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HomeMy WebLinkAbout2020-2914.Mohamed.22-11-10 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2020-2914 UNION# 2021-0526-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Mohamed) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION Adam Veenendaal Morrison Watts Counsel FOR THE EMPLOYER Regina Wong Treasury Board Secretariat Legal Services Branch Counsel HEARING September 28, 2022 - 2 - Decision [1] This case involves a Grievance filed on February 5, 2021 in which the Grievor claimed that he had been terminated on January 21, 2021 from his employment without just cause, willfully and in bad faith. The Grievance also alleged that the Employer violated the Collective Agreement, including but not limited to, Articles 2, 3 and 24, the Employment Standards Act, Ontario Humans Right Code, Occupational Health and Safety Act and any related employment statute or principle in law that may apply including any related employment policy. In terms of remedy, the Grievor sought reinstatement of his employment and to be made whole including reimbursement of all lost earnings, compensation and benefits and any other remedy deemed appropriate by an arbitrator or by the Board. [2] The Grievor was subsequently reinstated to his position on February 22, 2021 but did not attend work. On March 31, 2021, the Grievor was again terminated from his employment due to abandonment. He did not file a grievance in response to the March 31, 2021 termination of his employment. [3] The parties attended a hearing on September 28, 2022 in which the Employer brought motions asking me to dismiss this case because the facts set out in the Union’s revised particulars, dated August 29, 2022, do not establish a prima facie case of discrimination on the basis or race, ethnicity, and disability. In addition, the Employer maintains that, without the Union establishing proof of the allegations of discrimination, this Grievance is moot, and should be dismissed because the Grievor was reinstated to his position on February 22, 2021 and failed to file a grievance when he was terminated for abandonment on March 31, 2021. As a result, the Employer states that there are no outstanding issues for me to consider. Should I not uphold the motions to dismiss, the Employer asks me to conclude that some of the Union’s revised particulars expand the scope of the Grievance and therefore should be struck and not form part of this case. [4] For the reasons set out below, I have determined that the facts raised in the Union’s revised particulars do not establish a prima facie case of discrimination based on either race, ethnicity, or disability. Because I have found that there are no human rights issues to be considered, I have also concluded that this case is moot because the remedy of reinstatement has been met. Given that I am dismissing the Grievance, I have not dealt with the parties’ submissions about expansion of scope. Background Overview [5] Prior to reviewing the Employer’s motions and the Union’s response, it is helpful to outline some of the facts and timelines in this case so that the motions can be viewed in context. The following is a summary of the Employer’s particulars in this case, recognizing that some of the facts are not agreed to by the Union. - 3 - [6] The Grievor began his employment with the Ministry of the Attorney General in or around 1991. 2. He became a Category 2 Flexible Part-Time (“FPT”) Court Service Officer (“CSO”) in or around 1998, and largely held this position until the Employer terminated his employment on or about January 21, 2021. The purpose of the CSO position is to provide support to presiding judiciary, maintain court decorum, direct stakeholders, clients, jurors, and members of the public and to provide support to the overall administration of the court. The duties of a CSO may include completing administrative duties that contribute to the progress of cases in the court system from beginning to conclusion, and other duties as assigned. [7] Prior to the onset of COVID-19, the Grievor was primarily assigned courtroom duties as a CSO. With the onset of the COVID-19 pandemic provincial state of emergency, many courthouses, including the Toronto Courthouse, where the Grievor worked, suspended physical court operations, except for emergency matters, between March 17, 2020 and July 6, 2020. As a result, CSOs were generally not required to perform any duties during this period. [8] On July 6, 2020, the Toronto Courthouse began a phased re-opening of in-court operations, including both in-person and Zoom hearings. The Toronto Courthouse scheduled Client Service Representatives (“CSRs”) and Registrars to run Zoom hearings, not CSOs. As such, CSOs were only scheduled for in- person hearings, and consequently were not receive the training to run Zoom hearings. [9] In order to permit CSOs to meet their minimum daily requirements of 5.75 hours, the Toronto Courthouse assigned all CSOs who were not in court, including the Grievor, to administrative duties. Alternatively, CSOs had the option of requesting vacation or requesting a leave without pay, subject to operational requirements. In late November and December 2020, due to the deterioration of the public health situation in Toronto, the judiciary strongly encouraged the use of virtual hearings wherever possible. As a result, the number of in-person hearings decreased, and consequently many CSOs were assigned administrative duties. [10] Beginning in early December 2020, the Grievor attended at work and at times, when no courtroom work was scheduled, he was asked by his manager to perform some administrative duties including filing work. The Grievor took issue with performing administrative duties and told his manager on December 14, 2020 that he would not come to work unless he was assigned courtroom duties. On December 14, 2020, the Grievor left the workplace despite being assigned courtroom duties at 2 p.m. that day. [11] Between December 14, 2020 and January 21, 2021, the Grievor did not attend work when scheduled. Further, after refusing to confirm his conversation with Ms. Seeraj by email on December 16, 2020, the Grievor did not call into the call-in line, or communicate with the Employer by phone, email, mail, or any other - 4 - means. As such, the Grievor had been absent from the workplace since December 14, 2020 without authorized leave. [12] The Employer sent 2 emails and letters plus tried to contact the Grievor by phone, on December 22, 2020 and again on January 6, 2021 to seek an explanation for his absences. The Grievor was provided with a final opportunity to contact management and explain his absence by January 20, 2021. If the Grievor did not comply with the deadline, he was advised he would be deemed to have abandoned his position pursuant to s.42 of the PSOA. Unfortunately, the January 6, 2021 letter was returned to the Employer as undeliverable. Once the letter was returned it was re-sent to the Grievor by regular mail. [13] On January 18, 2021, the Employer sent a letter to the Grievor by email and by regular mail to the Grievor’s home address on file. In this letter, the Grievor was again reminded that he had a final opportunity to contact the Employer to provide a sufficient explanation for his absence or return to work by January 20, 2021, failing which he would be deemed to have abandoned his position. [14] Having received no response from the Grievor to any of the communications sent to him, a letter of abandonment was sent to him by email and regular mail declaring in accordance with s.42 of the PSOA that the Grievor abandoned his position with the Ontario Public Service, and this his employment was terminated effective January 21, 2021. [15] On January 22, 2021 the Grievor contacted the Employer and requested a meeting about the January 21, 2021 letter he received. On January 26, 2021, the Employer met with the Grievor and a Union representative during which it was discovered that the manager had been sending emails to the wrong email address. Following this meeting the Grievor filed the grievance referred to in paragraph 1 of this decision. [16] On February 22, 2021, the Employer provided a letter to the Grievor, without precedent and prejudice to its decision to declare his position abandoned or any position it would take with respect to his grievance, that he was reinstated to his position as CSO. The Employer also informed the Grievor that the periods between December 14, 2020 and January 20, 2021 and the period between January 21, 2021 and February 26, 2021 would be treated as authorized leave without pay pursuant to Article 24.1 of the Collective Agreement. The Grievor did not return to the workplace and was deemed that he abandoned his position resulting in the termination of his employment on March 31, 2021. He did not grieve this termination of employment. [17] In preparation for this hearing, the Union submitted the following revised particulars on August 29, 2022: - 5 - I. Background and Disabilities 1. The Grievor, Abdulkadir Mohamed, began his employment with the Ministry of the Attorney General in or around 1991. 2. Mr. Mohamed became a Category 2 Flexible Part-Time (“FPT”) Court Service Officer (“CSO”) in or around 1998, and largely held this position until the Employer terminated his employment on or about January 21, 2021. 3. In or around May 2015, Mr. Mohamed was assaulted at work and suffered a head trauma. After the brain injury, Mr. Mohamed’s mental health declined and he experienced symptoms such as paranoia, feeling like people were following him and trying to hurt him, and hearing voices. Mr. Mohamed’s mental disability was undiagnosed at this time. 4. These symptoms became prevalent again in or around March 2020, when he experienced the circumstances outlined in these particulars. These circumstances caused his mental health to decline. Mr. Mohamed was unwell and suffering from an undiagnosed mental illness at this time. 5. Through its interactions with Mr. Mohamed, the Employer knew, or ought to have known, that Mr. Mohamed suffered from a mental disability since at least March 2020 – particularly from December 2020 onwards. 6. On or about December 31, 2021, after experiencing anxiety, depression, paranoia, hearing voices, and exhibiting bizarre behaviour, Mr. Mohamed was admitted to the emergency department of the Centre for Addiction and Mental Health. Mr. Mohamed was referred to a psychiatrist, when he was diagnosed with symptoms of psychosis, schizophrenia, and dementia with psychotic features. Mr. Mohamed is currently being treated for his mental health conditions. I. Circumstances leading to alleged absences 7. The Grievor, Abdulkadir Mohamed, began his employment with the Ministry of the Attorney General in or around 1991. 8. Mr. Mohamed became a Category 2 Flexible Part-Time (“FPT”) Court Service Officer (“CSO”) in or around 1998, and largely held this position until the Employer terminated his employment on or about January 21, 2021. 9. Per Appendix 32 of the Collective Agreement, FPT workers are guaranteed to work a minimum of five 5.75-hour shifts per week, 57.5 hours biweekly, or 1500 hours per annum. 10. Prior to March 2020, FPT CSOs attended work daily from Monday to Friday to work a minimum of 5.75 hours per day. Mr. Mohamed worked far more than the minimum hours of a Category 2 FPT at this time. 11. From March 2020 onwards, the Employer greatly reduced Mr. Mohamed’s hours of work, and Mr. Mohamed worked far less than the minimum hours guaranteed to a Category 2 FPT worker. 12. Upon arriving to work for his regular shifts, Mr. Mohamed was often instructed to go home because work was not available. Mr. Mohamed carried the cost of commuting and parking. He was not paid for work on most of these occasions. - 6 - 13. On December 14, 2020, Mr. Mohamed attended work for his regular shift. Satie Seeraj, a Supervisor of Court Operations, informed Mr. Mohamed that courtroom work was unavailable and that Mr. Mohamed would be placed on an unpaid leave of absence until CSO duties resumed in or around January 2021. 14. On December 14, 2020, Ms. Seeraj emailed Mr. Mohamed at abdul.mohamed@ontario.ca and abdulkmohe@gmail.com, copying Chris Samac, a Supervisor of Court Operations, and Michael Valerio, Manager of Court Operations, to summarize her characterization of the conversation. In the email, Ms. Seeraj asked Mr. Mohamed to confirm that he would not be coming to work unless he was assigned courtroom duties; that he would not be performing assigned administrative duties; and as such agreed to have the time noted as a leave without pay when there were no courtroom duties. 15. Mr. Mohamed replied to Ms. Seeraj’s email on December 16, 2020 from his personal email address: abdulkmohe@gmail.com. Mr. Mohamed stated that he would not confirm Ms. Seeraj’s characterization of events. Mr. Mohamed did not agree with the Employer’s decision to place him on an unpaid Leave of Absence. 16. Mr. Mohamed did not refuse to perform administrative duties. However, it was painful for Mr. Mohamed to perform the specific administrative duty of filing work due to psoriasis. The Employer was aware of this condition. At the time, the parties were proceeding through the arbitration process regarding a grievance, which alleged that the stress from the workplace exacerbated Mr. Mohamed’s psoriasis. 17. Mr. Mohamed understood that other employees were performing courtroom work via Zoom. Mr. Mohamed viewed the Employer’s decision to place him on an unpaid leave of absence – while allowing other employees to perform courtroom work via Zoom – as discrimination on the basis of race and/or ethnicity and/or disability. II. Employer’s first email alleging that Mr. Mohamed was absent from work 18. On December 22, 2020, Mr. Samac emailed Mr. Mohamed at abdul.mohamed@ontario.ca and abdulmohe@gmail.com, copying Ms. Seeraj. In the email, Mr. Samac stated that Mr. Mohamed was scheduled to work since December 14, 2020 and has not attended work. Mr. Samac informed Mr. Mohamed that he was required to request approval for time off from management in advance of being absent, barring exceptional circumstances. 19. Mr. Mohamed did not receive the December 22, 2020 email from Mr. Samac, as Mr. Mohamed’s personal email address was spelt incorrectly. His correct personal email address is abdulkmohe@gmail.com. Mr. Mohamed was not monitoring his work email address at the time, as he was not working. 20. Despite Mr. Mohamed’s understanding that the Employer did not have work available for him and placed him on an unpaid leave of absence, Mr. Mohamed wanted to work and called the Employer to inquire if work was - 7 - available. For example, Mr. Mohamed called the telephone system to inquire if work was available on January 4, 2021. III. Employer’s second email alleging that Mr. Mohamed was absent from work 21. On or about January 6, 2021 Mr. Samac emailed Mr. Mohamed at abdul.mohamed@ontario.ca and abdulmohe@gmail.com, indicating that a letter would be sent to his house that day, and if he did not respond by January 20, 2021, the Employer would deem Mr. Mohamed to have abandoned his position. 22. Again, Mr. Mohamed did not receive the January 6, 2021 email from Mr. Samac. 23. Mr. Mohamed also did not receive the January 6, 2021 letter. The letter was returned to the Employer as “undeliverable” by Purolator on or around January 11, 2021. IV. Employer’s third email alleging that Mr. Mohamed was absent from work 24. On January 18, 2021, Mr. Samac again emailed Mr. Mohamed at abdul.mohamed@ontario.ca and abdulmohe@gmail.com, and mailed a letter by regular mail to Mr. Mohamed’s home address on file. 25. In this email and letter dated January 18, 2021, Mr. Samac provided Mr. Mohamed with a “final opportunity” to contact him to provide a sufficient justification for his absence or return to work by January 20, 2021. Mr. Samac stated that Mr. Mohamed will be deemed to have abandoned his job position, pursuant to s. 42 of the PSOA, if the deadline was not complied with. 26. Again, Mr. Mohamed received neither the January 18, 2021 email nor the letter from Mr. Samac. V. Employer issues abandonment letter and Mr. Mohamed files grievance 27. On January 21, 2021, Ms. Samac sent a letter of abandonment to abdul.mohamed@ontario.ca and abdulmohe@gmail.com, and further mailed the letter by regular mail to Mr. Mohamed’s home address on file. 28. In the letter, the Employer advised that Mr. Mohamed had been absent from the workplace without approved leave since December 14, 2020, and as such it was declaring that Mr. Mohamed abandoned his position with the Ontario Public Service. His employment was terminated effective January 21, 2021. 29. Mr. Mohamed received the January 21, 2021 letter by mail, and not by email. 30. On or about January 22, 2021, Mr. Mohamed emailed Mr. Samac stating that he received the January 21, 2021 letter, and that he would like to schedule a meeting to discuss it. 31. Mr. Mohamed and Local President Suzette Maxwell met with Mr. Samac and Supervisor of Court Operations Katarina Lesko on January 26, 2021 to discuss the alleged attendance and job abandonment issue. The parties - 8 - discovered that Mr. Samac did not spell Mr. Mohamed’s personal email address correctly in his past emails. However, the issue was unresolved during this meeting. 32. On or about February 5, 2021, Mr. Mohamed filed a grievance, stating: “I, Abdulkadir Mohamed, grieve the employer, The Ministry of the Attorney General, for violating the Collective Agreement, including but not limited to Articles 2, 3, 21, 24 and/or any other related article within the Collective Agreement, the Employment Standards Act, Ontario Human Rights Code, Occupational Health and Safety Act, and any related employment statute or principle in law that may apply, as well as any related employer policy. The employer, without just cause, willfully and in bad faith terminated my employment. N.B. In advance of all related meetings, I request full disclosure of all documents that the employer is/will be relying upon in this matter.’ VI. Employer unilaterally reinstates Mr. Mohamed’s employment 33. In or around February 2021, the Employer drafted a Memorandum of Agreement in an effort to resolve the above-noted grievance and reinstate Mr. Mohamed’s employment. This Memorandum was not executed. 34. On February 22, 2021, the Employer wrote to Mr. Mohamed and informed him that his employment was reinstated, effective January 21, 2021. 35. At this time, Mr. Mohamed was suffering a reoccurrence of his mental illness, resulting in him losing critical documents, such as his identification, and access to his vehicle. 36. Despite being aware of Mr. Mohamed’s mental illness at this time, the Employer did not inquire about Mr. Mohamed’s ability to return to work before unilaterally reinstating his employment. [18] The Union maintains that by failing to recognize and/or inquire about the Grievor’s psoriasis in relation to his ability to perform filing duties, and/or by failing to recognize and/or inquire about his mental health condition upon unilaterally reinstating his employment, the Employer discriminated against the Grievor on the basis of his disabilities and failed to accommodate him, in violation of sections 5(1) and 17 the Ontario Human Rights Code and Article 3 of the Collective Agreement. Furthermore, by placing the Grievor on an unpaid leave of absence and refusing to provide him with work via Zoom when other employees were provided with this work, the Employer discriminated against him based on race and/or ethnicity in violation of section 5(1) of the Ontario Human Rights Code and article 3 of the Collective Agreement. Lastly by terminating the Grievor’s employment in violation of the Collective Agreement, and the Ontario Human Rights Code, the Employer breached its management rights, per article - 9 - 2, as it did not dismiss the Grievor for just cause, per Article 21 of the Collective Agreement. Has the Union established a Prima Facie Case of discrimination on the grounds of race ethnicity or disability with respect to the Grievor’s assignments of administrative duties and unpaid leave? [19] The parties agree on the general legal principles for the determination of establishing what constitutes a prima facie case. As noted in OPSEU (Martin et al) v. Ministry of Community and Social Services (Anderson) CanLII 60499 at paragraph 3: “In order to succeed, the moving party, in this case the Ministry, must establish that the “facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged”: Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion.” [20] Further at paragraph 6 of the Martin decision Arbitrator Anderson explains that: “What matters for the purposes of the no prima facie case motion is whether the party responding to the motion, in this case the Union, has articulated a legal theory which, on the facts it has particularized, could reasonably support a conclusion that there is a violation of the collective agreement. Therefore, the particulars are to be assessed against the responding party’s theory of the case. Whether that theory is correct need not be determined at this stage in the proceedings. Provided the responding party’s theory is reasonable and it has provided particulars which, if true, would result in a finding of a breach on the application of that theory, the motion should be dismissed.” [21] The Union does not dispute that during the pandemic, in 2020, that CSOs were only scheduled for in-person hearings and were not trained to run virtual court hearings using the Zoom platform and that CSO hours were often reduced. The Union also does not dispute that in late November and December 2020, due to the deterioration of public health in the City of Toronto, that the number of in- person hearings decreased resulting in many CSOs being assigned administrative duties or being offered the option of taking vacation or an approved unpaid leave of absence. [22] The Employer submits that the Union’s revised particulars do not disclose that the Grievor was subject to any adverse treatment in either the type of duties he was assigned or in the amount of work for which he was scheduled. In that regard, the Employer notes all CSOs were subject to the same reduction of in- person courtroom work, were not performing courtroom work via Zoom and were either offered administrative duties or the option to take vacation or an approved unpaid leave of absence when work was reduced or unavailable. The Employer - 10 - also notes that in paragraph 14 of the Union’s revised particulars, that the Grievor’s Supervisor sent an email summarizing her characterization of a conversation they had on December 14, 2020, in which the Grievor was asked to confirm that he told her that he would not attend work unless assigned courtroom duties, that he would not perform administrative duties and, as such, he agreed that he would be on a leave without pay if no courtroom duties were available. While the Grievor responded by email on December 16, 2020 stating that he did not agree with the Supervisor’s characterization of events and did not agree with being placed on a leave of absence, the Employer submits that this email does not provide any evidence alleging discriminatory conduct toward the Grievor. [23] The Employer also submits that the Union’s revised particulars do not disclose discrimination based on disability regarding the Grievor’s claim that he did not refuse to perform administrative duties of filing work and that the reason he could not perform the work was due to his condition of psoriasis. The Employer maintains that not only did the Grievor ever raise any hesitancy to perform the work due to his medical condition, but also, he never asked for an accommodation. [24] In support of its arguments that there is no nexus to the either race, ethnicity or disability, the Employer provided the following cases: OPSEU (Morgan) v. Ministry of Children and Youth Services (Tims) 2014 CanLII 3027, Khalii 2019 HRTO 1248 CanLII, Lepine 2011 HRTO 2283 CanLII and OPSEU (Poblete) v. Ministry of Government and Consumer Services (Herlich) 2017 CanLII 0709. [25] In order to find discrimination based on race or ethnicity, it is necessary for the Grievor to establish that he is a member of an identified group and that he was subject to adverse treatment because he is a member of that group. Having a belief or feeling of being subject to discrimination is not sufficient to establish a nexus. In this case, the Union’s revised particulars do not meet the test of establishing a prima facie case of discrimination on the ground of race or ethnicity. Given that the Union agreed, during the hearing, that all CSOs were not running Zoom court work and that they were subject to reduced in-person hearing work, I cannot conclude that the Grievor was treated any differently than his colleagues. There is no dispute that all CSOs, particularly in late November and December 2020, when in-person courtroom work was significantly reduced, were offered the option of administrative duties or the option to take vacation days or unpaid leave of absences. Again, the Grievor was treated no differently as he was offered administrative duties where no courtroom work was available and received an email on December 14, 2022 from his Supervisor seeking confirmation that if he would not perform administrative duties if no courtroom work was available that he would be placed on a leave of absence. The Employer also tried to reach the Grievor on December 22, 2020 to advise that he had been scheduled for work since December 14, 2020 but had not been in attendance and then reached out again on January 6 and 18, 2021 to warn the Grievor that he was required to contact the Employer to explain his absence from work. Unfortunately, the Employer misspelled the Grievor’s email address - 11 - resulting in him not receiving these emails, however the emails show that the Employer was trying to contact the Grievor as he was scheduled for work and that he was at risk of losing his job due to abandonment. While the Grievor claimed to have called the telephone system, on January 4, 2020, to inquire if work was available, there are no additional facts presented to show any connection between this phone-call and whether there was a response from the Employer and the Union’s theory of the case that the Grievor suffered discrimination based on race or ethnicity. [26] I also find that the Union’s revised particulars do not meet the test of establishing a prima facie case of discrimination with respect to the claim that the Grievor could not perform administrative duties due to psoriasis and that he was discriminated on that basis. The Union’s revised particulars state that it was painful for the Grievor to perform filing work due to psoriasis and that the Employer was aware of this condition because the Grievor had filed another grievance alleging that stress from the workplace exacerbated his psoriasis. Reading the particulars, there is nothing to suggest that the Grievor either told the Employer that it was painful for him to do the work in question or that he asked for an accommodation because of the psoriasis. Furthermore, while there may have been another grievance relating to workplace stress and the exacerbation of the Grievor’s condition, it does not follow that the Employer knew or ought to have known that the task of performing administrative filing duties was physically painful for the Grievor. [27] Even assuming the Employer knew about the Grievor’s psoriasis and allegations of it being exacerbated by workplace stress, there is nothing in the Union’s particulars to suggest that the Employer should have made any inquiries about whether the Grievor required an accommodation to perform the filing tasks. While an Employer may have a duty to inquire even where there has not been a specific accommodation request, the duty generally only arises in situations where it is readily apparent that an individual is having difficulty performing a task because of personal characteristics cover by the Code, (Khalii supra, at para 31). In this case, the particulars do not establish that the Employer had any reason to be aware that the Grievor’s psoriasis had any impact on his ability to physically perform the work and therefore there can be no basis for a finding a liability of discrimination based on disability. Has the Union established a Prima Facie case of discrimination based on disability with respect to terminating the Grievor for abandonment or in reinstating the Grievor’s employment? [28] The Employer claims that the decision to dismiss the Grievor for abandonment or to reinstate his employment on February 22, 2021 did not relate to the Grievor’s mental health, and in fact, claims that it never received any information from the Grievor concerning his mental health and how it might have been impacting his workplace behaviour. In this regard, the Employer points out that there is nothing in the Union’s revised particulars that establish that they knew or ought to have - 12 - known about the Grievor’s mental health either prior to or post grievance. The Union submits that during the meeting between the Employer, Grievor and the Union on January 26, 2021 to discuss the January 21, 2021 termination letter, it should have been obvious to the Employer that the Grievor was unwell. In addition, the Union suggests that the Employer knew about the Grievor having mental health issues possibly dating back to 2015, but most likely by March 2020, and therefore, would have had general knowledge about his disability. [29] Having reviewed the Union’s revised particulars, I do not find any basis that would establish a prima facie case of discrimination based on a mental health disability. Although the Union claims that the Grievor’s mental health instability should have been obvious to the Employer in the January 26, 2020 meeting, the particulars do not disclose any facts to support the Union’s claim as they only note that a meeting was held and that it was discovered that the Grievor’s email address had been incorrectly spelled. The Union’s particulars also refer to the Grievor suffering a head trauma in 2015 resulting in an undiagnosed mental health decline, symptoms of paranoia and delusions occurring in March 2020 and an admission to the Centre of Addiction and Mental Health’s emergency department on December 31, 2021, followed by a referral to a psychiatrist and diagnosis of various mental health conditions. While not questioning that the Grievor experienced these events and while he may have believed that the Employer knew about his mental health challenges, the revised particulars do not provide any facts that might establish the Employer's knowledge. In addition, although the Union’s revised particulars refer to the fact that the Grievor was experiencing a recurrence of his mental health issues around the time that he received his February 22, 2021 reinstatement letter, there are no other facts submitted to suggest that the Employer had any knowledge about his condition. While no doubt these mental health challenges have significantly impacted the Grievor’s personal life, on the particulars provided, I cannot conclude that the Employer either knew or should have know about his disability. [30] In a claim for discrimination based on disability, in order to show a prima facie case of discrimination, the Union must demonstrate that the Grievor has a disability, that he experienced restrictions and limitations related to his disability that need to be accommodated and that the Employer failed in its duty to accommodate the limitations and restrictions. This case is like the circumstances in Mohamid-Amin v. Book4Time inc. 2020 HRTO CanLII 367, in which the Tribunal found that the Applicant failed to establish that she advised her employer of a disability or any needs for accommodation. In that case, the Applicant submitted that she had tremors arising from her PTSD and therefore the Respondent employer should have known she had a disability and should have inquired about it. This is no different than the Grievor in this case claiming that the Employer should have know about his mental health challenges or make inquiries either before issuing the January 21, 2021 letter of termination or the February 22, 2021 letter of reinstatement when there is nothing in the particulars to show that the Employer knew anything about the Grievor’s mental health status. - 13 - Is this Grievance Moot? [31] The Employer argues that this Grievance should be dismissed for mootness because the Grievor’s employment was reinstated, thereby fulfilling the remedy sought by the Union and because there are no other issues to be considered. The Employer notes that the doctrine of mootness involves a determination of whether a live controversy exists that is arbitrable. While recognizing that there is discretion in declaring that a case is moot, the Employer argues that I should not apply my discretion in this case, as the Grievor not only received the remedy of reinstatement on February 22, 2021 but also failed to file a subsequent grievance when he was terminated again for abandonment on March 31, 2021. In support of its arguments the Employer relies on the following cases: Borowski v. Canada (Attorney General), [1989] 1 SCR 342. Thames Emergency Medical Services Inc. v. Ontario Public Service Employees' Union Local 147 (Management Conduct Grievance), 2006 CarswellOnt 11579, [2006] O.L.A.A. No.202 (P. Knopf) OPSEU (Lobraico) v. The Crown in Right of Ontario (Ministry of Health), GSB No.2934/91, October 7, 1993 (Gorsky), OLBEU (Berry) v. LCBO, GSB#2001- 0453 (Johnston). [32] While the Union does not dispute the test for mootness, it states that the Employer could not unilaterally reinstate the Grievor in order to impose a settlement of his grievance and that, in any event, reinstatement did not encapsulate all the remedies that the Grievor sought in his Grievance, which included a remedy for human rights damages and a remedy for compensation for his unpaid leave of absences. Therefore, the Union argues that a live controversy still exists particularly with respect to remedy, even if I were to find that the issue of reinstatement is moot. Alternatively, the Union asks that I exercise my discretion to hear this case given the Grievor’s long service as Ontario Public Service (OPS) employee and the lack of prejudice to the Employer in terms of witnesses and the production of evidence. [33] In support of its position that this Grievance should be arbitrated, the Union also referred to a few labour arbitration cases in which it was found that an employer could not avoid arbitration by unilaterally imposing a settlement of a grievance by, for example, rehiring an employee or by paying out sick pay that was claimed thereby denying an employee a right to adjudication for specific relief; see; Hall Lamp Co of Canada Ltd v UAW Local 1620, 1972 Carswell Ont 1428, Misawa Homes Ltd. v. C.A.I.M.A.W., 1974 Carswell Man 161, U.S.W.A. v. International Nickel Co. of Canada Ltd., 1972 Carswell Ont 1493, Union Gas Co. of Canada v. I.C.W., Local 741, 1973 CarswellOnt 1436. [34] Having reviewed Counsels' thorough and thoughtful submissions and the caselaw presented, together with my findings that the Union has not established a prima facie case of discrimination either based on ethnicity, race, or disability, I have concluded that no live controversy or issues exist that require a decision. As a result, I find that the Grievance is moot. In my view, the Grievor was reinstated to his employment on February 22, 2021 which was the key remedy - 14 - that was sought in the Grievance. Reinstating the Grievor to his position was not a unilateral imposition of a settlement because the Employer acknowledged that the reinstatement was without prejudice to any position it might take with respect to the Grievance, in effect, acknowledging that it was not removing the Grievor’s right to pursue his Grievance. As noted by Counsel for the Employer during reply submissions, she emphasized that when the Employer reinstated the Grievor it did not expect that he was withdrawing all his allegations or requested remedies in his Grievance. Therefore, as I understand it, the Employer has not taken the position that the Grievance was settled by the act of reinstatement. Instead, the Employer maintains that by reinstating the Grievor on February 22, 2021 the main remedy for his termination grievance was met and that no other issues would remain outstanding if I agreed that there is no basis for a finding of discrimination on the Code grounds alleged by the Grievor. [35] Since reinstatement of the Grievor is not an available remedy and because there is no basis to consider any of the human rights allegations raised in the Union’s revised particulars no other remedies are available. In this regard, the Grievor’s claim to be compensated for unpaid leaves of absence or for human rights damages were related to his allegations that he was subject to discrimination when he was asked to perform administrative filing work, when he received less work and when he was placed on unpaid leave of absences. Based on my findings of no prima facie cases of discrimination, there is no basis for the Grievor to seek a remedy for human rights damages or wages related to either a reduced workload, requests to perform administrative work, or unpaid leaves of absence. In addition, since I have found no nexus between the Grievor’s allegations of discrimination based on his mental health and the Employer’s conclusion that he abandoned his position and therefore was terminated from employment on January 20, 2021 or his reinstatement on February 22, 2021, there is no outstanding claim for human rights damages. In terms of deciding whether to exercise my discretion to hear this case, I agree with the Employer that since the Grievor received the remedy of reinstatement on February 22, 2022, his decision not to file a subsequent grievance for his March 31, 2021 termination prevents him from raising a live issue to be arbitrated. Despite, the Grievor’s long service with the OPS, I cannot find any basis for allowing this Grievance to continue. [36] As a result, this Grievance is dismissed. Dated at Toronto, Ontario this 10th day of November 2022. "Dale Hewat” Dale Hewat, Arbitrator