HomeMy WebLinkAboutPaul 22-08-05
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Mainstay Housing
(“Mainstay”)
-and-
OPSEU, Local 540
(The “Union”)
IN THE MATTER OF A DISCHARGE GRIEVANCE DATED APRIL 17, 2020, FILED
ON BEHALF OF Ms. DONNA PAUL
Ken Petryshen - Arbitrator
APPEARANCES:
For the Union:
J. Letton - Counsel
D. Paul
For Mainstay:
A. Jakibchuk - Counsel
J. Mitchell
S. Hisey
I. Messam
The hearing was held on March 29, June 21, September 8 and 24, 2021.
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AWARD
[1] By letter dated April 15, 2020, authored by Executive Director G. Mukherjee,
Mainstay terminated the employment of Ms. D. Paul. The letter describes Ms. Paul’s
conduct as being “deceptive, obstructionist and insubordinate”. There were essentially
two aspects of Ms. Paul’s conduct that led Mainstay to terminate her employment. One
is that she refused a work assignment from her manager which Mainstay characterized as
insubordinate behaviour. The other is that she failed to cooperate in an accommodation
process designed to determine if she had a pre-existing medical condition that would
justify her absence from the workplace. The sole issue before me is whether the
Employer had just cause to terminate Ms. Paul’s employment.
[2] The Employer called three witnesses. Ms. S. Hisey is an HR Consultant with
the Osborne Group. She has provided services to Mainstay off and on since 2017. On
March 24, 2020, Ms. Hisey returned to Mainstay as the lead for managing COVID issues.
Mr. I. Messam is the Manager of Tenants and Member Services. He manages a team of
seven employees in the Homes for Good Program at the building located at 550 Kingston
Road. Ms. Paul was a member of Mr. Messam’s team. Mainstay’s final witness was Ms.
S. Nadeau. Ms. Nadeau is employed as a Nurse Case Manager with Genex Services
(“Genex”), a heath management service retained by Mainstay. Ms. Paul was the only
witness called by the Union. She began her employment with Mainstay on September
23, 2019, as a Housing Locator in the Tenants & Member Services Department.
[3] Mainstay is a non-profit housing agency funded by the Ministry of Health. It
manages 38 residential locations with more than 1,000 units across the City of Toronto.
It works with individuals living with mental health and addiction issues who are affected
by poverty and provides them with housing and on-going support services. 550 Kingston
Road is Mainstay’s largest building, housing 145 tenants. Thirteen staff members and
two managers perform duties related to this building. In addition to Mr. Messam, Mr. M.
Radfar is also a manager for 550 Kingston Road.
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[4] The Housing Locator job description describes the general functions of the
position as follows:
The Housing Locator (HL) is responsible for assisting Mainstay tenants, moving
on from Mainstay to private market rent units, to identify, apply for, and secure
housing in the community. This includes accompanying individuals to
prospective properties during the housing search process, assisting individuals
with applications for tenancy, facilitating the execution of required paperwork,
recruiting landlords for the program, and developing and maintaining strong
relationships with landlords and property managers.
As the above description suggests, Ms. Paul would have considerable interaction with
tenants, landlords and property managers during the process of transitioning tenants from
Mainstay to community housing. The Housing Locator’s office is at 550 Kingston Road.
Mr. Messam indicated that there are many challenges inherent in performing the work of
this position. He also testified that he had a very good relationship with Ms. Paul. He
indicated that she knew her work, had considerable energy, wanted to prove herself and
cared for the tenants. He also indicated that her concern for the tenants sometimes caused
her to perform the duties of a Supportive Housing Worker because she simply wanted to
help in meeting the needs of the tenants. Ms. Paul was provided with a laptop and a work
cell phone to assist her in performing her duties outside of the office.
[5] The facts that are of particular relevance in this case occurred during the
initial weeks of the Ontario government having declared a state of emergency in response
to COVID-19. Mainstay was deemed to be an essential service. The pandemic had a
considerable impact upon Mainstay, its employees and tenants given the uncertainty and
anxiety about the health implications of the virus. Beginning at least by Monday, March
23, 2020, the majority of Mainstay’s employees did not report for work. As noted
previously, Ms. Hisey was brought on board to assist with the challenging HR issues
presented by the pandemic and Genex was retained to assist in managing the absences of
employees for health reasons. A management committee met daily during this period to
address the unique staffing and tenant issues in a timely and effective manner.
[6] The detailed ways in which Mainstay responded to the pandemic are not
particularly relevant to the issues in this case. However, some of its communications to
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staff are worth noting. As early as March 10, 2020, Mainstay advised staff about
precautions that should be taken given the increasing presence of the virus as well as
additional measures Mainstay would adopt to assist in keeping staff safe. In a
communication dated March 20, 2020, staff was advised that Mainstay was providing
two paid days for assessment of COVID-19, separate from regular sick days. These days
were for an employee that was unwell or concerned about the virus to seek medical
advice and to then advise Mainstay of any medical recommendations. This
communication also referenced that employees with a pre-existing condition can elevate
their health risk if they contract the virus and that Mainstay intended to provide
employees in this situation who were self-isolating with their regular pay and that the
employee’s manager will work with the employee to determine working arrangements.
In a communication on March 26, 2020, from Executive Director Mukherjee, Mainstay
advised all staff that Genex had been retained to “provide health management services to
employees who are experiencing symptoms similar to COVID-19 as well as to those who
are requesting a Workplace Accommodation.” And finally, on March 28, 2020, Mainstay
sent out a Q & A re COVID-19 to staff to clarify how Mainstay was responding to
COVID-19. In this communication, Mainstay advised employees with an underlying
health condition to contact their manager and again referred to the role of Genex. The Q
& A also advised employees that a worker may refuse unsafe work and the steps to be
followed in such circumstances.
[7] The events that are central to this case took place between March 23 and
April 15, 2020. Late on Sunday, March 22, Mr. Messam sent an email to 550 Kingston
Road employees requesting them to report to the head office on the following day.
Mainstay’s head office is located at 550 Queen Street East, Toronto. At 7:33 a.m. on
Monday, March 23, Ms. Paul sent Mr. Messam the following email:
Thank you for the update. Given the continuous rise and spread of the COVID -
19 virus, and the fact that I have a pre-existing health condition, I am kindly
requesting your extended consideration to work from home for the entire week.
Also, I have read Mainstay Housing communiqué regarding minimizing contact
with our clients and staff members. It would be in my best interest to limit my
social interactions and self-isolate. Thank you for your understanding in this
matter.
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[8] Mr. Messam’s responded to Ms. Paul’s request on the afternoon of March 23.
He advised Ms. Paul by email that he would not be able to respond to her question to
voluntarily work from home for the week until he had received enough information to
make an informed decision. He suggested that she use the two extra sick days provided
by Mainstay to check whether she is medically at risk or not. Ms. Paul did not take up
Mr. Messam’s suggestion. She testified that she did not believe it was necessary to see
her doctor because she was at home and had not been exposed to the virus. She worked
from home for the first four days of that week, connecting with her clients on a daily
basis.
[9] In his March 23 email to Ms. Paul, Mr. Messam indicated that he was
surprised to learn that she had dropped off grocery items at the head office that were for
tenants at 550 Kingston Road after she had requested to work from home the entire week.
One of his concerns was that she did not obtain manager input. Ms. Paul’s email
response was that Mr. Messam’s second hand information was incorrect. Ms. Paul
indicated in her testimony that she did drop off groceries at the head office at the request
of Mr. Radfar, the other manager for 550 Kingston Road. She indicated that she was
asked to deliver the groceries because food banks were closed and she had access to a
vehicle. She stated that she was just helping out when it appeared that no one else could
obtain the food quickly for the tenants. She indicated that this was not the first time that
she had performed a grocery run.
[10] Early in the morning on Friday, March 27, Mr. Messam conveyed to Ms.
Paul his concerns about not being able to connect with her and the fact that he had not
heard from her during that week about updates to tenant situations. Her failure to
communicate created difficulties for him in responding to some tenant issues. He advised
her not to conduct any work from home until further notice. He also asked for her
preferred method of contact for Genex. Ms. Paul responded that she had been working
from home, was unaware of the need to call in and that she had issues with her internet
and was expecting a replacement internet box from Rogers. She also advised that she
could be reached on her work cell and that she would refrain from conducting phone calls
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until further notice.
[11] In an email to Mr. Messam on Monday, March 30, at 4:25 a.m., Ms. Paul
wrote as follows:
Please be informed that I will not be in the office for the entire week,
commencing March 30-April 03, 2020. As per your recommendations, I will not
be working from home until I have received further notice from you.
During the afternoon of March 30, Ms. Paul emailed Mr. Messam asking him to confirm
whether or not she could work from home and whether she could answer phone calls
from clients. Mr. Messam’s response was that she could not work from home for the
time being until he could formally give directions as to what can be done. On
Wednesday, April 1, 2020, Ms. Paul made an urgent request to Ms. V. Peters for a
meeting to discuss matters pertaining to her work situation. Mr. Messam reports to Ms.
Peters. Ms. Paul testified that Ms. Peters advised her to deal with her manager.
[12] On Friday, March 27, Ms. Nadeau was assigned to review the request for
accommodation made by Ms. Paul. She updated Ms. Hisey on any developments in this
assignment. Ms. Nadeau attempted her first contact with Ms. Paul on Monday, March
30. She had left Ms. Paul a detailed voice mail message as to the purpose of her call. In
her testimony, Ms. Paul explained that she did not believe she had received a work
related message, but rather a crank call from California. Since she did not receive a
return call from Ms. Paul, Ms. Nadeau sent her an email to her personal email address on
Wednesday, April 1, at 8:56 a.m. In the email, Ms. Nadeau explained that she was a
nurse case manager from Genex who had been assigned to review her file. She requested
that Ms. Paul call her so that she could complete a confidential interview regarding her
absence from the workplace. Ms. Paul responded to the email on April 1, at 7:42 p.m.
She thanked Ms. Nadeau for reaching out and indicated that she would connect with her
on the following day. When asked during cross-examination why she had waited so long
to respond to Ms. Nadeau’s email, Ms. Paul stated that she rarely checked her personal
email account and that most work communications were by phone. Ms. Paul did contact
to Ms. Nadeau on the following day, Thursday, April 2, but only to tell her that she did
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not want to speak to her until she had permission to do so from Ms. Hisey because she
had been instructed not to do business over the phone. After Ms. Nadeau advised her of
this development, Ms. Hisey initiated an email exchange with Ms. Paul. As part of this
exchange, Ms. Hisey wrote to Ms. Paul at 9:39 a.m. as follows:
I think what you were told was not to do client or client administrative work from
home until we know where things are at for you. Genex is not work. Please
speak with Genex. The point of Genex is to make sure we have the proper
accommodations approved and then know what limitations we need to work
within. Please go ahead and speak with them asap.
Ms. Paul thanked Ms. Hisey for clarifying and advised that she would speak to Genex.
Ms. Paul testified that she understood the purpose of contacting Genex after the email
from Ms. Hisey.
[13] Ms. Nadeau finally did speak with Ms. Paul during the morning on April 2.
There were some conflicts over what was discussed during the telephone interview,
however, the key features of their discussion are not in dispute. After Ms. Nadeau
obtained Ms. Paul’s consent to discuss functional information with Mainstay and after
she emphasized that no diagnosis would be disclosed, Ms. Paul agreed to participate in
the initial assessment. Ms. Paul did not disclose her medical information or her pre-
existing condition to Ms. Nadeau. Ms. Paul told her that she would need her physician’s
permission to disclose such information. Ms. Paul confirmed that she did not have any
cold, flu or COVID-19 symptoms. Ms. Paul told her that she was living temporarily with
her daughter and her family, but at her daughter’s request she would be leaving her
daughter’s residence. Ms. Paul advised Ms. Nadeau that she would be returning to work
on Monday, April 6, given that she was not sick and does not have direct contact with
clients. Ms. Nadeau advised Ms. Paul that, in the circumstances, she could not medically
support her absence because she did not have any objective medical information to
review. She told her that she would be advising Ms. Hisey of this and would be closing
her file, to which Ms. Paul agreed.
[14] Ms. Nadeau sent an email to Ms. Hisey on April 2 which set out the details
of her discussion with Ms. Paul. In this email, Ms. Nadeau included the following
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comment: “IMPRESSION: Based on my discussion with this employee and from the
information she provided, she confirmed her absence is not COVID-19 related.” In an
email to Ms. Hisey on April 3, Ms. Nadeau confirmed that Ms. Paul will return to work
on April 6, that Ms. Paul’s reasons for not working in the past week were of a personal
nature and that she had closed Ms. Paul’s file. Ms. Hisey immediately responded and
asked Ms. Nadeau why Ms. Paul was not returning to work on April 3, to which Ms.
Nadeau replied that Ms. Paul told her that it was a personal choice. It was noted in Ms.
Paul’s termination letter that she had been cleared to return to work on April 3, but that
she “defied this direction and did not return April 3rd.” The evidence does not suggest
that Ms. Paul defied a direction to return to work on April 3. Although I recognize that
Paul should have requested permission from Mainstay to be off work on April 3, neither
Ms. Nadeau nor anyone from Mainstay gave Ms. Paul a specific direction to return to
work on April 3.
[15] Ms. Paul returned to work on April 6 at the head office location. She had
been regularly working out of that location for many months because of pest control
issues at 550 Kingston Road. She seldom attended at 550 Kingston Road and she would
arrange to meet tenants off site. Late on April 6, Mr. Messam sent Ms. Paul an email in
which he told her that she could work from home on the next day and he indicated what
work she should be doing. Ms. Paul did work from home on April 7. In an email to Ms.
Paul on April 7, at 8:41 p.m., Mr. Messam advised her that on the next day she was
assigned to 550 Kingston Road from 10:30 a.m. until 3:00 p.m. and that she would be
working with SHW Rubina. He also outlined the duties that he wanted her to perform,
which included checking in with tenants. Ms. Paul only saw this email after she had
reported for work at the head office on the morning of April 8. Ms. Paul first checked to
see if her doctor was available and was told that her doctor was not in the office on that
day. At 9:27 a.m., Ms. Paul then sent Mr. Messam the following email :
Thank you for the update. Given that I only viewed this instructions today and
that I have a pre-existing medical condition and underlying health issues, I would
need medical clearance from my physician to complete this task. Unfortunately,
my doctor is away from the office today. I will connect with my doctor
tomorrow.
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[16] Mr. Messam did speak in person with Ms. Paul at the head office during the
morning of April 8 about her decision not to report to 550 Kingston Road until she had
received medical clearance. The essence of their discussion can be described as follows.
Ms. Paul confirmed that she needed to speak with her doctor before proceeding to follow
his directive to go to 550 Kingston Road and that her doctor was not in her office on
April 8. Ms. Paul asked for the opportunity to contact her doctor on the following day.
Mr. Messam indicated that she had been given a directive to report for work to her
assigned site because Genex indicated that she was well enough to return to work after
being away from the workplace for two weeks. Ms. Paul indicated that she had returned
to work on her own violation. Mr. Messam told her that he could not understand how
Genex could indicate that she could return to work after Ms. Paul told him that she did
not volunteer any medical information to Genex. Mr. Messam told her that since she was
not willing to follow his directive to report for work at 550 Kingston Road, she needed to
go home. Ms. Paul then left the head office and went home. During the afternoon of
April 8, Mr. Messam first and then Ms. Paul sent each other emails in which they
provided their versions of the discussion earlier that day. Mr. Messam ended his email
with as follows: “You have elected to abandon your work expectations and go home. I
am writing to inform you that this will result in no pay for the hours abandoned and
further to this, you are not permitted to complete any work from home until you hear
otherwise.”
[17] On Thursday, April 9, in an email from Ms. J. Mitchell, Human Resources
Lead, Mainstay advised Ms. Paul that she was being suspended without pay. The
relevant features of this email are as follows:
I am writing to let you know that you are suspended without pay starting today for
your insubordination in refusing to follow your manager’s direction to work at the
550 Kingston road location on April 8, 2020.
Please be advised also that your April 15th pay will reflect only the 14 hours of
work from home you did during the March 24-April 8 pay period, and that you
did not attend work through to April 3rd. You claimed you have a pre-existing
condition that put you at increased risk related to COVID-19. You were referred
to Mainstay’s health management service provider, Genex, but did not provide
Genex any information to substantiate your claim of a pre-existing condition.
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Mainstay allowed you to do some work from home while your accommodation
request was assessed and will only pay you for the work that Mainstay assigned
during this period.
Effective immediately, your Mainstay work email and all access to the Ministry
computer is suspended. You will continue to receive communication from
management to your personal email/home address and phone number we have on
record with respect to the requirements and status of your employment.
In an email dated April 15, Ms. Mitchell provided Ms. Paul with the letter terminating her
employment that had been signed by Mainstay’s Executive Director.
[18] The following aspects of Ms. Paul’s testimony are worth noting. She
indicated that she had a heart attack about two years ago and that this is what she was
referring to when she noted a pre-existing condition. She stated that she was concerned
for her own health and the risk of getting COVID-19 from clients and that this was why
she made her request to work from home. She indicated that she did not disclose her pre-
existing condition to Ms. Nadeau because she did not know why Ms. Nadeau wanted this
information and she was not sure what Ms. Nadeau would do with the information. She
stated that Ms. Nadeau did not tell her that she needed a doctor’s note to justify her
accommodation request and that she would have complied with such a request if Ms.
Nadeau or Mainstay had asked her to provide a medical note. When asked why she did
not follow Mr. Messam’s direction to work at 550 Kingston Road, Ms. Paul indicated in
essence that she believed that 550 Kingston Road was not safe for her because it had
tenants with COVID-19.
[19] Ms. Paul testified that she had contact with Ms. V. Klumper, an OPSEU
staff representative, after she had received the suspension letter. She indicated that Ms.
Klumper advised her to file a grievance and to visit her doctor and obtain an
accommodation letter setting out the nature of her health issues. Ms. Paul indicated that
Ms. Klumper asked her to give her the doctor’s note and that she would pass it on to
Mainstay. Ms. Paul contacted her doctor and received a medical note dated April 13,
2020. The medical note indicates that Ms. Paul has known coronary artery disease, that
this places her at high risk from COVID-19 infection and that the doctor supports her
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request to work from home. Ms. Paul testified that she gave the medical note to Ms.
Klumper. When asked by her counsel if she thought of giving the medical note to
Mainstay, Ms. Paul stated that no one from Mainstay had asked her to provide such a
letter and that she could have provided one if she had been asked. The parties did have a
second stage grievance meeting with respect to Ms. Paul’s grievance. The parties are
agreed and the Union acknowledged that Mainstay was not made aware of Ms. Paul’s
pre-existing condition and had not been provided with a medical note until the Union
provided its disclosure for this case in January 2021.
[20] I will concisely summarize the submissions of counsel. Counsel for
Mainstay submitted that the features of this case illustrate that Mainstay had just cause to
terminate Ms. Paul’s employment. He argued that Ms. Paul’s refusal to follow Mr.
Messam’s direction to work at 550 Kingston Road on April 8 was without justification
and amounted to a serious act of insubordination, particularly since Ms. Paul had only
been employed for about seven months. Counsel noted that Ms. Paul’s misconduct
occurred shortly after she had participated in a process to determine whether she had a
pre-existing medical condition that prevented her attending at the workplace. Counsel
submitted Ms. Paul had refused to cooperate in that process by not disclosing her pre-
existing condition and by not providing any objective medical evidence to justify her
accommodation request or her absence from the workplace. Counsel submitted that once
Ms. Paul had returned to the workplace after having been cleared to do so by Genex, the
issue of whether she had a medical justification for not performing her work had
crystallized. Counsel noted that once she had been sent home by Mr. Messam and then
suspended, it would have been clear to Ms. Paul that her employment was in jeopardy.
Counsel argued that Ms. Paul then had the opportunity to provide the Mainstay with
medical evidence to justify her conduct and that her failure to do so supports Mainstay’s
position that it had just cause to terminate her employment. In addition to relying on
section 7:6130 – Duty to Facilitate, Brown & Beatty, Canadian Labour Arbitration, 5th
Edition, counsel referred me the following decisions: Renaud v. Central Okanagan
School District No. 23, [1992] 2 S.C.R. 970; Re Dashwood Industries Limited and USW-
Local 1-500 (2007), 161 L.A.C. (4th) 124 (E. Newman); Baber v. York Region District
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School Board, 2011 HRTO 213; Sugiono v. Centres for Early Learning, 2013 HRTO
1976; Scarlett v. Hamilton Health Sciences Corp., 2010 HRTO 5; and, De Palma v.
Canadian Federation of Independent Business, 2019 ONCS 7602.
[21] Union counsel began her submissions by pointing out that the relevant
events in this case occurred during about a four week period at the start of the pandemic.
Counsel submitted that unknown risks and the considerable stress at the early stages of
the pandemic should be taken into account when assessing the behaviour of Ms. Paul and
in determining whether the termination of her employment was the only reasonable
option. Counsel submitted that Ms. Paul’s refusal to work at 550 Kingston Road did not
constitute an act of insubordination because her intention for not going to that site was
not to undermine Mr. Messam’s managerial authority. Counsel argued that Ms. Paul’s
refusal was based on her concern that it was not safe for her to attend at that location and
that a refusal for this reason did not justify a disciplinary response and certainly not the
termination of her employment. Counsel also submitted that an overall problem with
Mainstay’s approach in this case is that it never made its expectations clear to Ms. Paul
and that it did not warn her that the consequences of not complying with its expectations
could lead to the termination of her employment. Counsel submitted that if Mainstay
wanted Ms. Paul to disclose and provide medical evidence for her pre-existing condition
then it should have directed her accordingly and explained the consequences of her
failure to comply. Counsel submitted that the failure of Mainstay to warn Ms. Paul in the
circumstances of this case that her conduct could result in her discharge supports the
Union’s position that just cause for the termination of her employment has not been
established. Counsel also argued that the termination of Ms. Paul’s employment was not
justified even if her conduct was deserving of some discipline. Counsel submitted that a
progressive disciplinary approach was warranted in this case rather than the imposition of
the extreme penalty of discharge. Union counsel relied on the following decisions: Re
Professional Engineers Government of Ontario and Ontario (Ministry of the
Environment (2006), 143 L.A.C. (4th) 193 (Herlich); Re Kingston (City) and CUPE,
Local 109 (Gransden) (2018), 291 L.A.C. (4th) 331 (Rogers); and, Re Campobello Lodge
Inc. and CUPE, Local 2418 (2015), 260 L.A.C. (4th) 115 (Couturier).
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[22] Mainstay was essentially confronted with the following circumstances. It
had an employee who requested to work from home because of a pre-existing medical
condition. It had a process for addressing such requests and Ms. Nadeau determined that
there was no objective medical evidence to review to support the employee’s absence
from the workplace. The employee agreed when Ms. Nadeau indicated that she would be
closing her file. The employee had agreed to return to the workplace and was on her
third day back when she refused her manager’s direction to work at a particular work
location because she wanted to get medical clearance before complying with the
direction. Mainstay believed that the employee’s ability to perform her job had been
resolved through the earlier process, sent her home and then ultimately terminated her
employment. On one level, one can understand why Mainstay chose to act in this way
when confronted with these circumstances. The issue that I have to decide however is
whether Mainstay has satisfied the just cause standard when it elected to terminate Ms.
Paul’s employment. After reviewing the facts and after considering the submissions, I
am of the view that the Union’s claim that Mainstay did not have just cause to terminate
Ms. Paul’s employment has merit.
[23] As noted at the outset of this Award, Mainstay’s decision to terminate Ms.
Paul’s employment was based essentially on her conduct during the Genex process and
her refusal to comply with Mr. Messam’s direction to work at 550 Kingston Road. I will
first address Ms. Paul’s conduct during the accommodation process with Genex.
[24] Ms. Paul made a request to work from home due to a pre-existing medical
condition. I have no doubt that Ms. Paul was aware that her interview with Ms. Nadeau
was for the primary purpose of disclosing information that would permit Mainstay to
determine whether or not her request to work from home was medically justified. Yet at
virtually the outset of their discussion, Ms. Paul refused to disclose the nature of her pre-
existing condition and any relevant medical information. The information that Ms. Paul
elected not to disclose is the type of information an employee seeking an accommodation
would have a duty to disclose during the procedural stage of the accommodation process.
I found the reasons Ms. Paul gave in her testimony for not disclosing this type of
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information to be disingenuous and not a valid basis for failing to disclose relevant
information. However, Ms. Paul’s refusal to disclose relevant information must be
assessed in light of the fact that she had decided to return to the workplace. After
mentioning that she would be moving from her daughter’s residence, Ms. Paul advised
Ms. Nadeau that she would be returning to the workplace on April 6. She told Ms.
Nadeau that one of her considerations in deciding to return to the workplace was that she
did not have direct contact with clients. By returning to the workplace, Ms. Paul was, in
effect, withdrawing her request to work from home because of a pre-existing medical
condition. Given Ms. Paul’s decision to return to the workplace, the situation in this case
is different from the cases in which an employee seeking an accommodation is
discharged because the employee refuses to return to work and has not disclosed relevant
information to justify an accommodation. Ms. Nadeau ended her interview with Ms. Paul
by advising her that she could not support her absence from the workplace since she did
not have an objective medical basis for doing so. Ms. Paul agreed with Ms. Nadeau’s
decision to close the file.
[25] Mainstay was aware of the above circumstances when Ms. Paul returned to
the workplace. Relying on a pre-existing medical condition, Ms. Paul had been absent
from the workplace for 10 days without providing any medical justification for her
absence and without disclosing relevant information about her pre-existing medical
condition. There was no indication that Mainstay had any plans to discipline Ms. Paul
for her conduct in relation to these issues when it permitted her to return to the
workplace. It appears that Mainstay’s only plan was not to pay Ms. Paul for the days she
was absent and did not perform work. There is no indication in the evidence that
Mainstay considered directing Ms. Paul to disclose the nature of her pre-existing
condition before it permitted her to return to the workplace.
[26] The next issue is whether Ms. Paul was insubordinate when she did not
comply with Mr. Messam’s direction to go to work at 550 Kingston Road on April 8.
When Ms. Paul returned to the workplace on April 6, she spent her workday at
Mainstay’s head office. It appears that she had been primarily working out of
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this location for some time due to pest control issues at 550 Kingston Road. On April 7
she worked from home. When Ms. Paul became aware of her work assignment for April
8 while at the head office, she advised Mr. Messam that she would need to consult with
her physician before complying with his direction. Ms. Paul did not engage in a general
work refusal. What Ms. Paul did is refuse to go to work at 550 Kingston Road because
she believed that that location was not safe for her given her understanding that there
were tenants there who had contracted COVID-19. What Mainstay did in the face of her
work refusal is send her home and told her not to perform any work from home. What it
did not do is initiate the work refusal process mandated by statute that is set out in its
Health and Safety Manual and referred to in the Q & A document Mainstay distributed to
employees. At page 6 of the Q & A, Mainstay correctly advised employees that: “Any
worker who thinks that a work location is unsafe to themselves or another worker may
refuse to work.” After sending Ms. Paul home, Mainstay suspended her and then
subsequently terminated her employment.
[27] I agree with the Union’s position that Ms. Paul was not insubordinate when
she did not comply with the direction to go work at 550 Kingston Road. In my view, Ms.
Paul had a sincere and honest belief that it would not be safe for her to work at that
location at that time. She invoked her right to refuse work that she honestly believed to
by unsafe. Her conduct in this regard cannot be a basis to justify the termination of her
employment. Mainstay took the view that Ms. Paul’s refusal to work on April 8 was not
justified because she had been cleared to return to the workplace by Genex and because
she did not take the opportunity provide any medical information to justify her absence
from the workplace. In effect, Mainstay takes the position that the question of whether
Ms. Paul had an underlying medical condition that impacted her ability to perform her
job had been settled. I disagree. I agree that Ms. Paul was tardy in addressing her
accommodation request and that she did not comply with her obligation to disclose
information to Mainstay about her pre-existing condition. Rather than continuing to
pursue her request to work from home, Ms. Paul decided to return to the workplace
because she felt that she could do so safely, particularly because she believed that she
would not have direct contact with tenants. Mainstay was aware that this was the basis
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upon which Ms. Paul returned to the workplace because of the report it had received from
Ms. Nadeau. Although Ms. Paul believed that she could safely return to the workplace,
she was directed to go to work at 550 Kingston Road, a location she honestly believed to
be unsafe because of the potential for contact with clients and the possibility of her being
exposed to COVID-19. The issue of whether she had been given an unsafe work
assignment was not something that had been settled by the Genex process. In my view, it
would be inappropriate to conclude that Ms. Paul’s previous conduct in relation to her
accommodation request prevented her from exercising her right to refuse unsafe work
and to have the validity of her refusal determined by the work refusal process.
[28] Having regard to the above considerations, I find that Mainstay has not
established that it had just cause to terminate Ms. Paul’s employment. As I indicated at
the outset of this Award, this is the only issue before me at this stage of this proceeding.
I remit all the outstanding remedial issues back to the parties for their consideration and I
will remain seized of this matter should the parties fail to resolve any of these issues.
Dated at Toronto, this 5th day of August 2022.
Ken Petryshen - Arbitrator