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HomeMy WebLinkAbout2006-1932.Barillari.10-10-12 Decision en.n EiJJpIo)II!es Grievance Settlement Board smte mo 180 IJlndas 5t WesI TCJRJrm. QBiD IofiG 1ZB Tel (4-16) 326-1388 Fax (4-16) 326-1396 Commission de riglernent des griefs des~dela eor.onne lei ~ ClnI:arlo Ibeau mo 100. rue IJlndas Ouest TCJRJrm (0nIari0) IofiG 1ZB Tel: (4-16)326-1388 T~ : (4-16) 326-1396 GSB# 2006-1932 UNION# 2006-0211-0008 IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COlLECTIVE BARGAINING ACT BElWEEN BEFORE FOR THE UNION FOR THE EMPLOYER lIEAKING Before THE GRIEVANCE SETILEMENT BOARD Ontario Public Service Employees Union (Barillari) - aad - The Crown in Right of Ontario (MinisUy ofCommnnity and Social Services) Joseph D. Carrier Tim Hannie;m Counsel Ryder Wright Blair & Holmes LLP BarristeIs and SolicitOIs Ferina Mmji Counsel Minis1Iy of Government Services September 16~ 24~ October 6~ 8~ December ~ 10~ and December 16~ 2009; February 16~ March 23~ 24~ May 7 ~ 10~ June 3~ 14~ and lime 21~ 2010. U_n Employer Vtre-Chair -2- AWARD [1] I have finally to deal wi1h 1he merits of1he grievance ofMs.. Rosie Barillari alleging that her termination on October 30~ 2006 was wi1hout just cause_ The matter initially came before me in or about February of 2008; huwcYel~ several preliminary issues which arose in sequence ra:ther 1ban simultaneously required disposition by way of written award before 1he matter could proceed on its merits.. Coosequently~ 1hese pmceedings did not begin until September 2009 following which 1here were avpt.uximatP.1y 15 days ofhearing which concluded in 1he Ia:tter part of June 2010. [2] Among 1he :first of the preliminary ~ raised concerned 1bis Board's jurisdiction and 1he possible defenaI of 1bis grievance to a complaint pendine at the Human Rights Tribunal The following extmct fiom pages 1 and 2 of my decision on 1bat issue which was released on (J(" about AprilloB'-~ 2008 provicb an outline of the dispute which is now squarely before me :fm- detf"flTlination: "Bt!fOre me is the griemnce qf RosiI! BtuilItui dated October JQ, 2006 al/eging that she lIDS "dismissed without jrIsl cause" from her position m an Income Supporl Sper:iDlist willi the MiniWy qf Community and SociDl Services (Ontario). The letter qf tenrIinDlion from Mr. Rick Beaudumtp.llegiDnDl Din!dor (Ading) lIDS dated October 21. 2006.. The letter outlines a liImry qf behaviour which 1WIS' characII!rized m insubonlinate and/OF inappropriate.. The conduct related to the Griew1r's alleged failure to co-operaIe in providing medical i1ifonnation and/or aIII!nding for an intlepetuJenl medical examination ndevant to an absence or series qf absences .from 1WJri: The GrievOF. tJuough her Union. 11m Tf!lJIII!SIetl that this hearing btdiHe the Grievance .~1!1111!111 Board be dtifened pending the hearing qf a complaint wIUt:h 1WIS' fi/etl willi the Ontario Human Rights Commission by the GriePar on or about October 20. 2006. that is. jrIsl prior to her termination.. The Employer. '""I"~ by George Parris. tugIII!S that the malleT should proceed btifore the Grievance ,~emenI Board.. As at the last day qf hearing btifore me,. Counsel adWsed that the Human Rights Commission had not yet scheduled the malleT .fOr hearing but 1WIS' considering whether OF not to a:mIIIII! juristlictiDn. dismiss or dIifer the malleT to that bt;fore the GrietTrmt:e .~1!1111!111 Boarrl In the cin:umstDnt:es. the Parties mk that I tld!nnine: 1) my jru'Udiction to deal willi the Griew1r's wYust divnisml complaint and. in parlicu1ar. any issues which might arise ndevant to the Ontario Human Rights Code. -3- 2) Whether OF not to dIifer the malleT btifore me pending a decision by the Ontario Human Rights Commission crmceming the GIiewJr.I complaintfiled there.. My decision is set out at page 7 qftheAwarrl mfollows: In the cin::um.rtances btdiHe me,. the Union 11m been micent to clarify its inlent to my on dist:riminatory conduct. Howet1er. it 11m cmifinned its intent to bringjiHwanl etlf!IY mxument and to punue eR!IJ' issue 1II!CI!!SStUY to show that the GriI!vor 1WIS' II!nninaIetl without jrIsl cause.. FIuther. it 11m cmifinned that any rights which the GriePar might Iun1e willi respect to her termination 1IIfRIld not be 1IIIIiw!d. It is. tA-4inc. dear that the Union will be obliged to pursue and that this Board wiN be obliged to consitJI!r the Employer's conduct and the GIiewJr.I termination in the conIed qfpofl!nliaJ Wolation(s) qfthe Human Rights Code.. I conclude that this is an appropriaII!.fonsm to address those issues. Furlher. since the Commission 11m yet to cmifirm its inlent to proceed. I dirr!r:t that the malleT be scheduled to proceed MJOre the Griewmt:e SeIIlement Board.. " [3] At 1he time of her 1enrrinatioo, Ms_ Barillari had been employed wi1h 1he MinisUy of Comnnmity and Social ServilrS since September 15~ 1980_ Although 1he name of her classi:fication had been {"h~ :from time to time, her duties as an Income Support Specialist had remained largely 1he same :from 1he time she was initially hired Essen1iaUy~ Ms. Barillari was engaged in providing service and help to 1he disabled of Ontario_ Her principle responsibility was to interview and ~ people wi1h disabili1ies in Older to detf"flTline whe1her (J(" not they qualify for incmne or maintenance support based upon 1heir physicaL mental (J(" emotional issues_ Those matteIs would be considered in de1enrriniJle whe1her or not 1he applicant wooId qualify for support (J(" maintenance pmsuant to the Ontario Disabilities Support Program Act (1he ODSPA)_ [4] While I was not provided wi1h a Record of Fmployment for Ms. Barillari pre-dating November 2003~ it appears that she had since that time received five disciplinary sanctions wi1hin 1he 1bree year period 1Jeejnnine in November of 2003 and endine in April of 2006. The final discipline entailed a suspension of twmty (20) days lJeejrmine ApriI13~ 2006 and ending May 10~ 2006 inclusive.. It is SUIprising or more cmrectly disheartening 1bat an employee with -4- over twenty years of service would find heIself ICllllinated for puqKJrtedly unaccqJtable conduct over a relatively brief three year period Be that as it may~ 1he :five earlier matters up to and including the twenty (20) day suspension are not Jll~ before me :fm- detf"flTlinatiOlL Ra:ther~ 1hey fmm a bacbImp to 1he course of conduct which began immediately following her twmty (20) day suspension in May 2006 and ended wi1h her termination in October of that year. It was 1he Fmployen. view that Ms.. Barillari had developed a poor attitude in the wolkplace which exhibited itself in behaviomal~. She had not and was not responding to progressive discipline_ In effect, it was the Employa-s view 1bat 1he "grievor did not get it-. All Overview [5] The Grievor"s wotk record included a:five (5) day suspension in November 2005 and a twmty (20) day suspension which officially ended on May 10~ 2006. The conduct for which she was disciplined on those occasions included inappropriate inteIaction with her immediate Manager~ Ms. Catherine Mulhall, which cnlminatP.d in 1he Grievon. having approached her "manager in a manneI" 1bat has made her feel personaJ.ly 1breatened On two speci:fic occasions you grabbed her ann in a manner that she felt to be aggressive and quite inappropriate." Severnl months Iater 1he GrievOl" received 1he twenty (20) day suspension :fm- conduct which included: "veIbal and physical intimidation of an Income Support Cletk; hostile confumtation towards a cmmnunity college shvlPnt: firilure to provide ilppt.Up.iate service to a client; impeding the appeals process by behaving aggressively and failine to co-opemte with a Case ~ Officer; and firilure to follow directions fiom ~_ [6] Against 1bat bacbImp~ 1he Grievor was to return to wOIk: tium her twmty (20) day suspension on May 11~ 2006~ however~ she failed to return to wotk at that time ostensibly fOl" -5- medical reasons and continued absent thereafter for severnI mon1hs which culminated in her 1enrrinatiOlL It was the Fmploya"s initial position 1bat she had failed to provide adequate medical documentation to legitimize her absence in spite of severnI requests for that infonnatiOlL When 1he Grievor continued off work without providing the requested infmmati~ 1he Employer directed Ms_ Barillari to undergo an independent medical eyaminatiOlL Ms_ Barillari resisted 1he LM.E. and refused to sign 1he consent fonns required pOOl" to the examinatiOlL UItimately~ Ms.. Barillari sought to return to wotk on the basis of a medical note fiom her peISOII3l doctor dated July 208'- and indic.atine 1bat 1he Grievor"s cmulition involving nshinglesn was sufficiently under control that she cooId return to wotk on August 7~ 2006_ [7] Since 1he medical note did not speak whatsoever to the initial cause of 1he Grievor"s absence :from May 11"~ 1bat is stress and anxiety related to the workplace, the Employer declined to put Ms. Barillari back to wod.. It cont1mrn to seek verification: L confinning that 1he stress and anxiety suffered by 1he Grievor which precipitated her absence :from May 11th was such that it legjtimatdy impeded her ability to work; 2_ 1bat the stress and anxiety :from which she suffered and which can~ her to be absent fiom work had been treated and was resolved such that Ms. Barillari would not pose a health risk to herself and o1hers should she return to her regular duties. When Ms_ Barillari refused to co-openIle in any way wi1h these demands, 1he Employer considered her conduct insubordinate and she was 1~1.llillatM [8] FOI" her ~ Ms.. Barillari took: the position 1bat the consent fonns for the !ME were vague and inappropria1.e to 1he circumstances and could result in an extensive medical eJ[3IIIination beyond what was necessary fOl" 1he Employer's pmposes and constitute a violation ofher right to privacy_ -6- [9] In addition to her challenge to 1he consent fonns~ Ms. Barillari challenged 1he III3IIIteI" in which she had been treated in 1he work place.. In particular~ it was her view that she had been the subject of a conspimcy aJIIOJlf')d severnl past ManaUJS~ her cmrent Manager~ as well as 1he Regional Dira..1ut._ It was her view 1bat she had been targeted for ICllllination and 1bat the Employers oondnct entailed violations of the Human Rights Code. She IuuL she believed, been discriminated against on the basis of disability or handicap~ creed and religion, origin and age.. Further~ it was her position 1bat 1he Employer's conduct, in particula:r wi1h reference to her 1enrrination, was an unjustified reprisal against her bPr.aIl~ of grievances she had filed in 1he past as well as her application to 1he Human Rights Commis.~ion alleging discrimination by 1he Employer wi1h respect to her employment. Ihe Evideace [10] Ms. Catherine Mulhall was 1he Grievor"s direct Manaur in 1he Employer's St. Catherine's office at 1he time 01" her ICllllination. Ms.. Mulhall had assmned that position in lime 2005_ She ~ in :fact, 1he Manager who had felt "peIsonally tlnca1cued1l by the Grievor"s conduct in 1he Iatter part of 2005 and for whi~ amnnP}'t other 1frinrJ-.~ Ms. Barillari received a :five (5) day suspensiOll. She was also her Manager at the time of her twenty (20) day suspension as well as 1he ICllllination. Discipline prim" to lime 2005 which included a two (2) day suspension in 2003~ a :five (5) days suspension in early Janumy 2004 and a :further 1bree (3) day suspension at the end of January 2004 all :fm- inappropriate conduct involved Ms.. Mulhall's predecessors_ None of 1hat discipline was grieved although Ms. Barillari had been a union steward in recent years and was well familiar with 1bat process as well as aIbitmtiOll. -7- [11] The absence which n ltDnatdy precipitated 1he Grievor"s IbI..ljnation began at the time she was SC".heduIed to return tim:n her twenty (20) day suspension which had officially ended on Wednesday~ May 10~ 2006_ Un:fortunateIy~ 1he power failed that day in the St ~ building which hoosed the Employen. offices.. Since it appeared that the mrr.hanical failure which can!i:PJ'i 1he power outage could not immediately be repaired, aside tim:n a skeleton star( employees were ins1ructed on leaving wmk that night 1bat it wooId not be business as usual until 1he following Monday. Since Ms. Barillari was not scheduled to wotk untilThursday~ 1he day following 1he power outage, she was unaware of the problem. Consequen1Iy~ ra1her 1ban waiting and sendine her home on her :first SC".hMuled day back to wad, Ms_ Mulhall phoned 1he GrievOI" 1bat Thursday morning, advised her of the power problem and ins1ructed her to stay home until 1he following Monday_ Fm1her~ by letter some days earlier~ she had ins1ructed the Grievor before starting wmk to meet with heIseIf and the Program M~~ Pat Schlett, to review the "Standards of Conducf'. Ms. Barillari Wstified 1bat she was upset by 1bis turn of events :fm- a DlIIIIber of reasons: L When she had received 1he written advice of her twmty (20) day suspension approYitnately one month earliel"~ 1he Fmployer had outlined in considerable detail its expectation of her with respect to her future conduct and also included a copy of its IIStandards of PeIsonaI Conduct'" Policy docmnent with 1he letter_ 2_ Furthennore~ 1hey had been carefully reviewed wi1h Ms. Barillari during 1he interview with her Program Manager prior to 1hat suspension. 3_ Ms_ Mulhall had sent her a letter cllllfillllillf her return to wmk dare following that suspension and ins1ructing her 1bat upon her report to wmk she was :first to attend a fiIrther meeting wi1h her Program Manager who would again review 1he Standards of Conduct Protocol with her. 4_ The Grievor felt 1bat 1he Employers efforts wi1h respect to the Standards of Conduct Protocol were lIover:kill1l to which she took offence. 5_ Upon receiving 1he call fiom Ms. Mulhall on 1he moming that she was to have reported to wad, Ms.. BariIIari, already sensitized oonceming her return to wad, fdt stricken to be told -8- not to report mdil the following Monday and perhaps reminded again of 1he pre-wOIk: meeting. AdditiooaUy~ she felt discriminated against since she undeIstood 1hat most staffhad been advised the previous day~ 1bat is earlier 1ban her~ of 1he office closure whereas Ms. Mulhall's te1qilione call had come in non-wOIk: hours and only moments before she was ready to leave her home in Niagara for wOIk: in St. Ca1herines. 6_ Rightly 01" wmngIy ~ dements led Ms. Barillari to believe she was being mistreated and discriminated against [12] Shortly after that morning p..one call, at approxirnatdy 9:30 8..11L~ Ms.. Holly Olexy~ a co- wodrer and favoored union steward of the Grievor~ anived at her home to meet wi1h her to review papeIS relevant to a potential Human Rights Complaint. Although 1bat visit was to have taken place after wotking homs~ it had been resc.hP.dnled to the day time as a result of the office c1osure_ That resc.hP.dn1ine according to Ms. Olexy~s 1P.dimnny took: place the pOOl" evening when Ms. Olexy herself was sent home.. The GrievOl" was lDlClear on 1he 1imine of that reschedn1ine. In any event, the faulty mechanical problem wi1h the h~ system was cmrected earlier 1ban expected AccoIdingIy~ Ms_ Mulhall contacted Ms. Barillari 1bat same afternoon 11mrsday~ May II1h, shortly after:five o'clock while Ms_ Olexy was still at her home. On 1bis occasion Ms. Mulhall advised 1he Grievor 1bat 1he problem had been cmrec1.ed and to report fOl" wotk Friday~ 1he next day. Again she reminded Ms_ Barillari that 1hey would meet before hand wi1h Ms.. Pat SchIett, 1he Program. Director_ [13] Ms. Barillari did not report for work the next morning as ins1ructed; indeftl~ as events evolved she never returned to wotk again. On 1he Friday~ May Ijh~ she phoned Ms. Mulhall and told her 1hat her te1qilione call 1he previous day advising her to report :fm- wotk had been most stwssful and that she felt like 1here was a "vice on her neck: and shooIders"_ She advised Ms. Mulhall that she was going to see a doctor. She was instructed to provide an update concerning her status and return to work. She was not at 1bat time asked for a doctors note. In 1he -9- ~,,1;, ,.e~ Ms_ Barillari did not tell Ms. Mlllhall1bat she had seen a physician on May 8. or 1hat he had suggested and she had sc.hP.dnled a fur1her appointment wi1h her peISOII3I. doctor fOl" May 1~. Indeed, aside tim:n 1bat brief conversation on May 12fh~ Ms. Mulhall had no reason to believe 1hat 1he Grievor was 01" had been suffering tim:n any particular malady during or prior to her suspension and had no reason to believe 1here was any impediment to Ms. Barillari's return to wm::k at its conclusiOlL [14] When the GrievOl" had not called 01" reported to wOIk: Monday~ Tuesday or WednP.Sday 1he following week, Ms_ Mulhall phoned the GrievOl" to inquire as to her status and when she expected to return to work. When Ms_ Barillari told her of1he May 1~~ doctor's appoin1ment, Ms. Mulhall asked 1bat she be kept up to date and that she woold send a Health Infonnation Fonn by PuroIatOl" to be completed by 1he GrievOl" and her doctor. Ms. Mulhall followed up wi1h a letter 1he same day confinning 1he discussion and enclosing the Hea1th Infonnation FOIIIL In 1he letter she addressed 1he following matteIs: "Pleme Iun1e your medical prodilioner OF physiciDn complete the enclosed form. specifically addressing any special aa:ommodaIions that may be requin!d to assist you in rebIming to your duties m Income Support SJ-"inlist lfthen! is a chargeJilr this service,. please Iun1e the inwHce jiHwarrled to my atIenIion ... ..J am ahIo Tf!IJJII!SIing that you provitJI! me in advance qf the dale and time that you intend to reIum to the lI'Dni- place m I want to f!IISJU'e that I am available to meet willi you IIJ1t1II your reIum._.to nwiew the list qfcondilions qfwhat is ~ qfyou m part qfthe ODSP team_.. " [15] On May 18. Ms_ Barillari left a voice mail message fiH:" Ms_ Mulhall 1bat 1he doctor had fP.!i:r.heduIed her appointment to May 308'-. In the ~,..;".e 1he Employer had been provided wi1h no infonnation whatsoever save for 1he Griev(J['s own assertions that her absence tim:n wm::k was necessary for medical reasons. -10- [16] Finally~ on June ~~ 1he Employer received a completed Health Infonnation Fmm dated May 30~ 2006 signed by Dr_ B. Rosenberg, the GrievoI"s personal physician.. Ms_ Mulhall was not satisfied with 1he cmtent of the fonn :fm- various rea....nns but paid the doctors invoice in any event As to 1he content of 1he fOIlll, it indi(".ated that the Grievor"s absence :limn work was due to "work place indnr.P.Cl stressfanxiety" _ Aside fiom the absence itself, 1here was no work reIated limitation 01" restriction identified However~ as to the expected duration of 1he limitation 01" restriction 1he doctor indicated that it was temporary "probably until a resolution of current work place problems are sett1ed Until July 19106"_ Fm1hennore, 1he doctOI" indic.a1P.d that there might be further absences fiom wotk "posst"bly~ depending on the outcome of various hearings". Finally 1he doctor indicated 1bat in 1he event of a contimrine absence his next as.~1TIP.IIt would take place "after hearings of mid JulylO6"_ [17] By way of explana1i~ during 1he course of 1he Grievor"s absence :limn wod: she had been participating intermittently in mbi1Ia:tion hearings exploring complaints of Imas-QJlent and discrimination :filed by her in February and December of 2002. The:final 1bree days of those pmceedings were to take place on July 12"~ 13th and 18th of2006. AccoIdingIy~ it was unclear as to whether 01" not 1he wotk place stress to which 1he doctOI" referred reIated to current matters at her office involving Ms. Mulhall or 1he stress and anxiety induced by 1he ongoing mbitm:tion hearings. Clearly~ the potential duration of her absence was reIated to 1he conclusion of the hearings as 1he Grievor confinned in her testimony_ However a definite retmn date was left blank bPr.aIl~ "I did not know when I could retmn to work". UnbeIrnownst to the Employer~ Ms. Barillari made a follow up appointment wi1h her doctOI" for July 1~ or 111'- following the conclusion of the hearings_ -11- [18] After COIISIlttme wi1h her Hllman Relations Department, Ms. MuIhaU addressed a fur1her letter to 1he Grievor requesting that she have her doctor Rosenberg provide iufuumabon supplementary to 1he lDF Fmm of May 308'-. It is my view that the Grievor"s failure to adequately comply with 1he request set out in 1bis letter is critical to my de1enrrinatiOll in 1bis matter_ AccontingIy~ I have reproduced below 1he adlldy of1hat letter_ "Dear Rosie: Please provide Dr. Rosenberg willi this letter and the atIDt:hments: the Income Support Sper:iDlist job specifiL;aJion and the previmaly comp/etI!d Health hif'onnation Sheet.. We mk that Dr. Rosenberg respond to the questions within this letter willi iIiformation we feel would be critical to .facilitating supportfOr a timely mum to the worIplace. We would IiAE thesefonns reIumetl prior to July 7. 2006. InsInIcIions to Dr. Bruce llDsenbeIg: 1Jwmk youfor comp/eIing the Employee Health hif'onnation Fonn. dated May 3Q, 2006. fOr Ms. BarilIari.. .If. nMew qfthe Health hif'onnation FtmII 11m hift the Employer with a number qf questions and serious ctJIICI!mS rq;uuTmg Ms.. BtuilItui's health and absencefrom 1WJri: I amfollowing up willi you in orrler to untlersIImd some qf the COIIfIIII!IIIaT you included in your T'l!!SJ1OI'SI! and to dtA"".;,.e whether Ms. Barillari 11m any specific mum to wad OF employment ~ 1II!!f!.Ids related to a medical condition OF disability. The MmisIry qf Community and SociDl Services is cummiIIed to providing employment ~,.., and early mum to wad support to those employees whose illness. i'!ftuy or disability qffeds their abili1;y to meet job-reIated requiremenIs. Our employee assistance pmgram tdfen cmifidential aa:ess to iIifonnation. counselling and nifenrzI SI!I'Yices and the supplementmy health pravisions qfthe employee benrJiIs p1an]1Ft1Vidr3 willi the cost qf a wide wuieIy td health SI!I'Yices. ~ As you may blow. Ms.. BarilIari 1Wris m an Income Support Sper:iDlistfOr the Ontario Disability Support Program (ODSP). 11Itn1e atfDched a job deJcription.fOr your iIiformation- 7JIe major tasJc for the employee is to regularly meet willi clients or RII!IIIben qf the public to deII!rmine eligibility and ]1Ft1Vidr3 iIifonnation. adWce. and assistance to dienIs.. CIuR!III SibuIIitRI: In the metlical certifica1e dated May 3d". 2006. you htnJe i1u/irnt-1 that Ms.. BtuilItui is unable to mum to wad m a result qf 'worI:plaa! sIn!ss and anrieIT. You slaIetl that Ms. BtuilItui is not underlaIting any tn!atment or ..-lirntinn that would impact on her abili1;y to mum to wont. YOfU TI!SJlOfISI! also indicates thatjiutJler absence am be anIicipaIed pending the ouImme qf a hearing on July 19. 2006. T1Iis is in rrifenmce to a hearing into the employee's griewmcer. wIUt:h may IDlE SI!tlf!IUl1lltHll1u btifore the parties are made awtBI!' qfthefinal determination tdthe hearing. -12- llapIrsIftR'IlI.flllWllllilm To msisl the ministry in evaluating the needfor absenceftom the wtripIace. dePeloping a reIum to lI'lri- plan and in exploring aN options for UJlP'UP'iate ~. please answer the .fOllowing questions: 1. An! JUl the primary treating physician for this empIoyee.fOr the condition qf wrripIace induced stress and anrieIy? (Please cin:le Yet or No) 2. An! there other heaIIh CLUe providers (eg.. specialist physicians. t&,~ eIc..) that 1IIOfIId be able to offer addiIionaJ insight on the amditiDn. functional limitations. prog1IOSis and opIions.fOr accommodation? 3. In relation to the ~'S cunmt absence from lI'lri- m a result qfworlrplace intbu:ed stress and anrieIy. please identify the specifU; medical restrictions or junctiDnallimilDlions that are pre:venting Ms.. BtuilItui'S attendance at 1WJri: 4. An! you able to provide a prog1IOSis at this time? Ifso. please describe clearly. ifnot. please dacribe when you expect you will be able to provide a prog1IOSis? 5. Htnle you Tr!JCOlIIIIII!I a treatment plan to the employee? Please circle Yet or No. If yes. is the treatment n!tjJIin!d to assist the employee in reluming to lI'lri- or in attendance at won\:? Please circle Yet OF No. 6. An! there any ~ or 1IIOTIpIat:e supports that. in your opinion. couldfacilitnfp Ms.. BtuilItui'S reIum to won\:? -13- 7. Please provitJI! your opinion qf an erpected mum to wad date. willi orwilhout at:COIIfIIIOdat? 8. Please provide on any other relevant i1iformatiDn that may be qf assistance to US' in exploring mum to wad and any medical ~-. in the 1IIfripIace.fOr this employee. Physician~ Name: SigRaJure: Dale: Thank you.fOryour assistance.. Please provide your Tr!:SJ1OI'Se to Catherine Midhall. Income Suppmt Manager, Ontario Disability Suppmt Pirwww, l1L1milton/Niog llegiDnDl 0Jfice- Any changes related to the pnwirion qfthis i1ifonnation should be imloia!d to my atIenlion at the atltlrev abmJe.. lfyou htnJe any questions about our request.fOr ifdimnation. please conIDcI me at (905) 688-3022 ErL 60228. Sincerely. Catherine Mulhall Income Supporl Manager" [19] I have reviewed and considered the questions outlined in the Employers letter of June 14~ 2006. I am satisfied that the earlier IllS FOlIO. of May 3(fh was inadequate and that the Employer had a legitimate interest in ~ :fm1her clarification. In particula:r~ in 1he GrievoI"s absence 1he Fmployer was obliged to male other anangemr...ls to cover her nonna! wod:. as.<rienmen1s. Furthennore, while absent at 1bis time~ 1he Grievor was maintainP.CJ, if not on paid leave at the -14- Employers sole expense at least on short tenn disability payments pursuant to heaI1h and welfare benefits available to provincial employees_ As to 1he substance of 1he inquiry ~ it does not seem to challenge 1he doctot's May 3cfh report confinnine the Grievor"s need to absent :from work; ra:ther~ it pursues an inquiry as to whether 1he Grievor"s problems might be aIlevia1ed 1brough some kind of accommodation in 1he workplace. In essence, it is cbigned to :find a way to have 1he Grievor return to wOIk: by alleviating what ever stresses might be shmdine in 1he way_ [20] AccoIding to Ms. Barillari, she did not act upon 1bis letter when she received it 01" before 1he July jh date as requested by Ms.. Mulhall She believed the Employer would have known fiom 1he May 308'- Hea1th Infonnation Fonn 1bat she wooId be ~ Dr_ R.osenbeIg after 1he July 1~ hearing date.. AccordingIy~ she did not raise 1he matter with Dr_ R.osenbeIg when she next saw him on June 2(/- but did bring it to his attention at her appoin1ment on July 20~ 2006_ [21] In the ~~ when Ms_ Mulhall had not heard fiom 1he Grievor by July jh she wrote her again on July 13th indi(".afine her desire to return Ms. Barillari to wotk subject to necessary limitations and wi1h whatever accommoda1ions might be deemed appt.up.iate_ She asked Ms. Barillari to contact her immediately "to discuss the delay and to arrange when 1he documents will be providedn _ Coincidently and petbaps 1he leUe1s crossed in the mail, Ms. Mulhall received a letter :from a Mr. Pierre Ouellette, a lawyer and IDeIIIber of the Mouradian Group~ wherein he enclosed a fiIrther copy of 1he same May 3{ft HeaI1h Infomudion Fonn.. 1here was nothing fiIrther fiom 1he Grievm" at 1bat time_ In 1he circumstances~ 1here was no contact or fiIrther infonnation provided by 1he Grievm" fiom June r up to and including July 14. and 1hen only a repeat, through Mr_ Ouellette~ of1he same form which had been provided on May 3{ft_ -15- [22] The Grievor testified that fundamentally she did not IqJIy or act upon 1he June 14'111etter 01" 1he July 13t1lletter bef-;an!i:P. she had an appointment wi1h her doctOI" for July 2~_ Additiooally~ she took: issue with 1he Employer's letter :fm-1he following reasons: L It asked 1bat 1he IqJIy be provided by July 7. whereas 1he Hea1th InfOIIDation Fonn provided to 1he Employer had indicated 1bat she would be seeing her doctor sometime Iater~ that ~ after 1he July 18th hearing. 2_ The letter enquired regarding possI"ble accommoda1ion needs whereas 1he Employer had not in her view responded appropriately to her request fOl" accommoda1ion of needs which she had identified in 1he past 3_ The Ietter suggested to the doctor 1he availability of 1he Employee Assistance Program and Refenal Services; whereas, she had her own doctor and cooId access refenaIs 1broogh him. 4_ Finally~ she took exception to 1he fact 1bat 1he letter and questions infem:d that she had a perceived disability whereas her own doctOI" did not write or suggest that she needed help_ None of1hese concerns were conveyed to 1he Employer and indeftl1he GrievOl" did not make any att~. ....1 to contact Ms_ Mulhall in response to 1he July 13t1lletter_ [23] From the Employers standpoint, Ms. Mulhall was beside heIseIf. The Grievor had been off wotk since April 12th 1he bq;nnine of her twenty (20) day suspension. Due to confidr.ntiaIity concems~ staff had not been infmmed of 1he nature or basis for Ms. Barillari's absence during 1he suspension. Furthermore her absence canied on through much of the SllI11IIIeI" when 1he cIepar1nKD was short staffed thereby canliOine DlDI3le difficulties in 1he office.. Furthennore, Ms.. MuIhaU was frustmted upon receiving a duplicate of the May 30th Health Infonnation Fonn after having gone to great lengths to identify to the Grievor 1he need :fm- additiooal infonnation. In effect, by 1bis time the Employer was of 1he view 1bat Ms. Barillari was absent tium wotk wi1hout medical substantiatiOll. [24] In the cinmnstances Ms.. Mulhall consulted with both her Hmnan Relations Department and the Employee Relations Department. It was detennined that a fiIrther letter be acIcIwssed to -16- 1he Grievor olltlinine the Employer's concerns and requesting that she submit to an independent medical eJ[3IIIination to support her ongoing absence_ The authorization for the Employer to direct such an eramination is set out in Article 44..9 of 1he Parties' collective agreement as follows: 44.9 Where,. for Tf!DSOfIS qf health. an employee is frequently absent or unable to perJiHm his OF her duties. the Employer may require him OF her to submit to a metlical examination at the erpense qfthe Employer. " [25] At or aboot the same time Ms_ Mulhall was composing the July 2rJh 1etter~ Ms.. Barillari was attending at Dr_ Rosenberg. Finally~ she showed him 1he lime 14th letter and enclOSlJWS but instructed him not to complete 1he fOllllS.. Indeed, produced in evidence was a copy of 1he June 14t1l1etter with the doctor"s handwritten note 0Il1he face page stating "Rosie did not want me to complete 1hese fonns July 20/06 BR"_ The GrievOl" testified that she did not recall why at 1he time she did not want Dr. Rosenberg to complete the questionnaire. However~ she did have him provide her wi1h a doctor's note dated that same day stating that Ms.. Barillari nis recovering tium shineJes. She is not yet fit to return.. Retmn to work date August 7 ~ 2006"_ According to her 1P.dimnny~ 1he Grievor developed shineJes during her absence fiom work and they had reached 1heir height in mid June. They were particularly bad on 01" about lime Igfh or 20" when she saw her chimpIactor who diagnosed her condition and advised her to see her family doctor_ For that reason she saw Dr. Rosenberg on June 26"-; however~ she did not address the lime 14" letter with Dr_ Rosenberg at that time nor did she provide 1he Employer wi1h infonnation concerning 1bis new condition. Instead, she waited until July 2rJh and, ra:ther 1han replying to the June 14t1l1etter~ she provided only 1he doctor"s note concerning shingles.. Again, ra:ther 1han sendine 1he docmnents heIseI( she had her independent Iawyer~ Pierre Ouellette deliver the note direct1y to 1he St. Ca1herine's office_ -17- [26] The letter of July 11fh addressed to Ms_ Barillari provides a reasonable snmmary of 1he e:xchan~ between the Employer and Ms_ Barillari fiom May Ith when she was to have retmned to work and July 2oB'-~ the date of 1he letter. It is also 1he :first time 1he Employer requested an !ME and I have~ thacfuu:~ IqJlicated 1he letter below_ "Dear Rosie. This letter is in regard to your continrII!tl worlrplace absence m well m your failure to R!S]JOIIIl to the MiniWy's Tf!IJJII!SI for .fiuther i1ifonnation reganling your absence and wrripIace IimifDliDns and resIricIiom.. You hat1e been absent.from the 1IIOTIpIace since May 12. 2006. Upon the MiniWy's TI!lJIII!SI.fOr i1ifonnation ,q;ruJing your absence m well m any worlrplace resIricIions and limitations. JUl supplisl a copy qfthe health iIiformationjimn dated May 3d". 2006from Dr. Dunam. Thejimn i1u/irnt-I that JUl WDE' absent.from the 1IIOTIpIace m a n!SIIIt qf "wrriplace induced stress and anxiety". YOIU" physician ;"JirntM that your condition lIm' Iih!ly lemportuy. and that JmlllVDflld possibly reIum depending on the outcome qfyour grievance hearings in July. As the iIiformation provided 1WIS' i1mdficient. and did 1IOt amtain the 1II!CI!!SStUY specifia reganling your IimifDliDns and resJricJions. a second Tf!IJJII!SI.fOr i1ifonnation 1WIS' made on June 1"'. 2006.. YOIlfailed to provide any iIiformation by the allotfI!tl July 1" date.. Furthermore. JUl failed to amfDcI the MiniWy to either seek an exIen.rion to R!S]JOIIIl or to erpIain why JUl WDE' JIIIIJble to respond to the Tf!lJJll!Slfor i1ifimnation- ConsequI!nIly. I.fOIIowed up with you on July 1~ and asla?d JUl to conIact me willi an explanation for your failure to R!S]JOIIIl to the n!IJUI!Sl for i1ifonnation in support qf your absence.. On July 11". Mr. Pierre Ouellette.. Senior Counsel for the Mouradian Group had deliw!red a pac/lDge on your behalf- The package induderl the original May 3'" health i1ifonnation jimn .from Dr. Duncan (sic Dr. Rosenberg). Howet1er there lIDS nothing in the package that puI]JOI1ed to specifically R!S]JOIIIl to my June 14'" n!IJUI!Sl.fOr i1ifimnation- In the circumstances. the i1ifonnation submitted to daII! is 1IOt SJdficient to support your ongoing absence. nor does it assist the MmisIry in 1IIIdentanding the I!XpI!Cled duration qfyour absence or your 1IIOTIpIace limitations and resIricIiom.. As weH. 11IIIISt remind you that the MiniWy is not in a position to deal willi a non-OPSEU I:Jmxaining unit Tf!!JNf!Sl!IdaJ such m Mr. lJue1/pItp Giwm your history and invoh1ement willi OPSKU and my previous iPdi~ to jIOfI. I InIst you are tnmn!' that m a I:Jmxaining unit member the MmisIry is obliged to deal directly willi JUl 'q;ruJing ongoing 1Wri iuIEI (or with your OPSKU Tf!!JNf!Sl!IdaJ in specific circumstances). and not an exIemal agent.. Please be.forewamed that the MiniWy will "!fUse to deal with Mr. lJue1JetII! or any other exIemal Tf!!JNf!Sl!IdaJ in the.Jidure- Giwm the CIUn!IIt lade qf any insighquI iIiformation reIating to your absence and in the interest qf .facilitating a sqfe and productiw! reIum to the workp/ace. it is essential that we receive comprehensille iIiformation m soon m possible. AcconlingIy. the MiniWy retpIiTe3 you to attend an indI!pendent metlicall!XDlllination (JME). Under Article 44.9. the employer has the authority to n!IJUf!SI this I!XDIIIination to subslanIiaII! a period qf absence.. The /ME will be conducted tJuough a neutraI and objectiw! thinl party /inn by the name qf Yocational Pathways and will be made amiIable to you in the St Catharint!.'l area.. The cost qfthe /ME will be cotTf!Tl!d by the MiniWy. Enclosed are two consent.forms for your sigrIalure.. The first document acknowledger your ug...-ent to allow the MiniWy to pnwitJI! your personal conIDcI iIiformation to the physiciDn .from YocaliDnal PatIrways.. It also acknowledger your ugdJfll!lft to directly provide the physician -18- with any ndevant doasments that may aid in the IME. Th.ese doc:umenIs will not be released to the employer. The Doctor will conIacI you and outIine any documentation they feel is 1Il!.CI!S.'UUY to prepare.fOr the assessment. The employer will ahIo be providing the Doctor willi bat:/q:round and other iIiformation 1Il!.CI!S.'UUY to facilitate the IAIE. such m your job descriplion.. Upon comp/eIion qf their emminationIlL'lSI!SSIIII!I the Doctor will prepare a n!JXIrl. AhIo enclosed.fOr your nwiew and sig1Iature is a letter qf consent in wIUt:h you agree to allow the Doctor to reIease a copy qftheir n!JXIrl to the MiniWy. The consent allows the report results to be shared with Pmdine Barr. Employee Relations Adrimr, who will accept the n!JXIrl on behaJf qf management. lfyou Jun..e any other concems SJU7VJIIIding the /ME J1TOCI!SS. pIeme CORtact me.. P!eme Tr!SJ1fHId with aN the enclosed documentDtion by 17Iun:day. July 21". 2006. Pleme be adWsed that the CDRSI!IJIII!IIC qfnot talring part in the /ME may include the termination qfyour enIitlement to side /etn;e and/or a det:lamIion qf abandonment made m per Set:lion 20 qf the Public Service Act if you continue to remain absent without srdficient medical substantiation. " [27] Having received Dr_ Rosenberg"s medical note respecting slrineJes in the ~~ Ms.. Mulhall wrote again on July 24th aclnowl~ 1bat note but confinning the need for 1he Grievor to attend an independent medical P-YanUnahon. She confumed again the need for the Grievor to respond wi1h 1he documentation on 01" before Thmsday~ July 2J'h and enclosed two fur1her copies of the Consent FOIIIIS for Ms. Barillari's sienahrrt:.. She closed her letter by inviting 1he Grievor to contact her wi1h any questions 01" concerns. [28] There followed an exchange of correspondence between the Grievor and Ms_ Mnlhall I do not propose to replicate all of 1bat conespondence; however~ the :first reply by Ms. Barillari dated July 2f1h is indic.ative ofher position: 1Jris is an adnowIetlgement qf your RIIIIIl!IDIIS IeIten to me.. To date you Jun..e sent me SeR!"II (7) IeIten which VIf!Ir!! formally courieretl or hand delivered to my home in Niagara Falls. You htnJe also made mmry phone calls to me,. two qfwhich VIf!Ir!! made during non--I:1usinr.v hours.. YOIU conespondence lists m thejOllowing May I(/". May 1 'J'I'. May 3r'. July 1~. July 14"'. July 2d" and.July 24"'. It seems that the conespondence 11m been cutq;rxiz.ed into two groups. One gmup R!]JI!aIed your admonition that upon my reIum to wont I lflOJdd be required to nMew standarrJs qf conduct and meet a list qf conditions. 71tis i1ifonnation lIm' already e.qJOJIIIIled at /eng1h at my suspension on April lla. 2006.. Pat SddeIt (Program Manager) adWsed me qftlteJe conditions both verbaIJy infront qfmy Union Stewarrl. Holly 0leLy. and noted them in the letter issued to me on that same date.. The repeIiIion qf this n!primand is euz:rm.e and 'JUlIJl!Cf!SStU. -19- The other group R!IaII!s to your requests .fOr medical i1ifimnation and an independent medical exmnination.. These reqr.;,~ib are 1IIIIr!DSOIIIJb because neither I 1101" my physician hat1e n!tJUf!Sled accommodation in order to mum to 1W1ri:. In ~,.. the employer lIIJISt establish that such medical i1ifonnation is n!tI!ltHItZbly net:I!S.'itUY to accommodate the employee.. Howe:ver. I n!JlI!Dl. I hat1e not Tf!lJIII!SIetl any such accommodation in onler to mum to 1WJri: YOII htnv! alrmdy received i1ifimnation in ercers qfwhat is n!tjJIiTed under the Ontario Human Rights Code in that my physician provided you willi a diagnosis qfshingles. In times past there 1WIS' no requirement to disclose any diagnosis ndaIing any medical condition.. I enclose and nifer you to a letter by my pnMous manager Ms. llebea:a JJesRoches dated Not1ember 22. 2002. By inappropriaII!l ,-db,;",; to st1IIIBOIII! else's medical i1ifimnation when you mentioned a "Dr. Duncan" in my letter you viDIated both qf OUT rights to cmifidentiality under the Penonal Health hif'onnation ProIedion Act. My regular doctor 11m been Ia!eping the employer posfI!tl qf my condiIion and his pro.fessiDnal judgment on this issue should srdfice- This situation 11m gn!aIly impacted my health and I am not being giPen the oppurluni1y to rerot1l!T and properly healfrom woripIace sIn!ss.. This leads me to mk the.folJowing questions: I. Am I being ITeatI!tl Jifli;,cnlJy than other f!IIfJIloyees who are tdfwrri because qf illness? 2. How many qf my coIleogues were n!tJUf!Sled to submit m many medical notes m I lIDS n!tjJIiTed? 3. How many qfmy coI~ were asb!d to submit to an independent mediazl evaluation? .If any. whatwere the cin::um.rtances? 4. How many qfmy coIleogues were plagued with phone calls and 1ettI!n.from the employer whik they were trying to Tf!COtlIeT? 5. Is the employer talring deliberate action to cause me emotional harm? 6. Has the employer appIierl the pnwisions qfthe A1Iendance Suppmt Program equally to all employees? How many employees hat1e been pemtilIed to e.ra!I!d the 115 days qf absence tJueihoId without beingplaced on the program? You hat1e tdfectiw!ly dist:riminatI!J against me by.failing to apply the pnwisions qf the Attendance Suppmt PiUl;'unL I submit that I am and hat1e complied willi the provisions qf Section 20 qfthe Public Service Act. I.further submit that you hat1e not giwn me srdficient time to respond to your demands and that you should not be nifusing to ret:I!!iPe ~ on my behalt lIIIhatetJer the lfII!JQIIS I choose to ctJIIW)' that COIIIIIIIIIIica In dosing. m n!J1OrlI!d by my tloctor. my mum to wrriwill be qfler A.JtgJat 1". 2006. · [29] In her nsimony and in a subsequent letter Ms. Barillari clarified her concern with 1he consent :fonns which she felt were too broad in tenDs of the substance 01" nature of 1he medical inquiry to be pedonned Furthennore, she took issue wi1h the fitct that there was no designated time :frame set out on1he consent fonns whereas she believed 1he investigation should cover only 1he period May 12. to August "..~ 1bat ~ 1he beefflnine and end ofher absence from work. -20- [30] From 1he Employers standpoint, Ms.. Mulhall testified that the July 2oB'- doctors note fiom Ms.. Barillari providing a diaenosis of shingles was disrespectful and unsatisfactOIy. It provided no infmmation whatsoever concerning the original stress and anxiety which had precipated Ms_ Barillari's absence fiom May 12". FmthenrJOTt: it did not answer in any way the questions adcIwssed to Dr_ Rosenberg in the Fmploya"s lime 14th letter. Finally~ it attempted to set 1he Grievor"s return to work date on her tenns notwithdandine that 1he Employer was still unclear as to whether 01" not it would be appulln.iate to return the Grievor to 1bat atmosphere in 1he wmlplace which had can!i:PJ'i her absence in 1he :first place_ Ms_ Mulhall testified further 1hat it was her view 1hat 1here was insnfficient medical in:fonna1:ion to: L Substantiate 1he Grievor"s absence since May 12~ 2_ To QIII fi.I.. 1he Grievor"s condition of stress and anxiety was resolved such that her retum to wod:. would not continue to be a risk to herself and 01" 01hers; 3_ To identifY any limitations 01" restrictions wi1h respect to the Grievor"s work which might be offered to accommodate her; and 4_ To indicate that she had received medical1Fahnent in 1he way of medications 01" otherwise for her stress and anxiety. [31] In effect the Employer did not wish to return her to wod:. without some assmance that she was not being set up :fm- failme_ On 1he other hancL Ms. Mulhall confumed 1bat she and other membeIs of ~ wi1h whom she was consulting had always expected that Ms.. Barillari wooId return to work; however~ past progressive discipline had not yet appeared to have garnered the Grievor"s co-opendiOlL Although fiIrther discipline was an option it was not 1he route 1he Employer wished to pursue at that time_ It was in that spirit 1hat Ms.. Mulhall had adcIwssed 1he July 24th letter to Ms_ Barillari wi1hout mention of any discipline and in 1he hope -21- 1bat she woold co-opemte with the Employer and submit to 1he indqJendent medical exam 01" minimally cm1act Ms_ Mulhall wi1h her qnestioos 01" concerns. [32] WIth respect to 1he July 2(/- letter received from Ms_ BariIIari. Ms. Mulhall testified that it was in her view lm~!d"actory_ The GrievDl" responded wi1h her own agenda alleging haras.omJeDt and complainine that the har:assment was impacting upon her health such that she was "not being givm 1he opportunity to recover and properly heal fiom wotkplace stress" _ In the cir~hwces, 1he proposed August jh return to wmk date appeared coun:ter-intuitive_ This comment by the Grievor reinfOlCed 1he Employer's concern that a retmn to 1he wmlplace might yet be inappropriate without some medical 8SSIIIBIHrS 01" accommoda1iOll. Finally~ while the GrievoI:" asserted that she had not had enough time to respond to 1he Fmploya"s request, she indicated no will~<i; in her letter to comply_ [33] In all 1he circumstances~ upon receipt of Ms_ BariIlari's July 26"- letter Ms. Mulhall responded addressing some of 1he concerns_ More importantly she advised the GrievoI:" that notwi1bstanding her request to retmn to wmk on August 8" she would not be allowed to do SO until 1he Minis1Iy had received 1he results of an independent medical eJ[aIIIinatiOIL She also cautioned 1he Grievor 1bat if she did not comply with the !ME process by August jh and cmnp1ete 1he consent :fonns she would placed on an unpaid leave of absence fiom 1bat date forward. [34] On August 3m 1he GrievoI:" responded chalIeneine 1he MinistIy's right to probe into her medical infonnatiOIL In 1bat letter she identified her concern 1bat the fonns to be signed represented a "blanket consent to release all of my medical infomudion to the Minis1Iy" _ _.1iIrther 1bat the MinisUy was "not entitled to access to my personal medical iufuuuation for any period -22- 1bat does not reIate to my cmrent absence (May Ith~ 2006 to August jh~ 2006) and consent will be justifiably withheld until you provide full disclosure as to the reasons for your request and your intended use of 1bis infmmatiOIL Fmthermore~ my period of absence fiom the workplace has been sufficiently documented by my physician and I have complied wi1h each and every request yon have made.. " On August 18th Ms_ Mulhall responded ma1cine the following points: L The Grievor"s medical infonnation wooId be provided not to the Employer but a physician wmting wi1h a medical mganizati~ Vocatiooal Pa1hways Inc.~ "a neu1Ial :linn 1bat is respoDSI"ble :fm- condncting 1he !ME"_ 2_ She took excqrtion of 1he tone of Ms. Barillari's letter as well as 1he allegations 1bat her conduct WwiilUL. 1he GrievOI" was "Jpr.1rl~<ii. and abusive"_ 3_ She reminded Ms_ Barillari that fiom August 8th she was on a leave of absence without pay and wooId contimJe pendine her co--operatiOIL 4_ She confinned the Minisky"s intention to facilitate "a productive retmn to wOIk: based on infmmation that would msure 1hat we address all C1{IClllitllities 1hat wooId prevmt yon 01" cause yon difficulty in carrying out your job duties_ This is particularly so given 1he con:8icting medical infonnation we have received to 1bis point"_ 5_ She suggested wi1h respect to 1he proposed LME 1bat Ms. Barillari "contact a Union representative or an HR Representative so 1bat 1hey may advise yon on both employee and employer rights and entitlements under 1he collective agreement. n [35] The GrievOl" did not respond to that letter. She did not call the Employer nor did she att~lII..t to provide :I.iu1her medical infonnation as requested of Dr. Rosenberg. When asked as to what had precipitated a chanee in her medical status fiom May 12th when she booked off wOIk: sick due to work place stress and anxiety and August 81h when she sought to retmn to work, she was unable to recall any specific event Instead, she refared to her episode concerning shineJes and the fact that her symptoms tim:n 1bat had subsided However~ there was no1bing :I.iu1her tim:n -23- her or any medical practitioner wi1h respect to the stress and anxiety precipitated presmnably wi1hin her woding environment [36] Instead of responding to 1he Employer and the Employer's concerns, Ms.. Barillari wrote Ms. Mulhall on September 11th requesting vacation time :fm- 1he weeks of September 11& to September 18th_ She ac1nowledged in her 1P.dimony that she knew she did not qualify fOl" vacation but simply wanted to see what kind of a respoose she woold get.. As expected Ms.. Mulhall responded confinnine that she did not qualify for vacation while she was on leave wi1hout pay_ [37] Finally on September 1~ Ms.. Mulhall wrote a fi.naI request 1hat Ms. Barillari co--opemte wi1h 1he !ME process no later than Friday~ September 29"-. She cautioned 1bat her failure to cmnply would be considered CllntmllP.d insubordination which would necessitate a meeting to discuss her refusals.. [38] Ms. Barillari again challenged 1he nature of 1he consent fonns amongst other 1bings_ The final two .-agmphs ofher letter read as follows: "111.e Employer 11m proceeded in my mse willi an ill-conceiw!d supposition that I require ~,.., pn!SIIlIItZbly under the Ontario Human Rights Commission to reIum to 1Wri:. The Employer has receiw!tl no Tf!tJIM!Sl from my physiciDn for accommodation.fOr the time period qf May 12 to August 7. 2006.. 11i-.;fb,o::,. an IAIE is not relet1ant to my reIum to 1WJri: Lastly. with respect to your propo.ml .fOr a meeting. I would apprrriaII! clarifiazIion m to TeIIIUIII!TaIio.fOr myself to aItI!nd this meeting. " [39] On October 12& Ms. Mulhall set out the Employer"s position in some detail and provided a date for the meeting. In 1he :final paragraph ofher letter she notes 1he following: "1 am requt!SIing your atII!ndance at a meeting to discuss your continued insuborrlinatio and failure to comply willi managemenl's direction.. PIeme note that at this meeting JIOfl will hat1e an opporIJmiIy to respond to managemenl's position regarding your insuborrlinatio and to prrwide -24- wha1ew!r i1ifonnation youfeel is ndevant.. After manogement has had an opportunity to listen to and nMew your cu.._._&. it will adllise you qf its decision TeguJUq; next steps. including any disciplinary action that may be imposerLJn response to your Tr!tJIM!Sl conceming n!IIIIIIII!TaIi .fOr the meeting. pIeme be adWsed that you will be paidfor the duration qfthe day". [40] The meeting was ananged :fm- October 23m and 1he GrievoI" attended with her union steward, Holly Olexy_ Attending for 1he employer were Ms.. Mulhall and Mr. Mic.har.l Symons, fiom Employee Relations and Pat Schlett, 1he Program Mana".-. Ms.. Mulhall testified that, aI1hougb. termination was a possI"biIity~ 1he Employer was hopeful that 1he GrievoI" wooId decide to co-opemte wi1h 1he Employa"s request so that they might take a cliJIaad directiOll. In any event, Ms_ Schlett conducted 1he meeting on behalf of 1he Employer and reviewed 1he recent history wi1h Ms.. Barillari tium May 12. to 1he 1hen present time_ She cautioned Ms. Barillari 1bat shooId she fail to change course she would be facing potential1enrrinatinn. [41] Ms. Barillari herself read fiom a prepared script setting out her view that the Employer had barred her fiom 1he workplace since August 8" bef-;all!i:P. of a "perceived disability" that did not exist She indic.ated 1bat 1he matter of her suspension without pay was clIIn:utly before 1he Human Rights Commission and that a tr.nnination, if it occmred, would be added to her cmnpIaint. She declined to make any fur1her Cf1II1I1Ir.I1f or take any fur1her action to cmnply with 1he Employers reqtIW. [42] At 1bat point the Employer Committee caucused and decided ~ since the GrievOl" gave JH) indication that she intended to co-opemte in any way~ 1enrrination was 1he only aItema:tive.. AccordingIy~ the meeting was reconvened and Ms.. Schlett delivered a letter oftr.nnination which was read out during the meeting. The letter outlined 1he Employer's rationale for 1enrrination which was smnmarized in the 1hird .-agraph as follows: -25- "YOIU" conIinuous dismissals qf legiIimate management n!IpII!SIs an! fDnIamount to insubonlination You htn1e directly and Jhwunlly disregarrled managemenl's TI!lJIII!-V .fOr additional medical iIifonnation. and then.failed to comply willi numerous n!IpII!SIs that you undergo an indI!pendent medical e:mmination.. YOIU" actions OIICI!! again '""I"~ a violation qf the standanls qf conduct and MiniWy e:q- h.tilYu m well m a c:.ontimtetlladc qf response to management COUIISI!lJing. " [43] The letter 1hen reviewed the GrievoI"s past histoIy of discipline as well as 1he Grievor"s failure to respond in a positive way to 1he expectations which were carefully outlined to her when 1hat earlier discipline had been imposed [44] It concluded that the Grievor's failure to respond in a positive way nconstitutes severe and iuqJill3ble da~ to 1he employment reIationshipn_ [45] WIth respect to 1he GrievoI"s assertion1bat she had filed a complaint wi1h 1he Hllman Rights Commission, 1he Employer Committee had not been infmmed of any such complaint and, during 1heir caucus~ had checked wi1h the Commis.~ion and detennined that no fOIIDal complaint had been filed to date.. Indeed, the Employer did not receive fOIIDal notification of 1bat Human Rights Cmnplaint until January 4~ 2007 ~ some 2 % months after 1he October 23m meeting and 1enrrination.. [46] From her viewpoint, Ms_ Barillari testified 1bat her la..lination was fore-onlained at or before she was suspended without pay. From August to October she focused OIl completing an Ontario Human Rights complaint and believed, midalrP.nly~ 1hat 1he Employer was aware of that when 1hey met on October 23ol_ She chose not to address the Employa"s concerns at 1bat time because she believed 1hat her response would not be heard and felt that 1he grievance process had failed her in the past She chose instead to pmsue her redress at the Human Rights Commis.~on.. She testified also that she chose not to sign 1he !ME consent fonns because she felt 1he tactic was coercive.. AIso~ she testified, 1bat she was ooncemed wi1h 1he breadIh of 1he medical inquiry to -26- which she was required to consent. She had not allMlllptcd to speak of1hese ma1:teIs with Ms.. Mulhall but had addressed 1hem in her conespondence. [47] Ms. Barillari genernUy believed 1bat the Fmployer had set out to term1natP. her and 1he reasons for 1bat termination had little to do wi1h any medical issue.. To review some of 1he varioos issues she identified, it was Ms. BariIIari's view 1bat 1he Fmployer saw her as a strong opponent who~ as union stewanL was unafiaid of chaUeneine management on her own behalf 01" own behalf of otheIs.. TnflP.f"J'l. on one occasion she invited the police in to 1he office to investigate a claim ofharassment she wished to pursue wi1h respect to one ofher Managers_ She also believed 1he Fmployer was aware of her Human Rights Complaint and suggested that she was using it as a negotiating tool on October 2301 to induce a more fair result than occmred Furthennore, she believed 1he Fmployer took issue with her fimdamental Christian beliefs.. AI1hough she agreed 1bat 1here had been no issue respecting religion since April of 2006~ 1he mbi1Ia:tion proceeding which had concluded in July of 1bat year related~ amongst 01her 1bings~ to allegations of harassment and discrimination by members of management against her with respect to R.eligion In:fact, 1bis Board dismissed 1bat cmnplaint Iater in 2006_ [48] It was also 1he GrievoI"s view 1bat she was being discriminated against here on 1he basis of disability since she had hearing, neck and eye problems which she had raised in the past However~ she agreed that 1hose issues had arisen some years earlier and not during 1he relevant timefuune_ Nonetheless, she was of the view 1bat the Employer had at that time been reluctant to respond, yet, ultimately had accommodated her problems. In snmmary~ the Grievor believed that 1he Employer took issue with her for 1hese histmical matteIs, and, that her tennination and the Employers conduct lP.adine to that tennination constituted a reprisal against her :fm- all 1hose ISSUeS.. -27- [49] Finally~ 1he Grievor explained that she felt discriminated against because of her Italian ancestIy_ She had been disciplined in 1he past fOl" grabbing her Managel"s ann.. The Employer perceived 1hat conduct as Iln~lt":lline. Furthennore~ she recognized 1bat her conduct in doing so had led to 1he view that she was a risk to 1he safety of heIself and o1heIs in the wmlplace_ However~ the Grievor was of the view 1bat she was falsely accused The impugned conduct was indicative only of a demoos1m:tive peISODBlity which was typical ofher Italian heritage. It should not have been viewed as a risk to anyone_ She agreed however 1hat no one in 1he wmlplace had suggested 1bat her Italian heritage was a problem in any way 01" had even refened to her as Italian [50] In cross-examination the Grievor had produced her Bible wherein she agreed 1bat she saw helself in biblical quotations as the "righteous" and 1he Employer in the person ofMs_ Mulhall as 1he "wicked". She also Wstified that she believed 1he scheme to 1enrrinatP. her employment had begun in 2001 and that each successive M~~ (1here having been 1bree direct ManageIs in all fiom 1bat time) had played a role in that scheme. In particuIar~ she also believed Ms. Pat SchIett, her Prognun Manager~ and Mr_ Richard Beanr.ruu.q.~ the Regional Director~ who ultirnatdy decided upon her terminati~ were participants in 1hat scheme. [51] Ms. Holly 01exy Wstified on behalf of 1he Grievor_ However~ in some respects her 1P.dimnny was not of assis1ance to Ms. BariIlari In particular she confirmed 1bat on May 10~ 2006 when 1he power had failed in 1he o:ffice~ she had cm1acted Ms_ Barillari to reanange her May 11" meeting wi1h her fiom 1he evening to 1he daytime. AccoIdingIy~ Ms. Barillari was aware of the office closure on May 108'- before she received Ms. Mulhall's telephone call1he next morning. In the circumstances, it is difficult to accept 1bat she was sincerely offended and felt -28- discriminated against when she knew in advance ofMs_ MuIhaU's teieplone call that 1he office had been closed fOl" 1he day_ [52] AdditiooaUy~ 1brough Ms. Olexy it beaune clear ~ although the Grievor did not wish to undergo an LM..E.~ technical challenges to 1he !ME consent :fonns were suggested by Ms.. Olexy wi1h fiIrther detail being added by Mr_ Ouellette, 1he Grievor's independent lawyer. [53] Mr_ Richard )JP.an("hamp~ 1he Regional Director who had ultimatP.ly decided Ms. Barillari's fate, testified conceming his decision. In makine his decision he testified that 1he primary reasons were as follows: 1he Grievor had exhibited a pattern of inappropriate behaviour over a IIlDIIber of years which included grabbing her Mana".- and QI1I.IiODle disruptions in 1he wotkplace_ Her past conduct presented a pictme wi1h great potential fOl" ongoing conflict Mr. Beauchamp was of 1he view 1bat anod1er lengthy suspension wooId not lead to any improvement and 1bat alternatives had been exhausted In the cinmnstances, preparatory to 1he October 2301 meeting, a couple of draft leUe1s had been prepared One of them did not involve termination but rested upon the Fmploya's request a) either that 1he Grievor respond to the need for an independent medical eJ[3IIIination or; b) provide more medical infmmation to satisfy 1heir concerns. Unfortunately~ Ms.. BariIIari did not respond positively and they had to consider a disciplinary response.. In doing so~ they took: into considem:tion: L Ms_ Barillari's seniority since she had invested much wi1h 1he Fmployer; however 1hey felt 1he needs of the wmlplace in the cinmnstances had to take priority. 2_ Mr. Beanr.m.1I1p had no idea of her age, her religioos beliefs~ her ancestIy or any disability_ TnflP.PJi if a disability had been identified, he would have been happy to have dealt wi1h it Mr. )JP.an("hamp was unaware of any Hmnan Rights Complaint at 1he time ofher termination.. As to her past grievances~ they were dealt wi1h in the past based on 1he evidence that was 1hm avaiIable_ He had no pressure fiom local management to ICllllinatP. Ms_ Barillari for any of those reasons.. -29- [54] WIth wspect to Ms. Barillari's religioos beliefs and her grIevance regarding discrimina:ti~ Mr. )JP.anr.hamp had been aware of 1hat at 1he time it occurred but believed 1hey had moved well beyond 1bat some time earlier_ It certainly was not relevant at 1he time of her 1enrrination.. [55] Fj;.~ally~ Mr. )JP.an("hamp felt responsible to see 1hat Ms.. Barillari's return to wOIk: wooId be successful He needed to know if 1he stress and anxiety which was reported and refared to by her physician and heIself could somehow be accommodated in the wmlplace 01" had been satisfactorily treated and resolved None of that was fm1hcoming and 1he GrievOl" resisted any att~.I..11 to provide 1he necessary infmmation.. Ihe AaaIvsis aad Decision [56] It is rq;ldtable that Ms. Barillari after 25 years of service wi1h 1bis same Employer should find heIself lmemployed However~ in 1he context of 1he evidence 1aken as a whole it is my view 1hat Ms_ Barillari was 1he author ofher own misfortune.. The Employer over a period of several years 1Jeejnnine at least in 2003 when 1he Grievor suffered the :first of many disciplinary suspensions had good reason to be ooncemed about 1he Grievo:r"s behaviom in the wmlplace.. During 1bat earlier period leadine up to 1he events of 2006~ 1he Grievor had exhibited inappropriate conduct and disrespect towards not only her co-wodeIs and membeIs of manaer.ment but also toward the very clientele she was engaged to serve. It is UDIla:Jalldahle 1bat Ms_ MulhalL Ms_ Barillari's direct Manaur~ wooId be concerned about underlying causes when the Grievor at 1he end of a twenty (20) day suspension for misconduct would report heIself unable to wotk due to workplace stress and anxiety_ From Ms_ MulhaU's standpoint 1here was no1bing significant in 1he events of May II. and Ith 1bat would have precipitated such a -30- dramatic reaction :from Ms_ Barillari as to keep her :from retnmine to wOIk. IncIeed, the power failure affected 1he entire department and not simply Ms. Barillari The suggestion by Ms.. Barillari 1bat she was discrimina1ed against in relation to o1her wodrers because she did not receive notice until1he following moming when she was preparing to leave fOl" wOIk: was an absurd notion.. Fm1hennore~ it was an unacceptable fabrication that she was pn:pilling to leave fOl" wotk since she knew already fiom Ms. Olexy 1hat 1he office was closed and had already resc.heduled her meeting wi1h her Union steward fOl" daytime hours on May 11 fh ra:ther 1han in the evenmg.. [57] This brings me to 1he period commencing wi1h her absence on May Ith and endine willi her 1enrrinatiOlL If Ms_ Barillari was Jeejtimately off sick due to stress and anxiety~ it was reasonable for 1he employer to seek and expect medical infonnation confinning 1hat problem, indicating 1he 1Fahnent being received, 1he expected dumtion of the absence and recmnrnenflations for accommoda1ion :fm- retmn to wod.. The Grievor"s continued failure to provide that iufuuualion exposed her to 1he possibility of 1hose consequences which she ultimately SlIffi:..ul On 1he other hand, if her continued absence was simply a reaction to the Employer's efforts to rnanaer- her conduct in the wmlplace, 1hen her resistance was not legitimate and 1bat behaviour in itself was WDI1hy of discipline. In the circumstances of 1bis case and the history of 1he Grievor"s wsponse to Ms. Mulhall over the many months fiom May to October~ ~ in particular in 1he absence of further medical evidence of some ongoing disability~ it is difficult to conclude that 1he Grievor"s cnn1lmm absence was anything but a deh"bemte att~'II..t to avoid or delay management ofher conduct in 1he wolkplace_ 1here are 1bree prominent issues which must be dealt willi in 1bis case: -31- L Was it appt.Upt.iate for 1he Employer to demand additional medical infmmation following receipt of1he doctors note of May 30'1 2_ Given the :failure of 1he Grievor to provide 1bat additiooal infiHma:ti0ll was it appt.upl-iate for 1he Employer to demand that 1he Grievm" attend for an indqJendent medical eJ[3IIIination'l 3_ Did the Fmploya"s conduct in dP.a1ine wi1h 1he Grievor constitute l..wwamwted harassment or discrimination on prohibited gromuIs with respect to her employment? [58] To begin with, 1he Grievor"s absence which began May 12" was suspect in as much as she was originally scheduled to return to work following her suspension on May 11" ~ but:fm- 1he power :faiIure~ would have done so that day. It was SUIprising that she was unable to do so 1he veIY next day especially when there was no reason to believe that she was or had been suffering fiom any medical conditiOll. Furthennore, she had not been at wotk for at least twmty (20) days so it could not have been work itself1bat precipitated her absence May 12". It was not smprising then that Ms.. Mnlhall would, sbmtIy thereafler~ be ~ some medical confinnatiOll 1bat 1he GrievOl" was unable to work. When she fi.nally provided the Health In:fonna:tiOll Fonn dated May 3(fh~ as Ms.. MuIhaU testified, it raised more questions 1han it answered For instance, it indicated 1bat the reason :fm- her absence was "wmlplace induced stwssIanxiety"; however~ by 1he time Dr_ R.osenbeIg saw her~ she had not been at work for aImost two months. Additionally~ rather 1han rela1ine 1he cJmation ofher limitations to the end of some specific treahnent, 1here is instead a reference to 1he final days of an mbi1m:tion proceeding wi1h a potential for additiooal time depending 011 the resuIts. Aside fiom stating that stress and anxiety had caused her absence, 1he doctor"s note does not indicae 1he degree 01" severity of any symptoms which necessitated her absence_ In snmmary ~ 1he document was lm~!d"actory both in rationalizine 1bat 1he Grievor"s absence was necessary :fm- medical reasons and in indicating a course of trP.ahnPnt undertaken andfOl" suggesting an accommodation that might be provided to hasten Ms.. Barillari's return to work.. It was, in 1he circumstances~ reasonable for the Employer to seek fur1her infonnation to -32- satisfy its needs_ Fmthennore, given 1he nature of the Grievor"s past miscondnct and 1he nature ofher behaviom at wotk which precipitated consideIable discipline including a twenty (20) day suspension, it was not unreasonable :fm-the Employer to be concerned 1bat 1here might be some muIerlying condition which required treatment, resolution and/or accommodation before retllm1ne the Grievor to work.. In the circumstances I am satisfied that 1he Employer's letter of June 14. requesting 1bat Ms_ Barillari have Dr_ Rosenberg respond to a series of questions was reasonable in 1he circumstances. AdditionaUy~ there is nothing in those questions 01" the responses which 1hey wooId have elicited which might have coostituted a compromise of 1he Grievor"s rights to privacy. [59] Ms. Barillari put her employment on 1he line when she failed to respond in a positive way to 1bat letter_ Although it requested a July jh reply~ she did not make 1he effort to bring 1he questionnaire to Dr_ Rosenberg at her lime 1.f1k appointment. Ra:ther~ she delibemtely delayed until JuIy2dh_ Worse still, at 1bat appointment, she specifically ins1ructed Dr_ Rosenberg to refurin fiom completing or answering in any way the questions which had been addressed to him. In the meantime, she had also ignored Ms_ MuIhall~s letter of July 13. which requested 1bat Ms.. Barillari contact her immediately "to discuss the delay and to arrange when 1he docmnents will be providedD. Ms_ BariIIari~s failure to respond to Ms.. Mulhall and to do so in a timely fashion during 1bis period of her absence was cavalier and totaUy unacceptable. Fmthennore, the challenges to 1he lime 14. letter which she outlined in her tP.dimnny were never raised wi1h Ms.. Mulhall and were, in any event, of incooseqnential substance wi1h respect to her medical status at 1bat time_ As a union steward she ought to have known better_ Minimally~ she ooght to have given some credence to 1he adage "obey now and grieve Iater'_ -33- [60] WIth 1he ~on of1he July 2oB'- doctor"s note referring to "shingIesD~ Ms_ Barillari ~ in effect, 1hmnbing her nose at Ms_ MuIhaU, her Manager~ and 1he Employer generally. It was an insult fOl" two reasons: L It was Iate_ Ms. Mulhall had asked for :liJrther infmmation on June 14. and nothing was forthcoming mrtil1he July 'XI'- note_ 2_ Although it pmported to clear her :fm- work after August 7"-~ 1bat note referenced a problem willi "shineJesD _ There had been no previous history of shingles reported by the Grievor 01" Ik. ~ ~ 1here was no connection drawn between 1he GrievOl"~S "stress and anxi~ and a bout of shingles.. More importantly~ 1here was no answer to 1he infonnation 1he employer had been !i:P.P.kine. ~ in particuIar~ 1here was nothing to assure 1he Employer that Ms_ Barillari~s retmn to work would pose no risk to herself 01" 01hers_ Ms_ Barillari had chosen to mard1 to her own drl....mer and not to 1bat of the Employer. [61] It was clear by then :from her conduct which she confinned in her subsequent testimony 1bat she had chosen to take the offensive~ challenge the Employer~s position, and pursue a Human Rights CmnpIaint. She had enlisted the assidance ofMs.. Holly Olexy who was helping her on May 11'11~ and Iawyer~ Pierre Ouellette who was assisting her as early as June and July in her deal~ wi1h her Employer_ In the circumstances, it is clear that 1he GrievOl" held the Employer and Ms.. Mulhall in disrespect and had no intention of complying willi any of 1he requests andfOl" directives she might receive_ [62] It is ironic that Ms_ Mulhall and her superiOIS were !i:P.P.1rir1e ways to refiain :from 1enrrinafine Ms.. Barillari because she had devoted mnch ofher life to 1he Minisky while she was att~.....tiug to attack her Employer in a fonn which she believed would be more sympathetic to her. Indeed, it is my view 1hat 1he Employer might well have taken more dramatic measures against Ms.. Barillari immediately after receiving 1he July 2rJh doctors note; however~ having aheady insti~ a new measure by way of requesting 1he Grievor to undergo an independent -34- medical examination, no disciplinary action was yet taken.. On 1he other hand, after receiving 1he Grievor"s critical and in my view hostile wsponse to the request for an independent medical eJ[3IIIinati~ Ms_ Mulhall wrote again questioning 1he Grievor"s tone~ rationalizine the MinistIy's requirement for an independent medical eJUUJrination and fi.nally and most importantly cautioning Ms. BariIIari that she wooId be placed on "leave of ah!i:P.nce without pay until fur1her notice" if she did not co-operate_ [63] 1he Grievor"s letter of August 301 was more audacious 1ban her last After critiquing 1he LM.E coosent :fonns as being too broad and vague, she went on to assert 1bat she was "ready~ able and willing to return to work. Are you still denying me 1he right and opportunity to do so on August 8~ 20061. Shortly 1herea.fter she goes on to state: "My physician has specified a date for my return to wotk and has not made any recomrnenda1ions :fm- accommoda1ion which would require him to provide you wi1h additional medical infonnatiOIL I believe 1hat your conduct as a Manaerr is reckless and abusive and 1hat your actions are tantamount to a delibende violation of my hnman rights_ As I indicated to you in my previous correspondence, your relentless haras,.QJlent during my recovay fiom my illness can only be seen as an action motivated by ill will"_ [64] It is clear 1bat 1he Grievm" has exhibited in 1bat letter a total disrespect fOl" her immediate supervisor_ Furthennore, in keqring wi1h my earlier conclusi~ it is my view 1bat the GrievOl" had abandoned any 1hought of co-opemting wi1h 1he Employer and was instead preparing to l3lmch an attack at 1he Human Rights Commission.. Although 1here is some merit to her concerns about 1he breadth and vagueness of the coosent fOIlDS~ it is my view that 1hey are iIrelevant since the Grievor had no intention whatsoever of sulmri.tting herseI:f to an independent medical P.Yamina1ion regarclless of its breadth 01" natme_ In any event, choosing against -35- providing any of 1he medical infmmation sought by 1he Employer and refils1ne an independent medical exam that might have satisfied 1he Employa"s needs, 1he GrievOI" set heIself up fOl" failure wi1h the Employer. She had, as stated, abandoned 1bat avenue_ On September 1~ Ms.. Mulhall advanced a -final request" for 1he Grievor"s co-opem:tion cautioning her 1hat her refusal wooId be perreived as "continued insubonIination and will have no choice but to schedule a meeting with you to discuss your sustained failure to cmnply wi1h my repeated requests-. [65] The Grievor"s response to ~ after again identifYing her concerns with 1he LM.R coosent fonns, was to confum, in my view~ that she had no intention of taking an !ME regarclless of1he fonn of coosent when she wrote the following: "111.e Employer 11m proceeded in my mse willi an ill-conceiw!d supposition that I require ~ presumably untler the Ontario Human Rights Commission to mum to wont. The Employer has receiw!tl no Tf!tJIM!Sl from my physiciDn for accommodation.fOr the time period qf May 12 to August 7. 2006.. 11i-.;fb,o::,. an IAIE is not relet1ant to my mum to 1WJri: " [66] Following receipt of 1bat 1etter~ Ms_ Mulhall set up 1he meeting of October 2301. Ms.. Barillari knew and testified 1hat she and Ms. 01exy believed 1bat her job would be on1he line at 1bat meeting. Although the Grievor was again, in 1bat meeting, invited to co-opemte wi1h 1he Employer and satisfy its concerns regarding her absence and her safe retmn to wad, she der.linP.Ci Instead, she followed 1he route which she had begun sometime earlier and read a prepared da1emP.nt cautioning 1he Employer that, if 1hey tf"flTlinatPJi her~ she would expand her Human Rights complaint to include 1hat action as i.uqn.uper in addition to 1he charge that she had been wrongly suspended without pay fiom August 8~ 2006_ It was clear fiom her conduct at that meeting 1bat 1he GrievOl" was entrenched and had no intention 1hen or earlier to co-opemte in any way wi1h the Employer. -36- [67] Ms. Mmji argued fiH:" 1he Fmployer that the Grievor~s refusal to submit to an LM.E was insubonIinate oondnct That was so~ in particuIar~ since the collective agreeIIKD specifically provided for 1hat process_ [68] Mr_ Hannie;m argued that 1he Coosent Fonn was too vague and broad Therefore, the Grievor should not be penalized fOl" her refusal Her right to privacy wi1h respect to medical infonnation should be found to trump 1he Employers requirement in ~ ciraunstamrs. [69] AI1hough 1here is merit to Mr_ Hannie;m~s concerns wi1h respect to 1he extent of the Consent Fonn and the nature of1he medical inquiIy~ it is not reIevant in 1he ciraunstamrs before me_ Since I have found 1bat Ms. Barillari had no intention of subjecting heIseI:f to an LME. regardless of 1he nature of the Consent, it is nnn~ to resolve the question of insubonIination as it reIates to 1he character of the Fonn and 1he Grievors refusal On 1he o1her hancL I would be reluctant to chamcterize the GDevors refusal to take an LM.E as insubonIina1ion in itself. That may~ indeed, be 1he case, where~ as here~ the collective agreeIIKD specifically identifies an !ME reqtJ.i..elllr.llt It is~ none1heless, my view 1bat the Grievor could have~ in other ciraunstamrs and in 1he absence of that provision, elected to protect her medical privacy wi1hout being considered insubonIinate. However~ in so doing, aIthough the Grievor may not have been fomul to be insubordinate~ she wooId be~ as she is here, subject to 1he consequences of her refusal and 1he absence of adequate medical infonnatiOlL Where~ as here, 1he medical infonnation is critical to rationalize an absence and/or to establish guidr.lines respecting a retmn to WOIk, 1he a~ of the infonnation may be critical to 1he employment relationship. -37- [70] The ~ in 1bis case led to a situation where Ms_ Barillari had been off wmk for an extensive period of time (May 12 to August 7) wi1hout clear medical justification fOl" her absence but with sufficient evidence to raise concerns about her safe return to wotk in August That situation did not in any way change up to and throughout pmceedings in 1bis matter_ There has been no further medical iufuuuation forthcoming. In 1he result, the GrievoI" was off wmk wi1bout leave or medical justification mdil August 7~ 2006_ Her cnn1mned absence after August 7 was again her responsibility since she had no intention of ma1cine any further medical infonnation available to the Employer_ In 1he :final analysis~ the Grievor~s uh!i:ence here without leave or sufficient medical docnmen1ation ~ in i:tsel( culpable conduct Fm1hennore~ taking into consideration Mr_ Barillari~s hostile attitude to m~ as reflected in: 1_ her deliberate delay and refusal to respond to Ms. MuIhaII~s legitimate inquiries in May~ lime and early July and, 2_ her disrespectfu.lle1:teIs in July and August, 1here was ample cause for discipline. [71] In the circumstances and taking into coosidem1ion her past discipline record, absent any evidence that 1he Employers conduct or actions were motivated in some way cuuh_ Y to 1he provisions of 1he Ontario HU1IU11I Rights Code, 1he termination of 1he Grievor"s employment at 1bat time was clearly justified and wi1h just cause. [72] I have reviewed carefully all of 1he evidence provided by 1he Parties including that of 1he GrievoI" and have been unable to :find a scintilla of evidence indicating that 1he Fmployer"s motive was a reprisal for legitimate conduct in 1he wotkplace undertaken by the Grievor such as her past union activity. Fmthennore, 1here was no IJaJtion and IH) issue rela1ine to religion 01" Italian ancestIy 01" heritage refened to 01" mentioned by the Fmployer throughout the period -38- under review_ Furthennore, Ms. Barillari was unable to identifY any comment of that nature by any member of management relevant to the issues before me_ In the circumstances~ I am unable to impugn 1he Employers action in tenninatine 1he Grievor as a violation of 1he 01Itari0 Human Righl3 Code.. [73] Again, as mentioned earlier in 1bis Award, it is regrettable 1bat an employee wi1h so many years service to 1bis Minis1Iy shooId now :find herseI:f out of 1bat job_ As expressed by membeIs of management who testified in 1bis case~ it is indeed unfortunate 1hat Ms_ Barillari chose 1he route she did ra:ther 1ban providing some level of co-opem:tiOll to sustain her job. [74] In all 1he ~ 1he tennination must be upheld and 1he grievance disnri~ Dated at Toronto 1bis Ith day of October 2010. Joseph D_ Canier~ Vice-Chair