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HomeMy WebLinkAbout2008-0042.Samsone.10-08-06 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-0042 UNION#2008-0582-0024 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Samsone) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREKen Petryshen Vice-Chair FOR THE UNIONRichard Blair Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYERPeter Dailleboust Ministry of Government Services Legal Services Branch Counsel HEARING December 15, 2008, February 15, May 5, November 3, December 11 and December 18, 2009. - 2 - Decision [1] In a grievance dated February 25, 2008, Mr. Rob Samsone claims that ?the Employer continues to unreasonably deny me the resources and training I need to perform my duties as an ESRO? and as a settlement requests that the Employer provide him with the resources and training necessary to perform the job and any other remedy necessary to make him whole. Although the grievance refers to a denial of training, the focus of the evidence was on the Employer?s failure during his initial three month assignment to provide Mr. Samsone with certain items utilized by ESROs when performing their work. ESRO refers to the Electronic Supervision Resource Officer position within the Electronic Supervision Program (?ESP?). The ESP is engaged in the electronic monitoring of inmates released from institutions. The Union takes the position that the Employer discriminated against Mr. Samsone because of his disability, contrary to Article 3 of the Collective Agreement and the OntarioHuman Rights Code, when it did not provide him with certain items necessary to perform his job before an initial three month assignment ended. Since Mr. Samsone was provided with the items in question when his initial three month assignment was extended for a further six months, the Union requests that I remedy this breach by directing the Employer to pay Mr. Samsone $10,000.00 in damages for the affront to his dignity. The Employer takes the position that it did not provide Mr. Samsone with the items in question because for the most part it was unnecessary to do so while he was job shadowing from November 20, 2007 until February 22, 2008. It also emphatically denies that it discriminated against Mr. Samsone on the basis of his disability. [2] In an earlier decision in this proceeding dated August 18, 2009, I addressed the Union?s request to adjourn this matter sine die because of Mr. Samsone?s inappropriate - 3 - conduct which was exhibited primarily in another proceeding before me. I decided to adjourn the hearing date of August 10, 2009, but declined to adjourn the matter sine die.I instead directed that the hearing continue on November 3, 2009. For completeness, I note that the hearing did continue on that date and on subsequent dates without incident. [3] After the completion of the hearing, Union counsel requested that the decision not be released until the Union had the opportunity to review recently discovered documentary material. Counsel subsequently advised that the material had been reviewed and that the Union would not be relying on any further documents. Counsel also advised that the decision could be issued based on the evidence now before me. [4] The Union called as witnesses Mr. Samsone and Mr. Bob Gordon, an ESRO. Ms. Nancy Holroyd, ESRO Supervisor, testified for the Employer. I have carefully reviewed the oral and documentary evidence and the submissions of counsel. It is evident from this review that the dispute before me is primarily over Mr. Samsone?s treatment from early January until February 22, 2008, a period of less than two months. The Union acknowledges that Mr. Samsone was job shadowing Mr. Dan Wickens, an ESRO located at the Durham East Probation & Parole office at Whitby, for most of the time up until January 4, 2008. It also acknowledges that many of the items provided to ESROs to perform their work are not needed during job shadowing because the employee who is being job shadowed, in this case Mr. Wickens, will have those items. However, the Union asserts that Mr. Samsone did start to work independently as an ESRO after January 4, 2008, and that he therefore should have been provided with the items normally given to ESROs. The Union also claims that Mr. Samsone should have been provided from the outset of his assignment with a new Ministry identification - 4 - card and a key and access code for the building in which the Durham East P & P office is located. The Union claims that the different treatment Mr. Samsone received singled him out and drew attention to him that would generally have been improper, but amounts to discrimination in the case of a disabled employee. As noted previously, the Employer claims that Mr. Samsone continued to job shadow after January 4, 2008, and was never authorized to perform ESRO duties independently until his assignment was extended in and around February 22, 2008. It asserts that its treatment of Mr. Samsone during his initial three month temporary assignment was based on a proper exercise of its management rights and was not discriminatory. [5] Mr. Samsone was hired as a Correctional Officer in November of 1998. He eventually moved to the Toronto East Detention Centre (?TEDC?), where he was a steward for a time and then became the President of the Local Union. I was advised at the beginning of this proceeding that Mr. Samsone developed a medically verified post traumatic stress disorder and commenced a leave of absence following an incident at the TEDC. Beginning in the summer of 2005, Mr. Samsone received short term sickness pay and subsequently received benefits from the Long Term Income Protection Plan (?LTIP?). His only restriction was the inability to work as a Correctional Officer in a correctional setting. [6] At about the time Mr. Samsone?s LTIP benefits would likely have soon come to an end, Mr. S. Small, Director of the ESP, presented Mr. Samsone with the opportunity to return to work. Mr. Small met with Mr. Samsone in November of 2007 and Mr. Samsone subsequently returned to work on November 20, 2007, on a three month assignment. There is a dispute between the parties over whether Mr. Samsone was initially offered a permanent - 5 - position as an ESRO, but I was advised that this issue was not now before me. By the time he started work in the ESP, Mr. Samsone had been advised by Mr. Small in an email dated November 15, 2007 that he was filling a temporary ESRO assignment and that his status would be clarified at the end of the assignment. Mr. Small followed up their initial discussion about the assignment with a letter to Mr. Samsone dated November 13, 2007. The relevant features of this letter are as follows: As previously discussed with you, arrangements have been made to provide you with an opportunity to return to work through a temporary absence assignment with the Electronic Supervision Program (ESP). Your assignment will commence on Tuesday, November 20, 2007. On the date of your return, you will report to the ESP Administrative Office located at 2301 Haines Road, Mississauga, where you will meet with Ms. L. Stockton, ESP Coordinator, and Ms. N. Holroyd, ESRO Supervisor. At that time, you will review the duties and responsibilities involved with the Electronic Supervision Resource Officer (ESRO) position, and expectations of both the employer and yourself to ensure a satisfactory re-integration to the work place. Any restrictions or limitations that you may have with regard to returning to the work place must be discussed at your initial meeting so that they may be taken into account in structuring your activities. You will receive ESRO training to provide you with the knowledge base required to assist with your assignment. Following this training, you will be assigned job shadowing and other ESP related activities. Any additional training needs/requests will be considered on an as required basis. ? Your schedule of activities will be directed by Ms. Stockton and/or Ms. Holroyd. You will be assigned a variety of ESRO related duties. You will not perform ESRO duties independently until expressly directed to do so by one of the program supervisors. You must notify Ms. Stockton and Ms. Holroyd in advance of any planned absences, and seek approval for any vacation time in accordance with normal processes. Your progress will be monitored regularly and should you require any additional considerations, you must communicate these to Ms. Stockton or Ms. Holroyd for review and discussion. I trust that these arrangements, and this opportunity to assist you with a gradual return to work will be a meaningful and positive experience for you. Should you have any questions or concerns, please notify myself or Ms. Stockton as soon as possible. - 6 - [7] Ms. Stockton and Ms. Holroyd had only been advised by Mr. Small on November 15, 2007 that Mr. Samsone would be starting a temporary assignment with the ESP. The ESP had not previously employed an ESRO on a temporary basis. Mr. Samsone did meet with Ms. Stockton and Ms. Holroyd on November 20, 2007 at the ESP Administrative Office on Haines Road, Mississauga, to review the duties and responsibilities of an ESRO. He was given a document entitled ?Return to Work Program ? Temporary Assignment? which set out some features of the assignment. Among other things, the document indicates that he was being provided with a three month temporary assignment for the period from November 20, 2007 to February 22, 2008 and that he would report directly to Ms. Holroyd. It indicates that Mr. Samsone would be notified of any continuation of the assignment, or alternative arrangements, in advance of February 22, 2008. This document also indicates that ?You will be provided with a schedule of activities during your temporary assignment that will include training and job shadowing opportunities, and you will not perform any ESRO duties independently until directed to do so by Ms. Holroyd or Ms. Stockton?. During the meeting, Mr. Samsone was thth provided with a document entitled ?Initial Schedule (November 20, 2007 ? January 4, 2008)? which set out training and job shadowing for each work day up until January 4, 2008. A photo was taken of Mr. Samsone on November 20, 2007 for creating a new Ministry identification card. [8] Mr. Samsone did not require a gradual schedule upon his return to work, nor did he have any medical limitations or restrictions that affected his ability to perform ESRO duties. As noted previously, his disability only prevented him from working in a correctional setting. It would not be apparent to anyone observing Mr. Samsone performing ESRO duties that he had a disability. The only information that Ms. Holroyd had about Mr. Samsone?s recent past - 7 - was that he had not been working for some time. She was unaware of the details giving rise to his absence from the workplace. [9] Following the meeting with Ms. Stockton and Ms. Holroyd, Mr. Samsone attended at the Durham East P & P office on November 21, 2007, to begin his training and job shadowing with Mr. Wickens, in accordance with the initial schedule. The Durham P & P provides the ESP with office space, but is managed by its own Area Manager. [10] It is unnecessary to review in detail the duties of an ESRO. Two significant duties of the position are the completion of tech reports and responding to alerts. A tech report is provided to releasing authorities so a determination can be made about whether an offender is a suitable candidate for electronic surveillance. The completion of a tech report requires an ESRO to collect data from various sources and to attend at the offenders proposed residence. An ESRO can be called upon to respond to alerts generated by offenders during and outside of regular business hours. The ESRO completes a part of an Alert Response Notification Form setting out the details of the response to the alert and the resolution. [11] To perform his or her job, the Employer provides an ESRO with an office, desk, phone, computer, and a key and access code, and Ministry identification. It is obvious why such items are supplied to an ESRO. An ESRO uses a computer for collecting data, email and the preparation and sending of tech reports.Some additional items supplied by the Employer are a Ministry vehicle, a cell phone and a pager. The Ministry vehicle is used primarily for offender residence visits. A cell phone is used to call a safety officer to advise that the ESRO is about to enter an offender?s residence. A cell phone and pager are used to notify an ESRO - 8 - of alerts. As a permanent ESRO, Mr. Wickens had been provided with all of these items. With the exception of a laptop computer, which he received on November 28, 2007, Mr. Samsone was not provided with these items until after his initial three month temporary assignment ended. He was expected to share an office with Mr. Wickens, along with the office equipment located therein, including the desktop computer. He did not receive a key to the building, the access code for the alarm and Ministry identification. He was not provided with a Ministry vehicle, a cell phone or a pager. [12] In his testimony, Mr. Samsone indicated that he did work closely with Mr. Wickens and learning from him during November and December of 2007, but less so in January and February of 2008. Because the office Mr. Wickens occupied was fairly small, particularly after an extra desk was put in there for Mr. Samsone?s use, Mr. Samsone often used other offices that were vacant at any given time. He took his materials with him when he moved from one office to another and he utilized Mr. Wickens?s desktop computer when it was available. He took his laptop home with him because he did not have a key to Mr. Wickens?s office or another secure location to store it. Mr. Wickens gave him the necessary access code for a door within the facility when Mr. Samsone required it, such as when he stayed late. Given that he worked a regular day shift, it appears that Mr. Samsone did not have any difficulty in gaining access to the building. Arrangements were made by Ms. Stockton to have someone from Probation & Parole let him in the building when he was scheduled to start at 7:30 a.m. during the week of December 31, 2007. When Mr. Samsone asked about getting a key, he was told that it made no sense for him to have a key because he was temporary. Mr. Samsone did not indicate who he spoke to about getting a key, but it was most likely the - 9 - Durham East P & P Area Manager. In the absence of new Ministry identification, Mr. Samsone utilized his TEDC identification when necessary. [13] During the initial three month assignment, Mr. Samsone always went with Mr. Wickens when he attended at an offenders residence. He therefore did not need his own Ministry vehicle for these visits. Mr. Samsone used Mr. Wickens?s cell phone if a call was made to a safety officer. Since he was never assigned to be on call to deal with alerts outside of his regular hours of work, Mr. Samsone did not need the use of his own cell phone and pager. During the four day work week starting on December 31, 2007, which was the last week on the initial schedule and a week when Mr. Wickens was on vacation, Mr. Samsone was assigned to stay in the office to deal with alerts. Since he was not attending at an offender?s residence that week, he did not need a vehicle and he had the use of Mr. Wickens?s cell phone and pager. Although an individual was assigned to Mr. Samsone during that week, Mr. Samsone performed his work that week without contacting anyone for assistance. It was during this week that an employee gave Mr. Samsone certain access codes which were written on a single sheet of paper. This document contains codes for various doors, including a code for the back door and codes for entering and leaving. [14] Mr. Samsone testified that he did mock tech reports while job shadowing with Mr. Wickens in November and December of 2007, but that he began doing reports as well as offender visits independently beginning in January of 2008. He indicated that tech report assignments were sent to the Durham East office by Ms. Holroyd and that Mr. Wickens would distribute the reports between them. He indicated that he would take the ones given to him and do them on his own. He testified that Mr. Wickens came into the home and observed on the - 10 - first few offender visits, but subsequently Mr. Wickens sat in the car while he went into the residence by himself. The Union introduced a selection of calendar print out entries entered into the system which indicate the date of an offender residence visit performed from the Durham East location. Seven entries relate to offender residence visits covering the period from January 30 to February 22, 2008, the date when Mr. Samsone?s three month assignment ended. Three of the print outs reference only Mr. Samsone?s initials, while the other four contain the initials of both Mr. Samsone and Mr. Wickens. Mr. Samsone believed that he did tech reports before January 30, 2008, but no documentation was filed to support his belief. Mr. Samsone testified that he could not recall whether he had been advised that he was not to perform any ESRO duties independently unless specifically directed to do so by Ms. Holroyd or Ms. Stockton. He also testified that he did not recall whether he had been told by Ms. Holroyd or Ms. Stockton that he could perform ESRO duties independently before the end of his initial three month assignment. [15] Mr. Samsone testified that he felt embarrassed at times during the course of his initial three month assignment, particularly in a limited number of instances when an employee asked him why he did not have a specific item. In this context he referred to not having his own office or a key to the building. He indicated that Mr. Wickens was the only employee at the location who knew he was temporary and that he wanted to keep it that way. He did not tell other employees at Durham East about his employment situation. Mr. Samsone explained that he filed his grievance dated February 25, 2008, because it was getting to the point where he could not do his job. In this regard he referred to having to use different offices to get reports completed, moving his files and necessary materials each time he moved and having to wait to access the computer in Mr. Wickens?s office. - 11 - [16] Mr. Gordon indicated that when he started an as Electronic Monitoring Officer (?EMO?) approximately ten years ago that he job shadowed for two weeks and that he was immediately provided with all the items necessary to perform the work of an EMO. He noted however that he worked out of an institution when he started as an EMO and that these items were readily available. The EMO position evolved into what is now the ESRO position. Mr. Gordon trained permanent ESROs on four or five occasions and the training lasted for no longer than three weeks. Mr. Gordon agreed that an ESRO who is job shadowing did not need many of the items that were standard for ESROs working independently. [17] By the time she testified in this proceeding, Ms. Holroyd had assumed the position of Manager of the ESP. During the relevant time, as ESRO Supervisor, she was responsible for supervising the ESROs and assigning them duties. She testified that she had not been provided with any details of why Mr. Samsone was coming to the ESP, but understood that he was entering the program for ?job hardening? after being out of the workplace for some time and for job shadowing. Although her experience with permanent employees was that job shadowing would last for approximately a month, and she referred to Mr. Wickens as a case in point, Ms. Holroyd indicated that Mr. Samsone was engaged in job shadowing with Mr. Wickens for the entire period of his initial three month assignment. She testified that she never assigned Mr. Samsone or permitted him to perform ESRO duties independently. She agreed that another written schedule was not developed and given to Mr. Samsone when the initial schedule expired and that she had no issue with Mr. Samsone?s performance during the period covered by the initial schedule. Ms. Holroyd indicated that she assigned tech reports to the ESRO located closest to an offender?s residence and on this basis Mr. Wickens would have received a number of tech reports. She assumed that these reports - 12 - were completed with Mr. Samsone as part of the normal job shadowing process. She indicated that even if she had noticed just Mr. Samsone?s name on a tech report or just his initials on a calendar entry, she would not assume that he was performing work independently. Ms. Holroyd testified that Mr. Samsone called her at some point, most likely in January or February of 2008, to ask her if he could deal with tech reports on his own because he was frustrated with following Mr. Wickens. She indicated that he wanted to do his own reports and to attend offender residences by himself. Ms. Holroyd testified that she denied his request by telling him that they were Mr. Wickens?s reports and that he was job shadowing. When called in reply, Mr. Samsone denied that he had such a conversation with Ms. Holroyd. Ms. Holroyd indicated that she later did ask Mr. Wickens to share three tech reports with Mr. Samsone and to make sure that Mr. Samsone completed the reports properly. She indicated that she did not review all tech reports sent to the Courts but that both she and Mr. Wickens reviewed Mr. Samsone?s work on the three shared reports. She noted that Mr. Samsone could have signed them. It was not her expectation that Mr. Samsone would enter residences on his own while he was job shadowing, including when he was involved with the three shared reports. She indicated that she made this point clear to Mr. Wickens because Mr. Samsone did not have the training or knowledge to attend on his own.Ms. Holroyd noted that Mr. Samsone did not receive CVRA training until January 15 and 16, 2008. The completion of this community risk training was required before an ESRO could attend a residence on his own. Ms. Holroyd testified that Mr. Samsone?s progress was monitored throughout the three month assignment when he was job shadowing. [18] Ms. Holroyd also confirmed that as long as he was job shadowing Mr. Wickens, Mr. Samsone did not need his own office, a Ministry vehicle, a cell phone and a pager, because - 13 - Mr. Wickens had these items. Mr. Samsone was expected to share an office with Mr. Wickens. Although it was an issue raised by the Union, Ms. Holroyd indicated that Mr. Samsone was not given a telephone land line. She indicated that she would call Mr. Wickens?s office or send Mr. Samsone an email if she needed to contact him. She also explained that Mr. Samsone was not restricted from driving a Ministry vehicle, but he was not issued one because he did not need one while job shadowing. She noted that Mr. Samsone used a Ministry vehicle when he went to pick up the laptop computer in November of 2007. [19] Ms. Holroyd also testified about the circumstances relating to securing Mr. Samsone a new Ministry identification card and his access to the Durham East P & P building. With respect to identification, Ms. Holroyd indicated that she ordered an identification card for Mr. Samsone after his picture was taken on November 20, 2007. She indicated that Mr. Samsone apologized for his appearance at the meeting and explained that he was growing a long beard in order to play Santa Claus during the Christmas season and that he would change his appearance after Christmas. It appears that the process of obtaining identification can take some time. In mid-December of 2007, Ms. Stockton advised Mr. Small by email that Mr. Samsone did not have an updated identification card, as well as what Mr. Samsone had told them in November about his appearance. After indicating in the email that they were going to ask Mr. Samsone to take another photo in the new year, Ms. Stockton asked Mr. Small if they should get Mr. Samsone identification in the new year or wait until he was permanently assigned somewhere. She also advised Mr. Small that Mr. Samsone had his old identification card to use in the interim. Mr. Small responded to the email by indicating that they should get Mr. Samsone new Ministry identification in the new year. Ms. Holroyd indicated that she contacted Mr. Samsone in January of 2008 and asked him if his appearance was going to - 14 - change. When he indicated it was not going to change, she requested a new identification card for him, using the picture taken in November of 2007. Although it was unclear why the process took so long, Mr. Samsone received his new identification card on June 5, 2008. Ms. Holroyd indicated that they preferred to obtain new identification for an ESRO as soon as possible, but they elected to wait in this instance because Mr. Samsone told them his appearance would soon change. Ms. Holroyd noted that Mr. Samsone could use his old identification in the interim, which he would have had to use in any event until his new identification was ready. In his testimony, Mr. Samsone denied that he apologized for his appearance on November 20, 2007, and that he made the other comments about his appearance as described by Ms. Holroyd. There was no indication that Mr. Samsone ever made an issue about using his old identification card or about the delay in receiving his new identification card. [20] Ms. Holroyd testified that it was her expectation that Mr. Samsone would have been provided with a key to the building and the access code for the alarm when he started as an ESRO. However, she indicated that the control over such a matter rests with the Area Manager. She indicated that she believed Mr. Samsone had no difficulty in accessing the Durham East P & P facility during his initial three month assignment. When he needed access before the building opened during the week of December 31, 2007, arrangements were made to provide him with access. Ms. Holroyd indicated that Mr. Samsone was eventually provided with a key to the building and the access code by the Area Manager, once it was determined that his three month assignment would be extended. She also testified that Mr. Samsone never told her that he had a problem in accessing the workplace or that it was necessary for him to have a key and access code. - 15 - [21] Just prior to February 22, 2008, and before Mr. Samsone filed his grievance, Mr. Small offered to extend Mr. Samsone?s temporary assignment for a further six months beginning February 25, 2008. In his letter to Mr. Samsone dated February 22, 2008, confirming his acceptance of the offer, Mr. Small indicated that he would be expected to perform regular ESRO duties and that ?Arrangements are being made to provide you with the equipment/tools you will require to perform your assigned duties.? Ms. Stockton sent a Memorandum to Mr. Samsone dated February 25, 2008, in which she referred to his change in status and referenced arrangements for getting him an office, a Ministry vehicle, a cell phone, etc. Ms. Holroyd also testified in some detail about the efforts made to provide Mr. Samsone with the equipment he needed now that it had been determined that he could perform ESRO duties independently. As it turned out, Mr. Samsone?s assignment as an ESRO came to an end in October of 2008. [22] As noted previously, there is no dispute that the Employer did not provide Mr. Samsone with certain items during his three month temporary ESRO assignment, which commenced on November 20, 2007. He was not supplied with his own office and related items, and he was not issued a Ministry vehicle, a cell phone and a pager. The Union claims that the Employer should have supplied Mr. Samsone with these items sometime in January of 2008. He was also not given a new Ministry identification card and a key and access code for the Durham East office. The Union claims that Mr. Samsone should have received these items when he commenced the three month assignment or shortly thereafter. The Union argues that the Employer discriminated against Mr. Samsone on the basis of disability when it did not provide him with these items within the time frames set out above. I note that counsel agreed near the end of Ms. Holroyd?s testimony that the question of the length of Mr. Samsone?s job shadowing - 16 - and whether it was appropriate are not issues before me in this proceeding. Union counsel reminded me of this understanding between counsel during his final submissions. [23] Having considered the evidence and the submissions of counsel, it is my conclusion that the Employer did not treat Mr. Samsone contrary to the Collective Agreement or the Ontario Human Rights Code when it did not provide him certain items during his three month temporary assignment. More specifically, I am satisfied that the evidence does not establish that the Employer discriminated against Mr. Samsone because of his disability. [24] I will first address the Union?s claim that the Employer should have provided Mr. Samsone with certain items sometime in January of 2008. This claim is essentially based on its contention that Mr. Samsone was working more independently as an ESRO as of that time. Counsel referred in particular to Mr. Samsone?s assertions that he was assigned and performed his own tech reports by then. The Union suggests that it was therefore appropriate for the Employer to supply him with the usual items given to ESROs, given this change in status. In my view, the evidence establishes that Mr. Samsone was in the same position in January and most of February of 2008 as he was in November and December of 2007. He was engaged in job shadowing Mr. Wickens while on a temporary assignment. The fact that the initial schedule covered a period that ended on January 4, 2008, and that he was not provided with another detailed written schedule for the period after January 4, 2008, does not by itself suggest that Mr. Samsone?s status had changed. Although he testified that he could not recall it, Mr. Samsone was clearly advised at the outset of the temporary assignment by Mr. Small in his latter dated November 13, 2007 and by Ms. Stockton and Ms. Holroyd at their meeting on November 20, 2007, that he was not to perform ESRO duties independently until he was - 17 - expressly directed to do otherwise. I accept Ms. Holroyd?s testimony that Mr. Samsone was never expressly advised that he could perform ESRO duties independently. Mr. Samsone?s indication that he could not recall if he was told that he could work independently serves to support Ms. Holroyd?s testimony on this point because I have no doubt that Mr. Samsone would have recalled an authorization from a supervisor to work independently if such a direction had been given. Ms. Holroyd was responsible for assigning tech reports to ESROs and she indicated that she did not assign Mr. Samsone any tech reports to complete on his own. I also accept Ms. Holroyd?s testimony that Mr. Samsone asked her in about January of 2008 if he could do tech reports and offender residence visits on his own. She denied his request by indicating that they were Mr. Wickens?s reports and that he was job shadowing. Although he denied that such an exchange occurred, I prefer Ms. Holroyd?s recollection of the discussion and I am prepared to assume that Mr. Samsone simply could not recall it, even though he indicated that this was not the case. Ms. Holroyd did ask Mr. Wickens to share three tech reports with Mr. Samsone with the instruction that he was to ensure that these reports were completed properly. It is not surprising that that Mr. Samsone might perform some ESRO tasks more independently the longer he job shadowed Mr. Wickens. However, there is no indication that the Employer was aware or condoned such a development. The overwhelming evidence illustrates that the Employer exercised its management right to have Mr. Samsone job shadow Mr. Wickens during the entire three month assignment. The fact that Mr. Samsone was not assigned to be on call outside of his regular work hours, that he did not complete the CVRA training until mid-January of 2008 and that his work was monitored well into February of 2008 further supports this conclusion. Given there was no need for Mr. Samsone to have his own office, a Ministry vehicle, a cell phone and a pager while he was job shadowing, the Employer was not required to provide these items to him. I can appreciate how these - 18 - circumstances, particularly the absence of his own office, created a less than satisfactory working environment over time for Mr. Samsone. However, this was a function of training and job shadowing in a temporary position. Mr. Small made it quite clear to Mr. Samsone at the outset that his status would be clarified at the end of the three month assignment. As a practical matter, it would be unlikely that the Employer would have an interest in fully equipping an ERSO who is job shadowing on a three month temporary assignment until it determined that the ESRO would continue in the program beyond three months. This perhaps explains why Mr. Samsone was in a different position from a permanent ESRO entering the program. [25] The Union argued that the Employer?s failure to provide Mr. Samsone with a key and access code and a new identification card were particularly significant in demonstrating differential treatment. In my view, the evidence does not support the conclusion that these matters were that significant. Mr. Samsone?s failure to bring these matters to the attention of ESP management suggests that he did not consider them to be of particular significance at the time either. [26] Although Ms. Holroyd assumed Mr. Samsone had been issued a key and access code and believed that it would have been appropriate for him to have these items when he started his ESRO assignment, she indicated that this was a matter under the control of management at the Durham East P & P facility. Management at that location, perhaps the Area Manager herself, advised Mr. Samsone that he could not have a key and access code because he was a temporary employee. Ms. Holroyd understood that Mr. Samsone had access to his work location and there is no doubt that he did have access to the facility. His regular day shift - 19 - allowed him to have access. When he had to attend work earlier than usual during the week of December 31, 2007, arrangements were made to ensure that he could enter the premises. The absence of a key and access code therefore did not restrict Mr. Samsone from accessing his work location. Perhaps this was the reason why Mr. Samsone did not feel the need to bring this matter to the attention of the ESP management. Union counsel submitted that there was no evidence to suggest that other employees did not have a key and the access code. However, strictly speaking, there is also no evidence to indicate that other employees were provided with a key to the facility or whether Mr. Samsone was treated differently in this respect from other temporary employees at that location, if there were any. On what little evidence there is on this issue, it does seem that Mr. Samsone was denied a key to the building and the access code only because of his status as a temporary employee. In any event, the failure of the local management to provide him with these items from the start of his ESRO assignment appears to have had little practical consequence for Mr. Samsone. [27] The Employer delayed getting Mr. Samsone a new identification card because he told Ms. Holroyd and Ms. Stockton that his identity would change in less than six weeks. I accept as true Ms. Holroyd?s version of what was discussed on this subject during the meeting with Mr. Samsone on November 20, 2007. The email which Ms. Stockton sent to Mr. Small asking for his advice about obtaining a new identification card for Mr. Samsone referred to what Mr. Samsone told them on November 20, 2007 about his appearance. Of course, this email was sent before there was any issue about Mr. Samsone not getting a new identification card in a timely way. Mr. Samsone?s denial that the discussion occurred as described by Ms. Holroyd is simply not credible. In my view, it was reasonable for the Employer to delay the processing of a new identification card in these circumstances, particularly since Mr. Samsone - 20 - had the use of his old identification in the interim. Once it became clear that Mr. Samsone was not going to change his appearance, the Employer initiated the process for getting him a new card. There is no indication that the Employer?s failure to provide him a new identification card inhibited Mr. Samsone in the performance of his ESRO duties. And again, this issue was not a matter which Mr. Samsone considered to be significant enough to raise with ESP management. In my view, the manner in which the Employer handled the securing of a new identification card for Mr. Samsone was reasonable and understandable in the circumstances. [28] I agree with counsel for the Employer?s submission that a management decision about the provision of equipment to an employee by itself does not give rise to a contravention of the Collective Agreement. The Union in this case did not suggest that the failure to provide Mr. Samsone with certain items by itself contravened the Collective Agreement. Its success in this matter is dependent on there being a link between the treatment of Mr. Samsone and his disability. In my view, the evidence does support the conclusion that there was any such link. [29] Mr. Samsone had been absent for medical reasons for a significant period of time prior to his three month temporary assignment with the ESP. He was diagnosed as having a post traumatic stress disorder arising from an incident at the TEDC and was in receipt of LTIP benefits. His medical restriction only prevented him from working in a correctional setting. Although invited to do so by Mr. Small, Mr. Samsone did not disclose that he had any medical restrictions arising from his disability when he met with Ms. Stockton and Ms. Holroyd on November 20, 2007. He made no such disclosure because he had no medical restriction relevant to the ESRO position. There is no indication that there was any discussion at the November 20, 2007 meeting about Mr. Samsone?s disability and the reasons for his absence - 21 - from the workplace. All Ms. Holroyd knew was that Mr. Samsone had been away from the workforce for some time. It is quite clear from the evidence that Mr. Samsone?s disability was a non issue during his employment with the ESP. The Employer?s treatment of Mr. Samsone during the initial three month assignment and the reason why he may have stood out in certain respects is because he was training and job shadowing for a temporary period, not because he had a disability. There was no other employee in this unique position. His unexplained reluctance to simply disclose to others that he was on a temporary assignment may have fuelled speculation about his status. It is indisputable that Mr. Samsone has a disability. However, it is also indisputable that the Employer?s treatment of him and the decisions it made about what equipment and other items to give him were unrelated to the fact that he has a disability. There is no basis for concluding that the Employer?s treatment of Mr. Samsone, whether intentionally or otherwise, amounts to discrimination on the basis of disability. [30] For the foregoing reasons, the claim in the grievance relating to the Employer?s failure to provide Mr. Samsone with certain resources during his initial three month temporary assignment is hereby dismissed. I have not dismissed the grievance because I understand that there are other outstanding issues flowing from the grievance that may be pursued by the Union. th Dated at Toronto this 6 day of August 2010. Ken Petryshen, Vice-Chair