ii.By e-mail of March 6, 2003, the grievor advised Ms. Cragg and Ms. Morrow that he was unable to get an appointment with Dr. Chawla given the latter?s busy schedule. He further advised that his doctor?s office would soon schedule the appointment. In the e-mail, the grievor asked for a copy of ?the findings of Ms. Elisabeth Brown, Early Intervention Specialist? and for copies of ?the correspondence sent to Manulife by Judy, which in turn (Manulife) sent the same to the Medical Assessment Examiner?. The grievor then listed a number of documents captured by the latter request; iii.By e-mail of March 20, 2003, Ms. Cragg confirmed with the grievor that she had also asked him to make an appointment with his doctor at a meeting held on March 7, 2003. Ms. Cragg noted therein that she had not been informed of a date for the appointment; iv.By e-mail of March 21, 2003 at 8:14 a.m., the grievor documented that he had not th yet received the information referenced in his earlier e-mail of March 6. He repeated his request for a copy of ?the findings of Ms. Elizabeth Brown? and stated that, as soon as he was given same, he would take them to his doctor; v.Ms. Cragg responded by e-mail on the same day at 4:18 p.m. Ms. Cragg advised the grievor that Ms. Morrow would be forwarding the documents to him. She further advised that it was important for the grievor to follow up with his doctor to get an appointment ?as soon as possible?. Ms. Cragg noted that the grievor?s doctor had already been provided with ?all the necessary documents? and that ten (10) weeks had elapsed since Dr. Rosenbluth?s examination and seven (7) weeks since his report was sent to Dr. Chawla; 28 vi.By e-mail of March 24, 2003, the grievor reiterated that he still had not received th the documents listed in his e-mail of March 6 and that he required same for purposes of meeting with his doctor. The e-mail contains the following statement: ?I have requested a photocopy of the documents listed, many times to no avail. You continue to ask me to go to my doctor, but without the needed information contained in the report of the Early Intervention Specialist of Manulife, Ms. Brown. ????????????????????????. When can I expect to receive the documents requested. If I again do not receive an answer, I will consider this to be refusal, denying me personal information regarding my personal health and well being. ????????????????????????? vii. Ms. Cragg sent the following letter dated April 7, 2003 to the grievor: ?Further to my email of March 20, 2003, I understand that the Independent Medical assessment was forwarded to your physician on January 31, 2003 and that a treatment plan was identified and/or recommended by the IME doctor. You were advised by Elizabeth Brown, Early Intervention Specialist, to contact your physician to review this assessment, providing me with dates the treatment is to begin, the midpoint of treatment, and the end date of treatment, in order for me to co-ordinate staffing and to plan a return to work accommodation plan. I am also aware that you left messages for Elizabeth Brown advising that your doctor had not yet received the report by February 6 and you followed up with a letter, which you faxed to her. th We met on February 28 to determine if you had met with your doctor following the IME report having being received. You implied that as of that date, you had not met with your doctor to discuss the IME report. You then agreed to contact your th physician by Wednesday March 5 and advise me of the date of an appointment with your physician, however I did not receive any information by that date. You were thth again requested to provide an update at our meeting on March 7. On March 6 you forwarded a letter to me that provided a different understanding of the meeting of February 28. th For clarification, the following was discussed on February 28. th 1)you were advised on Feb. 28 that Elizabeth Brown was no longer a part of the process, 2)you were to meet with your physician to review and discuss the IME report and treatment, and th 3)you were to provide to me by March 5, the date of your appointment with the physician Once you had scheduled an appointment with your physician you were to advise me of the date so that we could provide you with a letter to assist your physician in providing us with specific information in order to develop an accommodation plan. 29 Employees are responsible to participate in the accommodation planning process and to provide the health information. While I have provided multiple opportunities for you to provide the requested information, it appears that you are not taking the process seriously. I would greatly appreciate it if you could immediately comply with the following: 1)Set the appointment with the physician to review the IME information and treatment plan, 2)advise me of the date this is scheduled 3)take to the physician the letter and information that we will provide you once you advise of the appointment date. 4)request and provide us with a note from your physician regarding treatment updates so that appropriate accommodation can be made-dates and times absent for treatment, mid treatment dates, a note to advise when you can return to additional duties with assistance, and when you are able to return to full duties. After the medical consultation, you will be given appropriate support that includes full consideration of any employment accommodation that may be recommended by your medical practitioner. Any charges for providing health information should be invoiced to my attention. When I receive this information, you and I will develop a plan to respond to your needs. If you have any questions about this request, please contact me. Failure to provide me with the requested information by April 18, 2003 will leave me with no alternative but to consider other action to obtain the necessary information. If you are unable to schedule an appointment with your physician prior to the above date, please advise of the date you have scheduled. I look forward to working with you in developing a return to work accommodation plan in which you will be able to perform 100% of the functions of an inspector.? viii.By email of April 9, 2003, Ms. Cragg advised the grievor that he would receive the requested information ?as soon as possible?. She further observed therein that his doctor already had the information; ix.While the evidence is not entirely clear, it seems as if the grievor likely received the requested information shortly after this last e-mail; x.Ms. Cragg subsequently received a medical note from Dr. Chawla indicating the grievor was to be off work from April 21 to May 5, 2003; xi.It was the thrust of the grievor?s evidence that he wanted to see the documents which had been provided to Dr. Rosenbluth before developing a treatment plan with Dr. Chawla. He stated in this regard: ?I wanted to have everything to get the best treatment and I wanted to be fully functional?; 30 xii.Ms. Cragg testified that, after receiving the summary from Ms. Brown in January 2003, she was happy that the grievor would be able to return to full duties after a number of treatment sessions. She clearly became frustrated and irritated by the delay in the accommodation process and, more specifically, by the grievor?s failure to schedule a timely appointment with Dr. Chawla. Ms. Cragg denied the suggestion that she wanted the grievor out of his position as an Occupational Health and Safety Inspector. As stated above, she hoped he would be able to return to full duties. Ms. Cragg indicated, however, that she was prepared to look at other suitable positions should the grievor be unable to do so. [50] My findings relating to what transpired in the above period are as follows: i.It is readily apparent that the grievor did not fully understand Ms. Brown?s role. He incorrectly believed that she made findings related to his medical condition. Clearly, she did not. All of the pertinent findings were made by Dr. Rosenbluth following the independent medical examination of January 9, 2003. Ms. Brown?s involvement related to the selection of an appropriate specialist and to the subsequent provision of appropriate information to the Employer. I note that everything Ms. Brown forwarded to Ms. Cragg concerning the medical examination was included in Dr. Rosenbluth?s report. Without doubt, the grievor?s misunderstanding of her role, and the nature of the material she provided to the Employer, led to a significant delay in the implementation of the recommendations flowing from the independent medical examination; ii.I accept that the grievor deliberately delayed the scheduling of an appointment with Dr. Chawla, despite Ms. Cragg?s repeated requests that he do so. On his evidence, it seems likely that he attended Dr. Chawla?s office between the release of Dr. Rosenbluth?s report and his e-mail to Ms. Cragg of March 6, 2003, and that they did not then address the recommendations contained in the independent medical examination. I find it difficult to accept the statement contained in the grievor?s e-mail that his doctor was too busy to schedule an appointment for him at the time. I think it likely that an appointment could have been scheduled in early March 2003 even if for a date some weeks or months into the future. The grievor?s ability to obtain a medical note from Dr. Chawla, excusing him from work between April 21 and May 5, 2003, suggests that he had no difficulty obtaining an appointment for that purpose; iii.I can readily understand Ms. Cragg?s frustration with the process. She reasonably believed that the treatment sessions could likely have been substantially concluded by late March 2003. The sessions, however, had not even commenced given the grievor?s refusal to schedule the necessary appointment with his doctor. I note her evidence that the documents requested by the grievor were already in Dr. Chawla?s possession. Even if they were not, he had Dr. Rosenbluth?s full report as of the end of January 2003. I am satisfied that sufficient information was available to both the grievor and his doctor to permit for an informed discussion of the results of the independent medical examination. If that 31 discussion had occurred, and there was a real need for additional information, then a more focused request would have been appropriate; iv.I reject the allegation that Ms. Cragg?s requests by way of e-mail or meetings amounted to harassment. Rather, I consider that the requests to schedule an appointment were reasonable in the circumstances and simply reflected a legitimate interest on the part of the District Manager to get the grievor back to work on full duties. Similarly, I do not share the grievor?s perception that the letter of April 7, 2003 was ?threatening?. While the letter reflects Ms. Cragg?s frustration with the slow pace of the process, it also demonstrates her willingness to accommodate the grievor further should that be necessary. In my judgment, the letter of April 7th does not constitute harassment or discrimination. Rather, it was an appropriate communication by Ms. Cragg given the delay by the grievor in scheduling the requested appointment. In this regard, I cannot fault Ms. Cragg for establishing a deadline of April 18, 2003. I note Ms. Cragg?s evidence that the process with the grievor was different from what she had experienced with other employees. It was her recollection that other Inspectors provided any necessary information without the need for prodding on her part; v.I note that the grievor was not disciplined in this period for failing to follow-up on the recommendations contained in the independent medical examination. Throughout this period, he was also kept on modified duties at his full salary rate; and vi.Notwithstanding all of the above, I think that the Employer could have responded more quickly to the grievor?s request for information. Had that been done, it is likely that the length of the delay would have been reduced. On balance, however, I find that the grievor, through his failure to act, was primarily responsible for the delay in the accommodation process. REQUEST FOR DOCUMENTS [51] The flow of e-mails relating to this issue may be summarized as follows: i.By e-mail of March 6, 2003 to Ms. Cragg, the grievor asked to see his personal file maintained in the Windsor District Office; ii.By e-mail of March 7, 2003, Ms. Cragg responded that she would check with Ms. Morrow and advised the grievor that the Corporate file was kept in London and not Windsor; iii.By e-mail of March 20, 2003, the grievor asked Ms. Cragg to advise him in writing when he could see his personal file kept in her office; iv.By e-mail of March 21, 2003 at 4:07 p.m., Ms. Cragg informed the grievor that the personnel file and the Human Resources file were in London and that if he wanted to see it, she would arrange for Ms. Morrow to bring the file to Windsor for his review; 32 v.By e-mail of the same day at 4:11 p.m., the grievor asked Ms. Cragg to go ahead and make the necessary arrangements, as he wanted to review his file ?ASAP?; vi.By e-mail of April 9, 2003, Ms. Cragg advised the grievor that Ms. Morow would be in the office ?on Friday afternoon? and would meet with him about his Human Resources file; and vii.By e-mail of April 10, 2003, the grievor asked Ms. Cragg to ensure that she got all of his files for his review, including files kept in the Windsor office. [52] It was the grievor?s evidence that Ms. Cragg kept a file on him in her office which contained a lot of information about his employment, including attendance and vacation data, letters of commendation, letters from the Manager and letters Ms. Cragg had written about him. The grievor testified that he did meet with Ms. Morrow and that he was provided with an opportunity to review the file maintained in the London Office. He was not, however, shown the file kept by Ms. Cragg in the Windsor District Office. [53] Ms. Knight similarly testified that Ms. Cragg maintained a file in her office relating to the grievor. She described the file as ?quite large? and advised that it contained doctors? notes, WSIB documents, accommodation related material, and grievances filed by the grievor. Ms. Knight acknowledged that Ms. Cragg kept similar files for other employees. [54] Ms. Cragg stated that she kept a file on all of the employees she supervised, including the grievor. She stated that the file contained a variety of documents including the following: doctors? notes, WSIB forms, e-mails, statistics on the number of inspections performed, information used for appraisal purposes, commendations, letters of complaint and her handwritten notes. Ms. Cragg stressed that her personal file was not the formal personnel file and that the latter file, which included all original documentation, was maintained in the London Office by Human Resources staff. Ms. Cragg advised that files, similar to hers, were kept by other District Managers prior to her assuming that position in Windsor. She further advised that she left her files in the office for the benefit of the manager who replaced her. 33 [55] Ms. Cragg testified that she was prepared to provide the grievor with access to his personnel file kept in London, but not to the file she maintained in her office. She stated that employees were not given access to the files she kept in the Windsor office. Indeed, she could not recall any other employee having asked to review such a file. Ms. Cragg asserted that her approach to this issue relating to disclosure was consistent with that taken by Human Resources staff. Ms. Cragg was unable to recall if there was anything in her file that she did not want the grievor to see. [56] Mr. Mundy stated he was aware that Managers kept files on employees in their office. He advised that he has done so, and continues to do so, for ?quick and ready reference?. Mr. Mundy indicated that files of this nature were present in the Windsor District Office when he took over from Ms. Cragg in August 2003. He noted that there were files for other employees, and not just one relating to the grievor. Mr. Mundy, like Ms. Cragg, testified that personnel, or Corporate, files are maintained in London by the Ministry?s Human Resources staff. [57] By way of an e-mail of February 12, 2004, the grievor made a request to Mr. Mundy to see the personnel file kept in the Manager?s office in Windsor. Mr. Mundy denied the request by e-mail of February 23, 2004. He advised the grievor therein that he had already had the opportunity to review all of the records he was entitled to see. Mr. Mundy noted that he consulted with Human Resources prior to providing this response. Mr. Mundy could not recall any other request by an employee to see a file kept in a Manager?s office. [58] My findings with respect to this aspect of the case are as follows: i.The grievor was mistaken in his belief that he was entitled to review the file Ms. Cragg personally maintained in her Windsor office. His entitlement, rather, was to access the personnel file kept in London. As noted above, Ms. Cragg arranged for the grievor to access that file through Ms. Morrow; ii.I consider it material that Mr. Mundy later adopted an approach, consistent with Ms. Cragg?s, when he denied the grievor access to his Windsor file; and 34 iii.I have not been persuaded that Ms. Cragg?s handling of this issue constitutes harassment and/or discrimination. Similarly, I am unable to conclude that the grievor was differentially treated. On the evidence, Ms. Cragg kept a file for all of the other employees she supervised in the Windsor Office. Additionally, there is nothing to indicate that other employees were given access to Ms. Cragg?s personal files. USE OF PROFESSIONAL AND SPECIALIZED SERVICES (PSS) [59] The Employer has a group of professional consultants, including doctors, engineers, occupational hygienists and ergonomists, whose purpose is to provide advice and assistance to Inspectors in the field. These individuals, in appropriate cases, may accompany an Inspector on a site visit. At the time material to this dispute, one (1) engineer, two (2) hygienists and one (1) ergonomist worked out of the Ministry?s London Office. These PSS staff were then responsible for an extensive area of service including Middlesex, Elgin, Essex, Kent, Lambton, Bruce and Perth Counties. [60] A considerable amount of evidence was presented in this case about the use of PSS support. Much of the evidence was focused on three (3) instances where the grievor wished to involve the professional consultants. Two (2) of these instances concerned Daimler Chrysler and another related to Ziebart Tidy Car. A summary of the evidence pertaining to both of these companies, and the related investigations, is set out below. [61] 1. Daimler Chrysler ? Occupational Hygiene Issue i.The grievor attended at the Daimler Chrysler plant in Windsor to investigate a complaint related to the potential exposure of workers to automatic transmission fluid. On the basis of his initial visit to the site, the grievor determined that he needed advice from an occupational hygienist; ii.By e-mail of January 13, 2003 at 7:07 a.m., the grievor informed Ms. Cragg that the company had prepared hygiene study reports through its in-house hygienists. He further advised her that the Union did not trust the reports and sought the intervention of a Ministry hygienist. Daimler Chrysler, apparently, did not oppose the request. The grievor, in the e-mail, asked Ms. Cragg what she would like him to do given the circumstances; iii.By e-mail of January 13, 2003 at 10:48 a.m., Ms. Cragg suggested to the grievor that the company?s hygiene study reports could first be reviewed by PSS staff and if they 35 had any concerns from such review, a visit to the site could be arranged. The e-mail was copied to Mr. Wayne De L?Orme and Ms. Bonnie Suhr, who I understand were Managers of PSS personnel in London. Ms. Cragg asked them if her suggested approach was reasonable; iv.By e-mail of January 13, 2003 at 10:59 a.m., Ms. Suhr advised Ms. Cragg that the Daimler Chrysler hygiene report could be forwarded to PSS for review. She indicated that a PSS hygienist would attend at the workplace if the above-mentioned review suggested such a visit was necessary. Ms. Suhr also wanted the grievor to clarify why the company wanted the visit; v.By e-mail of January 13, 2003 at 11:17 a.m., Mr. De L?Orme told Ms. Cragg that, given the extent of Daimler Chrysler?s resources relating to health and safety, it did not seem reasonable for the Ministry to expend its ?precious resources? by visiting the site prior to trying to resolve the issue through other means. Mr. De L?Orme, like Ms. Suhr, agreed that the company reports should first be reviewed. He noted that, in the event of deficiencies, the grievor could order that any problems be corrected. Mr. De L?Orme also observed that if, ultimately, there was a need to go to the plant to conduct testing, PSS would at least be more focused vis a vis the precise problem to be addressed; vi.By e-mail of January 13, 2003 at 11:57 a.m., Ms. Cragg asked the grievor to obtain a copy of the company?s report. She advised him that the fact the Union did not trust the report, and demanded Ministry intervention, did not warrant having a PSS hygienist come to Windsor at that time. Ms. Cragg suggested that the Daimler Chrysler report be sent to Mr. Ram Kaushal, a Ministry hygienist, for his assessment. She stated that Mr. Kaushal could then determine whether he needed to attend at the Daimler Chrysler facility. The grievor subsequently forwarded all of the relevant reports to Mr. Kaushal; vii.By e-mail of January 20, 2003, Mr. Kaushal confirmed with Ms. Cragg that he had received all of the information forwarded to him by the grievor. He requested that additional medical information be obtained from the worker, the Union and the company. Mr. Kaushal stated that this material would be forwarded to Dr. Wong, a PSS doctor, for purposes of addressing the issue ?in totality?. The grievor subsequently agreed to secure the additional information sought; and viii.On the evidence, it appears that the grievor and Mr. Kaushal visited the Daimler Chrysler facility on February 20, 2003. Orders were later issued to the company as a consequence of the visit. [62] 2. Daimler Chrysler ? Engineering Issues i.On the evidence, it seems that Mr. Ron Kennedy, a PSS engineer, was asked by both the Union and the company to attend a meeting scheduled for January 28, 2003. It is my understanding that representatives of Glos Engineering were also to attend the meeting and that certain engineering issues were to be addressed at that time; 36 ii.By e-mail of January 23, 2003 at 10:01 a.m., Mr. Kennedy informed Ms. Cragg that th both of the workplace parties wanted him to attend the meeting on January 28. He advised Ms. Cragg that he had heard there was some ?controversy? between her and an Inspector about his involvement and if engineering services were really required in the Windsor District. Mr. Kennedy advised Ms. Cragg he had told Glos Engineering that he would have to wait for her direction as to how to proceed; iii.By e-mail of January 23, 2003 at 10:07 a.m., Ms. Cragg told Mr. Kennedy that, in her opinion, the Ministry should not attend all meetings between Daimler Chrysler and its Union. Rather, the Ministry should strive to promote the internal responsibility system. Ms. Cragg noted that Daimler Chrysler had the resources to do its own testing and engineering and that if a problem remained following the company?s preparation of a report, then the report could be reviewed by PSS staff and appropriate comments made. Mr. Kennedy responded to this e-mail by telling Ms. Cragg that he would have Daimler Chrysler and Union representatives contact her about the matter; iv.By e-mail of January 23, 2003 at 4:53 p.m., Ms. Cragg advised Mr. Kennedy that she had spoken to Daimler Chrysler?s Manager of Occupational Health and Safety and, after so doing, had no concerns about his attendance at the meeting scheduled for th January 28. Ms. Cragg informed Mr. Kennedy that she did not consider it necessary for the grievor to go to the meeting; th v.The January 28 meeting was subsequently rescheduled to a later date. By e-mail of January 29, 2003, the grievor advised Ms. Cragg that Mr. Kennedy had asked him to accompany him to the meeting and confirmed his understanding that Ms. Cragg had approved that course of action. It was the grievor?s evidence that he did not have Mr. Kennedy request that he be present at the Daimler Chrysler meeting. It is clear that this meeting did in fact occur and that the grievor and Mr. Kennedy attended as the Employer?s representatives. [63] 3. Ziebart Tidy Car i.The grievor conducted an investigation at Ziebart Tidy Car in Windsor. He formed the opinion that there were a number of problems at that workplace and that he required the assistance of a PSS hygienist and engineer; ii.By e-mail of January 29, 2003, the grievor advised Ms. Cragg that he needed PSS assistance to address the undercoating of cars. He informed her there was a potential exposure of workers to ?formula Q Solvent?, a flammable material and further questioned the adequacy of the company?s Spray Booth; iii.The grievor testified that he met with Ms. Cragg on January 31, 2003 and that during the meeting she accused him of ?back-stabbing? her. He stated that Ms. Cragg also told him he was using PSS three (3) times more than the other Inspectors in the Windsor District. The grievor further testified that Ms. Cragg indicated she would send out another Inspector with him on a return visit to Ziebart to determine if his request for PSS support was justified. In the grievor?s words, that type of arrangement was ?unheard of?, as it is the sole responsibility of the investigating Inspector to decide if a joint visit is required. The grievor also claimed that Ms. Cragg referred to 37 the orders he issued on his initial visit to Ziebart as ?Mickey Mouse?. He felt that this comment had the effect of belittling his orders and his report; iv.By e-mail of February 4, 2003 from the grievor to Ms. Cragg, the former recorded his st and documented his understanding of what transpired at the meeting of January 31 concerns related thereto.Ms. Cragg responded to the e-mail by letter of February 6, 2003. The letter states, in part: ????????????????????????.. When I asked you about the Ziebart field visit you told me you issued orders but you did not know the exact number or what kind of orders they were. I said ?generally what kind of orders were they?, your response was ?housekeeping orders, posting report and policy statement?. You never indicated at that time, or during our discussion that you wanted to get a copy of the report ? and you did not quote me any sections of the Act as stated in your e-mail. Regarding Comment #2 ? The orders I referred to as ?Mickey Mouse? were administrative orders ? You responded to a complaint call ? I expected orders would have been issued addressing the concerns of the complaint and any immanent (sic.) danger, not just administrative orders. You are requesting MOL PASS assistance with this workplace. As the District Manager, I have requested more information regarding your findings, which will allow me to assess the need to dispatch additional resources to this issue. To date I have received none. As an example: MSDS sheets for Q-Sealant could be accessed? You state it is a ?flammable liquid? ? Is this accurate? Was the company procedure manual for the spray booth reviewed? Does the company have a procedure for its use? You questioned the adequacy of the engineering aspects of the spray booth ? Did you ask for specifications and/or design of this booth from the employer? You could have left orders to the employer to produce these documents if they were not on hand for your review as per section 54 of the ACT. I need these questions answered BEFORE we involve PASS staff. This was the basis of our discussion involving another inspector accompanying you to re-visit this work site. As I stated to you, if after the second visit with another inspector to gather the requested information there is agreement that PASS is needed, they will be requested. In a subsequent e-mail I told you to contact Rick Taggart (peer Inspector) to set up this re-visit next week (which would be the week of Feb. 3-7). I understand you have not yet done this. ????????????????????????? I feel there are basic questions that have been requested to be answered before seeking the assistance of PASS, a resource that should be reserved for more complex cases. ?????????????????????????? 38 v.The grievor and Mr. Rick Taggart, another Occupational Health and Safety Inspector, visited the Ziebart facilities on February 7, 2003. By e-mail of the same date, Mr. Taggart informed the grievor of his assessment of the situation. He stated the following as his ?Bottom line?: ?I think that the employer could meet all of the requirements of the Occupational Health and Safety Act and answer all relevant questions without the intervention of any engineer or hygienist.? Mr. Taggart?s assessment was copied to Ms. Cragg; vi.By e-mail of February 10, 2003 at 12:04 a.m., the grievor documented for Ms. Cragg the findings flowing from the visit to Ziebart. His e-mail reads, in part: ?Rick proposed to contact the hygienist to ask about the respirator and the engineer about Electrical Safety and Fire Code?. Ms. Cragg formed the opinion that this statement was contrary to the bottom line expressed by Mr. Taggart in his e-mail of February 7, 2003; vii.By e-mail of February 10, 2003 at 4:10 p.m., Ms. Cragg advised the grievor, inter alia, that she did not have any problems with him contacting PSS personnel for clarification or advice. Ms. Cragg observed, however, that she was not sure of the need to have them travel to Windsor for an on-site visit; viii.By e-mail of February 17, 2003, the grievor sent Ms. Cragg a copy of the Ziebart report; ix.By e-mail of March 11, 2003, Ms. Cragg asked the grievor if he had contacted PSS staff and what their opinion was. The e-mail contains the following statement: ?If they see a need based on your discussion with them, that they should attend this workplace then by all means have them come. If on the other hand they can give you advise (sic.) on how to proceed and which order (if any) you should write, and you can do that without them attending, that is fine also.? x.By e-mail of March 12, 2003, the grievor advised Ms. Cragg that he would contact PSS staff ?ASAP? and take the appropriate action; xi.PSS staff and the grievor visited the Ziebart location on April 29, 2003. Orders were issued following the visit; xii.Ms. Cragg testified that the series of e-mails sent to the grievor in respect of this issue were not meant to be punitive. Rather, she questioned the need for employing PSS as Ziebart was a small workplace. Ms. Cragg also stated it was her belief that the orders ultimately issued against Ziebart after the joint visit could have been made when the grievor initially conducted an on-site inspection in January 2003. It was her judgment that Ziebart did not present a high risk or unusual situation. Ms. Cragg stated that while she did not think PSS support was needed in this instance, if the grievor thought otherwise ?that was fine?; and xiii.Ms. Cragg denied that she accused the grievor of ?backstabbing? her during the meeting of January 31, 2003. Lastly, she advised that she sent Mr. Taggart out with the grievor, as the former had previously worked as a licenced mechanic and such 39 expertise would assist in the determination of whether PSS involvement was required in the case of Ziebart. [64] Sections of the Employer?s policy relating to the use of PSS were filed in this proceeding. The policy provides, in part: ?An Inspector may request a visit by specialized staff when the Inspector wishes assistance for the evaluation of health and safety hazards in any of the following areas: medical, hygiene, ergonomics, engineering or radiation hazards ?????????????????????????. When a visit from PSS?.is necessary, the Inspector is to complete the ?Request for Service/Assignment Form and forward the form to PSS??????????????? An Inspector should always request assistance from PSS ?. when a prosecution is anticipated or in a particularly contentious situation. In all other situations the workplace parties should be required to provide such resources. ?????????????????????????? [65] The grievor emphasized there is nothing in the policy relating to PSS that requires an Occupational Health and Safety Inspector to obtain their Manager?s permission to the use of such services. In the grievor?s words, this was only the case during Ms. Cragg?s ?regime?. He asserted that Ms. Cragg was ?overriding? the policy by requiring the request for PSS assistance be sent to her for approval. The grievor testified that he had several concerns about this requirement. First, it was inconsistent with the practice of other District Managers of the Windsor Office both before and after Ms. Cragg occupied the position. It was the thrust of his evidence that Managers such as Mr. De L?Orme, Mr. Brian Lemire, Mr. Mundy and Ms. Mara Conrad did not interfere whenever he wanted to access PSS. Second, the grievor asserted that the process adopted by Ms. Cragg often led to a series of e-mails and consequent delay of up to three (3) to four (4) months in getting approval to utilize a specialist. Third, the grievor asserted that he was treated differently than other Inspectors vis a vis the use of PSS.The grievor testified that he spoke to other Inspectors who told him they simply had to inform Ms. Cragg that a PSS staff member was coming to assist them and that they did not require or seek her advance permission to access the services. He referenced the experience of Ms. Deborah Meyer in this regard. Ms. Knight stated she was aware that other Inspectors had PSS staff come to Windsor without going through, or obtaining prior 40 approval from, Ms. Cragg. She further stated that, as far as she knew, these Inspectors did not experience any adverse consequences for their non-compliance with Ms. Cragg?s practice of requiring her prior approval. Ms. Knight acknowledged that she did not bring these failures to comply to Ms. Cragg?s attention. [66] Ms. Cragg testified that she required Inspectors to complete a form whenever they requested PSS assistance. She observed that an e-mail concerning the creation of the form was sent to all of the Inspectors working out of the Windsor District Office. Similarly, Ms. Cragg noted that she kept track of PSS usage for all Inspectors, not just the grievor. Put another way, she asserted that the requirement for Inspectors to inform her when they required PSS involvement applied to all. Ms. Cragg asserted that she tried very hard ?to treat everyone the same?. [67] My findings relating to the grievor?s requests to access PSS support are as follows: (i) Section 54(1) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 provides, in part: 54(1) An inspector may, for the purposes of carrying out his or her duties and powers under this Act and the regulations, ?????????????????????????.. (f) require in writing an employer to cause any tests described in clause (e) to be conducted or taken, at the expense of the employer, by a person possessing such special, expert or professional knowledge or qualifications as are specified by the inspector and to provide, at the expense of the employer, a report or assessment by that person; ??????????????????????.. (k)require in writing an employer to have equipment, machinery or devices tested, at the expense of the employer, by a professional engineer and to provide, at the expense of the employer, a report bearing the seal and signature of the professional engineer stating that the equipment, machine or device is not likely to endanger a worker; It is clear that the above provisions can be used to require an employer to prepare a report or engage in testing, at its own expense, and that such report or testing may then be reviewed by PSS staff to see if further action, including an onsite visit, is necessary. The evidence discloses that PSS resources, at the material time, were ?spread thin? and that there were costs involved in having PSS personnel come to Windsor for a workplace visit. In my judgment, it was appropriate for Ms. Cragg to suggest to the 41 grievor that he first forward Daimler Chrysler reports to PSS for review prior to a decision being made for a PSS onsite visit. As District Manager, Ms. Cragg was entitled to ensure that limited resources were used effectively. I note that both Mr. De L?Orme and Ms. Suhr agreed with her approach with respect to the hygiene issue at Daimler Chrysler. Mr. De L?Orme was the Manager of the Windsor District Office prior to Ms. Cragg. The grievor testified that he was a good Manager who he respected and got along well with. Mr. Mundy, who the grievor also respected, supported the approach adopted by Ms. Cragg vis a vis the use of PSS. I further note, in this regard, that the grievor acknowledged he was unaware of the demands placed upon PSS resources across the Region. On this point, I also think it relevant that the policy relating to PSS requests specifically contemplates an Inspector requiring the workplace parties to provide the professional resources; (ii) I have not been persuaded that Ms. Cragg?s decision to have Mr. Taggart accompany the grievor back to Ziebart was inappropriate in the circumstances of this case. First, she had concerns about the frequency of the grievor?s use of PSS in comparison to other Inspectors. Second, I accept that Ms. Cragg genuinely believed that Mr. Taggart?s involvement in the Ziebart matter would likely shed light on whether PSS support was warranted at that workplace, in view of his prior experience as a licenced auto mechanic. A review of the documentation indicates that Mr. Taggart did provide some valuable input on that question. In the final analysis, I have not been convinced that Ms. Cragg sent him out with the grievor in order to second guess the latter?s work. Additionally, I am unable to find that Ms. Cragg?s decision was made simply because she was aware the two (2) Inspectors were not on the best of terms; I note Ms. Cragg?s evidence that it was not unheard of for a second Inspector to become involved in a colleague?s file. She stated that it occasionally occurred on fatality investigations. Ms. Cragg similarly advised that Ms. Deborah Meyer was previously asked to become involved in matters relating to hospitals or nursing homes, given her prior experience in the field of nursing. Mr. Mundy also testified that two (2) Inspectors may attend together on a field visit. He stated that he has requested this form of joint visit in the past and that he currently has an Inspector experienced in the area of prescribed burns accompany other Inspectors lacking experience in that operation. Mr. Mundy indicated that this was not simply a case of mentoring a junior Inspector. It was the thrust of Mr. Mundy?s evidence that he supported Ms. Cragg?s decision to involve Mr. Taggart in the Ziebart investigation; (iii) On the evidence, it seems that the grievor himself was the cause for much of the delay which occurred in the Ziebart matter. Clearly, he failed to respond to Ms. Cragg?s e-mail of February 10, 2003 in a timely manner. Indeed, she had to request a status report on March 11, 2003. It was only after that contact that the grievor communicated with PSS. I do not accept the grievor?s suggestion that he felt he did not have anything more to do after his e-mail to Ms. Cragg of February 17, 2003. 42 That e-mail did not reference any contact with PSS or what PSS might have thought about the situation at Ziebart; (iv) The policy relating to the use of PSS does not, on its face, require an Inspector to first have the Manager?s approval in order to access PSS resources. I accept Mr. Mundy?s evidence, however, that a Manager may implement certain workplace rules relating to the use of PSS. Indeed, he testified that most Managers have such rules in place. I am satisfied that Ms. Cragg, as District Manager, was entitled to monitor and manage the use of PSS in the manner she did. I have not been persuaded that Ms. Cragg subjected the grievor to differential treatment under the process she established. Rather, I find that all Inspectors were required to comply with same. I consider it material that no other Inspector was called to establish that they did not have to follow the same rules as applied to the grievor. While Ms. Knight?s evidence was to the contrary, she apparently did not bring occurrences of non-compliance to Ms. Cragg?s attention. Simply stated, there is a lack of direct evidence to support the claim of differential treatment. On a related point, I note that Mr. Mundy refused the grievor?s request for a medical consultant. He, instead, directed the grievor to obtain documents from the worker?s physician and to forward them to PSS for assessment by the consultant, and (v) Ultimately, I reject the submission that Ms. Cragg placed barriers in front of the grievor with respect to PSS usage. As mentioned above, I think her interventions were motivated by the desire to ensure that limited Regional resources were effectively used. I consider it very material that Ms. Cragg never ?overruled? the use of PSS resources by the grievor in respect of either Daimler Chrysler or Ziebart. After her concerns were addressed, PSS personnel went to both of the aforementioned sites. PURCHASE OF EYEGLASSES [68] Ms. Knight testified that Ms. Cragg permitted another Inspector, Mr. Taggart, to submit an expense claim for the purchase of eyeglasses. It was her understanding that Mr. Taggart needed the glasses to perform his work on the computer. At the time Ms. Cragg approved the expense claim, Mr. Taggart had already claimed the maximum available for glasses under the benefit plan. Ms. Knight expressed the opinion that Ms. Cragg should not have permitted the claim and stated that her decision to do so was subsequently found to be problematic by a post compliance review conducted at the Windsor District Office. Ms. Knight acknowledged that, at the time Ms. Cragg approved the expense claim, the latter stated that she viewed the matter as one going to health and safety and, as a consequence, was prepared 43 to accommodate the Inspector in question. It was the substance of Ms. Knight?s evidence that Ms. Cragg never extended similar treatment to the grievor. [69] Ms. Cragg stated that she approved the expense claim for glasses notwithstanding the fact Mr. Taggart had previously received the maximum available under the benefit plan. She advised that Mr. Taggart informed her that he needed the glasses in issue to magnify the data being inputted into his laptop computer. She recalled that he also told her that he was having difficulty reading the screen on the laptop. It was Ms. Cragg?s evidence that she approved the claim in order to address the eyestrain being experienced by Mr. Taggart and that she considered and allowed the request on the ground of health and safety. Ms. Cragg maintained that she knew nothing about the post compliance review. I was led to understand that she had left her position in the Windsor District Office at the time this internal process was conducted. Ms. Cragg testified that the grievor never submitted any similar claim to her for reimbursement for the cost of eyeglasses. [70] Mr. Mundy testified that, like Ms. Cragg, he expensed an item through the office in order to accommodate one of his employees. In that instance, he authorized payment for special hearing protection for an employee with a hearing impairment. Apparently, the protection involved had built-in volume control which eliminated loud or sharp noises in the background. Mr. Mundy advised that he approved the purchase in order to avoid any further hearing loss by the employee. [71] I have considered all of the evidence presented on this aspect of the case. I am unable to find that it supports the Union?s allegation of discrimination or differential treatment. There is no evidence before me that Ms. Cragg ever denied any similar claim submitted by the grievor. I am unable to accept the Union?s assertion that the grievor, in contrast to Mr. Taggart, was ?put through hoops? vis a vis his accommodation. OTHER CONCERNS EXPRESSED BY MS. KNIGHT 44 [72] Ms. Knight testified that Ms. Cragg was hostile, curt, loud, and impatient in her dealings with the grievor. She contrasted this with the way Ms. Cragg treated the other Inspectors in the Windsor District Office. Ms. Knight?s evidence relating to this alleged differential treatment may be summarized as follows: i.In or about September 2002, the Windsor District Office was relocated to Rhodes Drive. Ms. Knight testified that later on in the Fall of 2002, Ms. Cragg sent an e-mail to all staff informing them that the office closed at 5:00 p.m. and that she did not want anyone in the office after that time. Ms. Knight stated that in a subsequent conversation with Ms. Cragg, the latter told her that she had discovered the grievor had been alone in the office after 5:00 p.m. on two (2) occasions that week and that she did not want that to reoccur. Ms. Knight initially stated that Ms. Cragg informed her that she wrote the e-mail ?specifically because of Terry?. In cross-examination, she agreed that the District Manager did not in fact say that. Rather, Ms. Cragg said that the e-mail was prompted by the grievor having been in the office. Ms. Knight also recalled that there was something in the e-mail about the Employer not paying overtime after 5:00 p.m.; ii.Ms. Knight stated that Ms. Cragg asked the grievor to take pictures of the new office with his digital camera for later insertion in the Ministry newsletter. It was Ms. Knight?s evidence that Ms. Cragg subsequently told her she was sorry about having made this request, as she felt the grievor might claim overtime in respect of the time spent at home downloading the photographs. Ms. Knight indicated that, to the best of her knowledge, the grievor did not claim any overtime in respect of this task; iii.Ms. Knight recalled that a meeting was held in or about December 2002 for purposes of introducing the new office to members of different safety organizations. All of the Inspectors were invited to attend. Ms. Knight stated that those who attended were introduced by Ms. Cragg. The grievor, on the evidence, did not attend the meeting. Ms. Knight testified that Ms. Cragg announced during the course of the meeting that she had no idea where the grievor was. From her perspective, the comment was inappropriate in the presence of visitors. Additionally, Ms. Knight found the comment to be negative. She also asserted that it was delivered in an offensive tone; iv.Ms. Knight stated that on one occasion after the move to the new office, she overheard Ms. Cragg talking loudly to someone in the lunchroom. She recalled that Ms. Cragg came into her office approximately two (2) minutes later with ?a stunned and amused look on her face?. Ms. Knight testified that Ms. Cragg then told her she had been speaking to the grievor and became ?a bit unnerved? as the latter had a knife in his hand and waved it around while they were talking. Ms. Knight acknowledged that she had not been in the lunchroom and, as a consequence, did not see what occurred or hear what was said. She stated that she found it strange Ms. Cragg would stay in the lunchroom given her account of what had transpired therein. Ms. Knight testified that she later mentioned this exchange to the grievor. It was her evidence that he then laughed and explained the knife was only a butter knife; 45 v.Ms. Knight testified that Ms. Cragg had concerns about the grievor?s inability to engage in fatality or critical injury investigations as a result of his medical restrictions. She recalled that Ms. Cragg told her that she would not blame other employees for being upset at receiving the same wage as the grievor ?but doing a full load?. Ms. Knight further recalled that Ms. Cragg claimed the grievor shied away from conducting inspections at larger, more hazardous, workplaces. It was her evidence the District Manager expressed the view that the grievor was only working at the Inspector I level; and vi.Ms. Knight expressed the opinion that Ms. Cragg was not truly motivated to accommodate the grievor. In this regard, she commented as follows: ?As to accommodation, I felt that Terry wasn?t necessarily being helped to be accommodated and felt Judy hoped he wouldn?t comply with everything and would set himself up to be in a position to be disciplined.? Indeed, Ms. Knight added that it was Ms. Cragg?s ?mission? not to accommodate the grievor but to discipline him ?to the point of possibly firing him.? [73] Ms. Knight acknowledged that, initially, Ms. Cragg?s attitude impacted her feelings toward the grievor. She volunteered that she ?bought into it? and at times was rude and not nice towards him. Ms. Knight added that she was not proud of the way she, herself, treated the grievor. It was Ms. Knight?s evidence that she started to question Ms. Cragg?s motives after their discussion surrounding the after hours e-mail referenced above. She testified that, thereafter, she made a conscious effort to think of the grievor fairly and to weigh her behaviour. Ms. Knight observed that the attitude in the office changed for the better after Ms. Cragg left. [74] Ms. Cragg?s response to Ms. Knight?s evidence may be summarized as follows: i.Ms. Cragg advised that the boardroom at the new office was used for meetings by the Ontario Labour Relations Board and the Human Rights Commission. This created a problem for her as she was unable to lock the office at the end of the day until their meetings were finished. It was Ms. Cragg?s evidence that she started her work day very early, and that it would make for a long day if she had to remain in the office till meetings of outside agencies were concluded. As a consequence, Ms. Cragg issued an e-mail to inform everyone that the office would close at 5:00 p.m. She also informed Ms. Knight and the Receptionist to remind all external groups using the boardroom that they were to wrap up at 4:30 p.m. as the office would be closing shortly thereafter. Ms. Cragg testified that the e-mail was directed to all staff and that it was not specifically written for the grievor. Ms. Cragg did not recall having a conversation with Ms. Knight about the e- 46 mail and reiterated that the communication was intended to apply to all internal staff and external agencies. She indicated that she did not have problems, generally, with Inspectors remaining in the office after hours. Ms. Cragg observed that this did not occur frequently, as Inspectors did not receive overtime for hours after 5:00 p.m. unless it was approved by her; ii.Ms. Cragg testified that on one occasion she went to the lunchroom at the back of the office. It was her recollection that the grievor and two (2) other individuals were in the lunchroom. Ms. Cragg stated that she stood at the entrance to the room and asked the grievor to come and see her once he was done. She advised that the grievor then turned towards her with a knife in his hand. She described the knife as a paring knife with a wood handle. Ms. Cragg believed that it did not have a long blade. She did not, however, think that it was a butter knife. It was Ms. Cragg?s evidence that the grievor moved the knife in an upward motion and that she felt threatened and very uneasy by this movement. She subsequently informed Ms. Knight about what had occurred. Ms. Cragg did not file any formal report or complaint about the incident. She acknowledged that she might have told one of her superiors about the occurrence; iii.Ms. Cragg advised that initially both she and the grievor were hired as Inspector I?s. Inspectors in that classification work in respect of lower risk workplaces and do not independently engage in fatality or critical injury investigations or work refusals. At the time material to the instant dispute, all Inspectors supervised by Ms. Cragg were at the Inspector 2 level. Ms. Cragg testified that she did not seek to change the grievor?s pay rate to the Inspector I level. She stressed that he was maintained at the higher Inspector 2 level for the entire period. Ms. Cragg denied telling Ms. Knight that the grievor should be paid at the lower level. It was her evidence that other Inspectors did express concern over the fact the grievor was not performing the full functions of the job. Ms. Cragg stated that, by way of response, she informed the other Inspectors that the Employer had a duty to accommodate; and iv.Ms. Cragg denied that she exhibited hostility towards the grievor in their workplace relationship. She asserted that she did not treat him differently than other employees. Ms. Cragg acknowledged that she sent the grievor many more letters. By way of explanation, she advised that the grievor asked that many of her responses be put into written form. Additionally, she observed that a lot of her communications to the grievor resulted from his failure to respond in a timely fashion during the accommodation process. [75] This Vice-Chair asked Ms. Cragg to provide some explanation for why Ms. Knight may have testified as she did. I recorded her answer as follows: ?I don?t know. Diane Knight was my right hand person. She was the consistent person when I became Manager. She had been an Administrative Assistant for quite some time. She filled in for Managers when they left. I counted on Diane and her expertise. Diane had access to my records and everything in my office. I was surprised when I found out she was here as a witness for Terry. I really don?t understand. I held Diane in high regard. I still do???I am at a loss to explain. I did have conversations with Diane but not in regards to office hours. I know 47 there were a number of staff I had concerns about. I wanted the e-mail to go out to address concerns with all staff. It wasn?t just for Terry. It was for a number of people?. [76] My findings pertaining to the above issues are as follows: i.There is a clear conflict in the evidence of Ms. Cragg and Ms. Knight as to the former?s motivation for sending the e-mail concerning office hours and, more specifically, the time at which the office would close. I find it difficult to accept that this type of office protocol was written just because of the grievor and that it was intended to single him out. I consider it more likely that the e-mail was designed to apply to all employees and to the outside agencies mentioned above. I conclude, ultimately, that the communication was sent for valid operational reasons and not for any improper purpose; ii.The incident involving the knife is very difficult to decipher. It is hard to gauge from the evidence whether Ms. Cragg?s response was reasonable or excessive in the circumstances. In the final analysis, I do not think that much turns on this incident. I have not been convinced that it reflected an effort, on the part of Ms. Cragg, to poison the minds of others towards the grievor. I similarly conclude that the evidence relating to the meeting with stakeholders, and Ms. Cragg?s expression of regret over asking the grievor to take photographs, does little to advance the Union?s position; iii.I reject the evidence of Ms. Knight to the effect Ms. Cragg was not inclined to accept the grievor?s need for accommodation. I note, in this regard, that she was not working in the Windsor District Office between January 31 and mid-April 2003. As a consequence, she was not present in the period during which Ms. Cragg had legitimate concern as to the grievor?s willingness to pursue the recommendations from the independent medical examination in a timely manner. Additionally, Ms. Knight was not aware of Ms. Cragg?s letter of April 7, 2003, as reproduced earlier. That letter, on my reading, reflects a commitment on the part of Ms. Cragg to accommodate the grievor to the extent necessary. While Ms. Knight had a close working relationship with Ms. Cragg, it is apparent from her evidence that she was not privy to all of the issues the District Manager had with the grievor. I am satisfied that throughout the relevant periods, Ms. Cragg was cognizant of the need to accommodate the grievor. Clearly, he was accommodated through the provision of suitable modified duties. The grievor was maintained throughout at the Inspector 2 level and received the salary attached to that classification. He was not reduced to Inspector I status, contrary to Ms. Knight?s evidence about what Ms. Cragg wanted to do. Similarly, the grievor was not disciplined by Ms. Cragg. In this respect, I also reject the grievor?s statement that Ms. Cragg did not care about his health and safety. It is apparent that from early 2002 onwards, Ms. Cragg wanted to determine if and when the grievor would be able to return to full duties. I consider her concern to be understandable from an operational perspective as she wanted to have a full complement of fully functioning Inspectors to meet the needs of the Windsor District Office. I also have no doubt, as mentioned earlier, that she was frustrated with the grievor?s reluctance to move the accommodation process along following the completion of the independent medical examination in January 2003. Nevertheless, I have not been persuaded that Ms. 48 Cragg treated the grievor adversely because of his disability. Lastly, I note the grievor?s evidence that he was not aware of how Ms. Cragg treated other Inspectors in respect of accommodation issues; and iv.If Ms. Cragg was hostile towards the grievor, or was out to get him, such a disposition or intent might be reflected in her appraisals of his performance at work. A review of the performance appraisals she conducted in respect of the grievor for the periods April 1, 2001 to March 31, 2002 and April 1, 2002 to March 31, 2003 shows that not to be the case. While these appraisals do not contain some of the favourable comments made by other Managers in their appraisal, both before and after Ms. Cragg?s tenure as District Manager, I consider it noteworthy that she appraised the grievor?s skill set as effective or very effective in the first review and rated his overall performance as ?meets expectation? in the second appraisal. I am unable to find any evidence of a hostile animus in the aforementioned appraisals. [77] In a proceeding where discrimination is alleged, there is an onus on the complainant to establish a prima facie case. If that is done, the onus shifts to the respondent to provide an explanation for its actions. If the respondent does offer an explanation, the onus is then on the complainant to show that the explanation is not reasonable but amounts, rather, to a pretext or a disguise for the respondent?s otherwise discriminatory conduct. This approach was generally adopted in Lincoln v. Bay Ferries Ltd.; Morris v. Canada (Canadian Armed Forces); and Desormeaux v. Ottawa-Carleton Regional Transit Commission. The parties to this proceeding agree that this is the appropriate approach to be applied here. [78] The general positions of the parties is set out at pages 2 and 3 of this Decision. I note that, in accordance with the above authorities, it is the further position of the Employer that the conduct and actions of Ms. Cragg do not disclose the existence of prima facie discrimination against the grievor. In the alternative, 49 the Employer submits that it has provided a reasonable explanation sufficient to rebut the prima facie case. [79] I accept the suggestion of the Union that in cases of this nature all of the evidence must be pieced together and carefully assessed in order to determine if an employee has been discriminated against or differentially treated. Counsel for the Union asks that I not look at each event or incident in isolation but, instead, focus on the overarching pattern to ensure that I not ?miss the forest by looking at each tree?. Given the substantial number of events canvassed in the evidence, and the nature of the related submissions, I have had to address each of the incidents or situations separately. I have, nevertheless, attempted to step back and observe the broader picture. Having had the full opportunity to do so, I conclude that the position advanced by the Employer is to be preferred. [80] I have not been persuaded that Ms. Cragg discriminated against, differentially treated, or harassed the grievor by reason of any of the prohibited grounds listed in article 3.1 of the collective agreement. More specifically, I am unable to find, on my review of all of the evidence, that the conduct complained of was premised on the fact of the grievor?s disability and need to be accommodated. As stated earlier, I conclude that Ms. Cragg was accepting of the grievor?s right to be accommodated. In my judgment, Ms. Cragg was largely motivated to act as she did by the presence of numerous workplace concerns. In addressing these concerns, she exercised her responsibilities as District Manager in an appropriate fashion. [81] There is no doubt that the grievor and Ms. Cragg did not have an effective working relationship. It was very close to what I would describe as dysfunctional. The grievor clearly did not appreciate, what he perceived as, the micro-managing of his work. On the evidence, he much preferred the management styles of the other District Managers who had supervised him. Ms. Cragg, on the other hand, was concerned that the grievor failed to comply with policy and was reluctant to follow her direction. Both individuals thought that the other did not give them the appropriate degree of respect. While I accept 50 that there may have been occasions on which Ms. Cragg was impatient, and even impolite, with the grievor, I have not been satisfied that her conduct and interaction with him infringed article 3.1. [82] After presiding over this hearing, over a period of approximately three and one-half (3 ½) years, I am inclined to think that the following passages from Ladha are almost equally applicable to the present dispute: ?There is little doubt in my mind that the relationship between the grievor and Mr. Kenney deteriorated rapidly after Mr. Kenney became the grievor?s Group Manager. Mr. Kenney exercised his supervisory authority in a formal and direct manner. He did not hesitate to question an employee if he had a concern in his mind. And he did so in a formal and business-like manner and not in a friendly or casual way. This unfortunately, was the very opposite of the grievor?s expectations of a good supervisor. The grievor had a very high opinion of his own level of competence as an auditor. He took pride in the fact that he was a ?professional?. The major clash arose out of the grievor?s expectations as to how a supervisor ought to treat a professional employee. The grievor expected that as a professional he should be left alone by the supervisor to independently carry out his work. He resented any monitoring or questioning of his work methods or conduct. Particularly because he was a long service auditor, and Mr. Kenney a relatively new supervisor, any intervention by Mr. Kenney was met with resentment. For example, the grievor felt that Mr. Kenney should not call him at the taxpayer?s premises. He said that the taxpayer may think that the supervisor was ?checking up? on him. As a result, the grievor asserted that by so calling, Mr. Kenney was ?attempting to undermine me?.? (pages 41-42) -and- ??????????In a perfect world supervisors should be able to place unconditional confidence and trust on professionals with long service. There should be no need for any monitoring or review of their work, for suspicion or confrontation.However, the reality is that there is no assurance that even the most qualified and dedicated employee will not on occasion fall short of what is expected. When on the face of it there is indication that the employee has been deficient, the supervisor cannot be held guilty of harassment, bad faith or discrimination, merely because he chose to investigate or to raise a concern.? (pages 45-46) [83] I also find the following excerpt from Re Eurocan Pulp and Paper Co. to be instructive on this point: 51 ?In my view the facts do not support a finding that Mr. Watson?s confrontation of the Grievor amounted to harassment, either in the sense defined in the collective agreement, or in the industrial relations sense in which harassment is viewed in the arbitral authorities. That encounter, based on the facts as recited by the Grievor, fell well short of harassment in the industrial relations sense. The recognition of rights in employees to exist in an environment free of harassment is an important right. However, recognition of the right can be a temptation to employees to employ it as a device for redressing the imbalance that exists between the right of management to supervise and direct the activities of employees and the consequential obligation of employees to accept that supervision and direction, even where it occurs in the absence of courtesy and respect. Supervisory styles can vary broadly and can invoke resentment and resistance. That dynamic should not be distorted by the introduction of rights with respect to harassment???..? (page 115) [84] As mentioned earlier, it is the Union?s position in the alternative that the conduct complained of represented a bad faith or discriminatory exercise of the Employer?s management rights under article 2.1 of the collective agreement. The parties agree that pursuant to the decision in Dobroff et al., I have no jurisdiction to review the exercise of management rights unless it is established that such exercise adversely impacted any of the grievor?s rights under the collective agreement. To quote the language used in the aforementioned decision, the Union must demonstrate the existence of ?a sufficient link? to the collective agreement provisions relied on in order to confer jurisdiction on this Vice-Chair ?to review the employer?s actions for reasonableness or fairness.? [85] The Union submits that the grievor?s rights under the following additional articles of the collective agreement were adversely impacted by the conduct and actions of Ms. Cragg, as described above: article 9 (Health and Safety); article 14 (Time Credits While Travelling); article 21 (Discipline and Dismissal); Article 41 (Workplace Safety and Insurance); and article 44 (Short Term Sickness Plan). [86] My findings with respect to this alternative submission are as follows: i.The Decision in Sager, Shelley et al cites and relies on the following passages from Lafromboise, 2268/95 (Roberts): 52 ?This arbitration involves the question of when, if ever, the employer will become liable under the health and safety provisions of Article 18.1 of the collective agreement for the consequences of the stress placed on employees by an abusive bad boss. For reasons which follow, it is concluded that the employer will be liable for a breach of these provisions whenever managers fail to take adequate countermeasures in response to circumstances raising a reasonable probability that unless they do so, the practice of abuse engaged in by a bad boss under their directions will trigger serious illness in one or more employees.? -and- ?My use of the term ?serious illness? in the above definition of the employer?s liability is intended to differentiate between stresses, tensions, irritations or unhappy situations that do (not) amount to medically recognized conditions and those which do not. ???????????????????????..? In this instance, the grievor testified that Ms. Cragg?s behaviour caused him to suffer from stress and anxiety. No medical evidence was filed to establish the conditions complained of or to show a nexus between same and Ms. Cragg?s treatment of the grievor. In the circumstances, I am accordingly unable to find that the grievor?s rights under article 9 of the collective agreement were adversely affected, as claimed. The evidence presented on the point falls well short of the requirements set out in Sager, Shelley et al; ii.I am at a loss to understand how the grievor?s right to travel time was adversely affected. In my judgment, Ms. Cragg, as District Manager, was entitled to make the enquiries she did in respect of the grievor?s visit to Global Vehicle Systems in November 2001 and his initial trip to Toronto in December 2002 to see Dr. Rosenbluth. On the evidence, the grievor did not lose any travel credits to which he may have been entitled; iii.Clearly, the grievor was entitled pursuant to article 21 not to be disciplined without just cause. On the evidence, the grievor was not disciplined in the period relevant to this proceeding. Additionally, there is nothing to suggest that Ms. Cragg improperly threatened the grievor with discipline. As a consequence, I reject the submission that his rights under article 21 were adversely affected; iv.On my assessment of the evidence, the grievor claimed and received WSIB benefits, most notably, in respect of the injury sustained at Kingsville Stamping Ltd. in early March 2002. I have previously determined that Ms. Cragg was entitled to question the legitimacy of that claim and that her communications with WSIB personnel did not amount to discrimination or harassment. I also note that no issue was raised about salary or benefit continuance while the grievor was entitled to WSIB benefits. I, therefore, conclude that the grievor?s rights under article 41 were not undermined; and 53 v.There is a complete lack of evidence that the grievor?s entitlement to short term sickness benefits was in any way affected by the actions of Ms. Cragg. Indeed, the subject of short term sickness was raised for the first time in closing argument. As a consequence, I have not been persuaded that article 44 has any relevance to the resolution of this dispute. [87] In view of the above, I find that I lack the jurisdiction to review the Employer?s exercise of management rights in the circumstances of this case. If I had such authority, I would find on the evidence that Ms. Cragg legitimately exercised her rights as the District Manager responsible for the Windsor Office. [88] I have considered the evidence presented by Ms. Knight at great length. I find that such evidence in many respects represented her impression or opinion of events after speaking to and/or observing Ms. Cragg. It is clear that Ms. Knight had an incomplete understanding of all of the issues and concerns Ms. Cragg had with the grievor. This was especially so in respect of the events in the Spring of 2003 following the independent medical examination. As previously mentioned, Ms. Knight was seconded elsewhere for much of that period. Ultimately, while I think Ms. Knight?s evidence supports the fact Ms. Cragg and the grievor did not see eye to eye, and may not have liked each other, I find that it does not substantiate the claims of discrimination, differential treatment and harassment. I note that much of Ms. Knight?s testimony was disputed by Ms. Cragg. In retrospect, it might have been helpful to have heard from other Inspectors working out of the Windsor District Office. Such direct evidence might have allowed for a better assessment as to the validity of the above-referenced claims. Ultimately, in reaching my conclusions, I have assessed and weighed all of the evidence presented by the witnesses for the respective parties. [89] In final argument, the Union asked for a declaration that Ms. Cragg had violated the grievor?s contractual rights. It also asked for an award of twenty-five thousand dollars ($25,000.00) representing 54 general damages for breach of the grievor?s rights under the Human Rights Code, R.S.O. 1990, c. H. 19, aggravated damages and punitive damages. The Employer opposed the request and asserted that I lack jurisdiction to award aggravated and/or punitive damages. [90] For all of the foregoing reasons, I conclude that the Employer did not contravene articles 2.1 and 3.1 of the collective agreement, as claimed. It follows that the grievor is not entitled to the remedy sought. I have been persuaded, however, that Ms. Cragg violated the terms of the Memorandum of Settlement dated June 7, 2002 by failing to provide the grievor with a copy of the questions being asked of the independent medical practitioner ten (10) calendar days in advance of the scheduled appointment, and I hereby so declare. Apart from this declaration, the grievance of March 25, 2003 is dismissed. [91] I wish to commend counsel and the parties for all of their efforts and assistance provided throughout the course of this long, complex and very contentious case. th Dated at Toronto this 9 day of January 2009. Michael V. Watters, Vice-Chair 55 AUTHORITIES RELIED ON BY THE UNION -Re Horizon Operations (Canada) Ltd. and Communications, Energy and Paperworkers th Union, Local 2000 (2000), 93 L.A.C. (4) 47 (Coleman) -Re Board of Commissioners of Police for the City of Sault Ste. Marie and Sault Ste. Marie Police Association (1982), 3 L.A.C. (3d) 208 (Kennedy) -Re Alberta Hospital Ponoka and Alberta Union of Provincial Employees, th Local 42 (1994), 46 L.A.C. (4) 231 (McFetridge) -Ontario Public Service Employees Union v. Ontario (Ministry of Health) (Damani Grievance), [2000] O.G.S.B.A. No. 40 (Gray) -Re Toronto Transit Commission and Amalgamated Transit Union (2004), th 132 L.A.C. (4) 225 (Shime) -Moncton Typographical Union, Local 636 and Times and Transcript, Moncton Publishing Division of Brunswick News Inc. (2003), unreported (Bladon) AUTHORITIES RELIED ON BY THE EMPLOYER -Lincoln v. Bay Ferries Ltd., [2004] F.C.J. No. 941 (F.C.A.) -Morris v. Canada (Canadian Armed Forces), [2003] F.C.J. No. 1746 (F.C.) -Desormeaux v. Ottawa- Carleton Regional Transit Commission, [2004] F.C.J. No. 2172 (F.C.) -OPSEU Tratnyek) and Ministry of Community and Social Services, 1875/87 (Fisher) -OPSEU (Dobroff et al.) and Ministry of the Environment, 2003/0905 et al. (Dissanayake) -OPSEU (Sager, Shelley et al.) and Ministry of Transportation, 2000/0377 (Mikus) -OPSEU (Ladha) and Ministry of Finance, 2394/93 (Dissanayake) -Re Eurocan Pulp and Paper Co. and Communications, Energy and Paperworkers Union of Canada, Local th 298 (2000), 93 L.A.C. (4) 95 (Hope) -Cara Operations Ltd. (c.o.b. Toronto Flight Kitchen) v. Teamsters, Chemical, Energy and Allied Workers Union, Local 647 (Palmieri Grievance), [2005] O.L.A.A. No. 302 (Luborsky) -Ontario Public Service Employees Union v. Seneca College of Applied Arts and Technology, [2006] O.J. No. 1756 (Ont. C.A.)