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HomeMy WebLinkAbout2014-3490.Grievor.22-03-01 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2014-3288; 2014-3490; 2014-3658; 2014-3659; 2014-3660; 2014-3661;2017-0702; 2017-0703; 2017-2396; 2017-2397 UNION# 2014-0551-0026; 2014-5112-0192; 2014-5112-0216; 2014-5112-0217; 2014-5112-0218; 2014-5112-0219; 2017-5112-0139; 2017-5112-0140; 2017-5112-0250; 2017-5112-0251 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor Genera) Employer BEFORE Nimal Dissanayake Arbitrator FOR THE UNION Tim Hannigan Counsel Ryder Wright Blair Holmes LLP Barristers & Solicitors FOR THE EMPLOYER Jonathan Rabinovitch Counsel Treasury Board Secretariat Legal Services Branch HEARING February 1, 25; March 5 and September 26 of 2019; January 16, November 17, 25 of 2020; January 18, 21; February 2, 8, 10 and 24; September 24; October 28 of 2021 - 2 - Decision [1] The Board is seized with ten grievances filed by the grievor variously dated between September 16, 2014, and October 6, 2017. The parties jointly requested that the Deputy Superintendent Staff Services TSDC be anonymized in the decision. She will hereinafter will accordingly be referred to as “the TSDC Deputy SS.”. The parties further agreed that the Board may decide at its discretion to anonymize the grievor. It is appropriate to do so and will therefore be referred to as “Ms. C”. The parties jointly requested that the Board only determine whether there is any liability established against the employer and remain seized. Union counsel conceded that since the grievor received WSIB benefits during the period of her absence, the “Monk Principle” would apply. [2] Ms. C started her career in the OPS in 1999 as a fixed-term correctional officer (“CO”). She became a classified CO at the Toronto West Detention Centre (“TWDC”). In March 2013, Ms. C obtained a temporary assignment to the Parkdale Probation & Parole Office in Toronto (“Parkdale”). She worked at Parkdale as a Probation & Parole Officer (“PPO”) on her temporary assignment on a series of contracts until October 2014. When Ms. C’s temporary assignment at Parkdale ended, she was recalled to her home position as a classified CO, which by then had been transferred to Toronto South Detention Centre (“TSDC”). At that time Ms. C provided the employer medical documents from her doctors that her medical restrictions did not allow her to return to her CO position and sought accommodation. She repeatedly requested that she be accommodated in the PPO position she had been performing at Parkdale. She was not provided any accommodation and was off on a leave without pay for a period of time. Later Ms. C presented medical documentation to the effect that she was totally disabled permanently. [3] The parties presented the grievances divided into two groups. The first group alleges various violations during Ms. C’s temporary assignment at Parkdale. The second group covers the period after Ms. C was informed that she would be returned to her home CO position at TSDC. - 3 - UNION EVIDENCE Evidence of Ms. C Examination in- chief [4] Ms. C testified that when she started her temporary assignment at Parkdale in March 2013, she discussed with her manager at the time Ms. Diniz, her interest in a permanent position as a PPO. Ms. Diniz explained that to be eligible she would have to complete a five-week PPO training program at the Correctional Training College. that after becoming a PPO it will take her two years to reach the top PPO wage rate, and that until then her wages would be approximately $ 600 a month less than the top CO rate she was making . Ms. C advised Ms. Diniz that she was prepared to take the pay cut for two years if she can get a PPO position. [5] Ms. C testified that prior to going off sick in the spring of 2014, she told her new manager Ms. Tang at Parkdale, about “the pay rate agreement with Ms. Diniz”. When Ms. C returned to work Ms. Tang told her that Ms. Diniz had denied that there was any such agreement. Ms. Tang reviewed the collective agreement and stated that it would take Ms. C about 8 years to reach the top PPO rate. Ms. C testified that she was aghast because she was aware of others in the same situation who had their home position pay rate red circled. She therefore filed a grievance dated September 16, 2014, alleging differential treatment, and not being properly paid. [6] Ms. C testified that she liked her PPO job at Parkdale and did almost all PPO duties permanent PPOs at Parkdale did. When Ms. Tang became her manager, she was gracious, kind, and helpful, and even offered to mentor her. Ms. C took up the offer and went to Ms. Tang whenever she needed help. Ms. C said, however, that whenever she went to Ms. Tang, she ended up getting “ a load of additional work”. She said she felt that Ms. Tang’s offer to mentor and help was not genuine. [7] Ms. C acknowledged that it was part of the manager’s role to audit PPO’s work. However, in the nine months Ms. Tang did eight case audits for her. Ms. C testified that she wanted to learn, but had difficulty with that level of scrutiny, and found it very stressful. While - 4 - all case audits Ms. Tang did were favourable, she “could not understand why Ms. Tang was putting unnecessary stress on me with that level close scrutiny”. [8] Ms. C testified that as a result of the stress she started experiencing neck pain. She was diagnosed with an auto immune chronic condition. To help her neck issue at work, Ms. C asked Ms. Tang to provide her with a “proper high back chair”, and provided a medical note dated July 23, 2013, from her doctor stating, “Patient may benefit from a highchair and an ergonomic assessment”, Ms. Tang told her that it was insufficient, and “basically dictated what the medical note should say”. On July 30, 2013, Ms. C provided a note to the effect, “Patient requires a highchair with neck and back support”, as dictated by Ms. Tang. The chair was provided shortly after, but she found that its seat was crooked and as a result Ms. C developed hip pain. When she reported this to Ms. Tang, she sent a technician who repaired it. She filed a grievance alleging failure to accommodate. [9] Ms. C testified that a colleague at work (“Ms. P”) was bullying her. In frustration, she directed a rude comment at Ms. P. When Ms. Tang became aware of this, she offered to mediate between Ms. C and Ms. P. Each was allowed to nominate a support person to be present during mediation. When Ms. C informed who her support person would be, Ms. Tang informed that the person must be replaced because Ms. P had objected. Ms. Tang told her that she could choose anyone provided that person was not involved in the friction between her and Ms. P. Later she was told that the support person need not be replaced. Ms. C testified that at the mediation Ms. Tang “ did her best”, but there was no resolution and Ms. C filed a formal WDHP complaint against Ms. P. Ms. Tang appointed an investigator (Ms. “M”) with respect to Ms. C’s WDHP complaint. Ms. C was told by several colleagues that Ms. Tang, Ms. P, and Ms. M had at one time worked at the Danforth PPO and went out to lunch as friends. Ms. C testified that she felt that the investigation was “orchestrated partisanship”. When Ms. C raised this concern, Ms. Tang appointed another person as investigator, who Ms. C felt would be “more neutral”. Ms. C testified that Ms. Tang and Area Manager, Mr. Wayne Munro, met with her and informed that the WDHP investigation had been completed, but she was not informed what the findings of the investigations were. Ms. C testified that the way the whole process was done made her feel “re-victimized” and Ms. C filed a grievance. - 5 - [10] Ms. C testified that having completed PPO training weeks 1 and 2 at the college, she started weeks 3 and 4 in January 2014. Classes ran Monday to Friday 8 a.m. to 4 p.m. During classes at the college she had to sit on a low-back plastic chair. This increased her neck pain. The instructors searched throughout the college for a chair more suitable for her, but gave up. As a result, during weeks 3 and 4 of training she experienced increased neck pain. She stated that her neck pain was mainly due to stress caused by her management’s conduct, but the plastic chair also did not help. [11] When Ms. C returned to Parkdale after the training, she informed Ms. Tang about the problems she had due to the plastic chair at the college, and requested that an ergonomic chair similar to the one she had been provided at the Parkdale office be made available at the college for the upcoming week 5 training. She was shocked when Ms. Tang asked, “Do you really need that chair all the time? What do you do when you go to a movie, or a restaurant or visit friends?”, and suggested that Ms. C take her chair in the office to the college. When Ms. C explained that loading and unloading the chair to her car would aggravate her neck pain, Ms. Tang offered to provide help for her to load the office chair into her car. Ms. C responded that still she would have to unload it at the college parking lot and take it to the classroom, and that in any event that chair probably would not fit into her small car. Ms. Tang then asked whether Ms. C could not ask her boyfriend to transport the chair to the college for her. Ms. C responded that her boyfriend lived in Burlington, and would have to pick up the chair from Parkdale and take it back to Hamilton and suggested that Ms. Tang arrange the chair to be delivered to the college. Ms. Tang responded that it would be too expensive. Ms. C said that the issue was not resolved, but became moot anyway because her week 5 training was cancelled. [12] Ms. C testified that for the PPO week 5 training she also submitted a medical note recommending a portable neck/back support device costing about $ 300 that could be attached to any chair back. Ms. Tang informed that she had financial constraints and came up with a similar cheaper device. It was purchased for Ms. C at a cost of $ 181. When the training was cancelled, Ms. Tang told Ms. C that she could keep that device as it could be helpful at off-site work locations. - 6 - [13] In June 2014 Ms. C underwent hip surgery and was off work until the end of September. On her return to work she submitted to Ms. Tang a copy of a government form, completed, and signed by the surgeon. The form entitled her to increase her sick pay top- up from 66% to 75%. Ms. Tang told Ms. C that in order to process the form the original of the signed form was required. When Ms. C informed that the original was at the surgeon’s office in Oakville, Ms. Tang suggested that Ms. C.’s boy-friend who lived in Burlington could pick it up when he has time and drop it off at the Mississauga PPO office. When Ms. C informed the Area Manager, Mr. Munro of the situation, he advised that the copy will be processed, provided the original is submitted later at her convenience. [14] Ms. C stated that on her return to work, she presented to Ms. Tang a Health Information Form ( HIF ) completed by the surgeon. It set out two restrictions, (a) four-hour shifts for the first week back to work, and (b) patient cannot be involved in “response activities” until December 1, 2014. When Ms. Tang presented an accommodation plan including these restrictions, she had added the notation, “In the probation and parole setting this only pertains to attending the location of where the panic alarm is activated in the office” to restriction (b). She testified that at the Parkdale office there was a panic button under each employee’s desk that can be activated if the employee is at risk, and all employees are expected to respond to the location and assist. Ms. C asserted that by including the notation Ms. Tang wanted to ensure that this restriction would not apply when she returns to TSDC. [15] Ms. C testified that at Parkdale she always received contract extensions of approximately 3 months. When Ms. Tang presented a shorter contract extension from September 29 to November 2, 2014, she told Ms. C that she was doing this to keep her “in the books” while waiting for TSDC’s response to her request to keep Ms. C at Parkdale until December. Ms. C testified that Ms. Tang’s explanation could not be true. There were also 3 fixed-term PPOs. Despite her greater seniority over the three fixed-term employees at Parkdale, she received only a one-month extension, while the fixed term employees were given longer extensions of up to four months. Ms. C asserted that the differential treatment was a reprisal by Ms. Tang because she had filed the pay rate grievance. Asked to explain, - 7 - she stated that by returning her to TSDC, Ms. Tang ensured that her pay rate grievance would become “null and void”. [16] Ms. C’s one-month contract extension was signed on October 1, 2014. The next day Ms. Tang informed Ms. C that the Regional Director had decided that she was needed back at TSDC. Ms. C pointed out that dozens of COs from jails that had closed had been transferred to TSDC and most of the 100s of new recruits who had recently completed CO training at the college were also assigned there, and questioned why a single CO with serious accommodation needs was so indispensable at TSDC. When Ms. C commented that her most recent medical would likely mean that she would not be able to work in a correctional institution anyway, Ms. Tang commented, “your doctors cannot dictate where you work”. Ms. C testified that she did not believe that TSDC had wanted her to return. Ms. Tang had told her that of the four PPOs at Parkdale who may not be renewed, she was the only one with a job to return to. The three fixed- term staff would end up in the street. Ms. C believed that was the real reason management decided to return her to TSDC. They did that despite the fact that she had the greatest seniority of the four and the PPO position available at Parkdale “ technically” belonged to her. [17] Ms. C also alleged that Ms. Tang orchestrated her return to TSDC because she wanted to protect one of the fixed-term PPOs at Parkdale, Ms. Q, who she described as Ms. Tang’s friend. She said that even before Ms. Q started at Parkdale, she used to visit Ms. Tang in her office. After she started, it was not unusual to see Ms. Q and Ms. Tang “standing close together and whispering”. Ms. Tang had also once told her that Ms. Q and Mr. Don Chillman, a Deputy Superintendent at TSDC, were good friends. [18] Ms. C testified that when she called the on October 3, 2014, to discuss her recall, she found it very odd that the TSDC Deputy SS was not even aware that she was returning to TSDC. The same day, Ms. C called Mr. Scott Gray, another Deputy Superintendent at TSDC. During the conversation Mr. Gray suggested that Ms. C write a letter to Ms. Rose Buhagiar and plead her case. Ms. C testified that on October 6, 2014, she called Mr. Trevor Dunscombe, a Deputy Superintendent at TWDC, and asked him what he knew about her recall to TSDC. According to her, his response was, “I got the impression Helen didn’t want - 8 - you there” . Ms. C testified that this confirmed her view that Ms. Tang and Mr. Chillman had colluded and decided that the easiest solution was to get her out of Parkdale because she had a classified CO position at TSDC to return to. Ms. C opined that Ms. Tang likely did this in order to protect her friend Ms. Q’s job at Parkdale. [19] Ms. C wrote a detailed letter to Ms. Buhagiar, with copy to Ms. Tang, Mr. Gray and Mr. Chillman, setting out her employment history, including her period of employment on temporary assignment as a PPO at Parkdale, years of volunteering at P&P, and the PPO training weeks 1 to 4 she had completed. She emphasized that she had acquired valuable skills and thrived in the PPO work. She wrote that all of that would be wasted if she is returned to a correctional institute, and would deny her a job at P&P for which she had worked hard for years. She ended her letter stating, “I have come too far, and faced too many challenges to throw it away now. I implore you to please reconsider this devastating decision”. On October 6, 2014, Ms. Buhagiar replied simply informing that the date for her to report to work at TSDC is differed from October 14 until November 3, 2014. Ms. C responded, stating that she would like to meet to with Ms. Buhagiar before reporting to TSDC. Ms. C testified that she wanted to discuss her health issues and restrictions. However, her request for a meeting was not even acknowledged. [20] Ms. C testified that by October 14, 2014, the date for her return to TSDC had been changed to November 29, 2014. On October 8, 2014, the College advised her that her week 5 PPO training scheduled for December 1, 2014, had been cancelled by Ms. Tang. However, shortly after, Ms. Tang informed her that she did not cancel her training and that she had been re-enrolled. Ms. C testified that later in October she again pleaded with Ms. Tang that if she is allowed to continue in the available PPO position, she would even quit her classified CO position at TSDC. Ms. Tang’s response was that her “hands are tied.” [21] Ms. C testified that on October 14, 2014, she saw her psychiatrist Dr. Svihra, and forwarded a letter from him to the TSDC Deputy SS. It set out restrictions she would be under on her return to TSDC. Ms. C received no response from the TSDC Deputy SS. Dr. Svihra’s letter listed some restrictions on shifts and hours Ms. C would be able to work. It also listed the following: (1) “No direct or indirect inmate contact”. (2) “No confined or - 9 - secured spaces”. The doctor wrote that these restrictions “will be important in terms of ensuring her health and well-being”. [22] Ms. C testified that on October 30, 2014, she attended a return-to-work meeting at TSDC. Also present were Ms. Diana Fedun (union rep/ support person), the TSDC Deputy SS and Ms. Iona Seales. Prior to that Ms. C had forwarded a medical letter from her family physician Dr. Nahab. It imposed additional restrictions of “no surveillance of supervision of inmates or property; no prolonged sitting or standing more than one hour; ergonomic chair with neck support; access to on-site Wellness Program to maintain regular massage therapy treatment and/or chiropractic care.” Ms. C testified that everyone at the meeting had copies of the letters in which both Dr. Svihra and Dr. Nahab had imposed restrictions. She described the meeting as “a hostile barrage against me in the guise of an accommodation meeting”, and stated that “management used the medicals as a tool to attack me.” She was asked whether she was not in a confined space when in her car or “a room like this”. When Ms. Fedun explained that while Ms. C is free to leave her car or a room, she could not do so if assigned to work in a confined space in the jail, both managers waved their copies of the medicals and Ms. Seales said, “these are not medical restrictions because you were able to work with inmates on the community side”. Ms. C explained that at Parkdale she worked with clients and not inmates, and met with one client at a time. At corrections she would be supervising over 60 inmates, and the environment at a correctional institute was very different, Ms. C testified that Ms. Seales was “really angry” and insisted that there was no difference, and was “shouting and yelling most of the meeting and tossing the papers at me.” [23] Ms. C testified that when she suggested, “we should look at these restrictions and find solutions”, Ms. Seales responded, “you just come here and start your training”. When Ms. C pointed out that doing that would be contrary to her medical restrictions, Ms. Seales stated “if that is so, you can no longer work as a CO”. TSDC Deputy SS asked, “Are you saying you can’t do your job here”. Ms. C testified that she did not know how to answer, but commented, “I guess so”. Then the TSDC Deputy SS declared, “then you are going on a leave without pay. You can qualify for a health reassignment”. When Ms. C asked why she is being penalized with no pay leave, the TSDC Deputy SS replied that it was not - 10 - “penalizing” and Ms. Seales said, “and you are not allowed to call-in sick because you are not sick”. The meeting ended with that. Ms. C testified that as she opened the door to leave the meeting room, Ms. Seales “placed her open hand on my back, applied pressure and pushed me out of the room”. She testified that at the meeting there was no discussion at all about the possibility of her remaining at Parkdale or about accommodating her in a position other than CO at TSDC. She described the meeting as “a planned attack to bully her into agreeing to work at TSDC against her doctors’ orders”. She was not asked to submit any additional medicals either. [24] Ms. C referred to her email dated October 20, 2014, to the TSDC Deputy SS, where she indicated her willingness to work in the TSDC Records Department. On November 1, 2014, the Deputy TSDC replied stating, “Records Department is not a post to which COs are assigned”. On November 4, 2014, the TSDC Deputy SS emailed again reiterating, inter alia, that she was not entitled to use sick credits; that the Records Department is not part of a CO’s role and responsibility; and she could only be accommodated in her home position. Ms. C testified that although she was required to report to work at TSDC, but she had no idea where in TSDC she would be reporting to. [25] Ms. C testified that, despite the medical documents from her family physician and her psychiatrist, on November 7, she was sent another HIF form to be completed by her family physician, Dr. Nahab, asking him to explain why she was able to work as a PPO, but cannot work as a CO. Ms. C testified that the manner in which the employer was seeking medical information confirmed in her mind that the employer was focused on returning her as a CO and not serious about her request for accommodation. [26] Ms. C forwarded the HIF form to Dr. Nahab, who in turn sent it together with other material to psychiatrist Dr. Svihra, On November 26, 2014, Dr. Svihra submitted the completed HIF form to the TSDC Deputy SS. It included the following information: “Due to a permanent disability Ms. C is restricted from performing her duties as a CO”; “The institutional (jail) environment is detrimental to her mental health, due to her disability”. In response to the question why Ms. C could do duties as a PPO, but not as a CO Dr. Svihra reviewed and contrasted the duties of the two positions. He wrote: - 11 - The primary role of a correction officer is to maintain care, custody, and control of inmates. The role of probation officer is to have a positive impact on recidivism by counseling one client at a time and developing a plan of action to reintegrate the individual back into the community and become a productive member of society. The probation officer is also responsible to enforce conditions of an order to following enforcement continuum and on occasion, having to charge a client. Correctional officers are required to be trained in restraint techniques, takedown moves, baton use, intentional and mandatory pepper spraying of the officer, handcuffing procedures, MSA training and self- defence tactics, among others. This contrasts somewhat to that of the probation officer who is trained to deflect and flee if the client becomes hostile. Additionally, support staff will alert the probation office if the client reports while being intoxicated, and there is always the option for the individual to report in the secure room. Working in a correctional (jail) institution setting aggravates Ms. C’s disability. She needs to be restricted from working in this type of setting for any extended period of time. The only exception to this may be if she needs to attend the institution for 1-2 hours at a time for the purpose of writing court ordered reports, in which case the inmate is interviewed through the glass and there is never direct inmate contact. In my opinion Ms. C would not be able to undertake duties on an accommodated basis as a correctional officer. Working in an institutional (jail) setting aggravates Ms. C’s condition. [27] The only exception Dr. Svihra set out to the “no institutional setting” restriction was to the effect that Ms. C could attend TSDC for 1-2 hours at a time for purposes of writing reports by interviewing inmates through a glass barrier with no direct contact. Dr. Svihra reiterated that Ms. C “would not be able to undertake duties on an accommodated basis” as a CO. He also wrote that she is capable of returning to work as a PPO and that a return to the Parkdale office “would be ideal” since it would reduce the stress of starting at a new location. He wrote: Ms. C had done extremely well in terms of her condition while serving as a probation officer. Her current employment situation (prospect of returning to institutional setting as a correctional officer) has had a significant negative impact on her health status. Ms. C is capable of returning of work as a probation officer. . . . - 12 - Ms. C’s condition is chronic in nature. That being said, it can be greatly impacted depending on potential stressors faced in the workplace. In particular, stressors inherent to he institutional (jail) setting greatly aggravate her condition, and worsen her symptoms. During the time as a corrections officer, she frequently required medical absences from work. The probation officer role is much better tolerated and minimizes the impact on her condition, she was significantly less symptomatic while in the probation officer role, and this was reflected in her attendance at work – she did not require any medical absences from work for conditions being treated by me. [28] Referring to emails, Ms. C testified that the TSDC Deputy SS had provided to Dr. Svihra the number for a “public fax machine”, instead of the machine in her office, for purposes of returning the medical report. When Dr. Svihra faxed it to that machine, everyone in the Records Department and staff in the Administration area had access to the report which included very private health information. After Ms. C raised this concern, TSDC Deputy SS provided Dr. Svihra with her private fax number to re-send the report. Ms. C testified that the copy initially sent to the public fax machine “went missing”, but was eventually located. She also testified that she was not reimbursed the cost of getting Dr. Svihra to complete the HIF form. [29] Ms. Jennifer Kroft was appointed as C’s WDHP advisor. Ms. Kroft required Ms. C to provide medical clearance to participate in the WDHP process, when she questioned the need for her to spend for another medical, she was told that she would be re-imbursed. However, she was not reimbursed for the cost of $ 20.00. An investigation meeting was held by Ms. Kroft on November 10, 2014, at which Ms. C again related what happened at the October 30th accommodation meeting. She heard nothing until January 27, 2015, when Ms. Kroft informed her that the investigation report had been issued in mid-December; that the employer was not in agreement with the investigator’s recommendation; and that the employer was trying to find a mutually acceptable external investigator to do another investigation. When Ms. C inquired, the employer was unwilling to inform what Ms. Kroft’s recommendations were, or to explain why they were not implemented. Ms. C testified that she was very concerned about the secrecy. [30] Ms. C testified that by letter dated April 1, 2015, she was informed that an external investigator, Ms. Sarah Marceau, had been appointed. On April 7, 2015, she met with Ms. Marceau and handed her a 13-page document titled “Victim’s account of bullying, - 13 - harassment and discrimination”. She also described to Ms. Marceau how she was “ousted” from Parkdale; that she was placed on sick leave when she was ready and able to work; that the employer disregarded her doctors’ medicals; that after initially informing that she would not be entitled to sick pay causing her distress, a month later sick pay was approved based on the same medicals; and about what happened at the October 30, 2014, accommodation meeting. Relevant documentation was also provided to Ms. Marceau. [31] Ms. C testified that throughout the internal and external WDHP investigations the employer disregarded its own timelines with no explanation. She said that the employer did not seem to care that she was without income and in a state of panic. The employer never contacted her to update what was happening. A draft report on her WDHP complaint was sent to her on July 21, 2015. It concluded that on a balance of probabilities the evidence did not substantiate her allegations that : (1) That the employer behaved in a manner contrary to the WDHP policy. (2) That it failed to accommodate C’s disability by failing to find her an alternate position within the OPS. However, the investigator observed that “The evidence supported that the employer’s systemic lack of communication about accommodation and health reassignment opportunities created an environment in which accommodated staff members feel marginalized and discriminated against”. [32] Ms. C testified that those findings felt like a “slap in the face”. She reviewed portions of a “rebuttal” to the draft report she submitted, pointing out that the draft did not recognize that the only reason she was not prepared to participate in CO training or to work in TSDC was because that would have been directly contrary to the medical restrictions that she could not work as a CO or even work in a correctional environment. She also pointed out that inmates COs deal within a correctional institute are very different from individuals in the community PPOs deal with, and that this difference is reflected in the fact that COs get 6 weeks of training at the college which includes handcuffing and take-outs, while PPOs only get a ½ day of training on “deflect and flee”. She further emphasized in her rebuttal that there was no evidence at all that the employer looked at any position which may be suitable with some modification, as an accommodation. Despite clear medical documents, the - 14 - employer continued to argue that inmates in a correctional institute and clients in a PPO setting were the same. It was only Ms. Vicki Roberson, after taking over as Deputy Superintendent Staff Relations at TSDC, who finally accepted that Ms. C could not return to TSDC. [33] On April 28, 2016, Ms. Marceau’s final WDHP report was received by Ms. C. Despite her rebuttal, the allegations were found to be unsubstantiated. Ms. C testified that she believed that TSDC management had convinced the Ms. Kroft that despite the medicals, she was able to return to TSDC. She pointed to a questionnaire Dr. Nahab had sent to the employer on November 6, 2014, where he wrote, “she can start her job as Probation Officer in Parkdale ASAP”, as one of many medicals management was provided. She testified that the investigator rejected all of that. [34] Ms. C testified that early in 2014 the employer’s insurance career (“Manulife”) had informed that since it had received information that Ms. C was able to work in another occupation (as a PPO), she did not meet the definition of disability, and that her LTIP benefits would end on May 31, 2014. On May 29, 2017, Ms. Robertson wrote to Ms. C advising that “Manulife has provided information that you are unable to return to the correctional officer role. The employer has no other information to substantiate your ongoing absence from the workplace”. Ms. Robertson also wrote that since Ms. C was presently not well, she should provide by medical documentation by June 6, 2017, as to her ability to attend work at the present time. [35] Ms. C testified that her appeal of Manulife’s termination of LTIP benefits was denied. As a result from May 31, 2017, she was without any income for some 7 months. Meanwhile, the Disability Accommodation Specialist (“DAS”) kept sending questionnaires to her doctors. Ms. C referred to one completed by Dr. Svihra on July 18, 2017, where he certified that Ms. C was fit to return to work, “immediately, with or without accommodation”, but that a psychological medical condition prevents her permanently from “attending work and/or performing her duties as a CO” Dr. Svihra also wrote that Ms. C was “restricted from exposure to detention centre environment (building/premises) as this will almost certainly result in deterioration of her mental health conditions”. In answer to the question whether - 15 - Ms. C has a “bona fide medical condition” that would prevent her from working in the “secured area of a correctional institution (areas where she may have direct or indirect physical contact with inmates such as inmate units, sub-control etc.) or in the unsecured area of a correctional institution (areas where she would not have any direct or indirect physical contact with inmates, (such as Administration, Records etc.), and if the answer is “yes” to either question, what specific medical limitations and restrictions prevent her from working in the area, Dr. Svihra answered “yes” to both q, and referred back to what he had written earlier in the questionnaire (see, para). He also reiterated that those restriction were permanent. Dr. Svihra also wrote again that Ms. C had no medical conditions that prevented her from attending work and/or performing the job duties of a PPO, and that “upon review of PPO job description, she is able to perform all duties as described, with the exception of “Institutional Liaison Officer”, as it would require her to attend a detention centre”. [36] Ms. C also referred to a report dated October 15, 2014, from Dr. L. Martin, (Internist/Rheumatologist), which had been provided to the employer. In that Dr. Martin wrote, inter alia, “… I indicated to her it would be unwise for her to return to her CO position which includes duties that may exacerbate her current symptoms. Modified duties which are currently implemented as a Probation Office would be much more advisable in the long run”. [37] Ms. C referred back to a questionnaire Dr. Nahab completed in 2014. A question asked Dr. Nahab to clarify “how Ms. C could possibly fulfill duties of a PO (see PO job description) and not that of a CO, when many of the duties are similar”. Dr. Nahab wrote, “Pl. refer to Dr. Svihra’s letter, para 3, p.1, which clarifies the differences and impact of each position on patient’s condition. Any inmate conduct with patient would aggravate her neck/back pain and mental status”. Dr. Nahab also wrote that “Being in a jail setting for more than 1-2 hrs at a time” would be “especially problematic” for Ms. C. He further reiterated that Ms. C’s restrictions were permanent. [38] Ms. C testified that she had applied for many postings at Corrections as well as other Ministries, for which she felt she was qualified. She testified that she copied all applications to Ms. Robertson. Ms. C explained that she wanted to be accommodated as PPO because - 16 - she had been doing those duties successfully, and it was the easiest solution. However, she had made it clear that she was willing to work anywhere provided the work was within her restrictions. She had provided numerous medicals to that effect. Therefore, she was furious when Ms. Robertson told her that she was waiting for the DAS, Mr. Ampil to provide medicals about her ability to work as a PPO. [39] Ms. C testified that when she applied for WSIB benefits, the employer objected to her claim, but dropped it later. Her WSIB claim was approved, backdated to October 2014, with a non-economic loss award, and her WSIB benefits were continuing at the time she was testifying. On May 15, 2018, she was finally placed on health re-assignment. She testified that her recent application for LTIP was approved by the insurer, who agreed with WSIB’s finding that at present she was unable to do any job even with accommodation. [40] Union counsel referred Ms. C back to Manulife’s letters of April 2017, informing her that her LTIP benefits would end as of April 30, 2017, since “the medical evidence supports that you have the ability to perform an alternate occupation”, and that as of that date she did not meet the “any occupation” test. Ms. C reviewed portions of the letter. It states that based on a transferable skills analysis, “You have the vocational potential to pursue employment in the occupations listed below”. She read a list of job titles, together with the NOC code, hourly wage, the level of strength required (sedentary or not) and hours of work for each job listed. The job titles listed by Manulife were in the following order: Probation and Parole Officers and related occupations, Social and Community Service Workers, By- law Enforcement workers and Court Clerks. [41] Ms. C pointed out that PPO is the first job listed by Manulife, and the CO position is not listed at all. She testified that after her LTIP benefits ended, between July and October 2017 she applied for 16 OPS postings and copied each application to Ms. Robertson and the DAS. Those were: Health and Safety Inspector (Ministry of Labour); SIU Investigator (MAG); PPO in Hamilton (MCSCS); Victim Service Worker (MAG); Probation and Parole manager (MCYS); Investigator (MGCS); Detachment Administrative Clerk (MCSCS); Early Resolution Officer (Ontario Ombudsman). She testified that in November-December 2018 she participated in three more OPS competitions but did not obtain any of these positions - 17 - and the employer did not offer any as an accommodation. Ms. C testified that by email to Ms. Robertson she also suggested 7 OPS jobs she felt were suitable for health reassignment and listed those jobs. She testified that Ms. Robertson or Mr. Ampil (DAS) did not even respond to her email. [42] Ms. C reviewed all of her grievances and explained that she had no choice but to file grievances, because she could not understand why the employer was not even trying to find her a job, when the only restriction in the medicals was that she could not work in a corrections environment. Cross-Examination of Ms. C [43] Employer counsel reviewed the medical evidence and put to Ms. C that even before starting at Parkdale in March 2013 she was experiencing symptoms of pain and saw a Rheumatologist in June 2013. Ms. C agreed. When asked why she then testified that her symptoms started after Ms. Tang became her manager in July 2013, she replied that after Ms. Tang’s arrival her pain intensified. She disagreed that the increase in pain was a result of her performing duties as a PPO, and insisted that she always worried that she may be returned to her CO position and that stress caused the increased pain. [44] Counsel pointed out that employer policy required that managers do a minimum of five case audits for all PPOs, and that for her Ms. Tang did only 5 audits in 2013 and 3 in 2015. Counsel put to Ms. C that Ms. Tang would be denying that she was treated any differently than other PPOs. Ms. C replied, “I felt targeted”. [45] Counsel put to Ms. C that Ms. Tang dictated a medical stating that she “required” a high back chair, instead of the medical she presented which only said that she “may benefit”, only because she wanted to make sure she gets the chair. Ms. C disagreed. However, she agreed that shortly after she provided the medical that she “required” the chair, she received the chair. Ms. C also agreed that shortly after she raised the issue with the seat of the chair, a technician was sent, and the chair was fixed. Ms. C agreed that Ms. Tang told her that she would try to arrange for someone at the college to take the chair from her car to the classroom for week 5 training. - 18 - [46] Counsel put to Ms. C that as a policy the College did not enroll someone not holding a PPO position for week 5 PPO training and that her week 5 was cancelled for that reason by the College, not by Ms. Tang. She responded that some of her colleagues had told her that they had received week 5 training although not holding a PPO position. She, however, could not recall who told her or when. When counsel put to her that the information was incorrect, Ms. C replied, “May be. But that’s what I understood. But I still like to see the college policy because Ms. Tang is so deceptive.” Asked for some examples of Ms. Tang’s deception, Ms. C replied that she could not recall. [47] Counsel put to Ms. C that Ms. Tang requested that Ms. C find a different support person for the WDHP mediation because she believed the respondent P’s assertion that the person Ms. C had chosen had been involved in the allegations in Ms. C’s WDHP complaint. When Ms. Tang became aware that Ms. P’s assertion was incorrect Ms. C was allowed to have the support person over Ms. P’s objection. Ms. C responded that the explanation that Ms. P incorrectly believed “does not sound right”. She also agreed that she was visibly upset the end of the mediation, and that Ms. Tang approved compassionate leave pay for the balance of the day and allowed her to go home. [48] Referring to Ms. C’s testimony that Ms. Tang had appointed a friend of the respondent as WDHP investigator, counsel put that the evidence will be that it was not Ms. Tang who appointed the investigator. Ms. C replied, “The coincidence is too much. It had to be Ms. Tang. That is just my opinion”. Ms. C agreed that in any event the investigator was changed at her request. [49] Ms. C agreed that after the WDHP report was completed, she had a meeting with Ms. Tang and the WDHP advisor to discuss it. However, she insisted that whatever else may have been discussed, she was only told that all her main allegations were found to be unsubstantiated, except one was found to be partially substantiated. She was not informed of the investigator’s reasons for the findings. [50] Counsel put to Ms. C that Ms. Tang will testify that when she requested a neck/back support device recommended by her doctor, she did not say that it was too expensive, that - 19 - she showed Ms. C various devices available on-line, Ms. C chose one and it was ordered. Ms. C insisted that Ms. Tang commented that the device recommended by the doctor was too expensive, but agreed that she showed her similar devices available on-line, and ordered the one Ms. C selected. That, however, was not what the doctor had recommended. [51] When counsel referred to Ms. C’s allegation that Ms. Tang had hired Ms. Q for the available contract PPO position instead of putting her in that position because Ms. Tang and Ms. Q were friends, Ms. C replied that she was not sure if they were “friends”, but she was told that they have hung out and also attended a wedding together. She felt that this could have influenced Ms. Tang’s decision. Counsel asked whether she knew how Ms. Q was hired, Ms. C replied she did not. When counsel put that the evidence will be that Ms. Q was not hired by Ms. Tang, Ms. C replied, “I don’t know”. [52] Referring to emails written by Ms. C, counsel put to her that even in 1999 when she joined the OPS as a CO, her goal was to become a PPO. He pointed out that she wrote that she became a CO “accidentally”. Ms. C agreed and added that even earlier while a university student, she had that interest of becoming a PPO. [53] Counsel referred to emails where Ms. C stated that her quality of life while at Parkdale was much better than at corrections, and that it was not possible to put a price on that, and put to her “You had a good life at Parkdale and did not want to go back to corrections”. Ms. C replied that at Parkdale she was paid $600 less than as a CO, but after weighing the pros and cons she decided that at Parkdale the environment was much better than at a correctional institute. [54] Ms. C agreed that since Ms. Tang started at Parkdale as her manager, she was a valuable mentor to her, and added “she taught me a lot of good stuff”. She also agreed that after she implored with Ms. Buhagiar by email that she wanted to stay at Parkdale, Ms. Buhagiar allowed her to stay at Parkdale for two additional weeks. Ms. C agreed that Ms. Tang had encouraged her to take that training, and told her it would be an asset if she wanted later to come back to P&P. - 20 - [55] Ms. C had claimed that there was an arrangement with Ms. Diniz, her manager at the time she started at Parkdale, that after two years as a PPO she would move up to the top PPO pay rate. Ms. C agreed that Ms. Tang told her that she had talked to Ms. Diniz, and that Ms. Diniz could not recall any such arrangement. Counsel put to Ms. C that she was paid according to the applicable pay policy. Ms. C replied, “But that means I have to work longer to reach the top PPO rate despite being employed with the Ministry since 1999”. She added that “a CO in Milton” told her that it was common for COs to by-pass that policy. [56] Counsel referred to Ms. C’s testimony that before the date for her recall to TSDC Ms. Tang questioned her about her health issues, which she found “very awkward”. Counsel put to her that it was she, not Ms. Tang, who raised the issue of her health. Ms. C agreed, and added that she was hoping that Ms. Tang would advocate for her staying at Parkdale, or at least get her an extension. Counsel put that Ms. Tang will testify that she did exactly that and tried to keep her at Parkdale. Ms. Tang reached out to Mr. Trevor Dunscombe, but was told that it was up the TSDC and not TWDC. Ms. C replied, “But Trevor told me that Ms. Tang didn’t want me in PPO anymore. He is not going to make that up”. [57] Counsel put to Ms. C that Ms. Tang will testify that she also approached Mr. Chillman, as well as his boss Ms. Buhagiar, to seek permission to keep her at Parkdale, that Ms. Tang told Ms. C about these efforts she made to keep her, and that Ms. C in fact thanked her. Ms. C replied, “Yes She told me she did. But it doesn’t mean that happened”. [58] Counsel asked whether Ms. C was asserting that she was sent out of Parkdale because another PPO Mr. K was returning. She replied, “No. But there was collusion between Ms. Tang and TSDC somewhere in the mix”. When counsel put to Ms. C that everyone on temporary assignment at the time were called back Ms. C responded that another manager told her that there were a few exemptions. She agreed with counsel that her allegation of collusion is because she was not exempted. Counsel asked Ms. C whether it was her position that decisions on contract extension must be based on seniority, she replied “yes.” - 21 - [59] Counsel asked Ms. C how her doctors decided to impose the restrictions. Ms. C replied that the doctors discussed with her before deciding. Counsel put, “ So if you said I don’t want to do that he said “yes”, and wrote it”. Ms. C disagreed. Asked how the doctors decided then, Ms. C said, “May have been through therapy and psychotherapy. I don’t know. We also discussed at length though”. [60] Ms. C agreed that at Parkdale she did not provide any restriction on confined spaces. She said that it was a very different environment at Parkdale. She interviewed clients in her office which was a roomy corner office with bright sunshine. She agreed that there was a secure room to be used for interviews if there was any safety concern, but she used that only once. She agreed that some clients at Parkdale could be the homeless (no fixed address), some with addictions, some who are in and out of jail and some with unpredictable behaviour. When counsel suggested that some clients may have committed violent offences, Ms. C replied that most had committed petty crimes, domestic violence, and a lot of addicts. She testified that since she was new in P&P she was assigned less difficult clients, and did not get any sex offenders. [61] Counsel referred to a questionnaire dated July 25, 2017, completed by Dr. Svihra, and put to Ms. C that she told him that at Parkdale she did not have “frequent/prolonged exposure to correctional officers crisis intervention team in uniform and their related equipment such as hand-cuffs, batons and other weapons and restraining mechanisms, and had no exposure to volatile environments or individuals or to risk of physical harm to self or others”. Ms. C agreed. Asked if there was any exposure to those at Parkdale, she replied “Not more than in any other office”. When counsel put that the employer’s evidence will show there is exposure, she replied “that was not my experience”. [62] Counsel asked Ms. C why she wrote the email on November 6, 2014, detailing what happened at the accommodation meeting on October 13, 2014. She replied, “To document what happened”. She agreed that what happened was fresh in her mind at the time and that she would have included everything important in the email. She agreed that there is no mention in the email that Ms. Seales pushed her out the door and that she did not file a complaint of workplace violence against Ms. Seales either. Counsel put that the TSDC - 22 - Deputy SS will testify that she did not yell at, berate , or throw papers at her at that meeting. Ms. C replied, “That’s a lie.” Counsel also put to Ms. C that at the meeting the TSDC Deputy SS advised her that she could be accommodated at TSDC as a CO even with her restrictions, and that Ms. C’s position was that she did not want to attend TSDC at all. Ms. C disagreed. She testified that the position of TSDC Deputy SS was, “You work at TSDC or you don’t work at all”. Counsel put that Ms. Robertson offered a position in the non- secured part of TSDC to her. Ms. C replied, “I think so. But it didn’t fit may restrictions”. EMPLOYER EVIDENCE Evidence of Ms. Helen Tang Examination -in- chief [63] Ms. Tang started her career in the OPS as a PPO in 2000. From July 2013 to September 2016. She was Ms. C’s manager at the Parkdale P&P office. Ms. Tang testified that Ms. C came to Parkdale on a temporary assignment in March 2013 with a one- month contract. At the time Ms. C was a CO at TWDC at the top of the pay grid. Ms. Tang was told that Ms. C had volunteered to take a temporary assignment as a PPO at a lower salary. In compliance with policy, she was placed at the top of the PPO pay grid considering her continuous service date. It was made clear to Ms. C that she will be able to progress to the PPO2 pay rate only when she completes all PPO basic training and been a PPO for two years. [64] Ms. Tang testified that in the spring of 2014 when Ms. C raised the pay issue, she showed her the pay policy. Ms. C told her that she understood the policy, but argued that she had an agreement with Ms. Tang’s predecessor, Ms. Lil Diniz, that her pay will be higher. Referring to emails, Ms. Tang testified about inquiries she made from HR, and how she met with senior management of TSDC to get clarification on what Ms. C’s wages should be at Parkdale. When she was convinced that Ms. C was being properly paid at the top PPO1 rate, she talked to Ms. Diniz, who assured her that she made no agreement with Ms. C to pay anything more than what the policy provides. [65] Asked to comment on Ms. C’s grievance alleging that she was returned to TSDC as a reprisal for her filing her pay grievance, Ms. Tang denied that the pay grievance had - 23 - anything to do with it. She made inquiries as to whether “something could be done” about Ms. C’s wage rate and informed Ms. C that she could not do anything for her, and that she is properly paid. Ms. C was very unhappy and told Ms. Tang that she will be filing a grievance. [66] Ms. Tang testified that Ms. Diniz as well as the learning advisor had told her that Ms. C was struggling and needed help. When she asked Ms. C whether she had any mentors, she informed that she had two mentors, but they had left Parkdale. In September 2013 one of them returned. Ms. Tang arranged for her to mentor Ms. C. Ms. Tang testified that at that time Ms. C had been a PPO for only a few months and still in training. It was common for new hires to need a lot of help. Ms. C was making progress, but needed help on how to apply policy and do administrative tasks. Ms. Tang reviewed Ms. C’s files in these areas. Ms. Tang referred to a very complementary report a community worker had written about Ms. C. As soon as Ms. Tang received it, she forwarded it to her superiors and also spoke to the Regional Manager about it. [67] Ms. Tang testified that the purpose of doing manager audits is quality assurance, accountability, and the learning and development of PPOs. She testified that employer policy required her to do a minimum of five audits for every PPO each fiscal year, and that she followed that policy for all PPOs including Ms. C. Ms. Tang testified that for Ms. C she did five and three audits respectively in the fiscal years 2013-14, and in 2014-15 which did not exceed the minimum. She testified that based on the audits Ms. C was “not doing bad” and met overall targets. While there were one or two administrative tasks Ms. Tang had to follow up on, overall she was progressing as a PPO. [68] Ms. Tang testified that Ms. P reported to her, but did work off-site as a Liaison Officer. Towards the end of the 2013-14 fiscal year she became aware of a conflict between Ms. C and another employee, Ms. P. Ms. Tang spoke to both Ms. C and Ms. P and offered to assist with mediation. Both agreed. Ms. Tang informed that each could bring a neutral support person to the mediation. Ms. P expressed a concern to Ms. Tang that the person Ms. C had selected was involved with the disputes between Ms. C and her. Ms. Tang testified that when she informed Ms. C about Ms. P’s objection, Ms. C did not dispute Ms. - 24 - P’s objection. Ms. Tang consulted the WDHP Advisor and the Deputy Regional Director, who instructed her that a person who had any involvement should not have any part in the process. Therefore she informed Ms. C that she had to find another neutral person as her support person. A few days later Ms. C informed her that she had been unable to find anyone else. At that time she also asserted that the person she had selected had no involvement and was neutral. Ms. Tang had a discussion with the WDHP Advisor and Ms. C and was informed that she did not have to replace her support person. [69] Ms. Tang testified that at the mediation Ms. C brought up some previous incidents with Ms. P. When she started to advise that they need to work together as professionals and move on, Ms. C rushed out of the room and was on the verge of tears. Ms. Tang went out and spoke to her. Ms. C was upset that Ms. P had not acknowledged her bad behaviour. Ms. Tang ended the meeting and gave Ms. C the rest of the day off. When Ms. C returned to work, she was still very upset with the outcome of the mediation. Ms. Tang informed her that it was open for her to file a formal WDHP complaint against Ms. P, and she did so. [70] Ms. Tang testified that she was not involved in the appointment of Ms. R.M., a manager, as the investigator with respect to Ms. C’s WDHP complaint. The appointment was made by the Regional office and that Ms. C’s allegation that she made the appointment to orchestrate the investigation to favour Ms. P was not true. When Ms. C objected to the appointment, Ms. Tang raised it with the WDHP Advisor and the Regional Office and it was decided that in the circumstances it was best to replace Ms. R.M. with Assistant Area Manager, Ms. T.F. [71] At the end of June 2014, Ms. T.F. provided her findings following her investigation. When Ms. Tang inquired from the WDHP Advisor what her next step was, she was told that she needs to have close-out meetings with Ms. C and Ms. P. Ms. Tang met with Ms. P and her manager, and informed them of the findings of the WDHP investigator. However, Ms. C was off sick until September 2014. After Ms. C returned to work, she and Area Manager Mr. Wayne Monroe had a close-out meeting with her. She was informed that only one of her allegations was found to be partially substantiated. Referring to an email exchange between herself, another WDHP Advisor and Mr. Monroe, Ms. Tang reiterated that at the - 25 - meeting Ms. C made inquiries about the investigation process, but was told that she was not privy to any further information due to confidentiality. [72] Ms. Tang testified that Ms. C presented a medical note dated July 27, 2013, stating “patient may” benefit from a highchair and an ergonomic assessment. When Ms. Tang spoke to Human Resources, she was told that the note may not be sufficient. She then told Ms. C that a clearer medical note was needed. Ms. Tang told Ms. C that the note must clearly state that a chair is needed and what kind of chair. Ms. Tang testified that she did that to ensure that Ms. C. gets the required chair. Ms. C provided a second medical note dated July 30th from the same doctor stating, “Patient requires a high chair, with neck and back support”. There was no mention of any need for an ergonomic assessment. In early September a chair was received by Ms. C. A receipt for the price plus tax paid in the amount of $ 1069.34 was filed into evidence. Ms. Tang testified that when Ms. C complained that the seat of the chair was crooked and was causing her problems, she arranged for a technician from the chair manufacturer to come in and repair the chair. [73] In early March 2014, Ms. C returned to work following her sick leave and was scheduled to do her week 3 and 4 PPO training at the Correctional College. Referring to emails, Ms. Tang testified that the college informed her that Ms. C had complained that the plastic chair she was provided during training was aggravating her back pain, but a suitable chair could not be found after a search through out the college. Ms. Tang consulted with HR about providing a suitable chair for Ms. C for use at the college. Ms. Tang was advised that Ms. C should be provided with a portable neck and back support device which she could continue to use whenever she works off-site. Ms. C was advised that the employer was prepared to provide her with such a portable device and was asked to provide a medical note. When Ms. C presented a note, she told Ms. Tang that it would be easier to find a device which best suits her if it is purchased through her doctor. Ms. Tang agreed. Ms. C purchased the device through her doctor and paid for it and was re-imbursed by the employer. Documents were filed to establish that arrangements were made with TSDC to have Ms. C’s chair at Parkdale and the portable device transported to TSDC when she moves there. - 26 - [74] Ms. Tang testified that she did not insist that Ms. C transport her chair to the college in her car or should get her boyfriend to do that. She said that those were some of many options discussed. When Ms. C rejected those options, Ms. Tang inquired about the cost of couriering the chair to the college, and also talked to the Regional Office about using a maintenance worker. The Regional Office approved that a maintenance worker may be used to transport the chair. [75] Counsel asked why Ms. C’s week 5 PPO training did not happen. Ms. Tang referred to an email dated October 5, 2014, sent to Ms. C, with copy to Ms. Tang, by an Administrative Assistant of the College, stating that her scheduled week 5 training “has been cancelled by Ms. Tang”. Ms. Tang testified that this email had been sent in error. She testified that earlier that day before the email went out, the manager of the college called her and informed that Ms. C is wait-listed for week 5 training and that the list was long. She asked Ms. Tang if Ms. C could be put on another list way down the road. Ms. Tang testified that she disagreed and stated that she was hoping to get Ms. C another 3-month contract extension at Parkdale and that if she remains on the waitlist, she may be able to do the training. It was therefore agreed that Ms. C will stay on the waitlist. However, the email in question went out within an hour. Ms. Tang testified that when she got the email she called Mr. Bob Perry, Manager of the P&P Program and he informed that the email was sent in error. Ms. Tang right away informed Ms. C that the college had taken her off the list in error, and explained that even if training becomes available after December 2014, Ms. Tang would not be able to approve that. Ms. Tang testified that at the time she had asked TSDC if she could keep Ms. C for an additional three months until December, and was waiting for approval. She said that through discussion she believed that TSDC would not approve, but “just to be safe” she had extended Ms. C’s contract by one month. [76] Counsel asked Ms. Tang whether it was possible to accommodate Ms. C as a PPO given her restrictions, including no direct or indirect inmate contact and no confined or secured places. She replied that “it would be a challenge”. Asked why, Ms. Tang testified that PPO’s clients are inmates released from jail. PPO’s offices at Parkdale were small. PPOs are not allowed to leave a client alone while in the office and they had to escort the client from the waiting room to the office and back out. PPOs interview the client in the - 27 - PPOs small office with the door closed due to confidentiality reasons. Depending on the identified risk level of the client a PPO may have to do the interview in a smaller secured interview room, equipped with a plexiglass between the PPO and the client. Ms. Tang testified that a client assigned to a PPO may go back to jail for some reason. Then that PPO may have to attend at the jail for meetings. Pointing out that exposure to volatile environments or individuals is listed as a trigger for Ms. C, Ms. Tang testified that although clients have their risk levels assessed, sometimes their behaviour can be unpredictable. PPOs get clients with mental health issues, drug addiction and some are homeless. She said that while rare, once or twice the Police or paramedics involvement was required at Parkdale. Counsel referred Ms. Tang to a document she had prepared titled “Probation and Parole Work environment – PPO vs. OAG Role. Ms. Tang testified that she prepared it in response to an inquiry by an Employment Relations Advisor about the possibility of accommodating Ms. C either as a PPO or in a support staff OAG position at Parkdale. Asked what her broad conclusion was, Ms. Tang replied, “That due to the restrictions identified it was difficult to ensure that the safety of Ms. C and others in the office can be met short of undue hardship”. [77] Counsel asked Ms. Tang why she added the sentence, “In the Probation and Parole setting this only pertains to attending the location of where the panic button is activated in the office”, in the accommodation plan when Ms. C returned to work. Ms. Tang replied that she wanted to make it clear that she had authority only to accommodate Ms. C at Parkdale. The doctor had referred to accommodation at TSDC, but if Ms. C is returned, it would be the responsibility of the TSDC managers to accommodate her. [78] Ms. Tang testified that Ms. C’s testimony that she did not send her medical documents needed for her STSP claim, and that was the reason her sick pay was delayed was incorrect. She and her administrative assistant processed Ms. C’s STSP claim in a timely manner and even went “over and above”. Ms. C did not provide the required medical in time. She told Ms. C “that was fine”, and since Ms. C was not working it was arranged in consultation with Mr. Monroe that Ms. C can get the medical needed at the next doctor’s appointment and drop it off at the Mississauga P&P office which was close to her home. A chain of emails back and forth was filed to show Ms. Tang’s efforts to process Ms. C’ claim. - 28 - Ms. Tang testified that she assisted Ms. C to update her resume. Evidence was filed to establish that on August 15, 2014, Ms. Tang emailed to Ms. C 28 pages she had scanned from a guide on writing cover letters and resumes, and wished her good luck. Ms. C replied by email commenting that she had no idea it was going to be that much work for Ms. Tang, and wrote “Thanks again Helen. As usual you go above and beyond”. [79] Ms. Tang testified that Parkdale had a lot of work. She had supported Ms. C and invested a lot on training her, and Ms. C was progressing well as a PPO. So her preference was to keep her. When Ms. C was on sick leave, she spoke to TSDC management and got approval that Ms. C can stay at Parkdale on her return to work. In September 2014, Ms. Tang contacted TWDC Deputy Superintendent Mr. Dunscombe, and sought approval to extend Ms. C’s contract which was to end at the end of September for an additional 3 months. Mr. Dunscombe advised Ms. Tang to speak to the TSDC because Ms. C’s home position had been transferred to TSDC, and any contract extension would be up to TSDC. When Ms. Tang contacted Mr. Chisolm at the TSDC, he said that TSDC was building capacity and was short staffed, and was therefore not able to agree. He suggested that Ms. Tang talk to the Regional Director, Ms. Rose Buhagiar. When Ms. Tang contacted Ms. Buhagiar, she gave the same reasons as Mr. Chisolm and refused the extension. Ms. Tang next contacted her Deputy Director to see if “something can be done at the regional level”. He told her that other staff also had been recalled to TSDC because they were short staffed and that he could not do anything. Asked whether she made any other efforts to keep Ms. C at Parkdale, Ms. Tang testified that when Ms. C was off sick, two of her staff returned from sick leave. Therefore, in order to be able to keep Ms. C, Ms. Tang let another fixed-term PPO go before Ms. C returned. The emails Ms. Tang referred to about efforts she made to extend Ms. C’s contract were filed as exhibits. Also filed was an email on October 2, 2014, in which Ms. C thanked Ms. Tang for providing certain contact information. Ms. C ended the email stating, “And thank you for advocating for me”. [80] Counsel asked Ms. Tang’s response to Ms. C’s position that when she was recalled to TSDC, one of the three fixed-term PPOs Parkdale should have been moved instead of her, because she had more seniority over them. Ms. Tang replied that when Ms. C raised that with her, she explained that seniority had nothing to do with her recall. She pointed out - 29 - to her that her first contract and each extension contained language that her temporary assignment can be ended at anytime and that it was up to management at her home position to decide how long she could stay at Parkdale. She also explained to Ms. C that if there was no work for the fixed-term PPOs, their contracts would not be renewed, and they would not have any job to return to, while Ms. C had a classified position to return to. [81] Ms. Tang denied that she and one of the fixed-term PPOs at Parkdale, Ms. Q, were friends. They did not go to the wedding together as Ms. C alleged. Ms. Tang was a bride’s maid at the wedding and Ms. Q attended as a guest. She also denied that Ms. Q visited Parkdale after she left to see Ms. Tang. She surmised that Ms. Q may have briefly spoken to her while in the office visiting former colleagues. Cross-examination of Ms. Tang [82] Ms. Tang agreed that after she became Ms. C’s manager Ms. C raised filed grievances in September and October, and was “forced back to Corrections” shortly after. Counsel asked whether Ms. Tang was bothered that a temporary employee was filing grievances. She replied “no”. Asked whether Ms. C’s grievances played any role in her return to Corrections, Ms. Tang said, “No. It was TSDC that decided to call her back”. [83] Counsel pointed out that in the fiscal year 2013-2014 she did 5 audits of Ms. C’s work, out of which 3 were done in a one-week period between October 9 to 14, and asked why that was. Ms. Tang pointed out that all three were incident report driven, and when a PPO writes an incident report, the manager must do an audit. She stated that she had no control over the timing. Counsel pointed out that in 2014-15, no audit was done from March to October. Three audits were done on Ms. C that year, all within one week in October. Ms. Tang pointed out that was because Ms. C was off sick from June to September that year. Counsel asked whether Ms. Tang did that because Ms. C had filed grievances. Ms. Tang replied that she would have done that for any PPO in the same circumstances. [84] Under cross-examination about her request to Ms. C to find another support person for the mediation, Ms. Tang testified that when Ms. P made the objection, she asked Ms. P - 30 - how the person was “involved”, and was told that she was helping Ms. C with work she submitted to court. [85] Ms. Tang insisted that she was not involved at all in the appointment of Ms. R.M. as investigator in Ms. C’s WDHP complaint against Ms. P. She found out who had been appointed only when she made inquiries after Ms. C asked her who had been appointed. Asked whether she knew why a manager was appointed as investigator and not an external person, Ms. Tang replied that all she could say was that in corrections it was common to appoint a manager. Asked whether she was aware that Ms. RM and Ms. P knew each other personally, she said that she knew only that both had worked at the Danforth Office. Ms. Tang testified that when Ms. C raised her concern about Ms. RM, she informed Mr. Wong as well as the WDHP Advisor, but was not involved in the decision to replace Ms. RM either. Counsel pointed out that the WDHP close-out meeting with Ms. C was in September, and at the end of October Ms. C was moved from Parkdale to TSDC. He asked whether Ms. C’s WDHP complaint had anything to do with it, and whether she would have been allowed to stay at Parkdale if her WDHP complaint had been upheld. Ms. Tang said “no” to both questions, and added that she had tried to keep Ms. C, but the decision was made by TSDC to call her back. [86] Ms. Tang agreed that a large part of the weeks 3-4 PPO training at the college consisted of lectures, and Ms. C had to sit and listen. Ms. Tang agreed that she asked Ms. C how she sits when she goes to a restaurant or a movie. Counsel put that Ms. Tang asked that because she did not believe that Ms. C needed any special chair during training. Ms. Tang disagreed, and explained that she was exploring what she could do for Ms. C because she knew another employee who was using a portable device, which she discussed with HR also. She was wondering whether that would be an option for Ms. C. [87] Counsel referred to an email Ms. Tang wrote to herself, “Spoke to Debbie. See what doc says. Note does not need to give details or to state exact device, i.e. travelling device to support back and neck. Device is inexpensive and I can make decision to purchase”, and put to her that she is saying that she will be deciding what to buy, not Ms. C. Ms. Tang replied that was not what she told Debbie. She told her that because the device was - 31 - inexpensive, she could authorize the purchase without the need to go through government vendors. Ms. Tang agreed that after the device was purchased Ms. C informed her that it did not fit the chair he had at the college and the college had to look for a different type of chair. [88] Ms. Tang testified that her suggestion that Ms. C take her high-back chair at the office for the training was one of several options she discussed. Counsel showed a photo of Ms. C’s high-back chair and asked Ms. Tang why she thought it would fit in a car given its size. Ms. Tang said. “We were just talking about options how to take the chair”, and when Ms. C said it will not it in her small car, she dropped that idea. She talked to Mr. Monroe and got approval to have a maintenance worker transport it. Counsel asked whether Ms. Tang had no concern that if Ms. C transports a special chair in her car and brings it to the classroom, it would identify her as an accommodated employee and cause her embarrassment. She replied, “That never crossed my mind”. Counsel put to Ms. Tang that she was expecting Ms. C to accommodate herself by taking the chair herself or getting her partner to do it. Ms. Tang again explained that those were just options discussed. Counsel asked Ms. Tang what she did about Ms. C’s suggestion that the chair be couriered to the college. Ms. Tang testified that she and the Community Service Representative made inquiries and the cost about $400. However, the big concern was that the chair had to be transported after hours, and there would be no one at the Parkdale office to allow the courier to pick up the chair in the morning and when it is brought back to Parkdale. That was why she turned to the option of using a maintenance worker. [89] Counsel asked whether Ms. C’s need for a special chair at Parkdale or the issues about providing her a suitable chair at the college during training had anything to do with Ms. C being returned to TSDC. Ms. Tang replied they did not. Counsel put to Ms. Tang that when Ms. C booked time off for surgery, that left Parkdale one PPO short, and Ms. Tang would have had to back fill her position. He asked whether Ms. C’s absences played any role in her return to TSDC. Ms. Tang replied that Ms. C was off for only 2 to 3 weeks. The workload at Parkdale was low, and her absence did not cause any additional workload pressure and her position was not back-filled. - 32 - [90] Counsel asked why Ms. Tang did not register Ms. C for week 5 training as soon as she completed weeks 3 and 4. She replied that it was up to the employee, not the manager, to register. After completing weeks 3 and 4 PPOs are required to complete some additional courses to be eligible to register for weeks 5. Before Ms. C could register, she had to work with her Learning Advisor at the College and complete all relevant courses to be eligible. Ms. Tang testified that Ms. C requested to be registered for the December week 5 training when she returned to work and Ms. Tang approved it. However, the college informed Ms. C in early September that due to heavy demand she had been put on a wait-list for a later training. Counsel asked whether Ms. Tang had decided that Ms. C would not be able to do that training in December because she was scheduled to move to TSDC. Ms. Tang testified that at the time TSDC had extended Ms. C’s temporary assignment until the end of October, but she was hopeful that it would be extended further. Ms. Tang discussed Ms. C’s situation with Mr. Perry, manager of the P&P Training Program, who informed that the wait-list for the December week 5 training was very long, and suggested that Ms. C’s training should be moved to sometime in 2015. Ms. Tang requested Mr. Perry to keep Ms. C on the December wait-list to see if her temporary assignment is extended. However, Ms. C was moved to TSDC. After that she was not authorized to approve P&P training for Ms. C. [91] Counsel referred to an email dated October 16, 2014 from the TSDC Deputy SS stating that according to a medical letter from Dr. Svihra sent to TSDC” it appears that Ms. C could not even enter our building”, and Ms. Tang’s reply describing the duties/ responsibilities and working conditions of PPOs at Parkdale, and observing that the only restriction Ms. C had at Parkdale was that she was not able to respond when on rare occasions when the panic button is activated. Under questioning, Ms. Tang testified that she set out these details in order to show the differences between CO and PPO duties. When counsel suggested that all PPOs do not attend correctional institutes as part of their regular work, Ms. Tang replied that it was part of the full duties of a PPO to attend jails and meet with offenders, but management could try to exempt a PPO from that as an accommodation. [92] Ms. Tang testified that after Ms. C left Parkdale her only involvement with Ms. C was with regard to grievances she had filed while at Parkdale. Asked whether she decided that - 33 - Ms. C could not be accommodated as a PPO, Ms. Tang replied “There was no such decision. I had asked TSDC to renew her temporary assignment, but TSDC called her back.” [93] Counsel put to Ms. Tang that Ms. C did full duties of a PPO while at Parkdale, except the restriction relating to panic button responses. Ms. Tang replied that Ms. C did all the duties she was trained for. Since she was not fully trained and lacked experience, she did not deal with sex offenders, high-risk offenders, intensive supervision offenders or parole cases. She agreed that if Ms. C had been allowed to stay and had completed the week 5 training, she would have assumed full duties after 2 years. [94] Counsel referred to an accommodation plan Ms. Tang had signed off for Ms. C for the period September to December 2014, which was stated to apply “only in the P&P setting”. She commented that she added that qualification because she could accommodate Ms. C only as long as she remained at P&P. When counsel put that Ms. Tang was prepared to keep and accommodate Ms. C in compliance with that plan, she replied, “Absolutely. There was no reason why I won’t want to keep her.” [95] Ms. Tang agreed that three fixed-term PPOs at Parkdale, G, E and Q, received 3- month contract extensions at the end of September, while Ms. C received only a one-month contract. She explained that she asked for a 3-month for Ms. C also and personally spoke to TSDC management. TSDC did not agree. In the circumstances Ms. Tang extended Ms. C’s contract by one month to the end of October just to keep her on payroll, while she continued to seek permission from TSDC to keep her. [96] Counsel put to Ms. Tang that at the end of September Parkdale had too many PPOs, and that she increased staff expecting Ms. C to be gone at the end of September. Ms. Tang disagreed and explained that the number of PPOs increased because many PPOs who were back-filling positions elsewhere returned to their home positions at Parkdale. Counsel put to Ms. Tang that she had to reduce the number of PPOs and decided that the easiest way to do that was to eliminate Ms. C who as a classified CO had a job to return to. Ms. - 34 - Tang responded, “no. As I keep saying she went because TSDC wanted her back. I asked and tried to keep her”. [97] Ms. Tang was cross-examined about her alleged friendship with Q, one of the fixed- term PPOs who received a 3-month extension. Ms. Tang insisted that they were not friends and only had a manager-employee relationship and repeated her testimony in chief about the circumstances which led to both attending the wedding of a P&P colleague, and Q’s visits to Parkdale after she had left. She denied that Q’s contact extension was in any way influenced by any personal relationship. Asked who decided whether or not Ms. C could have a 3-month extension, Ms. Tang said that the decision was communicated to her by Mr. Chillman, but Ms. Buhagiar would have made the decision. [98] Counsel put to Ms. Tang that Q registered for week 5 PPO training in May 2014 after she approved that training, and asked why she did not at the time follow up with Ms. C about registering for the May 2014 training. Ms. Tang replied that it is up to the employee to register after working with the College Learning Advisor to make sure that all pre-requisite courses and training are completed. [99] In re-direct, employer counsel asked Ms. Tang what restrictions Ms. C had while working as a PPO at Parkdale. Ms. Tang said that she had the chair. Then when she returned to work following sick leave she provided a medical limiting her to 4 hours of work during the first week back and no response activities. She said that prior to her recall Ms. C had no restrictions on inmate contact, attending at correctional institutions or secured/confined spaces. Evidence of Mr. Don Chillman Examination -in-chief [100] Mr. Chillman held the position of Deputy Superintendent Administration at TSDC from March 2014 to end of December 2015, in charge of staff services. He testified that TSDC was opened in January 2014. Inmates from several jails that were closing, including Toronto jail, Mimico and TWDC were moving to TSDC. Therefore TSDC was building up capacity to be able to operate as the inmate population increased. Staff from the closing - 35 - institutions were assigned to TSDC. Mr. Chillman testified that since TSDC was still short staffed, it also recalled TSDC staff who had been on temporary assignments elsewhere, including COs. [101] Mr. Chillman testified that he had worked with Ms. Tang in P&P for a brief period. Counsel asked Mr. Chillman whether he recalled Ms. Tang contacting him about getting an extension of Ms. C’s temporary assignment at Parkdale until the end of December 2014, and him suggesting that she should speak to Ms. Buhagiar. Mr. Chillman said that he had no specific recall, but if she did, it makes sense that he would have made that suggestion because it was Ms. Buhagiar who had “the last say”. Employer counsel asked Mr. Chillman for his reaction to Ms. C’s allegation that he and Ms. Tang colluded to move her out of Parkdale to TSDC. Mr. Chillman replied that it made no sense. be TSDC was so short staffed, many employees on temporary assignment were recalled, including Ms. C. [102] Mr. Chillman also could not recall him being copied an email Ms. C sent to the TSDC Deputy SS, alleging that she was harassed by Ms. Seales at a meeting, and him forwarding it to the WDHP office. Again he said that if he received such an email, it makes sense that he would have referred it to the WDHP office, because he was obligated to do so. He also would likely have requested both Ms. Seales and Ms. C to submit occurrence reports; inquired whether CCTV video had captured the incident; consulted TSDC Workplace Violence Staff; and potentially would have called the Police. He could not recall doing any of that. [103] Counsel reviewed the following restrictions set out in a HIF form Ms. C submitted at the time she returned to TSDC from Parkdale: (a) no direct or indirect inmate contact (b) no confined or secure places (c) no surveillance or supervision of inmates. Employer counsel asked Mr. Chillman whether it was possible to accommodate a CO with these restrictions at TSDC. With regard to (a) and (b) Mr. Chillman testified that he probably would have required more clarification, but said, “We probably could have accommodated her. She probably would not have been able to work in a sub-control since she would be locked in, but I suppose we still could have found somewhere for her to work in”. With regard to (c), Mr. Chillman said that he would have needed clarity as to for how long this restriction is - 36 - needed for and whether there was hope that there will be improvement in her condition within 3 to 6 months. [104] Mr. Chillman testified that as part of their job PPOs are required to attend at jails to do inmate interviews, prepare Court reports and case supervision. He said that when PPOs attend at jails, they have direct contact with inmates. They can pass by inmates. Also, there are offenders serving intermittent jail terms. They could be PPO clients during the week, and inmates in the institution during weekends. Mr. Chillman testified that if an inmate misbehaves, a CO has authority to issue a misconduct. If the inmate misbehaves again, it is reported to a Sergeant who adjudicates the incident, and the inmate can be moved to segregation, confined to his cell, or moved to another unit. If the misbehaviour involves an assault, the Police may also lay charges. He said that PPOs cannot issue misconducts to a client , but “could do other things” to encourage good behaviour. Cross-examination of Mr. Chillman [105] Mr. Chillman stated that prior to recalling staff to TSDC he was not aware of Ms. C’s temporary assignment at Parkdale. He stated that if Ms. Tang testified that she contacted Mr. Dunscombe at TWDC in an effort to extend Ms. C’s contract, he has no reason to doubt that. He could not recall having any discussions with Ms. Tang about staffing levels at Parkdale or TSDC or about grievances or WDHP complaints filed by Ms. C. Asked whether all TSDC staff on temporary assignment elsewhere were recalled, he said that an employee on a temporary assignment somewhere as a Sergeant may have been allowed to stay by the Director. [106] Mr. Chillman testified that the TSDC Deputy SS, who reported to him, was responsible for Ms. C’s accommodation. Ms. Seales was a Staff Services Manager at the time and would have been involved in Ms. C’s accommodation. He said that if the WDHP advisor received an email alleging harassment by her managers, the process required him to meet with Ms. C and decide whether the alleged incident could potentially be a violation of the WDHP policy or any other employer policy. If he decides it could not, no further action is taken. If he decides there could be a potential violation, an investigation had to take place. If the issue is about the WDHP policy, the WDHP office takes over. If it is about some other - 37 - policy, the complaint is returned back to TSDC for action. Counsel put to Mr. Chillman that when the WDHP office came up with its assessment of Ms. C’s complaint, he raised concerns about it. He responded that he could not recall doing that. [107] Counsel put to Mr. Chillman that Parkdale had wanted to keep Ms. C for three additional weeks, and Ms. C had disputes about her accommodation at Parkdale, and asked why TSDC did not allow her to stay at least until those disputes were dealt with. Mr. Chillman gave two reasons. First, TSDC had to be fair and treat everyone the same. Second, all returning employees were required to do specific site orientation for 5 to 6 weeks, including a tour of TSDC and shadowing, before being deployed. If Ms. C’s return was delayed, she would not have been able to get that orientation. Evidence of TSDC Deputy Superintendent Staff Services Examination- in chief [108] The TSDC Deputy SS assumed that position at TSDC in September 2013. She testified that at the time TSDC had opened and was being staffed. Her first contact with Ms. C was when she called her to arrange an accommodation meeting for October 30, 2014. Prior to the meeting she had some email communications with Ms. C and a phone conversation, in which she requested Ms. C for additional information and updated medicals. [109] The TSDC Deputy SS testified that the meeting on October 30 “didn’t go well”. She did not get an opportunity to discuss what she had planned because Ms. C started to talk about concerns she had during her temporary assignment at Parkdale. She testified that Ms. C “did not want to attend” TSDC, and wanted her to call Parkdale and send her back to Parkdale. She explained to Ms. C that her role was to arrange for Ms. C’s orientation of TSDC, and facilitate her return, but Ms. C “kept coming back to wanting to stay at Parkdale”. [110] The TSDC Deputy SS testified that when she explained that her role was to return her to her CO position with appropriate accommodation, Ms. C indicated that she would rather go on sick leave, and will not return to TSDC. She explained to Ms. C that if a CO is sick and needed to be off, the CO is required to inform the general duty officer. If not he/she - 38 - is marked “AWOL”. She also told Ms. C that she could use sick time only if she is really sick. If not, she will not be paid. She testified that when she had communicated with Ms. C earlier and requested for updated medicals, she did not say anything about not wanting to come to TSDC. Therefore, she was caught “off guard” when she took that position at the meeting. [111] Counsel referred to Ms. C’s evidence that at that meeting both she and Ms. Seales berated and harassed her, and were yelling and shouting throughout the meeting She responded, “That did not occur”. She said that when meeting with staff she is always very mindful of the posture, demeanor, and body language. She just sat back and listened. At that meeting she did that. She also denied that the physical shoving by Ms. Seales alleged by Ms. C happened. If she had observed that she would have been obligated to report the incident and take action. She would have done her own occurrence report. She would have requested video footage from the area. She testified that she communicated with Ms. C “a few times” after that meeting, and Ms. C did not raise anything about harassment or being shoved by Ms. Seales. She also requested and received various documents from Ms. C, which she passed on to the ERA, HRA and DAS, and informed them that she expected Ms. C to report to work at TSDC. She referred to an email she sent the day following the meeting to the employer’s Injury and Illness Specialist and other Ministry officials summarizing the meeting, highlighting Ms. C’s position that she did not want to return to TSDC and was planning to go on sick leave. The email did not include any mention of a shoving incident, but included the sentence, “We advised her that we can accommodate in the home position, in her role as a CO.” [112] Counsel asked the witness to comment on Ms. C’s testimony that she “made it clear that she could not provide me with a high back chair at TSDC”. TSDC Deputy SS referred to an email she sent to Ms. Tang on October 14, 2014, which ended, “with respect to the ergonomic chair, we can make arrangements to have it brought to TSDC.” [113] In response to Ms. C’s testimony that she had provided Dr. Svihra a public fax number instead of the number for the private machine in her own office, she testified that she did not have a private fax machine in her office at any time. Initially all faxes went to the Director’s fax machine which was in a locked room. Later Staff Services got their own - 39 - machine which was also in a locked room next to the Director’s office. Pointing out the time- of-day Dr. Svihra had faxed the medical report dated November 26, 2014, counsel asked who retrieved it from the machine or saw it. She replied that it would have been retrieved only by a manager or senior staff who are “under confidentiality”. [114] The TSDC Deputy SS agreed that she provided a copy of Dr. Svihra’s medical with the three restrictions to Ms. Tang, without seeking Ms. C’s consent. She testified that she had discussed with Ms. Tang the need for an updated medical for Ms. C because the most recent medical on file was from when she was a CO at TWDC. She and Ms. Tang were looking into what accommodations Ms. C had in the past. She viewed it as sharing information between managers for purposes of accommodating an employee. She agreed that she was aware at the time that Ms. C had some accommodation at Parkdale while working as a PPO. Union counsel put that when she received Dr. Svihra’s medical with the three restrictions “it looked like” Ms. C would not be able to work in TSDC. She disagreed. Counsel put to her emails she had sent on October 16, 2014, to the Director, with copy to Mr. Don Chillman and Mr. Scott Grey, and another email to Ms. Tang, where she states that it appears Ms. C “could not even enter our building”. She replied that it was her initial assessment, but more consultations needed to be done with the Attendance Support Management Office (“ASMO”) and Employee Relations, before deciding whether she could or could not be accommodated at TSDC. She therefore forwarded the medical to them to “get advice on how to proceed, and whether we can rely on the medical note”. [115] Counsel put that TSDC had no positions outside the one location. She replied, “all our staff work in TSDC, but we had positions in TSDC which could accommodate her restrictions. We first had to figure out how she can get the orientation and training. So the note didn’t stop us from looking at how best we can employ her”. She testified that at the time she was not aware that Ms. Tang had requested a 3-month extension of Ms. C’s temporary assignment at Parkdale, but could not say whether having that information would have been helpful. Counsel referred to the email she sent to Ms. Tang on October 16, 2014, attaching the medical note. In it she wrote, “To confirm, she currently supervises clients on probation and has contact with them, correct? Please advise.” Counsel put to her that she - 40 - was suggesting that despite the clear medical documents Ms. C was able to have inmate contact. She replied, “no. I was just looking for as much information as possible.” [116] She agreed that at the return-to-work meeting on October 30, 2014, she was considering only TSDC as an accommodation for Ms. C. Counsel put to her that Ms. C had suggested the Records Dept. at TSDC as a possible accommodation and that she rejected that. She agreed and said, “I told her that her home position was as a CO and Records is not a CO job”. Counsel put to TSDC Deputy SS that at that time she was looking only for CO positions as an accommodation for Ms. C. She replied, “Yes. Despite the restrictions, we were hoping that we can somehow get her orientation and training done in the non- secure area and see if it was ok with her restrictions. But we were not able to get to that stage”. She agreed that she never considered the Records Dept. as a possible accommodation. [117] TSDC Deputy SS agreed that two doctors, Dr. Svihra and Dr. Nahab, had provided medical documentation for Ms. C with the same three limitations. A questionnaire sent to Dr. Nahab, sought “clarification from a medical perspective on how Ms. C could possibly fulfill the duties of a Probation Officer and not that of a Correctional Officer, when many of the duties and responsibilities in regards to ensuring public safety and inmate rehabilitation are very similar”. Counsel pointed out that Dr. Nahab forwarded the questionnaire to Dr. Svihra, who responded and detailed the differences between the two positions. Counsel asked why this questionnaire was sent to Dr. Nahab but not to Dr. Svihra, when both had imposed the same restrictions on Ms. C. She testified that while the questionnaire went to Dr. Nahab over her signature, it was drafted and sent by ASMO, and she could not explain why. However, she agreed that she or another manager would have reviewed the content of the questionnaire before it was sent. [118] Counsel noted that Dr. Svihra’s response dated November 26, 2014, was faxed to what Ms. C had described as “the public fax”. He read the following parts Dr. Svihra wrote: - “ Working in a correctional (jail) institution setting aggravates Ms. C’s disability. She needs to be restricted from working in this type of setting for any extended period of time. The only exception to this may be if she needs to attend the institution for 1-2 hours at a time for the purpose of writing court ordered reports - 41 - in which case the inmate is interviewed through the glass and there is never direct inmate contact”. - “In my opinion Ms. C would not be able to undertake duties on an accommodated basis as a Correctional officer”. - “Working in an institutional (jail) setting aggravates Ms. C’s condition”. - “There is no significant impact on Ms. C’s ability to perform her duties or attend the workplace as a probation officer as a result of the treatment she receives from me. She does have ongoing treatment elsewhere that would restrict her from working after 4 p.m.”. - “Ms. C had done extremely well in terms of her condition while serving as a probation officer. Her current employment situation (prospect of returning to institutional setting as a correctional officer) has had a significant negative impact on her health status”. - “She is capable of returning as a probation officer”. - There is no medical reason that Ms. C would be unable to participate in an independent medical examination”. Dr. Svihra concluded his letter by stating. “From my perspective, she would be able to return to work as a probation officer immediately”. She agreed that Dr. Svihra’s letter included those statements. Evidence of Ms. Vicki Robertson Examination- in- chief [119] Ms. Robertson became the Deputy Superintendent of Staff Services in May 2016, and assumed duties as Deputy Superintendent of Administration in June 2017 at TSDC. Ms. Robertson testified that she called Ms. C on May 29, 2017, to discuss her return to TSDC, after Manulife informed that her LTIP would end on May 31, 2017. Ms. C informed her that she was still ill and not ready to return. Ms. Robertson testified that at a return-to- work meeting in the summer of 2017, Ms. C’s position was that she was still not ready to return to TSDC and that she explained to Ms. C that she only had ability to accommodate her at TSDC. According to Ms. Robertson, when Ms. C provided a medical letter to the effect that she could not return to TSDC as CO, the employer decided that she should be put on health reassignment. However, before doing that the employer had to make sure that there was no suitable position in corrections for Ms. C. Therefore, every week Ms. Robertson checked posted vacancies at TSDC as well as elsewhere in corrections. - 42 - [120] Ms. Robertson testified that she offered to Ms. C “an administrative position outside the secure area of TSDC”. As per the collective agreement, her top CO wage rate was to be red circled for 6 months, after which she would be paid the rate applicable to the job offered. She could not recall Ms. C’s exact response, but she did not accept the offer. Counsel put to Ms. Robertson Ms. C’s evidence that it was only after Ms. Robertson got involved that the employer finally accepted that she could not work at TSDC. Ms. Robertson denied that. She said, “we could have accommodated her outside the secure area, just to get her back to work”. When counsel presented a list of job postings in corrections and other ministries, which Ms. C had applied for between September 6, 2018 and September 19, 2019, Ms. Robertson agreed that Ms. C had copied her on every application she made. Cross- Examination of Ms. Robertson [121] Ms. Robertson testified that when she arrived at TSDC she became responsible for Ms. C’s accommodation. She agreed that at the time, Ms. C was receiving LTIP because she was unable to do her own occupation as CO. She stated that she did not discuss Ms. C’s accommodation with the TSDC Deputy SS. Asked whether she was provided with the medical documents from November 2014 which imposed the three restrictions on Ms. C, she replied, “They would have been in Ms. C’s file”. She said that she reviewed that file only after Ms. C returned to work after her LTIP was terminated. Asked what Mr. Ampil’s role was with regard to Ms. C’s return to work, she replied, “ to review medicals and decide whether Ms. C could return to work at TSDC, or should be placed on health reassignment. He was more of a guide to me on which way to go with her accommodation, but health reassignment was totally his responsibility”. [122] Ms. Robertson confirmed that while Ms. C was on LTIP, the employer did not look for any accommodation for her. She agreed that in May 2017, Ms. C’s LTIP was cut-off because Manulife determined that she could work, but not her own occupation as CO. When referred to the letter dated May 29, 2017, she wrote to Ms. C, she agreed that Manulife had informed the employer that Ms. C was able to do another occupation, but could not return to work as a CO or to work in a correctional environment. - 43 - [124] Counsel asked Ms. Robertson, given that LTIP was ending on May 31st, after which Ms. C would have no income, why she waited until she returned to work to look for an accommodation. She replied that she did not know when LTIP would be ending. When counsel asked whether she reviewed Ms. C’s file even at that point, she replied that she did. Counsel put to Ms. Robertson an email dated July 22, 2017, Ms. C had sent to Mr. Ampil attaching a number of medical documents. One was the completed form dated November 26, 2014, Dr. Svihra had provided to the TSDC Deputy SS, which set out the three restrictions relating to inmate contact, secure or confined spaces, and supervision or surveillance. Ms. Robertson responded that it may have been in Ms. C’s file but, she did not read letters in the file going back to 2014. Therefore, she did not see it. Counsel pointed out that the medical was also attached to Ms. C’s email sent in July 2017, and it contained a restriction that Ms. C could not work in “a correctional environment”. She replied, “But that letter was also from 2014” Counsel pointed out that the letter also clearly stated that this restriction on Ms. C was “permanent” and that in any event as recently as July 25, 2017, Dr. Svihra had provided a completed questionnaire. It asked the doctor to describe what medical conditions, including medical limitations and restrictions that impact Ms. C’s ability to perform job duties as a CO. Dr. Svihra wrote, “Restricted from exposure to detention centre environment (building/premises) as this will almost certainly result in deterioration of her mental health conditions”. Counsel asked, given these permanent medical restrictions, and the fact that Manulife had informed that Ms. C could not do her own occupation, why the employer still kept asking whether Ms. C could work as a CO, particularly when she was left with no income. Ms. Robertson replied, “I don’t know. But circumstances can always change”. Ms. Robertson testified that she had no authority to accommodate Ms. C anywhere other than at TSDC. Counsel asked, “If she cannot work in a correctional environment, then you had no position to offer her?”. She replied, “correct”. He asked, “Then why were you still continuing to be involved?” She replied, “Because she was our employee”. [125] Counsel put to Ms. Robertson that since Ms. C copied her all her job applications she made to the OPS, she was aware that Ms. C was applying for OPS positions other than PPO positions. She agreed. She stated that she had no ability to offer or accommodate Ms. C in any of the positions she had applied for. Counsel put to her that since she had no - 44 - position to offer at TSDC, and had no authority to accommodate her elsewhere, the only option was to place her on health reassignment. She agreed. Counsel pointed out that Ms. C was placed on health reassignment only in May 2018, and asked why it took so long. She replied, “I don’t know”. [126] In re-direct, employer counsel asked what the process was, when at the time an employee returns to work from LTIP, the most recent medical on file was from a date before she went on LTIP. She replied that Manulife will send all medicals they had, and the employer used those to return the employee to work. If those are not sufficient, the DAS would ask for more medicals. [127] Counsel asked Ms. Robertson what assumptions she made, when Manulife changed Ms. C’s status from “own occupation” to “any occupation”. She replied, “my understanding was it meant that she could return to work”. Asked how the administrative job was Ms. C was offered at TSDC complied with her restriction against direct or indirect contact with inmates, she said that the job would have been at the front of the building and that “one has to go through locked doors to get to the secure part of TSDC”. [128] Counsel asked Ms. Robertson to describe the usual process to place an employee on health reassignment. Ms. Robertson stated, “ an IME has to be done, and results are sent to the employee’s doctor. Then everything is sent to the DAS for review. There could be issues arising from the IME that need to be reviewed and returned back to the IME doctor for clarification. So it can take a few months”. She reiterated that before doing any of that, the employer must do an exhaustive search for positions within the ministry. Asked how long that process usually takes, she said she could not answer. Submissions and Decision [129] There are ten individual grievances filed by Ms. C, many with overlapping allegations. The parties addressed these generally and not grievance by grievance. Therefore there was also significant overlap in the evidence as well as submissions. Both parties, however, agreed that the grievances could conveniently be divided into two broad groups, (1) those that were about issues that arose while Ms. C was at Parkdale on - 45 - temporary assignment and (2) those issues that arose after her return to TSDC. Counsel also agreed that the most important issue overall is the allegation of failure to accommodate, and harassment and bullying. I have done my best to extract the evidence and submissions that that are relevant and applicable to each grievance. While this approach is appropriate for purposes of efficiency, I have considered all of the evidence to the extent they are relevant in determining each of the issues. This is necessary because at all material times Ms. C was employed by the same employer, the Crown in Right of Ontario, as represented by the Ministry of Community Safety and Correctional Services. The Respondent in each grievance is the same. The allegations related to the Parkdale Office of Probation and Parole Union Submissions The pay rate grievance [130] Counsel submitted that Ms. C willingly accepted the temporary assignment as a PPO at Parkdale, with the knowledge that there would be a reduction in her wages. However, when she started at Parkdale, her manager at the time, Ms. Diniz informed her that in order to obtain permanent PPO status she would be required to complete the 5-week PPO training, and that after becoming permanent, in two years she would reach the top PPO wage rate. The employer did not keep the promise. Counsel submitted that the issue for the Board is whether Ms. Diniz’s statement to Ms. C constituted a promise that is binding on the employer. He submitted that it would . Employer Submissions [131] Counsel submitted that there is no evidence to support the pay grievance other than Ms. C’s memory of a discussion with Ms. Diniz. There is no documentation whatsoever that Ms. Diniz offered a wage which was not in accordance with the collective agreement or the employer’s policy. Ms. Diniz has also denied that any such offer was made. The grievance therefore should be denied. Decision [132] There is no assertion that Ms. C wages were contrary to the collective agreement, or even the employer policy on wage progression. The onus is on the union to prove the - 46 - violation. There is no suggestion that Ms. C accepted the temporary assignment on the understanding or condition that wage progression would be better than that contemplated by the collective agreement or employer policy. Ms. Diniz has denied there was such a promise. While Ms. C may have honestly understood that to be the case, it is improbable that something as unusual as a departure from employer wage policy for an employee on a temporary assignment would have been offered by a manager with no documentation or consultation with senior management, Human Resources or Payroll Departments. There is no evidence to establish an enforceable term of employment which departs from the normal policy. The grievance therefore, is dismissed. Grievance alleging differential treatment [133] The evidence is that when Ms. C’s temporary assignment ended in October 2014, Ms. Tang extended her contract by one month, while contracts of the three fixed-term PPOs at Parkdale were extended by 3 to 4 months. The union alleged that one of the three fixed- term PPOs, Ms. Q, received a four-month extension because she and Ms. Tang were friends, and that Ms. C received only a one month extension because Ms. Tang wanted Ms. C to be moved to TSDC in the near future. Submissions [134] Neither counsel specifically addressed this issue as a separate grievance. Decision [135] Ms. C’s belief that Ms. Tang and Ms. Q were friends was based solely on what some unnamed colleague had told her. Ms. Tang was adamant during testimony that her relationship with Ms. Q was strictly one of manager and employee, and not social. More importantly, she presented a very legitimate explanation for the difference in the length of the contract extensions. Ms. Tang testified that she extended Ms. C’s contract by one month only because she wanted to help her by keeping her on payroll, while waiting for TSDC’s response. It was evident from Ms. C’s assertions during testimony that she believed that as a classified CO, she had seniority over the fixed-term employees and therefore she was entitled to priority over them. However, seniority has no application in the employer’s - 47 - decision to extend temporary employee contracts. The grievance has no merit and is dismissed. Grievance alleging failure to accommodate by providing an ergonomic chair Union Submissions [136] Counsel submitted that the employer violated the duty to accommodate by “putting up unnecessary roadblocks” when Ms. C presented the medical that she needed an ergonomic chair. Ms. Tang questioned the adequacy of the note Ms. C presented, and wanted a better medical. When Ms. C requested that her ergonomic chair be transported to the college, Ms. Tang questioned the need for the chair. When Ms. C insisted that she needed the chair during training, with that with no regard for Ms. C’s dignity, Ms. Tang suggested that Ms. C transport the chair at Parkdale to the college herself in her car. She then asked whether Ms. C could not get her boyfriend to transport it for her. Employer Submissions [137] Counsel submitted that Ms. Tang suggested that the medical be changed from “may benefit” to “required” only to ensure that the chair would be provided. She was trying to help Ms. C get the chair. Likewise, Ms. Tang’s questions about the need for the chair during the week 5 training was not an objection to the request. Ms. Tang was weighing options in order to decide how best to provide the requested accommodation. Counsel pointed out that Ms. Tang’s suggestion actually helped Ms. C get the chair relatively quickly. It was the same with regard to the week 5 training. After discussing various options, Ms. Tang obtained approval to have the chair transported to the college by using a maintenance worker. Decision [138] I find that Ms. Tang could and should have been more sensitive than she was, when she suggested that Ms. C make her own arrangements to transport the chair or have her boy-friend transport it. Ms. Tang testified that the potential impact on Ms. C’s dignity never crossed her mind at the time. However, I am convinced Ms. Tang was not at any time attempting to avoid providing the chair at Parkdale or transporting it to the college. She suggested options. However, when Ms. C rejected those, Ms. Tang did not in any way attempted to argue or force Ms. C to accept an option she did not agree with. While her - 48 - approach may not have been the best, she acted in good faith with the goal of providing the needed accommodation. There is no evidence that there was any delay in Ms. C getting the chair or of any adverse impact on Ms. C. Therefore, there was no violation, and the grievance is dismissed. Grievance alleging failure to accommodate relating to the accommodation plan. Union submissions [139] The evidence is that when Ms. C returned to work at Parkdale following sick leave from June to September 2014, an accommodation plan was developed based on her medical information at the time. The plan included a restriction that Ms. C would not be involved in response activity. Ms. Tang added a qualification to the plan to the effect that his restriction would apply only at P&P. Counsel submitted that the language added by Ms. Tang was in effect a statement by Ms. Tang that Ms. C was going back to TSDC and that once in corrections, the restriction in the accommodation plan would not apply. Employer submissions [140] Counsel did not make specific submission on this grievance. Decision [141] I find no merit in this grievance. Ms. C was on a temporary assignment and had no right to have the assignment extended. The decision rested with TSDC. TSDC was entitled to decide provided the decision is not tainted by bad faith or any unlawful reason. Ms. Tang believed at the time that despite her attempts to keep Ms. C at Parkdale, she would likely be recalled by TSDC. She had authority to accommodate Ms. C only at P&P. She had no authority to agree to any accommodation terms that would govern once Ms. C is back at TSDC. Once there, it would be up to TSDC to determine what accommodations, if any, to provide to Ms. C based on her medical restrictions. By adding the qualifying language, all Ms. Tang was doing was documenting that reality. That did not contravene the duty to accommodate. The grievance is dismissed. - 49 - Grievance alleging harassment by conducting excessive auditing and close scrutiny of Ms. C’s work [142] Neither counsel specifically addressed this allegation. Decision [143] The documentary evidence establishes that as manager Ms. Tang was required by policy to perform a minimum of five audits for each PPO every fiscal year. Ms. Tang did not exceed that minimum for Ms. C. She explained that the audits she did for Ms. C in 2014 were all done within a short period of time only because Ms. C was off sick from June to September 2014. She also explained that she paid more attention to Ms. C’s work in order to help her because she was new and inexperienced as a PPO. An email from Ms. C thanking Ms. Tang for the help was filed. Indeed, Ms. C during testimony volunteered that Ms. Tang was a good mentor who taught her “a lot of good staff”. She agreed that Ms. Tang had not exceeded the minimum of five audits for her. While she may have felt harassed as she testified, Ms. Tang’s scrutiny of her work was a proper exercise of her management authority. Therefore the grievance is dismissed. Grievance alleging discrimination and harassment by Ms. Tang cancelling the grievor’s week 5 PPO training Union Submissions [144] Union counsel made no submissions specific to this allegation, other than to comment that from the information available to her, Ms. C perceived the cancellation of her training to be a part of Ms. Tang’s attempt to get her out of Parkdale. Employer submissions [145] Counsel submitted that the uncontradicted evidence is that Ms. Tang had nothing to do with the cancellation of Ms. C’s training. The decision was made by the College. Decision [146] I agree with employer counsel. I additionally note Ms. C’s own evidence that Ms. Tang in fact encouraged her to do the week 5 PPO training, because it would be a pre- - 50 - requisite for Ms. C, if she decides to seek a permanent PPO position in the future. The grievance is dismissed. Grievance alleging discrimination and harassment related to the WDHP complaint filed by Ms. C against Ms. P Union Submissions [147] Again, union counsel made no submissions other than assert that Ms. C perceived the whole WDHP process “problematic” because it dragged on. Employer Submissions [148] Counsel submitted that the grievance should be dismissed because Ms. C’s allegation that Ms. Tang set up the process to favour Ms. P is not supported by the evidence. Decision [149] To support her allegation, Ms. C testified that Ms. Tang rejected the support person she selected for the mediation Ms. Tang conducted; that the investigator appointed was not neutral; and that while she was informed that the investigation was completed, no report with the investigator’s findings was disclosed to her. [150] The evidence is that Ms. Tang asked Ms. C to find another support person based on incorrect information she received that the person was involved in the conflict between Ms. C and Ms. P. As soon as she realized that the information was incorrect, Ms. C was informed that she did not have to replace her support person. The evidence also is that the WDHP investigator was appointed not by Ms. Tang, but by the Regional Office as per policy. In any event, there is no evidence that the investigator was not neutral and independent. There is no evidence that Ms. C was singled out for discrimination or harassment. In the circumstances the grievance fails. [151] In conclusion, on this aspect of the grievances, I find that the employer did not violate any provision of the collective agreement or the Code, and all grievances that relate to the period of Ms. C’s employment at Parkdale fail. - 51 - Grievances relating to the period after Ms. C’s recall to TSDC [152] The grievances included an allegation that the management at TSDC discriminated against Ms. C when she was recalled to TSDC from her job at Parkdale. It is significant that Ms. C was at Parkdale working as a PPO on a temporary assignment. She was not placed there as an accommodation. Nor was she hired by Parkdale as a fixed-term employee. Her home position at all times remained at corrections as a classified CO, first at TWDC and then TSDC. The evidence is that temporary assignments are approved by managers of an employee’s home position. The evidence is that every temporary contract Ms. C received during her temporary assignment was approved by TSDC. Each contract explicitly provided that TSDC retained the right to terminate Ms. C’s temporary assignment at any time. Thus Ms. C had no right to remain at Parkdale. [153] The evidence is that at the time TSDC was anticipating a significant increase in the inmate numbers. TSDC was short staffed and was in the process of increasing its staff complement to meet the expected demand and recalled staff working elsewhere in the Ministry on temporary assignment. Ms. C was one such employee recalled. Mr. Chillman was unsure whether every TSDC employee on temporary assignment was recalled. He conceded that one or two of its COs on temporary assignment as Sergeants at other institutions may not have been recalled. I agree that TSDC had the discretion to exempt Ms. C from recall. However, that does not translate TSDC’s failure to exempt her into a violation. There is no evidence that the decision to recall her was in anyway due to her health issues/disability or that she was for some inappropriate reason targeted for adverse treatment TSDC was entitled to call her back to her home position and utilize her training and experience as a CO. Her recall itself was not tainted and did not violate any provision of the collective agreement, and that aspect of the grievances fails. [154] The leads into the primary dispute between the parties, whether having recalled Ms. C , management at TSDC discriminated against Ms. C by failing to accommodate her and whether she was subjected to harassment/bullying. [155] To put this issue into context, it is necessary to summarize Ms. C’s medical status at the time she was returned to TSDC on November 1, 2014. She had been off for some - 52 - 2 years, first on STD and then LTIP. Ms. C had submitted to Ms. Tang at Parkdale, a medical report dated October 14, 2014, from Dr. Svihra, her psychiatrist, which included the following restrictions which were said to be permanent: (1) No direct or indirect inmate contact (2) no confined or secured spaces. At the request of the employer, on November 26, 2014, Dr. Svihra returned a HIF form in which he wrote: “Due to a permanent disability Ms. C is restricted from performing her duties as a CO”; “The institutional (jail) environment is detrimental to her mental health, due to her disability”. As requested in a question, Dr. Svihra explained why in his view, Ms. C is able to work as a PPO, but not as a CO. The employer had also received a medical from Dr. Nahab which included a permanent restriction against Mr. C being in a jail setting for more than 1-2 hours at a time. [156] Manulife had referred Ms. C for an IME by Dr. L Martin, (Internist/Rheumatologist). Dr. Martin’s report dated October 15, 2014, had been provided to the employer. It stated inter alia “… I indicated to her it would be unwise for her to return to her CO position which includes duties that may exacerbate her current symptoms. Modified duties which are currently implemented as a Probation Officer would be much more advisable in the long run”. [157] On October 30, 2014, a return-to-work meeting was held at TSDC to discuss Ms. C’s return. Detailed evidence relating to that meeting is set out (supra) and will be addressed below in relation to Ms. C’s allegation of harassment and bullying. For present purposes it suffices to note that Ms. C indicated that she was not willing to return to TSDC, and took the position that it would be directly contrary to the restrictions imposed by her doctors. The employer tried to convince Ms. C that she should return to TSDC and commence her training and orientation. Ms. C was off work with no income for a period before being approved for short-term sick benefits, and later to LTIP benefits. On May 29, 2017, Ms. Robertson, Deputy Superintendent Staff Services TSDC, who had taken over responsibility for Ms. C’s accommodation, wrote to Ms. C that Manulife had informed that her LTIP benefits will end on May 31, 2017, because it had determined that Ms. C had the ability to perform another occupation. She wrote that the only information the employer had to substantiate Ms. C’s ongoing absence from the workplace was from Manulife “that you - 53 - are unable to return to the correctional officer role/environment”. Ms. Robertson asked Ms. C to provide medical documentation as to her “ability to attend work at the present time”. [158] On July 18, 2017, the employer sent a questionnaire to Ms. C. It was completed and returned by her psychiatrist Dr. Svihra on July 25, 2007. In answering the questions posed, Dr. Svihra wrote that Ms. C was capable of returning to work immediately, that a psychological medical condition prevents her from performing duties of a CO, and that the medical condition was permanent. In response to a question as to specific medical limitations and restrictions which are impacting her ability to perform the CO role, Dr. Svihra wrote, “Restricted from exposure to detention centre environment (building/ premises) as this will almost certainly result in deterioration of her mental health conditions”. He further wrote that her bona fide medical condition would permanently prevent her from working in both the secured and unsecured areas of a correctional institute. The questionnaire also included questions about Ms. C’s ability to perform duties of a Probation and Parole Officer. He indicated that Ms. C does not have a medical condition that prevents her from performing the duties of a PPO. In answering the question whether there are any specific medical limitations and restrictions that impact her ability to perform the PPO role, he wrote, “Upon review of PPO job description, Ms. C is able to perform all duties as described, with the exception of “Institutional Liaison Officer”, as it would require her to attend a detention centre.” The questionnaire listed fifteen “cognitive limitations and restrictions” and asked the doctor to identify any that apply to Ms. C. He identified two, “Exposure to emotional situations/confrontations” and “working with crisis or emergency situations”. The severity level for both limitations was rated at the highest level “severe” and were identified as “permanent”. In relation to both, Dr. Svihra commented, “Restricted from situations/environments where there exists high potential for violence, threatening behaviour directed to Ms. C or others in the vicinity”. [159] Dr. Svihra was asked to specify any triggers for Ms. C’s medical condition that may be present “in different workplace environments within the OPS, including but not limited to CO and PPO environments”, which will be “reviewed to determine appropriate accommodation options”. Dr. Svihra wrote the following: - 54 - - Frequent/prolonged exposure to Cos/crisis intervention teams in uniform and their related equipment such as handcuffs, batons, other weapons or restraint mechanisms. - Exposure to volatile environments or individuals. - Exposure to crisis situations that pose risk of physical harm to self or others. - Witnessing physical altercations Dr. Svihra also wrote that any attempt to gradually increase Ms. C’s exposure to the triggers he had identified is not recommended since it will “likely result in worsening/ deterioration of her conditions”. In response to the question, “Are there any additional factors or barriers impacting Ms. C’s recovery and/or return to work?”, Dr. Svihra wrote: “The delay in her being able to return to work and the associated financial strain are significant stressors that negatively impact her condition”. Harassment and Bullying [160] I first turn to Ms. C’s allegation of harassment and bullying during the return-to-work meeting on October 30, 2014. At the time, the employer had been provided the medicals by Dr. Svihra, Dr. Nahab, and the IME report from Dr. Martin. Ms. C, her support person Ms. Diana Fedun, TSDC Deputy SS and Ms. Iona Seales attended this meeting. Ms. C’s testimony in chief is set out in detail supra at para. Her allegation of harassment and bullying consists of what may be described as harassment by verbal abuse and intimidation and by a physical assault. The only employer witness to testify about what occurred at the meeting was the TSDC Deputy SS. The other two attendees, Ms. Fedun and Ms. Seales did not testify. [161] The testimony of the TSDC Deputy SS about this meeting is also set out in detail, (Supra paragraphs 109 to 111). Based on the totality of the evidence I do not find that the allegation of physical harassment/bullying is established. The allegation is an extremely serious one, potentially a criminal offence of physical assault. The TSDC Deputy SS testified that she did not witness Ms. Seales physically push Ms. C out of the room as alleged. She insisted it did not happen. Nor was such an allegation brought to her attention by anyone. She testified that if she became aware of such an allegation even after the fact, she was obligated to document it and investigate. She testified that she would have taken a number of steps and would likely have contacted the Police. Mr. Chillman similarly - 55 - testified that if he became aware such an incident, he would have been required to address the incident. He would have ordered a review of the surveillance video records in the area and contacted the Police. It is also significant that Ms. C wrote a detailed email to the employer shortly after the meeting, describing what happened at the meeting. There was no mention at all of the alleged physical assault. [162] I have also considered the fact that Ms. C’s support person, who was present at the meeting did not testify to corroborate Ms. C’s evidence in the face of the TSDC Deputy SS’s denial. When employer counsel asked the TSDC Deputy SS to respond to Ms. C’s allegation that both managers were yelling and shouting and waved and tossed papers at her, the TSDC Deputy SS’s response was only about herself – that she is always careful and respectful when meeting with staff and that she did not yell/shout or wave or toss papers at Ms. C. She did not comment about Ms. Seales’ conduct. [163] The majority of the questions and statements alleged to be harassing / bullying were attributed to Ms. Seales. Ms. C depicted Ms. Seales as aggressive and intimidating. Her testimony about those questions and statements were not challenged during her cross- examination. During her testimony the TSDC Deputy SS denied the alleged physical assault, but did not dispute, or even comment on Ms. C’s allegations about the questions and statements by the TSDC Deputy SS and Ms. Seales. That evidence remains unchallenged and uncontradicted. It is significant that on November 6, 2014, Ms. C wrote the following email to the TSDC Deputy SS, under the subject “Summary of meeting on Thursday October 20, 2014”: On Wednesday October 30th Dianna Fedun (union representation), and I went to the Toronto South Detention Center to meet with TSDC Deputy SS, and Ms. Seales to discuss my doctor(s) note and accommodation possibilities. Our meeting was scheduled for 1400 hours however, it did not commence until 1440 hours. From the beginning of the meeting, Ms. Seales and TSDC Deputy SS engaged with me in a combative and hostile manner, by their demeanor and tone of voice. Needless to say, I felt threatened and bullied by the both of them that inclined me to think either of them were not interested in anything I had to say. For example, both of them abruptly cut me off in mid-sentence, and waved their hand in a dismissive manner. At no point during the meeting was I even given the impression that they were there to help me. - 56 - Ms. Seales degraded the doctor’s letters and demeaned my physician’s credibility with question like, “isn’t your car a confined space”, “You came to this meeting, isn’t this room a confined space?” Ms. Fedun replied that it is not the same because I am able to get up and leave at will, and these areas are not secured. I felt that Ms. Seales was mocking my doctor’s letters, and in my opinion, she was not taking the documentation seriously at all. I observed a smirk on her face, while she was interrogating and harassing me for having multiple medical conditions. Ms. Seales also stated, “no inmate contact doesn’t make any sense to me because you work with inmates in the community”. I corrected Ms. Seales and stated that in the community they are clients, and in an institutional setting they are inmates. In the community, I counsel only one client at a time, as opposed to the institution, (a far more hostile environment); you are exposed to dozens of inmates at a time. I stated that because the environment is different, the impact on me is different. Both Ms. Seales and TSDC Deputy SS refused to even consider my point of view and insisted on arguing that inmates and clients are the same. Ms. Seales attempted to engage in a circular argument demanding that her point of view be the only correct perspective. This action made me feel attacked and demeaned. Then I stated, “I was under the impression that the purpose of today’s meeting was to assist me, and I was hoping to have a solution based conversation”. TSDC Deputy SS stated that she can only accommodate me within the institution, and not within the OPS. I was asked repeatedly if I could be a Correctional Officer. I replied that my doctor specifically said that I cannot. TSDC Deputy SS stated that I will need to qualify for a health reassignment next. She stated that I am to take a leave without pay. I asked why am I being penalized for having an illness? She stated that I wasn’t being penalized because they were going to accommodate me within the OPS if I qualified for a health reassignment. I said, “without pay?” “So that’s being penalized”. They were both adamant that the employee does not get paid while waiting for a health reassignment I asked TSDC Deputy SS for a copy of the health reassignment policy. She stated that she did not have it with her and that she would send me a pdf copy as I do not have access to ministry internet. I now have to wait for a questionnaire to be formulated so I can have my doctors fill them out, at an incurred cost to myself. I have not received anything in writing nor have I agreed to take a leave without pay, in the meantime, I have no means of supporting myself. I feel that I am being discriminated against by both of them because of my infirmity. - 57 - [164] If Ms. C’s summary of what occurred at the meeting set out in her email was significantly inaccurate, it is reasonable to expect that the TSDC Deputy SS would have communicated with Ms. C, the union, Ms. Seales, or her superiors, expressing her surprise and disputing the accuracy of what Ms. C had described. There is no evidence that it was done. [165] The union did not claim that the alleged harassment of Ms. C was based on a ground protected by the Code. The allegation is one of personal or workplace harassment. The Occupational Health and Safety Act provides that “Workplace harassment” means “Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. In Re Toronto Transit Commission [2014] 132 L.A.C. (4th ) 225 (Shime) at 241, “harassment” was defined as follows: Harassment includes words, gestures, and actions which tend to annoy, harm, abuse, torment, pester, persecute, bother and embarrass another person, as well as subjecting someone to vexatious attacks, questions, demands or other unpleasantness. A single act, which has a harmful effect, may also constitute harassment. [166] In Re Fortin (2018) CanLII 177216 (ON GSB) at para. 163, arbitrator Luborsky described the legal meaning of “Bullying” as follows: 163 The word, “bullying” describes a spectrum of conduct related to the improper use of power that one person has over another, “to coerce or intimidate weaker persons” (per The New Shorter Oxford English Dictionary, supra). In the Board’s opinion, “bullying” is a form of an “abuse of power” in the workplace, which includes conduct by a person in a relative position of authority against an employee that a reasonable person would find hostile or offensive causing or having the potential to cause physical or psychological harm or adverse employment consequences to the employee, such as: (a) repeated infliction of verbal invective or maltreatment in the form of derogatory remarks, foul language and/or insults; (b) verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating, including yelling and physical displays of aggression and/or any form of violence; (c) deliberate sabotage or undermining of an employee’s work performance; (d) whether as part of a pattern of repeated misconduct or even where it occurs on a single occasion that is especially severe. [167] In Re Children’s Hospital of Eastern Ontario [2015] O.L.A.A. No. 342 (Parmar) it was recognized that harassment can be subtle and passive aggressive. Commenting on alleged harassment of co-workers by the grievor, arbitrator Parmar wrote at para. 109: - 58 - 109 The conduct the Grievor engaged in in this case is not the usual sort of yelling or name calling that is commonly recognized as personal harassment. However, the subtle nature of the conduct does not militate against a finding of harassment. Whether the comments or conduct are overt, or whether it is passive non-verbal behaviour, a finding of harassment is only dependent on whether the conduct is vexatious and was known or ought to have been known to be unwelcome. [168] Arbitrators have also held that bad judgments or wrong decisions by managers do not necessarily come within the legal definition of harassment. Thus in Re Fanshawe College of Applied Arts and Technology, [2016] O.L.L.A. (Bendel) at para 99, the arbitrator commented, “… a finding of harassment requires a departure from reasonable conduct. It cannot be based on grievor’s perceptions and interpretations”. Thus the decision must involve an objective analysis of the evidence. [169] Similarly in Re Cara Operations Ltd. (2005) 141 L.A.C. (4th) 266 (Luborsky) after referring to the TTC decision (supra), the arbitrator commented: 20 I accordingly adopt the foregoing as authority for the proposition that I must objectively assess the evidence to determine whether workplace harassment has occurred. Consequently, even if the Grievor believed she was a victim of such harassment, and suffered real medical consequences as a result, her perceptions and their result are not enough, in themselves, to support a finding of harassment. … 24 …one must be careful not to construct to narrow a definition of “departure from reasonable conduct” lest every perceived slight or subjective inference of abuse might result in paralyzing consequences to the workplace. There is a wide range of personalities that we experience in our interaction with others; not all of which may be pleasing to our individual sensitivities, but which we must live with nevertheless, within legal bounds, developing a certain “thickness of skin” to the challenge another’s disagreeable mannerisms might present. Whether dealing with a family member, backyard neighbour, co-worker or supervisor, the question of whether the other person’s behaviour amounts to a “departure from reasonable conduct” is an objective inquiry that given the expected variability in human capabilities and personalities, must be afforded a relatively wide margin of interpretation. Not every supervisor is a “good” one, but not all “bad” supervisors are abusive, without suggesting that Sharma fell within one or the other category. [170] In Re Shoppers Drug Mart [2007] B.C.C.A.A.A. No. 130 (Larson), the Board commented at para. 32: Supervisors have a right to be wrong provided that they act in good faith and not for an improper purpose. Poor judgement or wrong action is not discriminatory per se. It only becomes harassment when done in a seriously hostile or intimidating manner or in bad faith. - 59 - [171] In Re Cross et al, 2015 CanLII ON 60421 (ON GSB), arbitrator Misra wrote at para. 45-46: [45] Addressing the distinction that must be drawn between what may be characterized by an employee as harassment, and by an employer as management, Arbitrator Larson in UFCW Local 1518 v 55369 BC Ltd., 2007 CarswellBC 3880 (D.L. Larson), noted as follows: 32. Harassment by supervisors is particularly difficult, partly because it involves issues of the mistreatment of employees entrusted to their care but also because there is often a fine line between an aggressive management style and abuse. Context is important. In some work places vulgar and insulting language may be unremarkable but in other cases a mere statement may be discriminatory. [46] The arbitrator in that case noted that harassment normally involves an element of persistent conduct or a course of activities that involves hostility, importuning, badgering, intimidation or bullying that causes a person distress that is inimical to a safe and positive work environment (para. 31). The exercise of normal management rights does not excuse harassment, and giving directions, evaluating performance and disciplining employees should not be considered harassment in the normal course of events provided that such activities are not carried out in a manner that is abusive, demeaning or hostile, and has a legitimate workplace purpose (para. 33). Not every “employment bruise” should be treated as harassment, and Arbitrator Larson noted that it would be unfortunate if a harassment process was “used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred” (para. 34). [172] With the foregoing arbitral principles in mind, I turn to the evidence. I have already dismissed a number of grievances Ms. C had filed. I concluded that Ms. C’s perceptions or interpretations of Ms. Tang’s actions, although honestly held, were not objectively sustainable. Ms. C tended to perceive Ms. Tang’s comments or actions in the most negative light not consistent with, and in some cases completely opposite to, how a reasonable person would have understood the situation. However, I do not find Ms. C’s testimony about what happened at the meeting on October 20, 2014, to be mere distorted subjective perceptions on her part. Ms. C’s testimony in that regard was about facts – i.e. what was said and done at the meeting. Those facts were not challenged, except the alleged physical assault. The Board must determine whether those facts fall within the legal definition of harassment and bullying. - 60 - [173] A determination of whether conduct is objectively “a departure from reasonable conduct” must consider the totality of the circumstances and context in which it took place. It is relevant that the employer had received medical documentation from Ms. C’s family physician as well as her treating psychiatrist. On their face the documents were clear that due to the restrictions identified, Ms. C was not able to work as a CO with or without accommodation. Ms. C had in fact distributed copies of the medical documents at the meeting itself. The evidence is that the employer understood from the medical documents that Ms. C was not even able to enter the institution. [174] The TSDC Deputy SS explained under cross-examination that while that was her “initial” understanding, more information was needed before deciding. Assuming that the medical information provided was insufficient or unclear, the employer would have been entitled to seek further information. See, Re St. Joseph’s Health Centre [2005] 76 OR (3rd) 22 at para. 20 (Ont. Div. Ct.). However, by October 30th the employer had not had sufficient time or an opportunity to seek the additional information it desired from the doctors, to clarify why Ms. C was able to work as a PPO, but not as a CO. All it knew at the time was that Ms. C’s treating health professionals had concluded that to be the case. At that time the employer also knew or ought to reasonably have known from the information it had, that Ms. C was under treatment for a mental health condition, which could trigger serious episodes and worsen her condition if exposed to hostility or intimidation. [175] I have set out the evidence of what transpired at the meeting in detail. That evidence leads me to conclude that the only objective of the two managers at the meeting was to convince Ms. C to return to her home position as a CO and commence her orientation and training as all other COs returning to work after a long-term absence would be required to do. They did not, and had no intention at that meeting, to turn their minds to the restrictions Ms. C had provided or whether Ms. C could be accommodated in any job other than her CO position. I am convinced that the employer acted in this manner because they had concluded that despite the medical documents they had been provided, Ms. C was able to function as a CO. - 61 - [176] Applying the objective standard, I find that the employer conduct was aggressive, threatening and demeaning. In coming to this conclusion, I have considered that the two managers were persons in authority. Ms. C’s ability to have a job, and therefore an income, were in their hands. Their questioning was more an interrogation than a meeting or interview. Any reasonable person would have got the message “Report to your CO job and start your orientation/training or you will not work at all”. I find that the employer’s conduct was premised on its decision to override the opinion of medical experts and proceed on the basis that Ms. C did not have the restrictions claimed. The law does not allow employer’s to do that. See, Eagleson Cooperative Homes Inc., (infra, Para. 189). [177] I also find that the employer’s conduct was motivated by its belief that Ms. C was falsely claiming the restrictions in order to avoid her return to TSDC, and thereby achieve her long-held goal of becoming a PPO. They acted on a suspicion that Ms. C was deliberately misrepresenting her health condition to achieve that goal. That suggestion of dishonesty was implicit in the questions and statements during the meeting, and even in the questioning of Ms. C in cross-examination. This is a factor I have considered in finding that the employer’s conduct was demeaning and would impact on Ms. C’s dignity and self- esteem. [178] In conclusion, I find that the employer knew or ought reasonably to have known that its conduct was unwelcome. A reasonable person informed of all information the employer had at the time would have concluded that the impugned conduct constituted harassment and bullying as legally defined. [179] The union did not suggest, and I do not find, that the TSDC Deputy SS, Ms. Seales or any other employer representative deliberately targeted Ms. C for harassment or bullying. They were not on a personal vendetta against Ms. C. I am satisfied that they genuinely believed that Ms. C did not have the disability and the restrictions, although supported by expert medical professional. However, it was reckless on their part to act on that belief and override the clear opinions of medical experts, as they did. Instead of discussing options in a calm and reasonable manner, the employer gave Ms. C an ultimatum. Their conduct of - 62 - intimidation, threatening and demeaning fell within the legal meaning of harassment and bullying. I so find, and that aspect of the grievance is upheld. Accommodation [180] At arbitration, employer counsel did not dispute that Ms. C had a disability within the meaning of the Code and the collective agreement, or that she had the restrictions as set out in the medical documents she had provided. There is also no dispute that Ms. C provided medical certification relating to her health and medical restrictions as requested without undue delay. He accepted that the employer had a duty to accommodate her disability. Nor did he argue that the employer was unable to accommodate Ms. C short of undue hardship. To the contrary the employer’s position was that it could have accommodated her in her pre-disability position as a CO despite the opinions of medical experts that she could not work as a CO even with accommodation. [181] The basic legal principles relating to the duty to accommodate a disabled employee are summarized by the Supreme Court of Canada in Hydro Quebec (2008). S.C.C. 43, at paragraph 14 and 16 as follows: ... the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship. [182] The employer’s submissions were as follows: First, that Ms. C was insisting on her preferred accommodation as a PPO at Parkdale and was not prepared to discuss with the employer the possibility of being accommodated in her home position of CO or any other position. Second, it was asserted that Ms. C was in offered a CO position which met her medical restrictions, and was declined by her. It was submitted that it had discharged its duty by offering a reasonable accommodation. Third, the employer submitted that it was reasonable for it to attempt to accommodate Ms. C in her pre-disability job, before examining other options. The employer did not get the opportunity to proceed beyond its attempts to accommodate Ms. C as a CO, because at that point Ms. C provided medical documentation - 63 - that she was totally disabled and unable to do any work. As a result the employer did not get the opportunity to consider possible alternative accommodations other than as a CO. [183] In Central Okanagan School District No. 23 v. Renaud [1992] 2 D.C.R. 970 (“Renaud”), the Supreme Court of Canada wrote: More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words "reasonable" and "short of undue hardship". These are not independent criteria but are alternate ways of expressing the same concept. What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case. [184] In Re Hart-Day, GSB 2007-1117 etc. (Dissanayake), the Board at para.51 wrote: … the authority in the jurisprudence, including judicial authority, is that the employer is not required to provide the most appropriate accommodation. The Supreme Court of Canada in Renaud has clearly pronounced that the employer’s duty is discharged by an offer of a reasonable accommodation. [185] In Renaud, Sopinka J. discussed the employee’s duty to co-operate and at p.994 wrote: This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged. (See also, Re Canpar, [2000] 93 L.A.C. (4h) 208 (M.G. Picher) at para.15) [186] In Re Di Caro, 2003-3162 (Dissanayake) at p. 50-51, the Board wrote: I agree that the starting point for an employer is to attempt to accommodate the disabled employee by enabling him, with modifications as necessary, to perform - 64 - his own job. If he cannot do that, the employer is obligated to consider whether the employee can be allowed to perform parts of his job, with or without modification, avoiding those tasks which are beyond his restrictions. If this option is not available, the employer is required to consider other positions, first within the grievor’s division or silo, and if that is not possible, in other areas within the bargaining unit, gradually expanding the area of search. It will be only as a last resort that the employer will be called upon to look for accommodation outside the bargaining unit. This is in accord with what I have called the employer’s duty to incrementally broaden the scope of its search for accommodation. [187] Turning to the employer’ submissions, the first issue is whether Ms. C failed to cooperate and participate in the accommodation process by insisting on her preferred accommodation. There is no doubt that Ms. C’s preferred accommodation was as a PPO at Parkdale. She was very honest about that with the employer. She repeatedly pleaded with the employer that she be allowed to continue in her temporarily assigned PPO position at Parkdale as a permanent accommodation. However, while the evidence establishes that Ms. C had a strong preference to be accommodated as a PPO at Parkdale, the evidence does not support a finding that she refused to consider any other offer of accommodation. As I have already concluded, the employer expected Ms. C to return to her CO position at TSDC and start just like any other returning employee would. I also concluded that the employer had taken this hard line because it simply did not accept that the restrictions imposed by Ms. C’s medical professionals were legitimate. When Ms. C pointed out that accepting a CO position would be a direct violation of her medical restrictions and rejected it, the employer gave no indication that it was prepared to discuss, let alone offer, any other accommodation. Its position was that if she did not report to work at TSDC she would have no work at all, and would be considered absent without leave, which would leave her with no income. [188] The law requires that employees seeking accommodation to cooperate and participate in discussions about possible accommodation solutions proposed by the employer. Baber v. York Region DSB (2011) HRTO 213. However, employees are not obliged to accept offers that do not meet restrictions imposed by medical professionals, because such an offer would not be a reasonable offer. - 65 - [189] I have concluded that the employer did not accept the doctor’s certification that Ms. C suffered from a mental health condition which prevented her from working as a CO. In Re Eagleson Cooperative Homes Inc. [2006] CanLII 29987 (Ont. Div. Ct), the court was considering the duty of a CO-OP Board of a building to accommodate an individual with a mental disability, who had been evicted from her residential unit for failure to comply with the Corporation by-laws. In my view, the following observation by the Court at para. 32 equally applies to accommodation in employment: Mr. Theberge disclosed the full details of her medical condition to the Court and the CO-OP, which confirmed that the initial medical opinion provided to the Board by her doctor was well-founded that she suffered from a mental disability. From the Court’s point of view the detailed medical information also confirmed that the Board’s decision to evict Ms. Theberge and to ignore the medical opinion they had received or to have substituted their own medical opinion for that of the appellant’s doctor was not reasonable in these circumstances. The CO-OP Board does not have any special expertise in the area of assessing the medical condition of members and their ability to perform certain tasks. [190] Where there is a reasonable basis to doubt the legitimacy of an employee’s claimed restrictions and request for accommodation, or where the employer reasonably believes that the medical information provided is inadequate or unclear, it may request additional information or clarification. In the instant case, the medical opinions were very clear. However, the employer was still genuinely puzzled as to why Ms. C was able to be a PPO, but not able to work as a CO. Therefore, seeking a further explanation from the doctors by itself was not unreasonable. The evidence is when the employer sought further information Ms. C provided a detailed explanation from her psychiatrist as to why he differentiated between the CO position and PPO position, and again confirmed the need for the restrictions. [191] Ms. C testified that immediately after the Return-to-Work meeting on October 30, 2014, she requested that she be accommodated in the Records Department. The evidence is uncontradicted that the employer dismissed the request on the grounds that Records Department is not a post to which COs are assigned. This is confirmed in an email the TSDC Deputy SS wrote to union representative Mr. Johnson with copy to Ms. Seales after the meeting on October 30th, 2014. In that email she wrote, inter alia ,“CO. C asked about working in the Records Department in an email after the meeting – although she indicated - 66 - during the meeting that she could not enter the building. In my response, I indicated that the Records Department is not a post for correctional officers.” The evidence also is clear that Ms. C made numerous applications to posted OPS positions , and copied each application to the employer. In addition, she applied for other jobs outside the OPS. Therefore, I do not agree with the employer’s position that Ms. C was only willing to consider accommodation in her preferred position of PPO at Parkdale. [192] The employer submitted that met its substantive obligation by offering a reasonable accommodation to Ms. C. On receipt of the psychiatrist’s additional medical documentation dated November 26, 2014, the employer became aware that Ms. C was unable, not only to work as a CO, but was not even able to work in a correctional environment. Did the employer offer any accommodation that complied with this restriction? I find that it did not. The only evidence the employer adduced was about an offer of a position described only as “an administrative position in the unsecured area of TWDC”. Ms. C recalled such an offer being mentioned. However, there is no evidence that Ms. C was provided with any details beyond that. No evidence was led as to what duties that job entailed, except that Ms. C would have been in a CO position performing CO duties. Most importantly, there was no evidence even at arbitration as to what CO duties Ms. C would be performing or how the CO position offered would comply with the Ms. C’s restrictions, “No direct or indirect inmate contact”, and “unable to work in a correctional environment”. [193] Moreover, other than the mention of the position to Ms. C during a discussion, no documentary evidence was presented to establish that there was any discussion or consultation about providing an administrative position to Ms. C as an accommodation. It is reasonable to expect that if a serious attempt was made to accommodate and a suitable accommodation was identified and offered to Ms. C, there would be some evidence of discussions/consultations among the people involved in the search like HR and the DAS, or emails documenting those efforts. The total absence of any documents leads me to conclude that no offer was made, beyond an incidental and vague mention of a possibility. [194] In any event, even if the offer was made as the employer claims, to satisfy its duty to accommodate the offer must have been “reasonable”. The administrative position was - 67 - within a correctional institution. That offer was not reasonable, when Ms. C had been declared unable to work in a correctional environment, and the employer had in fact understood that to mean that she could not even enter the institution building. This again is evidence that despite all of the documentation from medical experts, and the insurance carrier Manulife, that Ms. C was unable to work as a CO, the employer continued to hold on to its own view that she did not have any restriction that prevented her from returning to her CO position. [195] Employer counsel relied on Lagana v. Saputo Dairy Products, CanLII (2012) HRTO 1455, and argued that to comply with her duty to cooperate Ms. C was obliged at least to return to her home position and try whether she could perform the duties. In Re Lagana (supra), the Board at para. 113, referred to the employee’s duty to facilitate the implementation of an employer’s proposal recognized in Renaud, and wrote, “If the applicant has concerns that the position is not being implemented as offered he, in my view, needs to address this after having returned to the position”. I find this case to be clearly distinguishable. In making the above-noted observation the HRTO in Re Lagana relied on a previous decision of the HRTO. At para. 111, the Tribunal wrote: “I agree with the Tribunal in Boyce v. Toronto Community Housing Corp., (2012) HRTO 853, that absent medical advice to the contrary, it is implicit in the duty to cooperate that the employee will at least attempt a modified return to work before ruling it out as an inappropriate accommodation”.(italics added). The statement of principle in Re Boyce is qualified clearly by the words “absent medical advice to the contrary”. In the instant case there was abundant medical advice that Ms. C was unable to work as a CO or in a correctional environment. In Re Lagana, the employee’s rejection of the proposed accommodation was not based on any medical advice or restriction. It was based on his suspicion that the manager will not implement the proposed accommodation as set out in the accommodation plan. [196] The employer took the position that accommodating Ms. C in the Parkdale PPO position would have resulted in undue hardship to the employer because the small offices the PPOs worked in there with the door closed would have been contrary to Ms. C’s restriction on confined or secured spaces. This argument has no merit. In the first place - 68 - the employer is not entitled to argue undue hardship when it had not explored in any manner the viability of accommodating Ms. C at Parkdale or any other P&P office. See, Gaisner v. Method Integration Inc. (2014) HRTO 1718. In any event the evidence is that Ms. C had worked as a PPO at Parkdale with no difficulty or complaint. Her manager, Ms. Tang testified, and the management at TSDC was made aware, that Ms. C performed all PPO tasks satisfactorily, except that she was exempted from responding if and when the emergency panic button was activated. Ms. Tang testified that Ms. C was progressing well as a PPO and wanted to retain her at Parkdale as a PPO. Besides, Ms. C’s family physician, her psychiatrist, and another specialist who did an IME arranged by Manulife, all provided opinions that the PPO position was a suitable, if not the best, accommodation for her. The employer was aware of all of this. In these circumstances it is not open for the employer to assert undue hardship at arbitration when it had not even turned its mind to accommodating Ms. C in any PPO position. [197] The employer is a vast organization. The OPS bargaining unit covered by the collective agreement includes many ministries and agencies. It is surprising, but it appears, that the management at TSDC believed that its obligation was limited to accommodating Ms. C in her pre-disability position. The law has been well settled for a long time that the duty goes far beyond that. This Board has recognized that consistently. Thus in a 2005 decision, Re Di Caro, (supra), the Board wrote, “The duty to accommodate has evolved and expanded to such an extent that today the law requires an employer to look far beyond the disabled employee’s own position as a means of accommodation”. The Board went on to describe the incremental expansion of the search required See, para. 186 ( Supra). [198] It is well established that the duty to accommodate includes procedural and substantive obligations. B.C. Service Employee Relations Commission v. Service Employees’ Union [1997] 3 S.C.R. 3 (S.C.C.) (“Meiorin” decision) at paras. 62-68. The procedural component of the duty requires the employer to consider the individual employee’s accommodation needs and analyse the possible available accommodation measures. The substantive obligation is to analyse the possibility of accommodating short of undue hardship, and offer an accommodation that is reasonable. A failure to comply with - 69 - either the procedural or substantive obligation amounts to a violation of the duty to accommodate. [199] I find that in this case this case the employer’s procedural effort to accommodate Ms. C was almost non-existent. It failed to comply with most fundamental procedural duty by confining its search for accommodation to Ms. C’s own pre-disability position. Therefore, the employer breached its duty to accommodate Ms. C under the Code and the collective agreement. [200] I also find that had the employer considered positions outside the correctional environment, Ms. C would have been productively at work well before she became totally disabled. The medical experts were of the unanimous opinion the was that Ms. C was able to work as a PPO immediately despite her health issues, with very minor modification of regular PPO duties. Ms. C had proposed a position in the Record’s Dept. She had applied for numerous different OPS positions which she felt were within her restrictions. Manulife had provided a list of positions potentially suitable for Ms. C. The PPO position was at the top of that list. Her medical professionals had certified that Ms. C was able to do other jobs, provided that the work is within her restrictions. The employer did not explore or even turn its mind to any of the potential solutions, including the PPO position which Ms. C had been performing with no issues. Ms. C’s manager at Parkdale had in fact informed the management at TSDC about that and requested permission to keep Ms. C at Parkdale as a PPO. [201] The evidence does not in any way support that Ms. C failed in her duty to cooperate by insisting on being accommodated in her preferred position as a PPO. The evidence supports the opposite. Thus, in an email to Ms. Robertson and union representative Mr. Johnson, Ms. C wrote, inter alia, as follows: To be clear, whatever it is that the disability specialist is doing, his questions are ONLY regarding the role of a PPO. You have made it clear that any accommodation is to go through you first, even outside the jail, or the ministry. Why are you waiting for a disability specialist when I am ready, willing, and able to work in a job that is not PPO? Why are you restricting my potential employment to just one job? I have cc’d you on many job applications that are within my education, skills, and abilities. I qualify for these positions. You are aware of my interest in these positions. - 70 - All accommodations go through you, so what have you done to assist my return to work? Why am I not being considered for another job other than that of a PPO? At the very least, why am I not being accommodated within this ministry? I am a highly qualified, well educated candidate that lives in the GTA. How many opportunities are there within the OPS in the GTA? [202] In Re Alvani, 2007-3700 (Dissanayake), the dispute was whether the employer contravened the duty to accommodate as a result of unreasonable delay. At para. 17, the Board wrote: “… in determining the grievance the Board must decide, not whether any one step in her accommodation process was delayed unreasonably, but whether the overall process was delayed unreasonably. If unreasonable delay is found, the Board must proceed to consider whether the employer was responsible for that overall delay as would constitute a failure to comply the employer’s duty to accommodate under the collective agreement and the Ontario Human Rights Code. [203] At para. 34 the Board wrote: “However, whether the time period taken to accommodate an employee is unreasonable must necessarily depend on the particular facts of each case. In this regard, the nature of the employee’s disability, the duties and responsibilities of the position held by the employee, the nature and the timing of the medical information as to the restrictions resulting from the disability provided to the employer, whether suitable accommodation is readily available having regard to the employer’s operation, the level of cooperation and participation on the part of the employee and his or her trade union in the accommodation effort, and the sophistication and experience of the employer in accommodation issues, are all relevant considerations”. [204] On an application of those factors to the evidence, the conclusion is inevitable that the delay in Ms. C’s accommodation process was unreasonable, and that the employer was responsible for it. Most significant in this regard is the fact that a suitable accommodation was readily available for her. It was work that had been successfully tried and tested. I find that the employer’s out of hand dismissal of the PPO position as an accommodation, when Ms. C had been performing that work with no issue, and the position had been recommended as suitable by Ms. C’s medical experts as well as Manulife, was a breach of the employer’s substantive duty to accommodate Ms. C. [205] Ms. Tang the manager at Parkdale had not only indicated her willingness to keep Ms. C there, but had advocated to get TSDC’s approval to do that. Yet rather than at least - 71 - temporarily accommodating Ms. C at Parkdale, while searching for solutions more acceptable to TSDC, the management turned down Ms. Tang’s request. Instead they chose to place Ms. C on a leave of absence with no income. [206] It follows from the foregoing findings, and I declare, that the employer failed to comply with its procedural, as well as substantive duties to accommodate Ms. C in contravention of the Ontario Human Rights Code and the collective agreement. Summary [207] All grievances filed relating to the time period Ms. C was working at the Parkdale PPO office are dismissed. [208] The Board declares that the employer harassed and bullied Ms. C in contravention of the collective agreement and the Ontario Health and Safety Act in the period following her recall to the TSDC. [209] The Board also declares that following Ms. C’s return to the TSDC, the employer failed to accommodate her disability, and thereby contravened the Ontario Human Rights Code and the collective agreement. [210] In accordance with the joint agreement of the parties at the commencement of this proceeding the issue of appropriate remedy is referred back to the parties. The Board remains seized with jurisdiction. Dated at Toronto, Ontario this 1st day of March 2022. “Nimal Dissanayake” ______________________ Nimal Dissanayake, Arbitrator