HomeMy WebLinkAbout2008-2205.Daniel.10-09-08 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
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#2008-2205, 2008-2683
UNION#2008-0506-0004, 2008-0506-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Daniel)
Union
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFOREM.V. Watters Vice-Chair
FOR THE UNIONJennifer Fehr
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYERJennifer Richards
Ministry of Government Services
Counsel
HEARINGApril 27, November 23, November 24, 2009,
January 12, May 27, 2010.
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Decision
[1] This proceeding arises from two (2) grievances filed by the grievor,
MrJoseph Daniel, dated May 14 and September 16, 2008, respectively. The
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grievances, in substance, claim that the Employer arbitrarily changed the grievor?s
work schedule and that he was improperly sent home upon returning to work
following a short-term sick leave. It is further claimed that these actions, on the
part of the Employer, constitute discrimination or harassment against the grievor
by reason of his activity in the Union, all contrary to article 3.2 of the collective
agreement. This provision reads:
3.2.1There shall be no discrimination or harassment practiced
by reason of an employee?s membership or activity in the
Union.
[2] The grievor is a Highway Carrier Safety Inspector and is classified as a
Transportation Enforcement Officer 3.The position description for the job was
filed as exhibit #21. The position is hereafter referred to as ?Auditor?. Simply
stated, the grievor?s primary responsibility is the conduct of audits in respect of
commercial vehicle operations, such as trucking firms and bus companies. The
audits, which are conducted at the operators? premises, are focused broadly on road
safety including vehicle maintenance, drivers? hours, service records, insurance
coverage and accident reporting systems. The results of an audit determine the
operator?s safety rating. At all times material to this proceeding, the grievor
performed his work out of the York District Office in the Central Region.
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[3] The grievor has a long history of involvement in the Union. He started as a
Union Steward in late 2001 and subsequently become President of OPSEU Local
506 in November, 2003. He served in this latter capacity until January 31, 2008.
While in this role, the grievor represented employees in five (5) districts of the
Central Region, namely York, Peel, Durham, Toronto and Halton. The grievor
was actively involved in the Local Employee Relations Committee (LERC)
st
between 2004 and 2008. He is currently the 1 Vice-President of Local 506 and
sites on the Ministry Employee Relations Committee (MERC). There is no doubt,
on the evidence, that the grievor throughout this period has been extremely active
in representing the interests of employees, be it through the grievance process,
WDHP complaints, or speaking out against various Employer initiatives.
[4] Evidence for the Union was presented by the grievor, Mr. Serge Valcourt
and Ms. Helma Britton. Mr. Valcourt has been an employee of the Ministry of
Transportation for approximately twenty-three (23) years. He became an Auditor
in 1988. In the time period material to this proceeding, Mr. Valcourt worked out
of the Hamilton/Niagara District Office. Ms. Britton has been an employee of the
Ministry since 1986 and has worked as an Auditor for ten (10) years. She works
out of the Peel District Office.
[5] Evidence for the Employer was presented by Ms. Paula Anderson and Mr.
Warren Blackmore.
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[6] Ms. Anderson commenced employment in the Ontario Public Service in
1989 as a Driver Examiner at the John Rhodes Centre. She subsequently became a
Senior Examiner and served as Supervisor of the Centre in the period 1995 to
1998. Ms. Anderson then moved to a Shift Leader position in the Enforcement
Program in which she supervised a team of three (3) to four (4) Inspectors at the
Truck Inspection Centre at Trafalgar Road and Highway #401. In addition to the
supervisory function, Ms. Anderson performed mechanical inspections on trucks,
wrote out any necessary tickets and attended at Court, when required, as a Crown
witness. Between 2001 and 2004, Ms. Anderson served as an Acting Coordinator
in the York District. In December of 2004, she became the Coordinator for the
Toronto District. Finally, following a reorganization, of which more is said below,
Ms. Anderson assumed the new position of Carrier Safety Coordinator for the
Central Region in January, 2008.
[7] As the Carrier Safety Coordinator, Ms. Anderson is responsible for
managing the audit program in the following six (6) Districts in the Central
Region: York, Peel, Durham, Toronto, Halton and Hamilton/Niagara. In this
capacity, she manages between fifteen (15) to eighteen (18) Auditors. More
specifically, Ms. Anderson assigns audits to the Auditors, establishes due dates for
their completion, ensures that the Auditors have the requisite information to
complete their work, and then reviews the audits upon receipt for accuracy and
quality. She also monitors the work of her audit staff to ensure compliance with
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the Enforcement Procedures Guide. Additionally, Ms. Anderson manages
attendance and is responsible for health and safety matters. She administers a
budget for the Central Region in the approximate amount of $1,500,000.00. The
position description for Ms. Anderson?s job describes the purpose of the position in
the following terms:
?To provide the full spectrum of management responsibility
for direct delivery of the ministry?s carrier safety and
enforcement programs within a designated geographic area.
To provide program administration as well as leadership and
direct supervision of field staff involved in the delivery or
support of the motor carrier safety inspection and
enforcement activities. To estimate, co-ordinate and manage
staff, material and fiscal resources to meet current and future
needs. To implement operational plans and regional
strategies, including
developing initiatives and plans which are consistent with
government initiative and ministry business plans in a
politically sensitive, litigious environment. To actively
participate in regional long term planning and program
decisions as part of the regional management team.?
Ms. Anderson has never worked as an Auditor.
[8] Mr. Blackmore is the Director of the Regional Operations Branch. In this
capacity, he directs and oversees driver, vehicle, carrier and enforcement programs,
licencing of commercial vehicles and driver examinations. He has previously held
a number of senior management positions with the Employer, including Regional
Manager for the South West Region. Mr. Blackmore served as the Co-Chair of the
LERC for the Central Region for a one (1) year period. This latter involvement
brought him into contact with the grievor.
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[9] Prior to January, 2008, each of the six (6) Districts in the Central Region had
a Coordinator to whom the Auditors reported. The Employer, for several reasons,
elected to change this model, with the result that all Auditors across the Region
would be consolidated under a single Manager. I was told that this model had
worked well in another Region and that the Auditor General had observed certain
deficiencies in operations in the Central Region. As noted, the Employer assigned
Ms. Anderson to the Carrier Safety Coordinator position in the aforementioned
Region effective January, 2008.
[10] In mid December, 2007, Mr. Blackmore invited the grievor and Ms. Edie
Strachan, the in-coming President, to discuss the upcoming change, including the
appointment of Ms. Anderson. On the evidence, it seems that the grievor largely
agreed with the nature of the organizational change. He expressed real displeasure,
however, when informed that Ms. Anderson would head the new Audit Unit. The
grievor testified he told Mr. Blackmore that he was making a mistake with the
appointment given Ms. Anderson?s ?history?. He asserted that she lacked
technical knowledge relating to the Audit Program and that she had a propensity to
micro-manage. It was the grievor?s evidence that he said there would be
?problems? if Ms. Anderson was appointed to the position. Mr. Blackmore
recalled that the grievor remarked there would be ?war? should the appointment
occur as planned. Mr. Blackmore advised that he was not frustrated by the
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grievor?s opposition to Ms. Anderson. He noted that the decision to assign a
Manager to the Audit Unit was within his prerogative.
[11] There is no doubt that, at the above meeting, Mr. Blackmore asked the
grievor to treat the information disclosed as confidential. There is a dispute,
however, as to what was said about when the information could be communicated
to affected employees. The grievor testified that Mr. Blackmore asked him to keep
the information in confidence for a period of ten (10) days. In contrast, Mr.
Blackmore claimed he told the grievor not to disclose any details of the
reorganization until he had formally discussed the change with employees. Mr.
Blackmore noted that his sharing of the information with the grievor was outside of
the normal protocol for disclosure between the parties. He explained that he did so
as a courtesy to the grievor. The grievor acknowledged that he communicated the
information to others after a period of ten (10) days had elapsed. He stated that, in
the interim, members started to contact him about the changes and that some of
them appeared to have acquired a lot of specific detail concerning the upcoming
reorganization. It is clear that Mr. Blackmore was disappointed by what he
perceived to be a premature disclosure and a breach of confidence. Emails
between Mr. Blackmore and the grievor in respect of this issue were filed as
exhibit #25.
[12] Mr. Blackmore released the following memorandum on the change to the
reporting structure on December 31, 2007:
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?As part of the Ministry of Transportation?s commitment to
improve Road Safety and customer service the Central
Region Enforcement Section will be restructuring its off-road
Carrier Safety Program. Central Region will be adopting the
successful organizational structure that is currently in place
in Southwest Region.
This change will involve the reporting relationship of the
Highway Carrier Safety Inspectors. The new reporting
structure will allow the Audit Coordinator to effectively
manage the Carrier Safety Audit Program workload at a
Regional level.
As of January 14, 2008, you will be reporting to the Central
Region Audit Coordinator. As this move is an administrative
restructuring exercise, there will be no change to your
headquarters, salary, duties or working conditions.
????????????????????????..?
The grievor testified that he read the last sentence of the above memorandum as
indicating there would be no change to his working conditions, including his
schedule. Mr. Blackmore, in his evidence, clarified that he did not intend to make
any changes as of the effective date of the reorganization. He observed, however,
that going forward he expected his Managers to explore opportunities for
introducing efficiencies in the workplace and that this could potentially result in
change, as it did here in respect of the schedule.
[13] Ms. Britton testified that she was upset on learning Ms. Anderson was to
supervise all Auditors in the Central Region. As a consequence, she elected to
forward the following email to Mr. Bruce McCuaig, the incoming Deputy
Minister, on December 31, 2007:
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??????????????????????????
I am quite disturbed about events that will be taking place
within Central Regions auditors. I am not opposed to a
separate unit for all the auditors in central region, what I
totally disagree on is Paula Anderson as the co-ordinator
for this unit. I don?t see the logic in taking her out of Metro
District, one of the few permanent coordinators we have and
assigning Metro District to S.G. in York District a fairly new,
inexperienced acting co-ordinator. What about the added
work load for the court officer and enforcement enquiry
specialist in York? Are you going to give Paula Anderson
a crash course on Auditing 101, when we have so many
seasoned auditors some of which are being accommodated
that would be more suitable for the position, if interested.
I am going to quote Shelly Jamieson?s (sic.) reply on the town
hall meetings in which she states:
-there will be better communication of developmental
opportunities including short-term assignments
-performance management plans will identify employee
strengths and areas for growth to support our commitment
to recognizing and developing staff.
This is yet again another example of putting someone in a
position through the back door with no discussion with the
workers involved. What were the town hall meetings all
about? Just another ruse to keep us quite (sic.), I am truly
disappointed in the way this has been handled.
??????????????????????????
Ms. Anderson did not recall getting a copy of the above email. Mr.
McCuaig?s email response to Ms. Britton was filed as exhibit #19.
[14] A meeting with all of the affected Auditors was held on January 8, 2008.
Ms. Anderson, Mr. Blackmore and Mr. Peter Valentini, Acting Regional Manager,
were in attendance. It is apparent on the evidence that both the grievor and Ms.
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Britton spoke against Ms. Anderson?s appointment at the meeting. Ms. Anderson
was aware that Ms. Britton felt that she was not sufficiently qualified for the
Coordinator position.
[15] Ms. Britton referenced prior town hall meetings in her email of December
31, 2007, reproduced above. One of these meetings was held on November 13,
2007. Approximately five hundred (500) employees attended the meeting,
including the grievor, the in-coming President, and most of the Local Executive.
Mr. Blackmore, Mr. Valentini and Ms. Anderson were there, as were a number of
other members of senior management.The meeting was convened by Ms. Shelly
Jamieson, the Deputy Minister. The grievor made a presentation at the meeting in
which he spoke of hiring practices, nepotism, favouritism, fair hiring, diversity and
problems in the Enforcement Program. He was clearly critical of management?s
approach to these issues.The grievor advised that he also provided Ms. Jamieson
with a written submission.
[16] Mr. Blackmore recalled that the grievor made a presentation at the
th
November 13 meeting. He was unable, however, to recall the specifics of same.
Ms. Anderson stated that she heard some, but not all, of the grievor?s remarks. She
acknowledged that some of his ?criticisms? may have been about her. Ms.
Anderson insisted, though, that she was not upset about what he said. In her
words, she had no real reaction to his comments. From her perspective, the
meeting was a good forum for employees to say what was on their mind.
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[17] The grievor advised that, starting in February 2001, he worked a nine (9)
hour day on a compressed work week schedule. His specific hours of work were
6:30 a.m. to 3:30 p.m. On February 26, 2008, the grievor and all other Central
Region Auditors received the following Memorandum from Ms. Anderson:
?I have had the opportunity to observe the Audit Program
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work as a Region since we all came together on January 14
of this year. What I am finding, in regards to the scheduled
work hours, is that they do not all coincide with the hours of
the operators that we audit. It is imperative that Auditors are
available during business hours to better serve our clients
and meet the operational requirements of our program.
Large operators are generally open Monday to Friday from
8 a.m. ? 5 p.m. Smaller operators do not exclusively work
on week days but still have the 8 a.m. ? 5 p.m. daily hours.
In an effort to align the scheduled work hours with the client
st
hours these changes will take effect the week of March 31.
The following 3 options are hours that Auditors can chose to
work:
7 a.m. ? 4 p.m.
7:30 a.m. ? 4:30 p.m.
8 a.m. ? 5 p.m.
You are required to email or call me by the end of this week
th
(Feb. 29 at the latest) to let me know your preference
of the above hours. Select only one of the 3 options. You will
remain on the days you are currently scheduled to work.
?????????????????????????
[18] The grievor responded to the above Memorandum by way of the
following email to Ms. Anderson on February 27, 2008:
?????????????????????????..
I am in receipt of a memo regarding the introduction of new
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scheduled hours of work for auditors.While I agree with you that there may
be instances we need to adjust our hours of work in conjunction with our
stakeholder?s need, I am indeed disappointed that you did not have any prior
discussion about this new schedule considering the fact that I have been
working on the same schedule for the past 8 years with no adverse impact to
our clients as well as to the Ministry. Your suggested schedule would create
unnecessary stress in my life as it impacts my wife?s work schedule and
travelling needs since we made a residence change last year.
???????????????????????..?
[19] Ms. Anderson responded to the grievor?s email by way of a later email on
February 27, 2008. The communication reads:
????????????????????????.
The memo I sent gives a 4 week timeframe for staff to make
arrangements before having to start one of the 3 options of
hours given. I am moving forward with the new hours and
felt that giving staff a choice of hours was being very flexible.
If you feel that you require additional time to adjust to the new
schedule then please call me to discuss.?
Following receipt of the above email, the grievor spoke to Ms. Anderson about the
matter. He testified that she was prepared to give him an extra two (2) weeks to
better enable him to adjust to the schedule. The grievor advised Ms. Anderson that
the extension would not address his concerns and, accordingly, declined the offer.
The grievor was not aware that he was the only Auditor who was offered
additional time to adjust to the new schedule.
[20] The grievor forwarded the following email to Ms. Anderson on February 28,
2008:
????????????????????????
Further to our discussion of today regarding the above
noted, please be advised that your inability to accommodate
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my request to keep me for 6:30 a.m. starting time will impact
my home life and work life and I feel very strongly that
management is imposing this schedule on me just to harass
me, and as such I will be filing a grievance once the new
schedule takes effect. Since you are forcing me to choose a
schedule out of the three schedules provided, I am choosing
the 7 a.m. start time under protest.?
[21] The grievor started on the new schedule as of March 31, 2008. It was his
evidence that, despite the change, he continues to arrive at work at the York
District Office at 6:30 a.m. He explained that, due to increased traffic, he has to
spend approximately twenty-five (25) more minutes in the car for a 7:00 a.m.
arrival time. The grievor referenced the fact that he relocated his residence to Port
Perry shortly before the change, and that his wife commutes with him to her job.
He advised that his wife now has to wait an extra one-half (1/2) hour at the end of
the day for him to finish his work. The grievor added that the later drive home
started to adversely affect his health as a consequence of the increased traffic
congestion he experienced.
[22] The grievor noted that Ms. Anderson had previously been his Coordinator in
the York District between 2001 and 2004, and that she had never questioned his
hours during that period. He also challenged her statement that operators are
generally open between 8:00 a.m. and 5:00 p.m. It was the substance of his
evidence that operators, both large and small, have hours starting well before 8:00
a.m., and in some cases as early as 5:00 a.m. He stressed that he has more
experience that Ms. Anderson in terms of working in the field. From his
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perspective, her view as to the normal hours of operators, as expressed in the
Memorandum of February 26, 2008, is inaccurate. On a related point, the grievor
acknowledged that he always arrives at an operator?s location at 9:00 a.m. on the
first day of an audit, as he may need to meet with corporate officers or other staff
who do not arrive before that time. The grievor explained that once on site, he
learns of the working hours of those individuals he needs to communicate with for
purposes of the audit. It was the gist of the grievor?s evidence that, after the first
day, he usually arrives at the operator?s business site between 7:30 a.m. and 8:30
a.m., depending on their availability. He testified that he tries to arrive on site
early in order to conclude the audit in a timely fashion.
[23] The grievor also outlined the work he performs in the office at the start of
the day prior to leaving for an audit. The work includes: logging on to the
computer system; logging on to the Communications Centre, with confirmation to
Ms. Anderson; reviewing the audit file; retrieving necessary documentation
required for the audit; and responding to emails, messages and telephone calls.
The grievor testified that, even with a 6:30 a.m. start time, the time spent on these
tasks and in travelling to the operator?s location made it difficult to arrive before
9:00 a.m.
[24] Prior to March, 2008, Ms. Britton?s work day was 6:00 a.m. to 3:00 p.m. It
was her evidence that three (3) of the four (4) Auditors working out of the Peel
District Office had these hours. Ms. Britton stated that she had worked this
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schedule for ?four (4) years on and off?, and that no prior Manager or Coordinator
had ever raised the issue of her 6:00 a.m. start time prior to Ms. Anderson.
Similarly, she testified that it was never the subject of a complaint from an operator
in the field. Ms. Britton advised that her preference for the earlier start time was
premised on traffic patterns. She stated that if she left her home by 5:00 a.m., she
could reach the office by 6:00 a.m. Ms. Britton noted, however, that a later
departure from home added about one-half (1/2) hour to her commute to the office.
She, ultimately, selected the 7:00 a.m. option.
[25] Like the grievor, Ms. Britton disagreed with Ms. Anderson?s assessment as
to the normal working hours of the operators being served by the Audit Unit. It
was her evidence that while 8:00 a.m. to 5:00 p.m. may be office hours for
reception purposes, the hours do not represent operating hours. She emphasized
that a number of larger operators are open on a twenty-four (24) hour basis and that
certain of the smaller ones start the day at 7:00 a.m. or 8:00 a.m. Ms. Britton
asserted that some operators prefer that the Auditor be on site earlier than 9:00
a.m., as it is then quieter and less active vis a vis the dispatch of vehicles. Ms.
Britton said that, in her experience, approximately fifty percent (50%) of audit
meetings started before 9:00 a.m. in the pre-March, 2008 period. She advised that
she has commenced audits as early as 6:30 a.m. Ms. Britton acknowledged that
meetings before 9:00 a.m. were scheduled with the agreement of the operators.
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She expressed the opinion that the Employer, and specifically Ms. Anderson, did
not undertake a sufficient investigation to support the change.
[26] The grievor stated his belief that his hours were changed because of his
active involvement in Union activities.Simply put, the grievor believes he was
targeted and harassed because of his efforts to aggressively represent members and
for taking and expressing positions contrary to management. Reference has been
made previously to his involvement in the grievance and WDHP processes, and to
his presentation at the town hall meeting in November, 2007. The grievor asserted
that the following also motivated the Employer to act in an improper manner:
i.In mid to late October, 2007, the Employer planned to hire
thirty (30) temporary Transportation Enforcement Officers
in the South West Region from the Community Colleges on
a 529 basis, that is for a period of five (5) months and
twenty-nine (29) days. The grievor objected to this hiring
as, in his view, it did not amount to fair hiring given that the
employer did not have to post the jobs and could retain
anyone it liked. The grievor, in response to the initiative,
contacted both the LERC and the MERC. The matter was
subsequently placed on the MERC agenda for discussion.
Ultimately, a decision was made by the Deputy Minister and
Assistant Deputy Minister not to proceed with the 529 hiring.
Instead, the Employer elected to hire thirty (30) permanent
Officers. The grievor believed that the plan to hire thirty
(30) temporary Officers was devised by Mr. Blackmore.
He furthered stated that senior management were aware
that he instigated the opposition to the plan. In cross-
examination, the grievor acknowledged that he was not
aware Mr. Blackmore agreed with the hiring of permanent
staff; and
ii.Following the creation of the new Audit Unit in January,
2008, the grievor expressed concern about a change in policy
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which required all Auditors to log on with the OPP
Communications Centre in Orillia irrespective of whether
they were working in or out of the Office. The grievor
asserted that the new requirement to log on, even while
working in the office, was contrary to existing Ministry
Policy and that it created a health and safety risk. It was his
belief that the additional log on requirement would make it
more difficult for the Communications Centre to monitor
and track Officers in the field. The grievor?s opposition
to the change was voiced at a meeting of Auditors and
Coordinators held on January 21, 2008. According to the
grievor, it was also the subject of ?a very animated discussion?
at a LERC meeting of February 7, 2008 at which both
Mr. Blackmore and Mr. Valentini were present. It was the
grievor?s perception that the former was upset when he
raised the issue. The topic was also the subject of a
teleconference between the grievor, Union representatives,
Mr. Blackmore and Mr. Valentini on February 13, 2008. It
is clear that the issue was discussed at several other meetings
with these management representatives. During one
telephone discussion, the grievor informed Mr. Blackmore
that if the matter was not resolved the members might elect to
?exercise other options?. The grievor recalled that Mr. Blackmore
then asked if he was threatening him. The grievor advised that
his communication with Ms. Anderson on this subject was
exclusively through correspondence.
[27] In a similar vein, Ms. Britton believed that her outspokenness resulted in her
hours being changed. It was her view that her email of December 31, 2007, which
has been reproduced above, was a contributing factor.
[28] After becoming Carrier Safety Coordinator for the Central Region, Ms.
Anderson asked the Coordinators in the other Districts to provide her with the
hours worked by their staff. On the basis of the information received, she
discovered that six (6) of the eighteen (18) Auditors in the Region started their day
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before 7:00 a.m. Three (3) of these Auditors, including the grievor, worked out of
the York District. The other three (3), including Ms. Britton, worked from the Peel
District Office. After the issuance of her Memorandum of February 26, 2008, Ms.
Anderson learned that two (2) of Ms. Britton?s colleagues in Peel actually worked
7:00 a.m. to 4:00 p.m. As a consequence, there were only four (4) Auditors who
were ultimately compelled to adjust their work schedule, three (3) from York and
one (1) from Peel.
[29] Ms. Anderson also engaged in a review of notes from Auditors in the
Central Region. Prior to January 14, 2008, she reviewed Auditor?s notes from the
Toronto District. This review disclosed that ninety percent (90%) of the audits
commenced at 9:00 a.m. or after. Following the reorganization, Ms. Anderson
looked at notes from Auditor?s across the Central Region. She estimated that she
reviewed between twenty (20) and thirty (30) sets of notes. It was her evidence
that the review encompassed both single and multi-day audits and that it generated
information about the start times for both. Ms. Anderson was uncertain as to
whether she reviewed audit notes from each of the Auditors in the Region. She
acknowledged that, during the course of this exercise, she did not personally
contact operators for their input.
[30] On the basis of her review, Ms. Anderson concluded that there was a need to
better align the Auditors? hours with the hours of the client base. On her
assessment of the information reviewed, Auditors were starting their work at 9:00
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a.m. at the operators? place of business. At the time, she was not aware of
operators requesting audit meetings outside of their normal business hours. In Ms.
Anderson?s judgment, Auditors should start their audits during regular business
hours, as that is when the operators are available to receive them. Ms. Anderson
believed that consistency between Auditors? hours would have been the best result.
For purposes of fairness, however, and to allow employees some choice, she
decided to provide the three (3) options noted above. Ms. Anderson added that she
hoped the change would not significantly impact anyone.
[31] Ms. Anderson testified that she wanted to align Auditors hours with other
activities affecting the Unit?s operation. She cited the hours of Court as an
example. In her jurisdiction, those hours are 9:00 a.m. to 4:00 p.m. From her
perspective, an early start to the day could result in an overtime cost in respect of
Auditors required to attend Court later in the day. Operationally, she wished to
minimize the potential for this type of expense. It seems from the evidence that
Ms. Anderson did not review overtime requests from Auditors required to attend
Court in the period prior to February 26, 2008. During cross-examination, she
agreed that she does not receive a lot of overtime claims for Court purposes.
[32] Ms. Anderson further believed that the change here in issue would make the
Audit Unit more efficient and productive. In this regard, she reiterated that the
Auditor General had raised concerns relating to audit efficiency in the Central
Region. Ms. Anderson testified that the decision to change the work schedule was
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hers. She stated that she consulted both Mr. Blackmore and Mr. Valentini about
the initiative and that they were in agreement with the decision to implement the
change to the schedule.
[33] Ms. Anderson recalled that the grievor was resistant to any change to his
hours of work. She stated that the grievor dropped into her office in April, 2008,
after the change had been implemented, and that he then informed her of the move
to Port Perry and of the fact his wife did not drive. Ms. Anderson testified that, at
that juncture, she offered him additional time to make any necessary adjustments.
She noted that the grievor replied that he did not want additional time to adjust to
the change, rather, he wanted his hours changed back to the way they had been
previously.
[34] Ms. Anderson indicated that she was aware of the grievor?s Union
involvement at the time she decided to make a change to the schedule. It was
generally the thrust of her evidence that such involvement did not cause her to treat
him differently and that it did not impact her decision to effect the change. Ms.
Anderson added that she did not introduce the change to target any employee in the
York and Peel Districts.
[35] Ms. Anderson testified that Mr. Blackmore told her of the grievor?s
opposition to her appointment just prior to the effective date of the reorganization.
She stated that she did not have much of a reaction on being told this, other than
thinking it was a shame given that she and the grievor had worked together
-21-
previously in the York District between 2001 and 2004. Ms. Anderson agreed that
the grievor opposed her appointment because he did not think she was qualified for
the position. She clearly disagreed with his assessment. Ms. Anderson also stated
that the grievor?s opposition, as Union President, did not undermine her credibility
with other staff. On her account, there were only two (2) Auditors who felt she
lacked the requisite qualifications, namely, the grievor and Ms. Britton. It was her
evidence that no other employee voiced opposition to her appointment.
[36] Ms. Anderson agreed that the grievor believed the new log-on procedure
contravened existing policy and posed a health and safety risk, and that he raised
these concerns at a meeting of the Auditors and management. After hearing of the
grievor?s concerns, Ms. Anderson contacted the Staff Sergeant at the OPP
Communications Centre in Orillia and was assured that the requirement of all
Auditors to log on, even those working in the District Offices and not in the field,
did not amount to a health and safety risk as all of the Auditors could be effectively
tracked under the system. It was Ms. Anderson?s evidence that she was not upset
at the grievor for raising this issue.
[37] Mr. Blackmore indicated that after Ms. Anderson became the Carrier Safety
Coordinator, she had a discussion with him pertaining to the hours worked by
Auditors. Ms. Anderson advised him that, after a review, she determined that a
number of Auditors were working outside of the hours of the core businesses being
served, in that they were starting their shifts early in the morning. Mr. Blackmore
-22-
did not recall Ms. Anderson referring to any particular Auditors during the course
of the discussion. He testified that Ms. Anderson felt that the current practice was
inefficient and proposed a strategy for improvement. More specifically, she
recommended that her Unit?s hours be changed to better reflect core business
hours. Mr. Blackmore testified that he approved the recommendation, as he
believed there was a logical business rationale for the change. It was his evidence,
in substance, that his approval had nothing to do with the grievor?s activities in the
Union. Indeed, he was unsure as to whether he knew of the grievor?s start time
prior to the change. Mr. Blackmore stated that he was not then aware Ms. Britton
started work prior to 7:00 a.m.
[38] Mr. Blackmore did not recall the grievor raising the issue of the temporary
hiring of Transportation Enforcement Officers with him. He acknowledged,
however, that they may have discussed it. Mr. Blackmore stated that the Union?s
concerns about the hiring were raised at the MERC level. It was his evidence that
he did not learn until much later that it was the grievor who brought the subject to
MERC?s attention. Mr. Blackmore noted that, ultimately, the Ministry decided to
hire employees on a permanent basis and that the idea of temporary recruitment
was abandoned. Mr. Blackmore testified that he preferred the hiring of Officers on
a permanent basis. He further advised that the proposal for temporary hiring was
not his idea.
-23-
[39] Mr. Blackmore stated that Ms. Anderson developed the new log-on
procedure following her appointment to the Carrier Safety Coordinator position.
He was aware that the grievor had concerns about the change, as the latter
contacted him to discuss same. Mr. Blackmore recalled that the grievor believed
the requirement for all Auditors to log in, even when just working in the Office,
was inconsistent with existing policy. Mr. Blackmore did not think that the
grievor?s concerns had merit. From his perspective, the change was an
enhancement to the status quo, as it was intended to promote and increase
employee safety. Mr. Blackmore testified that he told the grievor it was the
Employer?s intent to modify Operating Procedures to include the change. The
grievor declined Mr. Blackmore?s invitation for him to provide input on the
language to be used for this purpose.
[40] Mr. Blackmore further recalled that this issue was later raised at a LERC
meeting during the period when he was Co-Chair. It was his evidence that the
grievor there indicated there would be some other form of action taken. He stated
that he was unsure what the grievor meant by this. It was Mr. Blackmore?s
evidence that he was frustrated, but not upset, by the grievor?s approach to this
issue.
[41] On May 29, 2008, the Executive of OPSEU Local 506 sent a Resolution to
the Deputy Minister and the Assistant Deputy Minister. The Resolution, which
was adopted by the membership at a General Membership meeting held one (1)
-24-
week earlier, cited a long list of complaints regarding management in the Central
Region. Two (2) of the complaints read:
?WHEREAS RUS field operational management director and
his hand picked managers and supervisors continue to practice
?old school? mentality by imposing their will by changing
policies based on personal agenda while ignoring health and
safety concerns raised by the bargaining unit,
WHEREAS despite repeated objection from the bargaining
unit, appointed a manager who lacks people skill, and
technical knowledge and who has a ?history? of
harassing female employees, to a position of authority in
contravention of Deputy?s four priorities,
??????????????????????..?
It is clear from the evidence that the first complaint was directed at Mr. Blackmore,
Mr. Valentini and Ms. Anderson. The second complaint related to Ms. Anderson.
The Resolution led the Deputy Minister to later convene a meeting with the
Executive of Local 506. The grievor was unable to attend the meeting as he was
off work on sick leave. I note that the grievor was one (1) of the signatories on the
cover letter attached to the Resolution.
[42] Ms. Anderson stated that she first saw the Resolution at the workplace in
June, 2008. She thought that the Manager referenced in the second of the above-
cited complaints was her. Ms. Anderson testified that she did not believe the
statements outlined in the complaint were accurate. It was her evidence that she
has very good people skills; has the necessary technical skills and knowledge about
both auditing and enforcement; and has no history of harassing female employees.
-25-
With respect to the latter, she stated:?I don?t do that?. Ms. Anderson added that
she did not think the Resolution, as worded, was ?a fair way of putting something
out there?. Ms. Anderson maintained that the Resolution did not make her angry at
the Union or the grievor. She indicated, though, that it was upsetting to read it.
Ms. Anderson asserted that she harboured no ill-will towards the grievor because
of the comments contained in the Resolution.
[43] On June 23, 2008, the grievor emailed Ms. Anderson to advise that his
doctor had instructed him to stay off work for a period of six (6) to eight (8) weeks,
effective immediately. The grievor further advised that he would forward a
doctor?s note to Ms. Anderson and that he would apprise her of his return to work
status prior to the expiry of the medical note. Ms. Anderson subsequently received
a note from the grievor?s doctor dated June 23, 2008. The note confirmed that the
grievor had been assessed that day and provided a diagnostic impression of his
condition. It further indicated that the grievor was being referred to a specialist for
assessment and treatment and that the recommended period of leave from work
was for six (6) to eight (8) weeks.
[44] Ms. Anderson subsequently wrote to the grievor on July 3, 2008 to request
that he have his doctor complete a Request for Employee Health Information form.
The letter reads, in part:
??????????????????????.
It is the ministry?s policy to support employees whose
injury, illness or disability is affecting their ability
-26-
to do their job and meet job-related requirements.
To assist you in returning to work and to address any
employment accommodation needs you may have, we
require that your medical practitioner complete the
attached Request for Employee Health Information
form. Please include this letter. I have also attached
a copy of your job description to help your medical
practitioner understand the requirements of your job.
?????????????????????..
When I receive this information, you and I will
develop an employment accommodation plan. Duties
will be assigned to match your ability to do the job and
restrictions subject to operational requirements and
legislative obligations. We will need to meet to develop
and discuss the plan before implementing it.
???????????????????????
[45] Ms. Anderson subsequently received a completed Request For Employee
Health Information form dated July 11, 2008 (exhibit #7). The content of the form
may be summarized as follows:
i.In Part A of the form completed by the grievor, he indicated that
his absence from work because of illness or injury would end
on August 15, 2008;
ii.In Part B of the form completed by the grievor?s doctor, the
doctor indicated that the duration of the limitation and/or
restriction was temporary and that it had an expected
duration of four (4) to six (6) weeks;
iii.Question 3 of Part B asks the following: Is employee
involved in treatment and/or taking medication that may
affect his or her ability to work, including regular
attendance, and/or performing certain duties? The
grievor?s doctor answered ?Yes? and described the
impact as, ?Drowsiness possible with impact on his work
safety?; and
iv.In response to Question 5 of Part B, the grievor?s doctor
-27-
indicated that the grievor would be reassessed in four (4)
to six (6) weeks.
[46] It was the grievor?s evidence that he did not receive any further
correspondence from the Employer in respect of his sick leave. The grievor
testified he was never informed that he needed an additional medical note in order
to return to work.
[47] The grievor returned to work on August 18, 2008 at 6:30 a.m. He
acknowledged he did not inform Ms. Anderson, in advance, that he would be
returning on that day. According to the grievor, he felt fine at the time of his
return. It was the grievor?s evidence that Ms. Anderson telephoned him shortly
after 8:00 a.m. and told him that he needed a doctor?s note confirming he was fit to
return to work, otherwise he would not be able to work. The grievor responded by
asking Ms. Anderson where this requirement was in the collective agreement or
relevant policies. It was his recollection that she was unable to answer the question
and, instead, said it was the practice. The grievor then referenced the return to
work date of August 15, 2008 found on exhibit #7. He recalled that Ms. Anderson
replied that such date was put on the form by him and not by his doctor. The
grievor stated he then told Ms. Anderson that his return was in conformity with
exhibit #7, as it was between the four (4) to six (6) week period identified thereon
by his doctor. The grievor noted that this explanation was not accepted
-28-
and that Ms. Anderson demanded a medical note certifying his fitness to return to
work. At that point in the exchange, the grievor asked Ms. Anderson if she was
sending him home. He indicated that he received an affirmative answer and that
he, therefore, left the Office at about 9:00 a.m.
[48] The grievor estimated that the above interaction with Ms. Anderson was
approximately five (5) to ten (10) minutes in length. He described it as ?a heated
debate?, which left him extremely upset and frustrated. The grievor denied yelling
th
at Ms. Anderson during their telephone exchange on August 18. He suggested
that Ms. Anderson could have kept him at work that day to do office work and
catch-up on what he had missed, on the condition he subsequently supply the
requisite note.
[49] The grievor was able to get in and see his doctor on August 18, 2008 without
an appointment. The medical note the grievor received that day indicated that he
was unable to work from August 18 to August 22, 2008. It was the grievor?s
evidence that his blood pressure was too high, at the time of the medical visit, to
permit him to work on that day. He believed that the elevation in blood pressure
was attributable to his earlier interaction with Ms. Anderson.
[50] The grievor received a further medical note from his doctor dated August 22,
2008. The note stated that he was able to go back to work on Tuesday, August 26,
2008. The grievor, in fact, returned on that date. He testified that on his return, he
did not meet with Ms. Anderson to develop an accommodation plan. It does seem
-29-
that there was some related discussion during a meeting held on January 13, 2009.
This was not explored at length, however, given an objection advanced by the
Employer.
[51] While off work between August 18 and August 26, 2008, the grievor
received short term disability pay at seventy-five percent (75%) of his salary. He
advised that the remaining twenty-five percent (25%) was supplemented by
vacation pay. The grievor expressed the opinion that, but for his exchange with
th
Ms. Anderson on August 18, he would have been well enough to work in the
above-mentioned period.
[52] The grievor stated that he was not aware of any other employees being sent
home because of the lack of a medical note on their return. He expressed the belief
that Ms. Anderson was targeting and punishing him as a consequence of his
opposition to her appointment and his activism within the Union. Simply put, he
felt he was singled out by her for these reasons.
[53] The Employment Accommodation and Return to Work Operating Policy
was filed as an exhibit in this proceeding. The section under the heading of
Employee Responsibilities contains the following provisions:
?Employees who need disability-related accommodation or are
absent from work due to injury or illness are responsible for:
identifying to the manager as soon as possible any
accommodation needs that relate to their ability to perform
job duties or participate fully in the workplace;
-30-
cooperating with requests for health information about
capabilities, limitations and prognosis, and with
independent medical examinations, when required,
to provide clear and sufficient information to support
employment accommodation or return to work;
????????????????????????..
advising the manager promptly of any changes in health/
disability status that may require changes in an existing
accommodation/return-to-work plan;
????????????????????????..?
In cross-examination, the grievor agreed that the Employer is obliged to ensure that
an employee is medically able to return to work and is properly accommodated.
He further accepted that the Employer has a duty to protect an employee?s health
and safety. On a related point, the grievor agreed that he drives a Ministry vehicle
to get to the audit sites. He acknowledged that exhibit #7 does not specify if or
when he ceased taking the medication.
[54] Ms. Anderson stated she did not receive any advance notice from the grievor
that he would be returning to work on August 18, 2008. Indeed, she only knew
that he had, in fact, returned after receiving a copy of his log-on. Ms. Anderson
said that this lack of notice was contrary to the usual practice of other employees
who had been off on an extended medical leave. Given that she was surprised by
this development, Ms. Anderson opted to telephone the grievor at the York District
Office. On reaching the grievor, she asked if he had a return to work note. It was
her recollection that he then asked her what provision of the collective agreement
or policy required the provision of same. Ms. Anderson described the grievor as
-31-
being ?very very upset? at the time and stated that he was screaming at her. In her
words, some of the grievor?s remarks were ?not very nice?. Ms. Anderson testified
that she did not immediately respond to the grievor?s inquiry, as she was taken
aback by his screaming. Instead, she attempted to focus their exchange on exhibit
#7, the completed Request For Employee Health Information form dated July 11,
2008.
[55] It was Ms. Anderson?s evidence that she wanted a medical note which
indicated the grievor was fit to return to work as of a specific date and which
identified any necessary restrictions. She believed that she needed this type of
documentation to protect the grievor?s health and safety and to eliminate the
possibility of the Employer incurring any liability. Ms. Anderson advised that, as a
general rule, it is her practice to require an employee, in similar circumstances, to
provide such a note on the first day back. In this regard, she acknowledged that
there are always exceptions and that ?each medical absence needs to be viewed on
a case to case basis?. Ms. Anderson believed that the Employment
Accommodation and Return to Work Operating Policy, referenced above, was
supportive of her request.
[56] Ms. Anderson did not think that exhibit #7 was sufficient to permit the
grievor to return to work on August 18, 2008. She testified that it was deficient in
the following respects:
i.The grievor?s doctor did not provide a clear return date. She
-32-
emphasized that the grievor, and not his doctor, had inserted
the date of August 15, 2008 into Part A of the form;
ii.The form indicated that the grievor would be reassessed within
a period of four (4) to six (6) weeks and she did not know if
such reassessment had occurred;
iii.The form spoke of temporary restrictions and/or limitations
and she had no information as to the nature of same; and
iv.The form documented the potential for drowsiness and consequent
impact on work safety. Ms. Anderson noted that the grievor
works in a safety sensitive position. She stated that without
further information, including whether he was still on
medication, she was not prepared to put him at risk. On this
point, Ms. Anderson acknowledged that she did not ask the
th
grievor about his medication on August 18. She explained
that, given the nature of their communication that day, she
did not have much of an opportunity to do so.
[57] Ms. Anderson stated that her telephone call with the grievor ended with her
reiterating the need for a further medical note. She recalled that the grievor said
?fine? and then hung up. Ms. Anderson testified that, after thinking about the
nature and tone of their exchange, she wondered whether the grievor was well
enough to return to work. It was her evidence that she did not let the grievor stay
at work and catch up on emails, as he did not have a return to work date from his
doctor. She subsequently permitted him to return on August 26, 2008 on the basis
of the doctor?s note of August 22, 2008.Ms. Anderson asserted that she did not
send the grievor home on August 18, 2008 because of his Union involvement.
[58] Mr. Valcourt was supervised by Ms. Anderson between January, 2008 and
September, 2009 while he worked as an Auditor out of the Hamilton/Niagara
-33-
District Office. He was on a medical leave of absence, for reasons related to
necessary surgery, in the period December 11, 2008 to April 1, 2009.
[59] Mr. Valcourt advised Ms. Anderson of the need for a medical leave in
October, 2008 and of his surgery date in November, 2008. The relevant
documentation submitted to the Employer prior to his return to work may be
summarized as follows:
i.A note dated November 27, 2008 from a specialist indicating
that his surgery was scheduled for December 1, 2008.
The surgery was subsequently rescheduled to December 11, 2008;
ii.A Request For Employee Health Information form dated
February 3, 2009 completed by Mr. Valcourt?s doctor. The
form noted the presence of temporary limitations and/or
restrictions having a duration of three (3) to six (6) months.
It also indicated that Mr. Valcourt was in a rehabilitation
program and that he would be reassessed in four (4) weeks.
The doctor further advised that he did not anticipate
additional absences from work;
iii.A second Request For Employee Health Information form
dated March 3, 2009. The form documented two (2)
restrictions of a temporary nature. Mr. Valcourt?s doctor
did not indicate any future date for assessment and
answered negatively to the question whether his patient
was in treatment, or taking medications, that could affect
his ability to work; and
iv.An email from Mr. Valcourt to Ms. Anderson dated
March 25, 2009. Mr. Valcourt advised Ms. Anderson
that he had received her request for a physical demands
analysis but that he could not have it completed by
th
March 27, as his appointment with his doctor was on
th
March 30. Mr. Valcourt stated he would give the form
to the doctor at that visit. He added that he did not know
exactly when the doctor would complete the form. The
-34-
email concluded as follows:
st
?I am of the opinion that a return to work is to be April 1,
but must await confirmation from the doctor.
Barring any unforeseen complications I will be at the Stoney
st
Creek office at 7:30 a.m. on April 1 2009.?
[60] Mr. Valcourt did return to work on Wednesday, April 1, 2009, after having
seen his doctor on March 30th. He did not, at the time, have a medical note in
hand from his doctor declaring him fit to return to the job. On his return, Mr.
Valcourt contacted Ms. Anderson by telephone to advise her he was back in the
Office. On Mr. Valcourt?s evidence, she did not ask him for a medical note that
day. He stated that she broached the need for a note, and whether there were any
job related restrictions, in a later conversation that week. Mr. Valcourt advised
Ms. Anderson that he would get the requisite note at the time of his next doctor?s
visit. It also appears that Mr. Valcourt informed Ms. Anderson that being sent
home for failure to provide a note could adversely impact the insurance on his
mortgage. While the timing of this sequence of events is not entirely clear on Mr.
Valcourt?s evidence, it is common ground that Ms. Anderson permitted him to
remain at work to catch up on the backlog of emails which accumulated in the
period of his absence. She also instructed him not to do any work outside of the
Office.
-35-
[61] Mr. Valcourt subsequently provided the Employer with a medical note from
his doctor dated April 7, 2009. The note stated that Mr. Valcourt was fit to return
to work as of April 1, 2009 and identified three (3) restrictions.
[62] In the period material to this dispute, Mr. Valcourt was the Vice President of
OPSEU Local 270. He was also the Co-Chair of MERC. Mr. Valcourt advised
that he was involved in the opposition to the new log-on procedure at the local
level and that he had a telephone conversation with Mr. Blackmore concerning the
issue.
[63] Ms. Anderson testified that she asked Mr. Valcourt on April 1, 2009 whether
he had a medical note evidencing his fitness to return to work. It was her evidence
th
he informed her that he had seen his doctor on March 30 and had received a
verbal clearance to return subject to some restrictions, including one prohibiting
the wearing of a protective vest. Mr. Valcourt told her that he anticipated getting a
note from his doctor the following week. Ms. Anderson stated that, during this
telephone exchange, Mr. Valcourt also spoke of a financial problem involving his
mortgage and insurance coverage. She advised that this latter matter was
addressed at greater length in a telephone conference call later that week between
Mr. Valcourt, herself and a representative from Human Resources. Following her
st
, Ms. Anderson advised him that he could
discussion with Mr. Valcourt on April 1
stay in the office and catch up on four (4) months of emails. She prohibited him
from performing any work in the field and from driving a Ministry cruiser. Ms.
-36-
Anderson testified that she was not prepared to have Mr. Valcourt conduct any
audits until receipt by her of the appropriate medical documentation.
[64] During the course of her evidence, Ms. Anderson was asked why she did not
send Mr. Valcourt home on April 1, 2009, as she had done with the grievor, given
that he then was unable to provide a medical note certifying his fitness to return.
Ms. Anderson replied by noting that Mr. Valcourt had received a verbal clearance
from his doctor to resume work and that he was not on any medication at the time
which might affect his ability to work. She observed that the note dated April 7,
2009 confirmed Mr. Valcourt was fit for work as of April 1, 2009.
[65] Ms. Britton advised that in one (1) instance she was off work for three (3)
months on a medical leave. She was asked whether she provided Ms. Anderson
with a note upon her return. I recorded her answer as, ?Of course?. Ms. Britton
stated that the note in question cleared her to return to work.She agreed that the
provision of this type of note was standard practice after a lengthy medical leave.
It was her evidence that she had no issues with providing the note.
[66] Lastly, Ms. Anderson testified that she completed a performance appraisal of
the grievor in October, 2008. She stated she then told him that she thought he was
a good Auditor and was doing a great job.The grievor did not seriously dispute
this evidence.
[67] It is the position of the Union that the grievor was discriminated against and
harassed because of his membership or activity in the Union, contrary to article 3.2
-37-
of the collective agreement. Counsel argued that this improper intent informed the
decisions to change the grievor?s work schedule and to send him home after his
return to the York District Office from sick leave. I was urged to look at the
pattern of circumstances existing in this case and draw reasonable inferences that
the Employer was motivated by anti-Union animus. By way of remedy, the Union
asks for the following: a declaration that the Employer breached article 3.2; (ii) a
return to the grievor?s prior work schedule; and (iii) monetary reimbursement for
the money lost when the grievor was forced to leave the Office after his return on
August 18, 2008.
[68] Counsel for the Union made extensive reference to the facts of this case
during her closing argument. Her submissions may be summarized, as follows:
i.The grievor was actively involved in the Union and such involvement
brought him into conflict with Mr. Blackmore and Ms. Anderson
on numerous occasions. Reference, in this regard, was made to the
assistance the grievor provided to members in the grievance and
WDHP processes; his involvement at both LERC and MERC; his
comments at the Town Hall Meeting in November, 2007; his
opposition to the appointment of Ms. Anderson; his opposition
to the log-on procedure and the plan for temporary hiring of
Transportation Enforcement Officers; and his participation in the
Resolution forwarded to senior management personnel in May, 2008;
ii.Both the grievor and Ms. Britton had start times before 7:00 a.m. and
had such a schedule for many years, without any issues being raised.
Counsel noted that Ms. Anderson was aware of their hours from her
review of the work schedule of Auditors conducted prior to the
change. She submitted that it was not mere coincidence that these
two (2) vocal opponents to Ms. Anderson?s appointment were among
the very few employees negatively affected by the change to the
schedule;
-38-
iii.It was the submission of counsel that Ms. Anderson?s explanation
for the reason for the change in schedule was not sufficient to
demonstrate a legitimate business purpose. She referenced the
evidence of both the grievor and Ms. Britton that they performed
audits for a number of different operators outside of the business
hours noted on Ms. Anderson?s Memorandum of February
26, 2008. Indeed, counsel observed that, on the evidence, some
operators prefer early audits. She considered it material that
the Employer did not present any evidence relating to any
problems experienced with the prior schedule, including complaints
that Auditors were not available later in the day or that such
schedule led to an extensive backlog that could only be
addressed through the change;
iv.Counsel also challenged the process used by Ms. Anderson in
coming to her decision to effect the change here in issue. She
noted that Ms. Anderson failed to obtain input from both the
auditors and the operators being served. Counsel suggested
that the review of Auditor?s notes, as conducted by
Ms. Anderson, was deficient and amounted to a pro forma
exercise to give some credence to a predetermined plan. In
a similar vein, she argued that there was no evidence of an
abundance of overtime claims for Court purposes which
needed to be addressed through the type of change implemented
here. Counsel stressed that the only overtime claim presented
in this case was the grievor?s claim for one half (1/2) hour of
time, which was, in fact, made after the schedule was changed;
v.Counsel noted that the grievor returned to work within six (6)
to eight (8) weeks of his medical note of June 23, 2008 and
within the four (4) to six (6) week period set out on exhibit #7.
In substance, it was her submission that these documents did
provide sufficient information to the Employer as to when the
grievor could return to work. She stressed that the grievor,
in fact, did return within the identified periods;
vi.I was asked to conclude that the approach Ms. Anderson
applied to Mr. Valcourt demonstrates that she was inclined
to engage in differential treatment of the grievor. Counsel
observed that both employees are Auditors who returned to
-39-
work without notes following an extended medical leave.
In the case of Mr. Valcourt, he was permitted by Ms. Anderson
to remain at work, on the understanding he would subsequently
produce a note. In contrast, the grievor was sent home without
being provided with this option or the opportunity to perform
restricted work. Counsel submitted that the grievor and
Mr. Valcourt were in precisely the same circumstances. She
argued that an inference should be drawn that the differential
treatment of the grievor was motivated by Ms. Anderson?s
anti-Union animus;
vii.Counsel further submitted that I should reject Ms. Anderson?s
explanation of why these two (2) employees were treated
differently. In support of this submission, she referenced the
following: the grievor did maintain contact with Ms. Anderson
in relation to his medical condition by way of the medical note
of June 23, 2008 and the Request For Employee Health
Information form dated July 11, 2008; while Mr. Valcourt might
have confronted a financial issue if sent home, Ms. Anderson
made no inquiry to determine if the grievor would be similarly
impacted; Ms. Anderson failed to ask the grievor if he was still
on medication, or receiving treatment, that could cause
drowsiness; unlike the situation with Mr. Valcourt, Ms. Anderson
failed to obtain information from the grievor that would have
allowed him to work, subject to getting a later medical note; and,
lastly, there was no reason why the grievor could not have caught
up on his emails pending receipt of the note; and
viii.Counsel noted that the grievor felt fine on his return to work on
August 18, 2008, but became upset after his heated exchange
with Ms. Anderson. She further noted that the grievor was seen
by his doctor that day and was experiencing elevated blood
pressure. I was asked to accept the grievor?s evidence that
this was attributable to his exchange with Ms. Anderson and
that the condition delayed his return to work by a week.
On counsel?s analysis, the grievor would not have been off
work for this additional period, if Ms. Anderson had treated
him in a similar fashion to Mr. Valcourt.
-40-
[69] The Union relies on Re Horizon Operations (Canada) Ltd. and
Communications, Energy and Paperworkers Union, Local 2000 (2000), 93 L.A.C.
th
(4) 47 (Coleman) in support of its position. In accordance with certain of the
comments expressed in this award, counsel for the Union observed that anti-Union
animus is not ordinarily ?advertised? by Employers. Rather, such improper intent
must be ?pieced together from a pattern of circumstantial evidence?. Ultimately, I
was urged to adopt this approach to the circumstances of this case and to conclude
that the Employer?s treatment of the grievor was a contravention of article 3.2 of
the collective agreement.
[70] From the perspective of the Employer, this case is not about whether the
Employer properly exercised its management rights or whether it had a right to the
medical information requested. Rather, the threshold issue is whether the
Employer breached article 3.2. It is the position of the Employer that the Union
failed, in this instance, to present any clear and cogent evidence that anti-Union
animus was the prime motivating factor.
[71] Counsel for the Employer also made extensive reference to the facts during
her closing argument. Her submissions may be summarized, as follows:
i.Counsel acknowledged that the grievor was active in the Union
and that he voiced his opposition on numerous occasions to
management?s ideas, proposals and plans. She submitted,
however, that no evidence was presented to establish
that the Employer?s decisions were influenced by the
grievor?s involvement in the Union or that the Employer
had any animosity towards him. I was asked to accept the
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evidence of Mr. Blackmore and Ms. Anderson that: they
never treated the grievor differently because of his Union
activity; they did not discriminate against him; and his
involvement in the Union played no role in the disputed
decisions. Counsel observed that Ms. Anderson?s positive
appraisal of the grievor in October, 2008 is completely
inconsistent with the Union?s theory of the case. It was
her submission that the grievor?s allegations are totally
unfounded. While he may subjectively believe the
employer?s actions stem from his Union activity, there is
no direct or circumstantial evidence to support the assertion
the grievor was treated differently than other Ministry
employees;
ii.Counsel submitted that the change to the Auditors? work
schedule was not designed to target or negatively affect
the grievor. She stressed that the schedule was changed
for all Auditors in the Central Region and that the grievor
and Ms. Britton were not the only ones affected. Counsel
suggested it is not credible to think that the Employer would
adjust the hours of six (6) Auditors (later determined to
be four (4)) just to target and discrimate against the grievor.
In this regard, she noted that there is no evidence to establish
that Ms. Anderson knew anything about the grievor?s or
Ms. Britton?s commute times, travel arrangements, or residence
locations. In short, she did not know they would be
adversely affected. Counsel observed that Ms. Anderson
first learned about the grievor?s personal concerns through
his email of February 27, 2008 and that, in response thereto,
she offered to provide him with additional time to adjust
to the change. She argued that this offer is material, as no
other Auditor was offered such an opportunity. Counsel
stated that the change to the schedule was not extreme and
noted that auditors were given three (3) options to select from;
iii.Counsel submitted that there were sound operational reasons
to make the change to the Auditors? schedule. From her
perspective, it introduced a new efficiency in the sense it
served to better align the scheduled work hours with the
client hours. She observed that prior to deciding on the
change, Ms. Anderson reviewed the work hours of Auditors
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across the Central Region and audit notes from a representative
group of Auditors. Counsel argued that there is no reason
to doubt the results from Ms. Anderson?s initial review which
showed that ninety percent (90%) of audits began at 9:00 a.m.
or after. Reference was made to Ms. Anderson?s statement
that there is no business need for Auditors to commence an
audit before 8:00 a.m., and that it is important for them to
attend an operator?s facility during regular business hours,
as in that period there is usually someone on site who is assigned
to assist them. Counsel acknowledged that Ms. Anderson did
not engage in a detailed assessment of overtime claims resulting
from Court attendances by Auditors. She submitted that
while this was a secondary reason for the change, the adjustment
would better align Auditors? hours with Court hours, which
potentially could result in an efficiency by way of reduced overtime.
In counsel?s words, this was not a ?fabricated reason? for the
change. In the final analysis, I was asked to prefer the evidence
of Ms. Anderson on this aspect of the case;
iv.Counsel submitted that the Request For Employee Health
Information form dated July 11, 2008 was an insufficient
medical document to support the grievor?s return to work
on August 18, 2008. She noted that the form did not set
out a specific return date, rather, it identified a four (4)
to six (6) week time frame, and that it did not identify any
restrictions for accommodation purposes. Counsel argued
that, in the circumstances, Ms. Anderson did not have
sufficient information with respect to the following: if the
grievor was, in fact, fit to return to work; what his
restrictions were, if any, and whether he needed to be
accommodated; whether the grievor had been reassessed
by his doctor; and whether the grievor remained on
medication which had the potential to affect his safety
at work. Counsel submitted that, given the lack of
information on these issues, it was reasonable for
Ms. Anderson to require a further medical report
certifying the grievor?s fitness to return to work.
Indeed, she suggested that such a request was
absolutely necessary in order to not put the grievor
at risk. Counel argued that the need to take a cautious
approach was necessitated, in part, by the grievor?s
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failure to maintain contact with the Employer while off.
She considered it significant that the grievor just showed
up at work on August 18th, without giving Ms. Anderson
any advance notice;
v.Counsel referenced Ms. Anderson?s evidence that it is
standard practice to require a medical note from an
employee returning to work after an extended leave.
On her reading, the practice is supported by the
Employment Accommodation and Return to Work
Operating Policy. Counsel also noted that Ms. Britton
provided such a note on her return from a medical leave
and that she had no issue in doing so;
vi.Counsel submitted that the circumstances relating to
Mr. Valcourt were different for the following reasons:
Mr. Valcourt maintained contact with the Employer
while off and advised Ms. Anderson of his condition
and expected return date; while he did not have a
medical note on his return to work on April 1, 2009,
Mr. Valcourt?s doctor had provided a verbal clearance
on March 30, 2009; Mr. Valcourt was clear about his
limitations; and he informed Ms. Anderson that he was
not on medication. Counsel argued this information
allowed Ms. Anderson to properly conclude that
Mr. Valcourt could be assigned to office work subject
to the mentioned limitations. She asserted that, given
the lack of similar information from the grievor,
Ms. Anderson was not in a position to know whether the
grievor could be similarly assigned to desk work.
Counsel submitted that Ms. Anderson?s reasons for
requiring a medical note were not fabrications to cover
up a decision made for an illegitimate purpose; and
vii.Counsel noted that, like the grievor, Mr. Valcourt was an
active member of the Union. She considered it somewhat
inconsistent for the Union to rely on the favourable treatment
he received to support a claim that the grievor was the subject
of anti-Union animus.
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[72] For all of the above reasons, counsel submitted that both grievances should
be dismissed. In the alternative, she reserved the right to make representations as
to remedy, should I find in favour of the grievor on the return to work issue.
[73] The Employer relies on the following authorities in support of its position:
Re Kerna, 2002-0944 (Briggs); Re Dobroff et al., 2003-0905 (Dissanayake); Re
Damani, 1581-95 (Gray); OPSEU (Robert Anwyll) and Ministry of Government
Services, Labour Relations Tribunal No. 7/0007-85, March 29, 1989 (Picher);
London (City) v. Canadian Union of Public Employees, Local 107, [2004]
O.L.A.A. No. 556 (Snow); Expertech Network Installations v. Communications,
Energy and Paperworkers Union of Canada (Maddalena Grievance), [2003]
C.L.A.D. No. 202 (Keller); Re Horizon Operations (Canada) Ltd., previously cited;
, 1885-90 (Dissanayake); Re Amalgamated Transit Union Local 1587
Re Johnson
v. Greater Toronto Transit Authority/Go Transit, 1713-02 (Johnston).
[74] I agree with the approach outlined in the following excerpt from the Dobroff
et al. decision:
???direct evidence of anti-union animus is rarely available,
and is not necessary for the union to meet its onus.
Nevertheless, there must be sufficient evidence to establish
that the employer action was tainted by anti-union animus.
If such an animus can be pieced together from a pattern of
circumstantial evidence, the union would have met its onus.
The issue then is whether the evidence before me provides
a sufficient basis to draw the inference the union urges me to
make. That is, that the reasons the employer offered at
arbitration are mere ex-post facto justifications to cover up
a decision made for the illegitimate purpose of taking
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reprisals against the grievors because of their union activity.
In other words, I will have to be satisfied from the totality
of evidence that the reasons offered are fabrications, and
that the real reason, in whole or part, was an intention to
penalize the grievors because of their union activity??
??????????????????????...?
(page 57)
[75] After considering all of the evidence and submissions, I am unable to find
that the Employer discriminated against or harassed the grievor because of his
activity in the Union. I note, and accept, the following additional comment in
Dobroff et al.:
???, the fact that a union official carries out the duties of
his office with diligence and persistence ???., by itself,
does not justify an inference that any employer decision
which adversely impacts him, was tainted by an anti-union
animus????????????????????..?
(page 60)
I think that this observation is equally applicable to this case. There is no doubt,
on the facts, that the grievor aggressively represented the interests of his members
and that, on numerous occasions, he adopted and articulated positions critical of,
and contrary to, those taken by management. I sense that at times management,
and particularly Mr. Blackmore, may have been somewhat frustrated by the
grievor?s approach to certain of the issues outlined above. Nevertheless, I have not
been persuaded that the change to the Auditors? schedule, and the requirement for
the grievor to provide a medical note before he would be permitted to return to
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work, were motivated by an intent to adversely impact the grievor as a response to
his Union involvement. The reasons for this conclusion are set out below.
[76] I note the grievor?s evidence that the issue of starting times was first raised
by Mr. Blackmore at the disclosure meeting in mid-December, 2007. It was at this
meeting that the grievor first learned of the Employer?s intent to appoint Ms.
Anderson as the Carrier Safety Coordinator for the Central Region. While no
specific changes to the schedule were discussed at the meeting, it seems that the
Employer was at least considering the issue of starting times prior to the effective
date of the reorganization and, more importantly, prior to the grievor voicing a lot
of his opposition to Ms. Anderson?s appointment.
[77] In the subsequent Memorandum of February 26, 2008, Ms. Anderson
offered the Auditors three (3) options in terms of their hours, namely, 7:00 a.m. ?
4:00 p.m., 7:30 a.m. ? 4:30 p.m., and 8:00 a.m. ? 5:00 p.m. She also provided
them with a four (4) week period, prior to the implementation date, to make any
necessary adjustments. I find that in offering these options and delaying the
effective date of the change for approximately a month, Ms. Anderson was
attempting to minimize the adverse affect on Auditors in the Region. In my
judgment, it was the fair and reasonable thing to do.
[78] There is no evidence before me to indicate that Ms. Anderson was aware, as
of February 26, 2008, that the change in the schedule would adversely impact the
grievor. While she obviously knew of his start time, she did not have any
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knowledge of how the change would affect the grievor?s commute time or his
wife?s daily schedule. The same can be said with respect to Ms. Britton?s travel
time. On the evidence, Ms. Anderson first heard of the grievor?s concerns through
his email of February 27, 2008 and then later by his further email on the following
day. In the circumstances, I must reject the assertion that the change to the
schedule was made to target and punish the grievor.
[79] In her email to the grievor on February 27, 2008, Ms. Anderson offered the
grievor additional time, if needed, to adjust to the new schedule. This supports the
Employer?s submission that she was not out to get the grievor. Rather, the offer
suggests that Ms. Anderson was trying to make the transition easier for him, after
making it clear that the change was going ahead. When the grievor called Ms.
Anderson back, he was informed that she would give him an additional two (2)
weeks to plan for the change. I consider it material that the grievor was the only
Auditor who was extended this opportunity. The grievor and Ms. Anderson had a
subsequent discussion about the new schedule in April, 2008. During their
exchange, Ms. Anderson again offered the grievor additional time to make any
necessary arrangements. I am satisfied that she would not have made this offer, if
her real objective was to make the grievor?s life more difficult.
[80] It is apparent that out of all of the Auditors in the Central Region, only those
working out of the York and Peel District Offices were affected by the change. At
the time she announced the change, Ms. Anderson thought that only six (6)
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Auditors would have to adjust their schedules, three (3) in York, including the
grievor, and three (3) in Peel, including Ms. Britton. I note that Ms. Anderson
subsequently learned that two (2) of the Auditors in Peel had switched to later
hours some time prior to the change.After considering the matter, I think it
unlikely that Ms. Anderson would deliberately act to disadvantage five (5) other
employees in an effort to target this grievor. To use the words of Union counsel, I
remain unconvinced that Ms. Anderson was prepared to treat them as ?collateral
damage?.
[81] In my judgment, Ms. Anderson implemented the change in schedule to
address a legitimate operational need, that is, to better align Auditor?s hours with
the hours of the operators being served.She believed that the change would make
the Audit Unit more effective, while at the same time enhancing service to the
client base. Ms. Anderson decided to effect the change after a review of Auditors?
notes, which showed that ninety percent (90%) of the audits were commencing at
9:00 a.m. or after. Clearly, her review process was not perfect. The number of
notes reviewed was relatively small; she did not speak to Auditors to solicit their
views; she did not question operators about their hours and preferences; and she
did not engage in an extensive review of overtime hours claimed for Court
attendance. Nevertheless, after assessing all of the evidence, I am satisfied that
Ms. Anderson initiated and implemented the change for valid business reasons and
not to discriminate against, harass, or target the grievor. I note that the prospective
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change was discussed with Mr. Blackmore and that he approved of it. He testified
that there was a logical business rationale to alter the schedule. Mr. Blackmore
was unsure if he knew the grievor?s start time before the change to the schedule.
He stated that he was unaware Ms. Britton started before 7:00 a.m. On the
evidence, I am unable to find that Mr. Blackmore approved the proposal as a way
of getting back at the grievor. In the final analysis, this was Mr. Blackmore?s and
Ms. Anderson?s call to make in the exercise of management rights. While, in
retrospect, they might have sought more input from the employees affected, the
failure to do so does not render their decision unsupportable or invalid.
[82] I recognize that Ms. Britton was critical of management in general and Ms.
Anderson in particular in her email of December 31, 2007. As mentioned, she was
one (1) of the Auditors who had to change hours under the new schedule. I am
unable, however, to find that there was a connection between the two and that the
Employer sought to punish Ms. Britton for her outspokenness. An assessment of
her situation has not deterred me from reaching the conclusions set out above
relating to the grievor. To reiterate, I have not been persuaded that the Employer?s
decision to adjust the schedule was tainted by anti-Union animus.
[83] The grievor?s email to Ms. Anderson of June 23, 2008, advising her that he
would be off work for a period of six (6) to eight (8) weeks, concluded with the
following sentence: ?I will keep you apprised of my return to work status prior to
the expiry of this medical note?. In my judgment, the grievor did not honour this
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commitment and failed to keep Ms. Anderson informed as to his return to work
date. His doctor?s medical note of June 23, 2008 simply referenced a
recommended leave from work for six (6) to eight (8) weeks. Similarly, exhibit #7
spoke of limitations and/or restrictions which were described as temporary with an
expected duration of four (4) to six (6) weeks. The doctor also noted therein that
the grievor would be reassessed within this same time frame. On my reading,
exhibit #7 did not provide a clear and specific return date for the grievor. The date
of August 15, 2008, set out in Part A of the form, cannot be treated as such, as it
was written on the document by the grievor and not his doctor. The lack of a
specific return date explains, in part, why Ms. Anderson was surprised to discover
th
that the grievor returned to work on August 18.
[84] Ms. Anderson was concerned as early as July, 2008 about the possible need
to accommodate the grievor on his return to work. Her letter to him of July 3,
2008 speaks about their need to meet and develop an employment accommodation
plan. As mentioned, exhibit #7 cites temporary limitations and/or restrictions
lasting between four (4) to six (6) weeks and that a further assessment would be
undertaken. Ms. Anderson was provided with no information, however, as to the
results of any reassessment or as to whether the grievor needed to be
accommodated upon his return. As a consequence, it is entirely understandable
why she would insist on additional medical information before approving the
grievor?s return to his job.
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[85] Exhibit #7 also indicated that the grievor was involved in treatment and/or
taking medication which could affect his ability to work. As noted, the form states,
?Drowsiness possible with impact on his work safety?. Ms. Anderson had no
knowledge, as of August 18, 2008, as to whether this was a continuing concern.
Given the lack of any information on the point, I conclude that Ms. Anderson was
fully entitled to ask for some clarification by way of a further medical note before
authorizing the grievor?s return. In so doing, she was protecting the grievor?s
health and safety and was complying with her obligations under both the collective
agreement and applicable legislation.
[86] I accept that Ms. Anderson?s requirement of a note certifying the grievor?s
fitness to return to work was in accordance with her standard practice. In this
regard, I note Ms. Britton?s evidence that she had no difficulty with such
requirement in similar circumstances and that the request for a note after an
extended medical leave is standard practice. The Employment Accommodation
and Return to Work Operating Policy is also supportive of Ms. Anderson?s right to
make the request here in issue. I am not convinced that anything material turns on
the fact she did not immediately provide the grievor with a specific article in the
collective agreement or a policy on which she relied. I accept Ms. Anderson?s
evidence that the telephone exchange was heated and that she was not inclined to
engage in a lengthy debate with the grievor after telling him he could not return to
work without first providing a medical note.
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[87] It is clear that both the grievor and Mr. Valcourt did not have a medical note
on the very day they returned to work.Notwithstanding this one (1) similarity, I
find that the circumstances surrounding these two (2) employees are
distinguishable for the following reasons: unlike the grievor, Mr. Valcourt kept
Ms. Anderson apprised of his medical status during his leave of absence by way of
several medical notes and an email; Mr. Valcourt provided a return date in his
email of March 25, 2009 and informed Ms. Anderson on April 1, 2009 that his
doctor had given him a verbal clearance to return that day, with a supporting note
to follow; unlike the grievor, Mr. Valcourt did provide advance notice of his
intention to return on a specific date; the Request For Employee Health
Information form dated March 7, 2009 identified certain restrictions; Mr. Valcourt
was able to provide Ms. Anderson with an outline of his restrictions during their
discussion on April 1, 2009; there was no reference in the medical reports of Mr.
Valcourt receiving treatment or taking medication that could affect his ability to
work; the above mentioned Request For Employee Health Information form made
no reference to a need for a further reassessment; and Mr. Valcourt advised Ms.
Anderson of certain financial complications that could arise if his return to work
was delayed. While admittedly after the fact, the medical note of April 7, 2009
st
.
confirmed Mr. Valcourt?s fitness to return to work as of April 1
[88] Ultimately, I am satisfied that Ms. Anderson was in a much better position,
in the case of Mr. Valcourt, to assess whether he could be permitted to remain at
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work on limited duties pending a further medical note. In the circumstances, I
accept that Ms. Anderson had legitimate reasons for refusing to allow the grievor
to remain at work on similar duties. Simply put, there were too many uncertainties
about his fitness to return and of his need for restrictions. In the final analysis, I
have been persuaded that this lack of relevant information motivated Ms. Anderson
to treat the grievor as she did, and that her decision to send him home was not the
product of anti-Union animus.
[89] As noted earlier, Mr. Valcourt was also actively involved in the Union. He
held Union office and, like the grievor, had voiced opposition to the new log-on
policy. There is no evidence that Ms. Anderson treated him improperly because of
his Union involvement. Indeed, her treatment of Mr. Valcourt suggests that she
was prepared to look at the merits of each situation and to exercise her discretion
accordingly.
[90] For all of the above reasons, the grievances are denied.
th
Dated at Toronto this 8 day of September 2010.
M.V. Watters, Vice-Chair