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HomeMy WebLinkAboutWei 10-02-12 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") - AND - SENECA COLLEGE (the "College") AND IN THE MATTER OF THE GRIEVANCES OF TERENCE WEI OPSEU Grievance Nos. 2006-0561-0002, 2006-0561-0003, 2007-0561-0002, 2007-0561-0013, 2007-0561-0014, 2007-0561-0015, and discharge grievance (Aug. 12, 2008) BOARD OF ARBITRATION Robert D. Howe, Chair Sherril Murray, Union Nominee John Podmore, College Nominee APPEARANCES For the Union Muneeza Sheikh, Counsel Janice Hagan Jennifer Yebuga Terrence Wei For the College William LeMay, Counsel Jane Wilson Gord Mickovski Don Forster Roy Langille A hearing in the above matter was held on November 27, 2007; August 12 and 13, October 24, November 19, 25, and 27, and December 3, 2008; May 28, June 10, July 2, August 5, 6, 7, and 10, and December 10 and 17, 2009; and January 4, 2010. A WAR D This award pertains to seven grievances filed by or on behalf of the grievor, Terrence Wei: (1) a grievance dated August 11, 2006, challenging a three-day suspension for an incident involving damage to a ramp attached to the College's portable classrooms; (2) a grievance dated August 26, 2006, challenging a three-day suspension for alleged insubordination; (3) a grievance dated February 26, 2007, regarding allegations that the College failed to provide necessary accommodations so that the grievor could return to work, harassed the grievor by demanding medical notes when there was no intention to honour those notes and by requesting further medical information when he had already provided a medical note from his treating physician, and neglected to send him long term disability application forms in a timely manner; (4) a grievance dated May 28, 2007, alleging unfair discipline (involving not being permitted to perform the full duties of a Grounds Keeper) and a refusal to accommodate the grievor's disability in a manner that respected his personal dignity; (5) a grievance dated November 13, 2007, alleging unjust discipline in the form of letters dated October 31 and November 1, 2007, and further alleging that those letters were part of an ongoing campaign of harassment against the grievor; (6) a grievance dated December 10, 2007, alleging that the College was deliberately prolonging his discipline (involving 1 reduced duties of work), that the College was harassing him, and that the College was not accommodating his illness and return to work; and (7) a grievance dated August 12r 2008, alleging dismissal without just cause, and violation of Articles 2.1 and 2.3 of the collective agreement. The grievor also filed a human rights complaint dealing with issues which he described as being "mostly similar" to the issues dealt with in these proceedings. During the eighteen days devoted to the hearing of this matter, eleven persons were called as witnesses. In addition to their extensive testimony, this Board of Arbitration (the "Board") has before it numerous exhibits which were entered during the course of the proceedings. In making the findings and reaching the conclusions set forth in this decision, the Board has duly considered all of that oral and documentary evidence, the submissions of counsel (which were helpfully provided primarily in writing and which need not be detailed in this award), the cases relied upon by counsel (of which only those that we have found to be of particular assistance will be referred to in this award), and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses' respective memoriesr their ability to resist the influence of self-interest when giving their version of events, the internal and external consistency of their evidence, and their demeanour while testifying. The Board has 2 r considered the inferences which may reasonably be drawn from the totality of the evidence, and has also assessed what 1S most probable in the circumstances of the case, with the assistance of the following test set forth in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.): 11. The credibility of [an] interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. The portions of the collective agreement germane to the arbitration of the grievances include: 2.1 Interference The College and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practised by either of them or their representatives or members because of an employee's membership or non-membership in the Union or because of his/her activity or lack of activity in the Union. 2.3 Ontario Human Rights The parties agree that in accordance with the provisions of the Ontario Human Rights Code there shall be no discrimination against any employee by the Union or the College because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. 3 ~ 18.6 Grievance re: Dismissal, Suspension, Layoff or Reassignment 18.6.2 Grievance An employee who claims he/she has been dismissed or suspended without just cause or improperly laid off or reassigned shall, within fifteen (15) days of the date he/she is advised in writing of his/her dismissal, suspension, layoff or reassignment present his/her grievance to the President, commencing at Step No.3... . The grievor was born in China in 1953. Although he speaks English, he is more fluent in Mandarin, which is his native language. After earning a bachelor's degree in civil engineering from a Chinese university in 1982, he worked as a civil engineer in China until 1990, when the Chinese Government assigned him to work in Botswana as a civil engineer and construction site manager. In 1992 he was hired by the Government of Botswana as a chief technical officer, and remained in that position until 1996 when he moved to the U.S.A. He has been living in Canada since 1998. The grievor was initially hired by the College as a part-time employee in the International Department, and became a full-time employee in that department on January 6, 2000, providing translation and other services to international students and visitors. When that position became redundant, he was reassigned to the position of CADD Technician in Physical Resources in March of 2000. Although that position was in a higher payband than the redundant position, it was offered to him on the agreement of the Union and the College. 4 .. In July of 2000 the grievor was reassigned to the position of Clerk Supply in the Bookstore, because the College found that he lacked the communication skills required to interact with staff and contractors, and also lacked an understanding of the relevant building and fire codes. A grievance regarding that reassignment was settled by returning the grievor to the CADD position in order to provide a further opportunity for him to demonstrate that he had the requisite skills. However, that position was also declared redundant, resulting In the grievor being reassigned in May of 2001 to the position of General Maintenance Worker in the Grounds Department. He was bumped out of that position in October of 2002 and reassigned to the position of Caretaker in Physical Resources. In May of 2003 he posted into a temporary General Maintenance Worker position In the Grounds Department, and was made permanent in that position (the "Grounds Keeper" position) in February of 2004 in settlement of a grievance. The grievor's primary duties as a Grounds Keeper included garbage collection, grass cutting, and snow removal at the College's Newnham Campus. Mr. Forster became the grievor's supervisor on July 4, 2006, after being hired by the College as Facilities Manager - Custodial Grounds. He lS responsible for supervising over forty employees at four campuses, including Grounds Keepers at the Newnham Campus. After assuming that position, Mr. Forster met with Doug Wiseman, who held the bargaining unit position of Senior Grounds Keeper (also referred to in some of the evidence as "lead hand") until his 5 retirement on June 30, 2008. During that meeting, they discussed the Grounds Department staff including the grievor, whom Mr. Wiseman described as not really being interested in the Grounds Keeper position, having ended up in that position through the bumping process. During subsequent general conversations, Mr. Wiseman also told Mr. Forster that there were certain jobs that he would not assign to the grievor because of safety concerns. He also told Mr. Forster that the grievor had a propensity for filing grievances, and that he would have a lot of problems with the grievor if he tried to get him to work within the guidelines and follow safety procedures. Safety concerns which Mr. Wiseman raised with the grievor on several occasions included the need to lower the hood on his parka while operating the snow plough so as not to obscure his field of vision, and the need to turn the lights on when operating a vehicle in the dark. Prior to Mr. Forster's arrival in the Grounds Department, the grievor had been verbally counselled to report equipment problems and accidents to his supervisor, and not just to the lead hand. Although this award includes sections specifically devoted to individual grievances, it is appropriate to preface them with some general observations and conclusions which we have drawn from the totality of the evidence. The essence of the position which the Union has taken on behalf of the grievor is that the College and, in particular, Mr. Forster 6 ~ have done everything within their power to ensure that the grievor's life at work would be difficult. Included in that position are assertions made by the Union, through its counsel, that Mr. Forster did not like the grievor, was looking for any reason to discipline him, was doing everything in his power to terrorize him, was trying to oust him from the College, and was trying to get the grievor to resign from his employment. Union counsel also submitted that Mr. Forster gave dishonest testimony in these proceedings in support of the disciplinary and other actions taken against the grievor, and discriminated against the grievor. However, we have concluded on the totality of the evidence that those allegations are not borne out by the facts and circumstances of the case. Although we have no doubt that the grievor honestly believes that Mr. Forster and the College were harassing him and treating him in a discriminatory manner, the preponderance of the evidence before us in these proceedings clearly establishes that Mr. Forster and the College were merely seeking to duly manage the grievor's job performance, so as ensure that he performed his job properly, with due regard for safety considerations. Grievance dated August 11, 2006 Around 2:00 p.m. on August 2, 2006, the grievor was assigned to use a College dump truck to take a load of topsoil to fill in a hole around a hydrant near the cafeteria patio. That assignment was given to the grievor by Mr. Wiseman. While the grievor was attempting to drive past a ramp attached 7 to the College's portable classrooms (the "portables"), the left side of the dump truck made contact with ramp's handrail. After stopping the truck and backing it up, the grievor made a second attempt to drive past the ramp but the truck again made contact with the handrail. On his third attempt, he succeeded in driving past the ramp without making any further contact. Although the grievor acknowledged in his testimony that the truck "touched" the ramp twice, he testified that the truck was moving "very, very slowly" and described it as "gently touching the ramp". He further testified that when he got to the working location about twelve or thirteen metres away from the ramp, he got out of the truck, went back a few steps to look at the ramp, and l1found that the ramp was undamaged and unmoved" . In explaining why he did not report the incident to Mr. Forster, the grievor testified that there was "no need to speak to the supervisor" because he "found that the ramp was not damaged". However, it is clear from the evidence adduced by the College that the ramp sustained substantial damage from that contact, which moved it approximately twelve inches, tearing it away from the building and pushing it off its supporting blocks. This created a dangerous situation because the gap between the ramp and the building was large enough for a child to fall through, and there were approximately 146 children attending an arts and science camp in the portables that day, including 42 junior campers between six and eight years old, 74 intermediate campers between nine and eleven 8 years old, and 30 senior campers between twelve and fourteen years old. The damage to the ramp was discovered by a member of the College's security staff about an hour after the incident. The damage was inspected that afternoon by Security Supervisor Richard Dziemianko, who arranged for the area to be cordoned off with tape so that the unstable ramp could not be used. Mr. Forster became aware of the damage to the ramp through a telephone call which he received that afternoon from his supervisor, Gord Mickovski, who is the College's Senior Manager of Operations and Maintenance. He then went to the ramp, where he and Mr. Mickovski surveyed the damage before going to the College's security office where they found that the incident had been captured by one of the College's surveillance cameras and recorded on videotape. That videotape was also viewed by Mr. Dziemianko, who described its contents during his testimony in these proceedings. The videotape showed the dump truck twice making contact with the handrail, but it was not possible to identify the driver from that recording. The videotape did not show anyone exiting the truck to look at the ramp before driving out of the camera's range, which extended twenty to twenty-five feet beyond the ramp, nor did it show anyone subsequently walking back within the camera's range to look at the ramp. Although the videotape was no longer available by the time of the hearing, a series of photographs taken by Mr. Forster on the afternoon of the incident were introduced into evidence and marked as 9 ~ exhibits in these proceedings, as were photographs taken subsequently. By the time Mr. Forster had finished taking the first set of photographs, all of the Grounds Keepers' shifts had ended so he was unable to speak with them about the incident that day. When he subsequently asked the grievor if he knew anything about the damage sustained by the portables' ramp, the grievor said that he did not know anything about it, Mr. Forster's questioning of each of the other employees about the matter yielded a similar response. When Mr. Forster asked Mr. Wiseman if he had assigned anyone to use the dump truck in that area, Mr. Wiseman told him that the grievor had been assigned to use it to take a load of topsoil to an area on the cafeteria side of the portables. After receiving that information, Mr. Forster asked the grievor again if he had any knowledge of damage to the ramp and the grievor reiterated that he did not. After discussing the situation with Human Resources, Mr. Forster arranged on August 4, 2006 for the grievor and a Union representative to come to his office, where he confronted the grievor with the information he had gleaned from his investigation. In responding to that information, the grievor acknowledged that he was driving the dump truck In the area but denied doing any damage to the ramp. Mr. Forster then gave him a three-day suspension and told not to use any equipment until his ability to do so safely had been assessed. He was also gave the grievor a letter which summarized the 10 ~ results of his investigation and concluded with the following three paragraphs: Leaving the scene of this accident, not investigating or reporting the damage and leaving the ramp in an unsafe position indicates to me that you are not concerned with the safety of the clients who use Seneca College. Do [sic] to the seriousness of this incident I am placing you on a three day unpaid leave. The unpaid leave will be on August 14, 15 and 16. Until I can assess your ability to operate the grounds keeping equipment I am withdrawing your equipment operating privileges. You will be assigned tasks that do not require you to operate equipment. I will be conducting needs assessment for training requirements for all Grounds employees to ensure operating equipment is done safely. It is my responsibility to ensure qualified employees are operating grounds keeping equipment. Although during his testimony in these proceedings the grievor acknowledged that he should have further investigated the ramp after the dump truck he was driving made contact with its handrail and that he should have talked to Mr. Forster about the incident, he testified that he "didn't do anything really, really wrong". He also suggested during his testimony that some or all of the damage to the ramp may have been caused by a severe thunderstorm which swept through the Greater Toronto Area on the evening of August 2nd, uprooting trees and tearing sections of a roof off of a house in Newmarket. However, we find no merit in that suggestion. Although the wind preceding that thunderstorm blew over a portable construction fence on the other side of the portables, it is clear from the totality of the evidence, including Mr. Forster's testimony and the photographs which he 11 r' took on the afternoon of the incident, that the damage to the ramp occurred prior to that storm and that it was caused by the grievor's operation of the truck. In this regard, we accept Mr. Forster's evidence that when he looked at the ramp after the storm, the ramp had not sustained any additional damage. In view of the grievor's failure to properly investigate the situation after hitting the handrail twice with the large dual-axle dump truck he was driving at that time, failure to report the incident to Mr. Forster, and continuing failure to accept responsibility for the extensive damage which he caused, we are of the view that his three-day suspension was within the range of reasonable disciplinary responses to that misconduct and should not be varied in the circumstances of this case. The issue of whether withdrawing the grievor's equipment operating privileges was violative of the collective agreement will be dealt with later in this award, in conjunction with the other grievances raising related issues. Grievance dated August 26, 2006 As indicated above, when he met with the grlevor and his Union representative on August 4, 2008, Mr. Forster gave the grievor both an oral and a written directive not to operate grounds keeping equipment until he could assess the grievor's ability to operate it safely, What Mr. Forster meant by II equipment 11 was any equipment which the grievor used to do his job, including power tools, tractors, blowers, and 12 trucks, including both the dump truck and the smaller pick-up trucks. Although the grievor realized that the prohibition against using "equipment" precluded him from driving the dump truck (as that prohibition had been imposed upon him by Mr. Forster because of Mr. Forster's belief that he had damaged the ramp while driving the dump truck, which lS Grounds Department's largest vehicle), we accept his evidence that he did not understand the word "equipment" to include the smaller pick-up truck that he drove every workday to perform tasks such as picking up garbage. When he was pressed about that matter under rigorous cross-examination, he gave the following credible response: . .. At the time Mr. Forster tell me not to use equipment, I didn't know that equipment included the truck. We use the truck every day. If I couldn't use the truck, I couldn't do the job. He should have told me clearly in the meeting what equipment not to use.... The veracity of that evidence is corroborated by the fact that when he left Mr. Forster's office on August 4, 2006 after having been given a three-day suspension and informed verbally and in writing that his equipment operating privileges had been withdrawn, he proceeded to drive back to shop (also referred to in the evidence as the garage) in the pick-up truck which he had driven over to Mr. Forster's office for that disciplinary meeting. In this regard, we find it to be highly improbable that an employee who had just been given a three-day suspension by his supervisor would knowingly risk incurring further disciplinary action by immediately proceeding to openly defy a directive that had just been glven 13 ~ to him by the supervisor during the course of that meeting. The far more likely explanation, and the one that we accept having regard to all of the circumstances, is that the grievor, whose first language is not English and who has some difficulty with the English language from time to time, did not understand that directive, which was somewhat ambiguous in scope, to include the pick-up truck that he drove everyday to perform the duties and responsibilities of his position as a Grounds Keeper. In reaching that conclusion, we have also taken into account the fact that, as indicated below, this explanation is the one which the grievor immediately provided upon being confronted by Mr. Forster about the matter. Monday August 7, 2006, was Civic Holiday. The grievor was on vacation from August 8 to 11, and was away on the aforementioned suspension on August 14, 15, and 16. When he returned to work on August 17, he found a note on the message board from Mr. Wiseman telling him to collect the garbage with a student employed in Grounds for the summer. (Mr. Wiseman started work at 6:00 a.m. and sometimes left notes on the message board for the grievor, whose shift did not begin until 7:00 a.m.) Since the student was absent that day due to illness, the grievor set off alone to perform that work by driving the pick-up truck to the location where the garbage was to be collected. When Mr. Forster observed the grievor driving the pick-up truck that morning, he proceeded to the garage and asked one of the Grounds Keepers to contact the grievor through the two-way radio system to tell him that 14 Mr. Forster wanted to see him. When the grievor arrived back at the garage, Mr. Forster told him that he was not supposed to be driving the truck because he had been told not to use any equipment. The grievor's responded by saying, "I'm sorry, I didn't understand that equipment included the truck" (or words to that effect). Mr. Forster did not accept that explanation. Since he was of the view that the grievor had disobeyed a direct order from him on both of the occasions when he drove the pick-up truck after having given the aforementioned directive, he proceeded on August 25, 2006 to give the grievor a three-day suspension for insubordination. When the grievor arrived at Mr. Forster's office immediately prior to being given that suspension, Mr. Forster was working on his computer. While the grievor was standing outside his office door waiting to speak with him, Mr. Forster said "shit" , making the grievor feel uncomfortable because he thought that Mr. Forster was swearing at him. However, we accept Mr. Forster's testimony that the expletive was not directed at the grievor but rather at Mr. Forster's computer on which he had just hit the wrong key, accidentally deleting some of the work which he had been doing on a spread sheet. We also accept his evidence that he was unaware of the grievor's presence until he looked up after uttering that word and saw the grievor standing at the door. Having regard to all of the circumstances, we are not persuaded that this isolated utterance of that expletive created a poisoned work environment, as submitted by Union counsel. Moreover, no 15 remedial relief is warranted in respect of it, as Mr. Forster has already apologized for the incident. To establish insubordination, an employer must prove that a supervisor or other person in authority gave an employee a clear order or direction which the employee understood but disobeyed. Having concluded that the grievor misunderstood the intended scope of the directive given to him by Mr. Forster and honestly believed that it did not preclude him from driving the pick-up truck, we respectfully agree with Union counsel's contention that the grievor did not intentionally defy his supervisor. Thus, we find that the Employer has failed to establish the alleged insubordination. Accordingly, the grievance dated August 26, 2006 is hereby allowed. To remedy that violation of the collective agreement's "just cause" requirement, the College is directed to remove that three-day suspension from the grievor's disciplinary record, and to compensate him for all lost earnings and benefits (if any) resulting from that unwarranted suspension. We shall remain seised for the purpose of quantifying that compensation if the parties are unable to agree upon the amount to be paid to the grievor. Grievance dated February 26, 2007 As indicated above, this grievance involves allegations of failing to provide the necessary accommodations so that the grievor could return to work, harassing the grievor by demanding medical notes when there was no intention to honour those notes and by requesting further medical 16 information when he had already provided a medical note from his treating physician, and neglecting to send him long term disability application forms in a timely manner. In September of 2006, since he was feeling very stressed at work from what he felt to be unfair treatment by Mr. Forster, the grievor sought assistance from Dr. Iris Chang [ who has been his physician since 2002. Dr. Chang graduated from the University of Toronto in 1980 and has been in general practice since 1983. She is fluent in a number of languages, including English and Mandarin, which is the language in which the grievor generally converses with her. Dr. Chang testified in these proceedings [ and produced a copy of her clinical notes for the relevant period of time. On September 18, 2006, the grievor told Dr. Chang about the ramp incident and about how very unhappy he was about the manner In which he was being treated by his supervisor, whom he felt was treating him unfairly, discriminating against him, and trying to get rid of him. He also told her that he was not being allowed to use any machinery. Dr. Chang diagnosed the grievor to be suffering from "anxiety-depression" and recommended that he take a leave of absence. In explaining why the grievor needed a break from work, Dr. Chang testified: [the grievorJ felt that he was unfairly treated so there was a lot of frustration and anger there. He felt held been discriminated and picked on. There was a lot of anger when he came to see me. I felt that in that state of mind he's more prone to make mistakes and do things that he doesn't mean to do. If he can cool 17 down he'll be able to carry out his job properly, make less mistakes, and his supervisor is not going to pick on him. Dr. Chang was initially of the view that the grievor would need a month or two away from work in order to recover. However, she subsequently determined that a longer period of time would be required, ultimately resulting in the grievor being away from work from September 19, 2006 until April 18, 2007. In describing the grievor's condition during that period, Dr. Chang testified that the grievor had built up a lot of anger and was having difficulty sleeping. He was short-tempered and easily upset, placing a strain on his family relationships. He complained of chest pains, shortness of breath, headaches, and heartburn. The grievor had a brain scan, which was negative. Dr. Chang arranged for him to have an EEG, which was also negative, and referred him to a gastroenterologist to ensure that he did not have an ulcer. Although she prescribed two kinds of sleeping pills for him, she did not prescribe any medication for anxiety or depression because she felt that his condition was work related and that "putting him on medication would not treat the root cause of the problem". Marianne Cunningham is employed by the College as a return to work specialist. She helps employees who have been away from work due to injury or illness make an early and safe return to work. She became involved with the grievor's situation in September of 2006 after a doctor's note dated September 18, 2006 was forwarded to her by the grievor's 18 "" supervisor. In that note, Dr. Chang verified that she had seen the grievor on that date and diagnosed him to be "suffering from acute anxiety depression aggravated by work related stress". She also requested that he be excused from work for at least four weeks. On September 21, 2006, Ms. Cunningham wrote as follows to the grievor: I am in receipt of your medical note supporting an absence for at least four weeks commencing on September 19, 2006. Prior to your anticipated return your Physician will need to complete the attached forms in detail. These forms will indicate your date of return and any modifications or accommodations you may require. If you can return to full duties without limitations, a note stating this information is all that will be required. Should the length of your absence extend beyond the expected four weeks, updated information will be required approximately every six to eight weeks as per the College's Absence/Absenteeism/ Accommodation Policy. I am committed to working with you in cooperation with your treating health care practitioner throughout this period. Enclosed you will find a set of medical forms that may assist your doctor with providing this information and if convenient the forms can be faxed to me directly at (905)479-4162. If you have any questions or concerns, please do not hesitate to contact me directly at (416)491-5050 ext. 7157. Enclosed with that letter was a College form entitled "Employee Medical Report - Confidential". On September 26, 2006, Dr. Chang's office faxed that form to Ms. Cunningham, confirming that the general reason the grievor had been absent from work since September 18, 2006 was "anxiety-depression". Dr. Chang also indicated on that form that the grievor required an extended absence from work and that he would be reassessed at the end of November of 2006. 19 On November 13, 2006, Ms. Cunningham sent the following letter to the grievor: I am in receipt of your medical documentation supporting an absence from October 16, 2006 to November 27, 2006. As per the requirements of the College's Attendance/ Absenteeism/Accommodation Policy the attached medical report is required for completion by your physician during ongoing absences and/or prior to you returning to work. This maintains continued communication with the College so your supervisor may plan coverage for your position accordingly. In your last correspondence, your physician informed the College of an upcoming appointment at the end of November. Please inform your physician that the College has an accommodation program. If you are unable to return to your full duties, we will be able to work out an appropriate accommodation as per the physical restrictions or physical limitations your physician outlines for us. I then will work with you and Don Forster, Facilities Manager, to develop an appropriate modified plan to aid in your recovery. If you are able to return to full duties without any accommodation we just require a note stating this. Should you require services prior to your scheduled appointment as I mentioned in our earlier conversation, you have free access to the Employee Assistance Program (EAP) , which is a confidential counseling and information for you and/or your family. The EAP is operated by FGI World not Seneca College. You can reach them 24/7 at 1-800-268-5211 or via the Internet www.fqiworldmembers.com If it is convenient, your physician can fax the completed forms to my attention at (905)479-4162. Terrence, I wish you a speedy recover. If you have any questions or concerns, please do not hesitate to contact me directly at (416)491-5050 ext. 7157. Dr. Chang's office faxed another "Employee Medical Report - Confidential" to Ms. Cunningham on November 28, 2006, confirming that "anxiety depression" was the general reason 20 that the grievor had been away from work since September 18, 2006, that he required an extended absence from work, and that he would be reassessed in early January of 2007. Dr. Chang checked "Mental Stamina" and "Responding to Negative Feedback" as the grievor's "Functional Limitations related to his/her job" . She also wrote the following information on the form: Patient has an appointment to see a psychiatrist in June 2007. This is the earliest appointment we can get for a psychiatrist who speaks his dialect. He is unable to express his feelings properly in English. Since Ms. Cunningham was concerned that six months was a long time for the grievor to wait to receive appropriate care, she telephoned his residence and left a message expressing concern about the length of time he was having to wait to see a specialist and suggesting that there were other avenues to consider through the Employee Assistance Program (the "EAP"). However, the grievor did not return her call. Following an impromptu meeting with the grievor and his Union representative, Janice Hagan, in late January of 2007, Ms. Cunningham wrote to the grievor on February 1, 2007: Terrence it was great seeing you last week during our unexpected visit with Janice Hagan. To recap our meeting, I had mentioned following the last medical submitted to the College, it indicated that you have been referred to a treating specialist who speaks your dialect; unfortunately, the appointment is not scheduled until June 2007. Recognizing that this is a long time to wait to be seen by a treating specialist while you are recovering, I referred you to connect with the College's Employee Assistance Program (EAP) who can assist in bridging this gap. They offer confidential counselling and information for you and your family. Joseph NG speaks your dialect. You will need to call the (EAP) directly at 1-800-268-5211 to arrange the appointment. In that letter, Ms. Cunningham confirmed receipt of an updated 21 medical certificate from Dr. Chang supporting a continued absence for approximately six additional weeks. She also reiterated the information which she had previously provided to the grievor concerning the College's accommodation program. The grievor contacted the EAP on one occasion but decided not to avail himself of their assistance. His rationale for that decision was: I do call them but they are not doctors. They just do some counselling. I don't think they help me. I don't have a psychological problem, so I didn't have any further contact with them. The problem is not psychological. It's a health problem. On February 19, 2007, the grievor provided the College with a note dated February 16, 2007 from Dr. Chang, indicating that he was "not fit to return to his original work/department". On February 26, 2007, Dr. Chang's office faxed another "Employee Medical Report - Confidential" to Ms. Cunningham. On that form, Dr. Chang checked the "yes" box beside the statement: "This illness/injury is considered a persistent physical, mental, psychiatric, sensory, or learning impairment and would be considered a handicap under the OHRC". She also check marked "Employee may return to modified work", and wrote the following information beside it: "Patient able to work other than previous job. Returning to previous work environment will have a negative effect on his mental health. It will aggravate his anxiety depression." In the area of the form prefaced by "Employee has the following Functional Limitations related to his/her job", Dr. Chang wrote: "Patient has improved, and is capable of handling the usual work 22 r" related stress provided he does not return to his previous work environment." After receiving that report, Ms. Cunningham advised the grievor through a letter and a telephone call that the information submitted by Dr. Chang was insufficient to meet the requirements of the College's Attendance/Absenteeism/ Accommodation Policy. During that telephone conversation, Ms. Cunningham told the grievor that his doctor did not provide the College with physical restrictions or functional limitations to work with, and that the College wanted further medical information from a treating specialist. Upon hearing this, the grievor became very upset and hung up the phone abruptly after stating in a raised voice, "You ask for medical from doctor. I give. Now you say no good. I call Janice now. " In describing what he perceived to be the motivation for that request, the grievor told the Board, "My position is if she wanted a specialist, why did she send the form to my physician? There's only one reason: to humiliate me, to harass me, to embarrass me." However, we accept Ms. Cunningham's evidence that she made that request because the information provided by Dr. Chang was too general and did not contain enough specific information regarding the grievor's limitations or restrictions to enable her to formulate an appropriate return to work plan, and because she felt at that point that the expertise of a specialist was needed in order to provide the College with the information required for that 23 purpose. The grievance was filed on February 26, 2007, and (by mutual agreement) dealt with at a Step 3 meeting on March 22, 2007. At that meeting, it was agreed that further clarification with respect to the grievor's limitations and accommodation requirements would be requested from his physician rather than from a psychiatrist because his short term disability benefits had expired and his appointment with the psychiatrist was not going to take place until June. The request for that clarification was contained in Ms. Cunningham's letter of March 23, 2007 to Dr. Chang: We are in receipt of several employee medical reports you have completed for your patient Terrence Wei. However, the information does not provide sufficient detail in order for me to identify an appropriate accommodation. In the submitted documentation, the phrase "returning to previous work environment will have a negative effect on his mental health..." is used. However, this is a very broad term that could refer to a building, a room, inside/outside etc. and doesn't allow me to identify a suitable accommodation. I have attached an Employer Medical Report in order for you to elaborate on the specific limitations/ restrictions. If you would prefer to provide a short report detailing the information, that will also be accepted. If it is convenient, the completed forms can be fax [sic] to my attention at (905)479-4162. We are anxious to move forward with Terrence's accommodation and await your response. If you have any questions or concerns, please do not hesitate to contact me directly at (416)491-5050 ext. 7157. In response to that request, Dr. Chang faxed another "Employee Medical Report - Confidential" form to the College on March 30, 2007. In the area of that form prefaced by 24 "Employee has the following Functional Limitations related to his/her job", Dr. Chang checked "Mental Stamina" and wrote: Physically Mr. Wei is capable of returning to work. However he has a lot of anger towards his supervisor. He felt he has been deliberately discriminated. I do not think mediation will improve the relationship between Mr. Wei and his supervisor. Returning to work under the same supervisor will aggravate his anxiety/depression. Hopefully, he could be assigned to another daytime position. During her testimony, Dr. Chang explained that she included the reference to a "daytime position" as a precaution, because the grievor was still having a sleep problem and working on a night shift might worsen that problem. Her rationale for suggesting that he should not work under the same supervisor was: My patient is physically capable of returning to work. It's a personality clash between him and his supervisor. If he is away from his supervisor I think he should be able to work properly. Since the College found that report to be inadequate, the grievor was again advised that a report from a specialist would be required. As indicated above, an appointment had been made for the grievor to see a psychiatrist on June 10, 2007. However, the grievor cancelled that appointment after returning to work in mid April, During cross-examination, Employer counsel asked him the following question about why he did so: lIIf being accommodated in a different position was so important to you, why didn't you go see the specialist in June when you had the appointment?" The grievor's response to that question (and a follow-up question) included the following 25 "" statements: I came back to work. My health is okay. No need to see the specialist.... Also I don't trust Seneca.... I don't think Seneca will help me. The grievance was denied on April 11, 2007, by Kavita Chiba, the College's Human Resources Services Director, because the medical notes received from the grievor's physician did not support a disability which would require accommodation under the Ontario Human Rights Code. The basis for that conclusion is set forth in the following portions of an e-mail dated April 5, 2007, from Kim Mulroney, Ms. Cunningham's Manager, to Ms. Chiba: The information we have from the physician stated: "Physically Mr. Wei is capable of returning to work. However he also has a lot of anger towards his supervisor. He felt he has been deliberately discriminated. I do not think mediation will improve the relationship between Mr. Wei and his supervisor. Returning to work under the same supervisor will aggravate his (diagnosis). Hopefully, he could be assigned to another daytime position." Sunlife denied his claim for LTD, stating: "In review of your claim we found that your primary cause of absence is related to an unresolved work issue and conflict. In speaking with your treating doctor, we find no medical conditions or significant treatments that would support a totally disabling medical condition. It is apparent you remain capable of performing your occupation, were it not for the work issues involved. As such, we are unable to consider the approval of benefits and your claim will be considered closed. Given the information provided, we would recommend you discuss your situation with your human resources department". Based on the above, I don't really think this would be considered a disability under the Human Rights Code. It would appear, the Dr. is wording her recommendations to suit the desires of the patient, rather than based on sound medical information.... 26 ~ Terrence needs to come to terms with his situation in a realistic way - something that will require professional help - which he can receive through the specialist he has an appointment with or with our assistance through an EAP program - probably something we will pay extra for. Sunlife found him "able to perform your occupation". He needs to accept that his supervisor is not out to get him - but that we have expectations regarding performance that he must meet. This is not discrimination, it is a normal management function. A return to work meeting was held on April 16, 2007, with the grievor, Ms. Hagan, Mr. Forster, and Ms. Mulroney. Ms. Cunningham's testimony regarding why Ms. Mulroney attended that meeting rather than herself is illustrative of the sensitivity and good faith with which the grievor's situation was being treated: . .. Terrence had reported to her a few years back. We felt that because they had a good working relationship, it would be a good smooth transition back to the workplace, knowing that there was a familiar face because of the previous working relationship - someone who understood him because they had a good working relationship. They had worked together in the past and that would help for a successful return to work - that being our goal, to make the transition comfortable. He'd been off for six months. A lot had happened in that time. It's important that we assist in that process. That's why she attended. At that meeting, Ms. Hagan stated that the grievor would comply with the College's return to work plan (described below in the section of this award pertaining to the grievances dated May 28, 2007 and December 10, 2007) but would still be pursuing his grievances. It was agreed that he would dialogue with Mr. Forster as required, and that the grievor would contact Ms. Cunningham if he felt that he was working 27 outside of the plan. After the formal meeting had concluded and Mr. Forster had left the room, Ms. Mulroney told the grievor that she was glad that he was returning to work but hoped that he would pursue the appointment scheduled with the specialist in June as she felt it might be helpful to him. The grievor then became irate, speaking loudly and quickly. He stated that Mr. Forster was not qualified and that Mr. Forster should be calling him "master". When he was asked about that statement during cross-examination, the grievor said: I can't remember that. It could be. That is my personal opinion. Mr. Forster is not really qualified for that position. That is my personal opinion. As indicated above, the grievance alleges a failure to provide the necessary accommodation so that the grievor could return to work, and also alleges that the College harassed the grievor by demanding medical notes when there was no intention to honour those notes, and by requesting further medical information when he had already provided a medical note from his treating physician. Having carefully considered the situation, we find no merit in those allegations. There was nothing improper about the College seeking additional information to clarify what Dr. Chang meant by the grievor's "previous work environment", and to ascertain specifically what in that environment would in her medical opinion have a negative effect on his mental health. Nor was there anything improper about the College requesting a report from a specialist in the circumstances of this case. Indeed, Dr. 28 Chang was also of the view that it would be beneficial for the grievor to see a psychiatrist, because she did not think that she was sufficiently qualified to help him, and felt that it would be beneficial for him to have professional assistance from a psychiatrist regarding anger management and regarding his anxiety and depression. Although the grievor was scheduled to see a psychiatrist on June 10, 2007, he cancelled that appointment after returning to work, because his !'health was okay so [there was] no need to see the specialist". As submitted by counsel for the College, the facts do not support a need for accommodation. The grievor returned to work in mid-April of 2006, less than three weeks after Dr. Chang clarified (on March 20, 2006) that what she meant when she wrote (on February 19, 2006) that the grievor was "capable of handling the usual work related stress provided he does not return to his previous work environment" was that he was physically capable of returning to work but could hopefully be assigned to another daytime position because returning to work under the same supervisor would aggravate his anxiety/depression due to his anger towards his supervisor. After returning to work on April 18, 2007 without that accommodation, the grlevor remained working in his Grounds Keeper position under Mr. Forster's supervision for sixteen months (until he was discharged on August 12, 2008) without any significant medical treatment. It is clear from the totality of the evidence that the grievor's desire to work under a different supervisor was 29 based upon his misperception that Mr. Forster was treating him discriminatorily, his unwarranted anger towards Mr. Forster, and his disrespect for Mr. Forster's qualifications. In the absence of diagnosis and treatment by a psychiatrist (as recommended by the grievor's physician who concluded that it was beyond her ability to effectively deal with his anger-management problem), and in the absence of any indication that obtaining that additional professional assistance would not have rectified the situation, we are not persuaded that the College violated the collective agreement or the Human Rights Code by declining to grant the requested accommodation. Moreover, since there does not appear to be any position which the grievor would have been qualified to perform that would not have fallen under Mr. Forster's supervision, removing him from Mr. Forster's supervision would have required the College to either replace Mr. Forster or substantially modify Mr. Forster's duties and responsibilities. That would be unreasonable in the circumstances of this case, in which we have concluded that Mr. Forster and the College were neither harassing the grievor nor treating him in a discriminatory manner, but rather merely seeking to duly manage the grievor's job performance, so as to ensure that he performed his job properly, with due regard for safety considerations. As indicated above, the grievance dated February 26, 2007, also includes an allegation that the College neglected to send the grievor long term disability application forms in 30 a timely manner. However, we find no merit in that allegation, as the evidence indicates that as soon as it appeared that there was a potential that the grievor would not return to work prior to the expiration of his short term disability benefits, Kim McGann, the College's Pension and Benefits Supervisor, sent the following letter to him by courier on February 20, 2007, In accordance with the Short-term Disability Income Plan, benefits are provided during the first 130 days of illness. The first ten (10) working days plus any carryover days are paid at 100% salary and the remainder of the 130 days is paid at 75% of regular salary. Your Short-term Disability benefits with the College will end on March 16, 2007, and you will no longer be on the Seneca payroll as of March 17, 2007. If you are unable to return to work before March 17, 2007, you may be eligible for Long Term Disability benefits with Sun Life of Canada. Enclosed please find the following forms to be completed and returned to Sun Life of Canada. 1. Plan Member's Statement Claim for Long-Term Disability Benefits Form 2. Deduction and Payment of Canada Pension plan (CPP) Disability Benefits to an Administrator of a Disability Income Program Form 3. Authorization to Communicate Information Canada Pension Plan Form 4. Attending Physician's Statement Claim for Long-Term Disability Benefits Form Please be advised that an application for Long Term Disability benefits should be made as soon as possible and no later than 90 days after the completion of your Elimination Period on March 16, 2007. Sun Life of Canada will advise you in writing if your claim has been approved or denied. When returning to work from sick leave, please provide medical documentation, at least fifteen days prior to the expected date of return, to Marianne Cunningham, Wellness, Health, Safety & Wellness [sic], Markham Campus. The College will then contact you requesting appropriate information, specifically to confirm that you are medically capable of returning to your former 31 I"" position and any limitation for accommodation purposes. If you have any questions or require assistance completing the forms, please call me at 416-491-5050, extension 7178. For the foregoing reasons, the grievance dated February 26, 2007 is hereby dismissed. Grievance dated November 13, 2007 On October 31, 2007, the grievor received a letter (entitled "Disciplinary Memo") from Mr. Forster for driving a College pick-up truck the wrong way on the Minkler Loop, which is a posted one-way road on College property. Although the grievor did not notice it, we accept Mr. Forster's evidence that at the time of this incident, there was another vehicle proceeding around the loop in the proper direction, When Mr. Forster asked him why he was driving the wrong way around that loop, the grievor stated that it was more convenient for him to drive the wrong way so that he could talk through the truck window to the employee whom he was picking up there. During his testimony in these proceedings, the grievor admitted that he made a mistake in driving the wrong way on that loop, but attempted to downplay his misconduct by suggesting that Mr. Forster "exaggerates facts", and that he was making a "watermelon" out of a "seed". The grievor also stated, 11 It I s an issue, but not a very big issue." On November 1, 2007, the grievor received another letter from Mr. Forster (entitled "Departmental Safety Memo"), after Mr. Forster observed him driving the College dump truck in the dark at 7:05 a.m. on the main College drive without 32 having turned on the truck's driving lights, despite having been reminded by Mr. Wiseman on previous occasions to turn on vehicle lights when operating vehicles in the dark. While evidence concerning this incident was being adduced, counsel advised the Board of their agreement that sunrise occurred at 7:53 a.m. that day. During his testimony, the grievor acknowledged driving the truck in the dark an hour before sunrise, and further acknowledged that it was dangerous to do so. However, he attempted to downplay the danger involved by asserting that it was "not very dark". The reason which he offered for not turning on the lights was that he generally only drove the dump truck during daylight hours and was unable to remember that morning which button activated the headlights. He also asserted that he was being treated differently from other employees by being given that letter for making a "small mistake". However, there is no evidentiary basis for that assertion. Since the grievor admittedly engaged in the safety violations for which those two letters were issued, and since the evidence does not support the grievor's contention that in giving him those two letters Mr. Forster was treating him discriminatorily, we find no basis for directing their retraction. Accordingly, the grievance dated November 13, 2007 is hereby dismissed. Grievances dated May 28, 2007 and December 10, 2007 As indicated at the beginning of this award, the grievance dated May 28, 2007 alleges unfair discipline 33 ~ (involving not being permitted to perform the full duties of a Grounds Keeper) and a refusal to accommodate the grievor's disability in a manner that respected his personal dignity. The grievance dated December 10, 2007 alleges that the College was deliberately prolonging that discipline, that the College was harassing the grievor, and that the College was not accommodating his illness and return to work. Accommodation issues are raised in several of the grievances and have already been dealt with comprehensively in the portion of this award pertaining to the grievance dated February 26, 2007. This portion of the award will address the grievor's allegations regarding his not being permitted to perform the full duties of a Grounds Keeper. As previously indicated, ln his letter of August 4, 2006 which imposed a three-day suspension on the grievor for the ramp incident, Mr. Forster withdrew the grievor's equipment operating privileges until he could assess the grievor's ability to safely operate the grounds keeping equipment. That letter closed with the following paragraph: I will be conducting needs assessment for training requirements for all Grounds employees to ensure operating equipment is done safely. It is my responsibility to ensure qualified employees are operating grounds keeping equipment. After giving the grievor that letter, Mr. Forster reviewed the training records for all Grounds Department employees and discovered that there was no documentation. He then initiated a training program for all of the Grounds Keepers. 34 """ Although it was difficult to obtain a suitable trainer, after doing extensive research Mr. Forster finally succeeded in securing the services of Boot's Landscaping & Maintenance Ltd. ("Boot's") in October of 2006 to assist in bringing the Grounds Department up to the required safety standards. Arrangements for providing that training were made through Gerald Boot, who operated that landscaping company and was a Director of Landscape Ontario. Mr. Boot arranged for the training to be carried out by Rob Brasz, who had been the maintenance superintendent and mechanic at Boot's since 2003. The training of the other full-time Grounds Keepers was carried out during the fall and winter, and was completed by April of 2007, but Mr. Brasz was unable to train the grievor during that time frame because the grievor was away from work from mid September of 2006 until mid April of 2007. As indicated above, a return to work meeting was held on April 16, 2007, with the grievor, Ms. Hagan, Ms. Mulroney, and Mr. Forster, who gave the grievor the following letter that day, detailing his return to work duties: Further to our meeting this morning, a return to work plan is attached. As discussed, in order to ensure all grounds department employees are qualified to safely operate all the tools and equipment required to successfully complete their work, a consultant has been hired to review training requirements and to conduct training sessions/ assessments for all grounds department employees at Newnham Campus. During the past few months your co-workers have participated in the training and have successfully completed the assessment program. As such, they are deemed qualified to operate all the equipment necessary to fulfill their daily tasks as groundskeepers. 35 The consultant will return to conduct the training and assessment program for you. However, until this is complete and you are deemed qualified to operate all equipment associated with the position of groundskeeper, your duties will be limited to the following: * Walking from entrance to entrance, empty the waste containers in all outside waste receptacles. The waste bags shall be tied and placed on the ground beside the container. A co-worker will be assigned to drive around and collect the bags for disposal. Where there are a number of waste receptacles in a small area, pile the bags in one collection area. Replace the bags in the waste receptacle with a clean empty bag and ensure all waste on the ground around the container is picked up. * Using a broom and dustpan bag: sweep all entrances and walkways and collect all trash that accumulates at entrances. This includes any piles of debris a co-worker may have piled when using a power blower. * Collect all trash and debris that has collected along fences, ditches, flower beds and in shrubs. Please note, you will be required to complete each assignment on time. It is however recognized that because you have been absent from work for some time, a graduated return to full duties (as above) will be gradual [sic]. It is reasonable that it may take two-three weeks for you to return to full duties (as above) . As you successfully complete the training session and assessment of each piece of equipment, your assignment will change to include that particular piece of equipment. The equipment you will not use, pending the training and successful assessment include, [sic] all gas or electric powered equipment such as: pick up trucks, dump trucks, Tenant Vacuum, lawnmowers, leaf blowers, power washers, tractors, sweepers, chain saws, salters/sanders and all other powered equipment. You will be assigned tasks that do not require you to operate this equipment. Doug Wiseman, Senior Groundskeeper, will assign the above tasks, as directed by myself. If you have any questions about the assignment, please see me for clarification. 36 clarification. Terrence, we will work as a team to assist with your return to work program. Please feel free to contact me at any time during your work shift, if you need assistance or have any questions. On April 17, 2007, Mr. Forster sent an e-mail to Boot's to advise that the grievor was returning to work and that it was necessary to set up a training and assessment program for him as soon as possible. Mr. Wei received safety training from Mr. Brasz for the following equipment on the following dates: backpack blowers on May 2, 2007 and July 4, 2007; lawnmowers and garden tractor on May 9, June 27, and July 4, 2007; line trimmer on July 11, 2007; and truck training on August 22 and September 5, 2007. His training was delayed by a number of factors, including his vacation and lieu time days on which he was away from work, and days on which Mr. Brasz was unavailable because of vacation and the heavy seasonal demands of his position with Boot's. After being advised that Mr. Brasz had cancelled several training sessions for those reasons, Mr. Forster attempted to find someone else to complete the training but was unable to do so because summer was the busiest season for all of the qualified people. He also expressed concerns to Mr. Boot about how long it was taking to complete the training. Mr. Boot raised the matter with Mr. Brasz and told him that he had to get the training completed. Despite Mr. Forster's best efforts to acquire it in a timely manner, some delays were also encountered in obtaining documentation from Boot's confirming that the grievor could safely operate particular pieces of 37 r- equipment. After Mr. Brasz trained the grievor on a piece of equipment, Mr. Wiseman would contact Mr. Forster to determine whether or not the grievor was permitted to operate it. Mr. Forster would grant that permission as soon as he obtained confirmation from Boot's that the grievor had been successfully trained on that piece of equipment. Although the grievances allege that the grievor was not allowed to use any of the equipment until he had been trained on all of it, the preponderance of the evidence does not support that allegation. It was firmly and credibly denied by Mr, Forster during the course of his testimony. Moreover, when that proposition was put to Mr. Wiseman during the course of his cross-examination by Union counsel, he gave the following response, in which he used blowers as an example: "It wasn't that he couldn't use the blowers until he was fully trained on everything. It was piece by piece." Unlike the grievor whose equipment operating privileges were withdrawn by Mr. Forster pending successful completion of training, the other Grounds Keepers were permitted to continue operating the equipment prior to and during the course of their training. However, the evidence does not establish that at the time the training was arranged Mr. Forster was aware of any Grounds Keepers other than the grievor operating equipment in an unsafe manner. Some of the other Grounds Keepers were dissatisfied with the grievor's not being permitted to use the equipment, because they felt that 38 ~ he was not performing his full share of the work and was taking too long to complete tasks. The grievor was also very dissatisfied with the situation, as he found it humiliating to have to perform groundskeeping duties without the assistance of any motorized equipment. Although Mr. Wiseman recognized that training the grievor in that manner was necessary because the grievor had engaged in several unsafe practices, he would like to have seen the training completed more quickly. Mr. Forster shared that view and attempted to expedite the training, but was unable to do so due to the circumstances described above. On September 5, 2007, the grievor received training on the dump truck. That training resulted in a service invoice being issued that day, indicating in its comments section that the grievor "demonstrated he can drive, operate the dump truck safely". After being informed by Mr. Wiseman through a note on the message board that he could "drive pick-ups and use blowers", the grievor telephoned Mr. Forster on September 5, 2007, to ask if he could drive the trucks and do his full duties. During that telephone conversation, Mr. Forster indicated that the grievor could perform full groundskeeping duties, but that he could not use the Tennant Vac until he had been trained on it, and could only use the loader under Mr. Wiseman's supervision because confirmation of his training on that piece of equipment had not yet been received. Although the grievor has no recollection of it, we 39 ... accept Mr. Forster's evidence that when he met with the grievor on October 26, 2007 to discuss training and the aforementioned incident in which the grievor drove a College pick-up truck the wrong way on the Minkler Loop, he reviewed the training documents provided by Boot's and asked the grievor if anything had been missed in relation to his equipment training. The grievor responded that he still needed to be trained on the Tennant Vac and the zero turn Gravely lawn tractor (the "Gravely"). Mr. Forster then told him that Mr. Wiseman would train him on the Tennant Vac that day, but that the Gravely training would likely not be done until the following Spring. During that meeting, Mr. Forster also confirmed that the grievor was permitted to operate all other equipment and to perform full groundskeeping duties. Since the grievor continued to profess that it had never been officially communicated to him that his training was complete and that he was able to return to full duties, Mr. Forster sent him the following letter on December 18, 2007: Re: Equipment training completion Terrence: As per our telephone conversation in September /07 and in our office meeting on October 25 /07 we have agreed that you have completed the equipment training requirements. I received the equipment training documentation from Boots Landscaping regarding your training sessions. In September 2007, I informed you and Doug Wiseman, Senior Grounds employee that you had completed the majority of the required equipment training sessions. At that time Doug was informed by me that he could assign your regular groundskeeping duties. 40 ~ The training that was completed by Boots was for the following equipment: Back Pack Leaf Blower Lawn Boy garden tractor Line trimmer pick up trucks Lawn Mower Dump truck Tractor/Loader Doug has completed your Tennant Vac training. There will be ongoing equipment training sessions that you and your co-workers will be required to participate in. The next training is scheduled for December 21/07 for lift truck and propane handling certification. Although the grievor acknowledged (in cross-examination) that the training was necessary, he expressed the view that it was unfair to withdraw his equipment operating privileges. However, we are satisfied on the totality of the evidence that Mr. Forster had legitimate reasons for taking that action. As indicated above, Mr. Forster was aware from conversations with Mr. Wiseman that there were safety concerns about the manner in which the grievor performed some of his work. The extensive damage which the grievor's operation of the dump truck caused to the portables' ramp gave Mr. Forster serious concerns about the grievor's ability to properly operate that large vehicle. The grievor's failure to carefully inspect the ramp after twice hitting its handrail with the dump truck created a substantial potential danger for the young students who were using the portables at that time, and further fed Mr. Forster's concerns about the grievor's approach to safety considerations. Having regard to all of the circumstances, we accept Mr. Forster's 41 ,.. evidence that he did not withdraw of the grievor's equipment operating privileges and require him to take safety training for punitive purposes, and that in doing so he was exercising due diligence to fulfill his legal responsibility to ensure that equipment is operated safely and that no one in the College is hurt by the equipment. While it is unfortunate that the training took so long to complete, Mr. Forster took reasonable steps to attempt to expedite it but was unable to do so due to circumstances beyond his control. Accordingly, we find no merit in the allegation that the College deliberately prolonged his training and the associated provisional changes in the manner he was required to perform his work. For the foregoing reasons, the grievances dated May 28, 2007 and December 10, 2007 are hereby dismissed. Grievance dated August 12, 2008 The grievor was notified of the College1s termination of his employment through a memorandum in which Mr. Forster indicated: Following the conduct meeting this morning concerning a very serious safety incident on Thursday August 7, 2008, it is the decision of Seneca that your employment be terminated effective today, August 12, 2008. A formal letter of termination will follow. That safety incident involving the grievor's operation of the College's X475 John Deere Lawn and Garden Tractor (the "John Deere") was described as follows in the formal letter of termination dated August 20, 2008, which was signed by Mr. Forster: 42 A meeting regarding your conduct was held on August 12, 2008. In attendance were yourself, Don Forster, Manager of Custodial and Grounds, Janice Hagan, Chief Steward of OPSEU Local 561, and Jane Wilson, Director of the Resolution, Equity and Diversity Centre. The meeting was convened to address concerns regarding a very serious safety incident on August 7, 2008 when you were operating a lawn tractor in an unsafe manner that could have resulted in serious injury to yourself. The meeting was held prior to the start of the arbitration hearing on August 12, 2008. After the meeting you were advised that your services with Seneca were being terminated. Shortly after, Ms. Hagan submitted a grievance regarding your dismissal. It was agreed by the Union and Seneca that a Step 3 meeting would be waived and that the termination grievance would be put before the Board of Arbitration, who were hearing your previous grievances regarding discipline. On August 7th, I met you in the area of Parking Lot 10. I directed you to pick-up the garbage and then cut the slope between the parking lot and sidewalk along Finch Ave. I instructed you to pick up the garbage first, not only to clean the area, but so that neither the line trimmer nor mower would hit debris, such as a bottle, which could break and fragments injure yourself or passersby. I instructed you to use a line trimmer on the steep section, but that you could use the John Deere mower on the lower, more level section if you wanted to. As I was at the location with you, I advised you how you needed to do the job, but also pointed out the steep section and the flatter section to you. At the conduct meeting, you stated that your understanding was that I had agreed that you could use the John Deere to cut the entire slope. However, because of the steepness of the slope, the mower got stuck on the first run you were making, and you came to my office to request assistance to get the mower off the slope. After summarizing the grievor's employment history with the College (including the two aforementioned three-day suspensions, the Disciplinary Memo dated October 31, 2007, and the Department Safety Memo dated November 1, 2007, as well as the incident which resulted in the grievor having been 43 verbally counselled (prior to Mr. Forster's arrival In the Grounds Department) to report equipment problems and accidents to his supervisor, and not just to the lead hand), the four-page formal letter of termination concludes as follows: As a result of the above, we have concluded that you have repeatedly demonstrated an unwillingness to follow instructions and to work safely in accordance with departmental procedures and legislation. By your conduct, you have irreparably breached the trust that Seneca has placed in you by virtue of your job responsibilities, which require the operation and use of equipment that can cause very serious injury to persons, as well as damage to property. Therefore, as you were advised at the meeting of August 12th, this will formally confirm that your employment with Seneca was terminated effective August 12, 2008. As a result of the parties' agreement to walve a Step 3 meeting regarding the termination grievance and to put it directly before the Board in these proceedings for which a number of hearing dates had already been scheduled, the Board heard Mr. Forster's evidence in chief regarding that incident on August 13, 2008, which was only six days after it occurred. Mr. Forster's ability to recall the incident with precision was also assisted by the contemporaneous notes which he made about it. While in parking lot #10 on August 7, 2008, estimating a project for the parking office, Mr. Forster observed that the grass on the slope running east to west along the north side of the sidewalk along Finch Avenue was uncut and that it contained some trash. The grievor was using the Gravely to cut the grass along the other side of the sidewalk at that time. Mr. Forster approached the grievor and 44 ~ requested that he pick up the garbage in the uncut area and then cut the grass by using a line trimmer on the steep section and a ride-on mower on the more level section. The grievor told Mr. Forster that he would need to go back to the shop to get the John Deere to cut the grass on that slope, explaining that Mr. Wiseman had told him that the Gravely does not cut very well on slopes. Since he wanted to make sure that the grievor understood, Mr. Forster accompanied him to the area so that he could show him what he wanted him to do. As they stood at the top of the sidewalk near the west end of the slope, Mr. Forster pointed down towards the bottom of the slope and told the grievor that he could use the John Deere on the more level area of the slope but that either he or Nana, the summer student, should use the line trimmer to cut the steeper section of the slope. He also told him to pick up the garbage, noting that it did not have to be a perfect job and that he should just clean it up a bit. The sloped area of grass in question is roughly triangular in shape. Part of it is fairly steep, with the remainder being more level. On August 13, 2008, the Board (along with the grievor, counsel, and other representatives of the parties) had the benefit of taking a view of that area, to enhance our understanding of the evidence adduced in these proceedings regarding this incident. After having lunch on August 7, 2008, the grievor returned to the slope with Nana and, without picking up any garbage, began to cut the steeper section of the slope with 45 the John Deere. While cutting the first swath he found that the wheels were becoming stuck since the grass on the slope was wet and slippery because of the rain which had fallen the previous evening. After the grievor shut off the engine, Nana came over and asked if he wanted him to push. The grievor's response was "No, no, don't do it. I'm going to report to Don" . The grievor testified that although he could easily have driven the John Deere out of that area, he had already received discipline letters from Mr. Forster "for very small things", and was afraid that Mr. Forster would use this incident against him if he did not report it. He further testified that he "wanted to take proper precautions and do everything right", and that he went to Mr. Forster so that if anything happened he would not get in any trouble, as he was concerned about keeping his job. Union counsel submitted that the reason the grievor went to get Mr. Forster was that he knew that he had done nothing wrong. She also contended that if he had been disobeying Mr. Forter's directions, he would have tried to move the John Deere himself and would not have opted to get Mr. Forster's help once the machine got stuck. However, as lS apparent from the grievor's testimony referred to in the preceding paragraph, the grievor recognized that failing to report getting the tractor stuck would have provided Mr. Forster with a basis for taking disciplinary action against him. Moreover, as noted by Employer counsel during the course 46 of his submissions, navigating the route which had to be taken to get the John Deere down the slope and into the parking lot could have damaged the John Deere and created a situation In which the grievor would also have been obliged to explain why the machine was damaged. After the grievor went to Mr. Forster's office to tell him that the John Deere was stuck, they returned to the slope where Mr. Forster found it halfway down the west side of the slope sitting at a severe angle, with the uphill rear wheel just barely touching the ground. With Mr. Forster standing on the uphill side of the John Deere to act as a counter-balance to get some traction on the rear wheels and prevent the machine from rolling over, the grievor attempted to back it up to more level ground. However, it kept stalling until they realized that because of the severe slope the grievor was sitting on the uphill side of the operator's seat, which did not allow enough of his body weight to be applied to the safety shut-off switch under the seat to completely compress it and enable the engine to keep running. After the John Deere slid back a few feet on the wet grass, they managed to back it up to a more level angle, with the front of the machine pointing down the slope. The only way to get it out of there was to drive it straight down the slope through a wild rose flower bed, over a small tree, and over the parking lot curb. After they got it into the parking lot, the grievor told Mr. Forster that a handmower was usually used to cut that slope but Mr. Forster instructed him to use the line trimmer. 47 "" Mr. Forster did not have any further discussion with the grlevor on August 7, because he wanted to make some notes, collect his thoughts, and talk to Human Resources about the incident. On Friday August 8, 2008, Mr. Forster placed the grievor on a paid suspension for five days, pending a Human Resources investigation into the incident. In doing so, he told the grievor that what he had done was unsafe, and that he could have rolled the John Deere onto himself and been seriously injured. When the grievor stated that Mr. Forster had told him to use the John Deere to cut the area, Mr. Forster said "No, I asked you to line trim it or to ask Nana to do the line trim. I wouldn't send you into an area that's unsafe." During the conduct meeting and during the course of his evidence in these proceedings, the grievor emphatically and repeatedly denied that Mr. Forster told him that the line trimmer was to be used to cut the steeper section of the slope. He also denied that Mr. Forster told him to pick up the garbage before cutting the area. It was his evidence that he told Mr. Forster that he would use the John Deere to cut the area that afternoon, and that Mr. Forster expressed approval by saying "okay". The grievor also told the Board that it was not unsafe to cut that area using the John Deere, and that he would have had no problem cutting it with that machine if it had not been wet. He further testified that he did not realize how wet it was until after he began to cut it. He admitted that he did not pick up any garbage from the area 48 ~ prior to beginning to cut it with the John Deere, but nevertheless steadfastly maintained that he had not done anything wrong. The John Deere weighs between 1100 and 1200 pounds, and does not have a roll-bar or a seat belt. It has a clearly visible safety decal located directly in front of the operator when seated on the machine. That decal pictorially depicts an overturned tractor pinning an operator underneath it on a slope. It also contains some written information, including: ! WARNING AVOID SERIOUS INJURY OR DEATH Read operator's manual Drive up and down slopes, not across Remove objects that can be thrown by blade Prior to this incident, Grounds Keepers had used the John Deere to cut various slopes at the Newnham campus for a number of years. Miguel Popoca, who was one of the witnesses called by the Union in these proceedings, was a Grounds Keeper for about five years, initially under the supervision of Ms. Mulroney and then under the supervision of Mr. Forster. When he started to work in the Grounds Department, he was trained on the John Deere by Mr. Wiseman, who told him that the John Deere was the most appropriate machine to use for cutting slopes other than very steep areas, which were cut using a line trimmer or a lawn mower with a rope attached to it. 49 Although Grounds Keepers had previously used the John Deere to cut grass on the slope in question, prior to Mr. Forster commencing employment with the College Mr. Wiseman told all of the Grounds Keepers, including the grievor, that he did not want anyone using the John Deere for that purpose anymore, because it was causing flat tires which he had to repair. Mr. Forster was unaware that Grounds Keepers had been using the John Deere to cut steep slopes. Following the grievor's termination, Mr. Forster notified the Grounds Keepers that he did not want them to use the John Deere for that purpose. After a photograph of Mr. Popoca using the John Deere to cut a fairly steep slope on the Newnham campus was introduced into evidence in these proceedings, Mr. Popoca was given a suspension by Mr. Forster for using the John Deere in that location. The John Deere was one of the pieces of equipment for which Mr. Brasz gave the grievor training. Mr. Brasz testified that during that training session he gave the grievor a written hand-out regarding "RIDING MOWERS/LAWN TRACTORS" which included as one of its bulleted points "Avoid steep slopes particularly when wet". That hand-out also included a page entitled "MOWING ON SLOPES", which provided some "tips to consider" if mowing on a slope had to be done, but which cautioned operators to "[a]void mowing on slopes if possible", and included the following recommendation as one of those "tips": "It is recommended that you not operate a ride mower on a slope if possible". Although the grievor testified 50 that it was "not true" that Mr. Brasz gave him that hand-out, and that "it never happened", we find Mr. Brasz's recollection of what occurred during that training session to be more reliable than the grievor's limited recollection of that session. When Mr. Brasz asked the grievor during that training session whether the John Deere was used to cut the whole site, the grievor responded that areas too steep for the John Deere had to be cut using a "lawnboy" mower or a line trimmer. Mr. Forster owns a ride on mower and has had experience in operating a number of them. When he walked along the swath which the grievor had cut on the John Deere, he was quite surprised that the steep grade of the slope had not caused it to rollover before getting to where it got stuck. The accuracy of Mr. Forster's conclusion that the grievor was operating the John Deere in an unsafe manner that could have resulted in serious injury was confirmed by testimony given by Peter Haag, an expert witness called by the College to testify in these proceedings. Mr. Haag has a Bachelor of Applied Science degree in Mechanical Engineering from the University of Waterloo. He has been licenced as a professional engineer since 1972, and has thirty-four years of related industry experience gained from working for John Deere in various capacities including product design, product test and development, management of design departments, production engineering management, operations management, and quality management. He gained considerable insight into the company's 51 lawn and garden product line by working at a Deere Consumer Product Factory. As a member of the Product Safety Committee, he also became immersed in the safety aspects of the company's entire product line, including lawn and garden tractors. In the written report which he prepared for use in these proceedings, he noted that it is widely accepted that when mowlng a slope on a ride-on tractor, it should be done up and down the slope rather than traversing across the face of the slope, and that steep slopes are to be avoided altogether. He further noted that rollover accidents on a ride-on tractor can have consequences resulting in severe injuries or death from blade contact, crushing injuries, entrapment or asphyxiation, if an operator is trapped and pinned by the mass of the machine. Mr. Haag described the area in question as a compound slope on which the angle of slope would change as the John Deere traversed it. The three slope measurements which Mr. Haag took at the approximate spot where the John Deere became stuck averaged 21.7 degrees from horizontal (which can also be described as a 40% grade). Safety standards specify that the test acceptance angle for static lateral tip over of a lawn tractor is 20 degrees. However, that standard is for tests carried out in a laboratory under ideal circumstances, ln which the machine being tested is not moving and is on a tilt table with a friction surface. Thus, it is clear from Mr. Haag's evidence that even an angle of 20 degrees is considered excessive for an operator exercising good judgment in an 52 ~ actual operating situation, due to considerations of speed and terrain, especially when the surface is wet and slippery. Consequently, Mr. Haag concluded that a measured slope averaging 21.7 degrees would be characterized as excessively steep, and substantially in excess of the maximum eight to fifteen degree slope which a prudent operator would cut using a ride on mower. He also testified that even before doing those measurements, he certainly felt that the slope of the terrain was excessive just from walking on it. It was his expert opinion that a prudent operator would cut that slope by using a line trimmer or a walk behind mower going transverse to the slope. He further testified that the grievor's height and weight would make the John Deere more susceptible to tipping by raising the machine's centre of gravity when he was operating it. Mr. Haag concluded that the grievor exhibited inappropriate and negligent behaviour when attempting to mow the slope in question by disregarding obvious warnings on the John Deere, disregarding the content of training activity and materials, failing to use the appropriate equipment for the job, failing to ensure his own safety, and jeopardizing the safety of bystanders. The latter conclusion was based upon his observation (when he visited the site in November of 2008) that there was quite a bit of trash on the slope, some of which had obviously been there for a considerable period of time, leading him to conclude that there was a good probability that the grievor did not carry out a site 53 r inspection prior to starting the cutting. In commenting on the danger posed by this failure, he wrote In part as follows in his report: it is good practice for an operator to walk the site to be mowed prior to starting cutting. Trash accumulation can be picked up by the rotating blade of the mower and thrown a considerable distance with high velocity, thus presenting a hazard to bystanders within proximity of the trajectory. Since the identified Seneca site has a concentration of pedestrian traffic immediately next to the parking lot, and a pedestrian walkway, the potential for a serious thrown objects injury existed. Having regard to all of the evidence, we have concluded that although Mr. Forster told the grievor that he could use the John Deere on the more level area of the slope but that either he or Nana should use the line trimmer to cut the steeper section of the slope, the grievor did not digest those instructions because he already had it in his mind how he was going to perform the work and did not listen carefully to Mr. Forster's instructions as he was of the view that Mr. Forster was not qualified to be his supervisor. Thus, although the grievor's conduct may not have amounted to insubordination in the sense of intentionally defying a direct order from his supervisor which he heard and understood, his culpable failure to listen carefully to Mr. Forster's instructions (and to seek clarification of them if he did not fully understand them) demonstrates that the relationship between the grievor and Mr. Forster had become unworkable due to the grievor's lack of respect for him and his qualifications. Moreover, even in the absence of those instructions, the grievor should have known as a duly trained 54 Grounds Keeper that operating the John Deere on the steeper sections of that slope was unsafe and should have avoided doing so, particularly on a day when the grass was wet and slippery. He should also have known from the initial training he received from Mr. Wiseman, as well as from the subsequent training which he received from Mr. Brasz, that cutting the area without picking up the garbage could endanger the safety of anyone who was in the vicinity. Some of the basic concepts to be applied in cases involving safety considerations were set forth as follows by Arbitrator Teskey in Re Inco Limited and United Steelworkers of America, Local 6166, [2002] M.G.A.D. No.8: 136 The extracts from Canadian Labour Arbitration simply illustrate certain basic concepts. Those concepts are that the penalty must match the level of infraction but a more severe penalty is to be expected when matters of health and safety are involved as well as the principle that deterrence is a legitimate factor to consider which must also be balanced against "... the corrective or rehabilitative function of industrial discipline". In Hudson Bay Mining and Smelting Co. v. United Steelworkers, Local 7106 (Goodman Grievance) (2008), 93 C.L.A.S. 178, Arbitrator Peltz wrote, in part, as follows: 96 The offence was at the serious end of the scale.... While there was no accident or injury caused on January 15, 2007, I accept that this per se does not excuse the grievor. As held by Arbitrator Ready in Simplot Canada, supra, (at para. 38): The incident in question involves a violation of safety standards and procedures. The importance of plant safety cannot seriously be questioned. The potential consequences are too severe. I quote with approval in this regard from Stelco Inc. v. United Steelworkers of America, Local 1005 (O'Neal Grievance), [2003] a.L.A.A. No. 566 (Luborsky) : 55 r There appears to be tacit recognition by arbitrators that it may take only one negligent act to lead to catastrophic results in certain contexts, and that termination of the employment relationship is necessary to deter such misconduct and reinforce the high standards of performance required for safety-sensitive jobs. 97 Finally, there was no timely admission of responsibility by the grievor which would show rehabilitative potential. To the contrary, the grievor avoided accountability and sought to deflect blame onto other employees. He did not apologize for his actions at any juncture, including while testifying at the arbitration hearing. This can be a fundamental consideration for an arbitrator struggling to ensure protection of the rest of the work force while not imposing undue hardship on the grievor. Does the evidence overall, especially the demeanor and attitude of the grievor, provide reasonable comfort that the grievor will not violate safety rules again? In the present case, I have concluded with regret that there is not a sound basis for believing that the grievor will mend his ways if reinstated in his employment. The importance of an admission or acknowledgment of responsibility has also been recognized in numerous other cases involving safety infractions. See, for example, Re Casco Co. and U.F.C.W., Loc. 617P (1993), 38 L.A.C. (4th) 353 (Williamson), at pp. 367-8; Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115 (Bowden Grievance), [2008] B.C.C.A.A.A. No. 99 (Burke), in paragraphs 62, 64, 65, 68, and 69; Re Con-Agra and U.S.W.A., (2008), 169 L.A.C. (4th) 29 (Moreau), at page 47; Re Sysco Food Services and C.A.W.-Canada, Local 414 (Mainville) (2008), 96 C.L.A.S. 240, in the final paragraph; Re Westroc Inc. and Cement, Lime, Gypsum and Allied Workers, Div. of B.B.F., Loc. D274 (Richard) (2002), 108 L.A.C. (4th) 289 (Freedman), at pp. 307-8; and 56 ADM-Agri Industries (Windsor) v. United Food and Commercial Workers Union, Local 278W (McGhie Grievance), [2005] a.L.A.A. No. 466; 82 C.L.A.S. 231 (H.D. Brown), in paragraphs 41 and 42. As indicated above, despite the training he received and despite having the benefit of hearing the expert evidence given by Mr. Haag in these proceedings, the grievor (who testified after Mr. Haag) steadfastly maintained that he had done nothing wrong in attempting to cut the steep portion of the slope in question with the John Deere and in failing to pick up the garbage before doing so. During his testimony in these proceedings, the grievor also attempted to downplay the seriousness of all of the aforementioned other safety-related incidents for which he has justifiably been disciplined or given a Departmental Safety Memo. Thus, unlike the grievor In Canadian Forest Products Ltd. v. Industrial, Wood and Allied Workers of Canada, Local 1-424 (Minville Grievance) (1993), 36 L.A.C. (4th) 400 (Kelleher), the grievor is not "a good candidate for rehabilitation". Having regard to all of the circumstances, including the grievor's disciplinary record (as amended by our recision of the three-day suspension to which the grievance dated August 26, 2006 pertains), we have concluded that the College had just cause to discharge the grievor. If this had been the grievor's first safety violation, or if the grievor's testimony had indicated that he recognized the error of his ways and was now determined to work in a safe manner and to 57 pay close attention to instructions given by his supervisor, we might have found it appropriate to substitute a suspension for the discharge and to conditionally reinstate him. However, the evidence establishes a number of previous instances in which the grievor has been unaware of or indifferent to safety considerations, and nothing in his testimony gives us any confidence that he would adopt a different approach if he were to be reinstated. For all of the foregoing reasons, the discharge grievance is hereby dismissed. As indicated above, all of the other grievances except the grievance dated August 26/ 2006 are also dismissed. As further indicated above, the grievance dated August 26, 2006, is allowed, and the College is directed to remove from the grievor's disciplinary record the three-day suspension to which that grievance pertains, and to compensate the grievor for all lost earnings and benefits (if any) resulting from that unwarranted suspension. We remain seised for the purpose of quantifying that compensation if the parties are unable to agree upon the amount to be paid. DATED at Burlington, Ontario, this 12th day of February, 2010. __//7/ '>-, /' >j) /L' L /1' /-~.. /Tt-....:; Robert D. Howe Chair I concur. "John Podmore" College Nominee 58 Grievance of Terrence Wei (OPSEU) and Seneca College I agree with the majority which rescinds the three day suspension for the misunderstanding of "t k" " . t" ruc vs. equlpmen . I further agree with the maiority upholding discipline for failure to examine the ramp after contact had been made. As a matter of safety, Mr. Wei should have inspected the ramp very closely after it came into contact with the truck. Whether or not he was responsible for the full amount of damage is irrelevant to the implementation of proper safety procedure. This member respectfully dissents from the majority regarding the dismissal of Mr. Wei> The evidence shows that the grounds at Seneca with slopes at the same degree as the slope this Board viewed have been cut with the "John Deere" in precisely the same manner the grievor attempted to do. The evidence further shows that another employee was disciplined for doing the exact same thing after Mr. Wei had been dismissed. In general I agree with the majority in terms of the interaction between the grievor and Mr. Forster, who says he instructed Mr. Wei to use the line trimmer. I part company with the majority at the point where Mr. Wei leaves the tractor and shows Mr. Forster the problem with using the John Deere on the wet grass that day. This is clearly not insubordination as suggested by the employer, nor is it culpable behaviour when the employee most certainly believes he is doing what was asked of him. The other safety violations (lights not on and driving the wrong way on Minkler Dr.) are examples of what I view as culpable behaviour which attracts some discipline. I am also of the view that Mr. Wei failed to appreciate the significance of his actions, nor did he display much sense of remorse or determination to improve. However in the totality of evidence, the penalty exceeds the crime. Mr. Wei should have attracted a suspension meant to act as a deterrent, but dismissal is too harsh and not in keeping with the infractions. All of which is respectfully submitted, Sherril Murray