HomeMy WebLinkAboutFarrell 01-12-17
IN THE MATTER OF AN ARBITRATION
BElWEEN:
SAULT AREA HOSPITALS
AND
ONTARIO PUBLIC SERVICE EMPLOYEES
UNIONj LOCAL 620
AND IN THE MATTER OF THE GRIEVANCES OF S. FARRELL
BOARD OF ARBITRATION:
MAUREEN'K. SAL TMAN, CHAIR
JAMES A. PEARCE, HOSPITALS NOMINEE
JOHN MCMANUS, UNION NOMINEE
APPEARANCES:
...
FOR THE HOSPITALS:
PATRICIA G. MURRAY, COUNSEL
MARY MACKINNON, COUNSEL
FOR THE UNION:
AWARD
This case involves two grievances, one claiming termination without
just cause and the other, failure to accommodate the Grievor, Susan Farrell.
The Grievor, who was hired by Plummer Memorial Hospital ("the
Plumme~') in May, 1979, was employed as a phlebotomist in the laboratory at
Sault Area Hospitals ("the Hospitals"). The Hospitals were formed as a result of
the amalgamation of the Plummer and Sault Ste. Marie General Hospital ("the
General") in 1993. Following amalgamation, although the bargaining units were
merged, the Hospitals continued to operate at both sites. There was, however, a
rationalisation of selVices, with acute care, in-patient and emergency selVices
being provided at the General and chronic care, ambulatory and out-patient
selVices, at the Plummer. In accordance with this rationalisation of selVices,
some departments, such as the critical care unit, were consolidated and placed
at the most appropriate site. Although other departments, such as the laboratory,
continued to operate at both sites, this arrangement is temporary, as the Health
SelVices Restructuring Commission has ordered that the laboratory be
consolidated at one site by the year 2001, As it turns out, consolidation will not
take effect for another one to three years. In any event, at the relevant time, the
laboratory operated at both sites, although the staffs of these units were merged.
'I'J Within the laboratory, some selVices, such as haematology, cytology,
2
microbiology, etc., were located at one site or the other; other selVices, such as
the collections group, or phlebotomists, provided selVice to both sites.
There were, however, differences in the coverage requirements for
phlebotomists at each site. Phlebotomists at the Plummer were generally
scheduled on the day shift from Monday to Friday, whereas, at the General, there
was a requirement for nights and weekends as well. In the ordinary course,
there were 10 phlebotomists scheduled each day, six at the General (three on
the day shift, two on the evening shift, and one on the night shift), and four on the
day shift at the Plummer. Moreover, in order to provide exposure to all aspects
of the job and balance the number of "off shifts" (nights and weekends),
phlebotomists were usually scheduled at both sites. Furthermore, to minimize
the dislocation of changing sites, shift assignments were generally done in
"blocks", rather than individual shifts. Nevertheless, as there were only six full-
time and up to 12 part-time phlebotomists working in the laboratory at the
relevant time, there was a liberal policy with respect to shift exchanges. For the
most part, employees were allowed to mutually agree to shift exchanges,
provided that the employee covering the shift was qualified to perform the work in
question; that the employee was not required to work an excessive number of
consecutive shifts; and that the Hospitals were not required to pay a premium
because of employee-initiated shift exchanges. According to the Manager of the
... Laboratory, Gina Misasi, this system of shift exchanges worked reasonably well,
there being more than 700 shift exchanges per year among the laboratory staff.
3
Irrespective of the location at which they were scheduled, there was
also an ongoing requirement for communication between phlebotomists at both
sites. In this regard, the evidence indicated that the two sites, which were
located some 500 yards apart, were linked by a pneumatic tube system and that
specimens collected at the General were immediately transferred by means of
this system to the Plummer for processing. These specimens were received in
an area of the Plummer laboratory known as the "chute area", to which two
employees were generally assigned, at least one of whom was present at all
times. In fact, it would appear that one employee, who is not a phlebotomist, has
been permanently accommodated in this area for many years. Although the
Union suggested that it was only the employees in the chute area who were
required to communicate extensively with phlebotomists at the opposite site, Ms.
Misasi testified that this was an unduly restrictive view, as phlebotomists'
responsibilities were largely interchangeable. Moreover, although some jobs
entailed more communication with the opposite site than others, there was an
Ongoing requirement for communication among all of the phlebotomists. For
example, Ms. Misasi testified that there was a requirement for telephone
communication between both sites in order to indicate, among other matters, that
a specimen had to be collected, or recollected, as the case might be, on an
urgent basis. Moreover, Ms. Misasi testified that it was impossible to devise a
'" schedule which would restrict communication between phlebotomists and,
4
further, that phlebotomists who could not communicate would be derelict in their
duty.
Also employed as a phlebotomist was an employee by the name of
Nadine Koivisto. Ms. Koivisto, who was hired by the Plummer in October, 1978,
became an employee of the Hospitals as a result of amalgamation in 1993. The
Grievor testified that she had a good working relationship with all of her co-
workers, except for Ms. Koivisto. The Grievor acknowledged, however, that
there was conflict with one other employee as well. In any event, from the
Grievor's perspective, problems with Ms. Koivisto began in or around 1979. At
that time, Ms. Koivisto was frequently absent and, as she was not replaced, the
Grievor had to do both her own work and that of Ms. Koivisto. As a result, she
became "stressed and overloaded". In fact, she claimed that she had a
"breakdown" becau~e she could not handle the workload. Although the Manager
of the Laboratory at the time, Tom Hendrie, tried to resolve the issue by removing
the Grievor from the area and assigning her to wash-up, this resolution did not
work because Ms. Koivisto complained that she, too, should have been assigned
to wash-up. Although it would appear that other steps were taken to separate
the Grievor and Ms. Koivisto, such as scheduling them to work at opposite sites,
none of these steps proved effective in resolving the conflict between them. For
her part, the Grievor even changed shifts to avoid working with Ms. Koivisto and
... sought counselling through the Employee Assistance Programme {"EAP") in
1 996 in an effort to deal with the conflict. According to the Grievor, however,
5
matters got progressively worse and, although she went to each of the Managers
in succession, she felt they often minimized her concerns.
In late 1996, Ms. Koivisto approached the Co-ordinator of
Employee Services, Richard ("Rick") Webb, to complain that the Grievor was
harassing her. Mr. Webb asked Ms. Koivisto to put her complaint in writing,
which she did on December 9th. According to Mr. Webb, the complaints were of
a "personal nature", alleging, among other matters, that the Grievor was
"dictatorial, discriminatory, rude, slanderous and uncooperative". Subsequently,
Mr. Webb met with the then Manager of the Laboratory, Michael Brodrip, and his
Assistant (now Manager), Gina Misasi, to discuss the matter. According to Mr.
Webb and Ms. Misasi, this was the first indication they had of a conflict between
the Grievor and Ms. Koivisto. Moreover, the evidence indicated that at about the
time Ms. Koivisto complained to Mr. Webb about the Grievor, the Grievor made a
similar complaint to the Manager of Human Resources, Lorri Piazza, about Ms.
Koivisto.
In light of these complaints, Mr. Webb proceeded to conduct an
investigation of sorts, including interviews with some of the laboratory staff, in an
effort to resolve the conflict between the two employees. As a result of his
investigation, Mr. Webb concluded, "it was painfully obvious that they could not
~ get along". Subsequently, Mr. Webb had further discussions with Mr. Brodrip
and Ms. Misasi, as well as discussions with the OPSEU Staff Representative,
6
Scott Kennedy, and the Charge Te~hnologist, Tonya Bonnell, in order to
determine what could be done to resolve the matter. The consensus was that
steps should be taken to separate the two co-workers to the extent possible by
scheduling them on different shifts or at opposite sites. Although Mr. Brodrip and
Ms. Misasi indicated to Mr. Webb that it would not always be possible to
schedule them in this manner, they agreed to make an effort to do so. As well,
Mr. Webb and Mr. Brodrip agreed to monitor the employees' conduct for any
indication of inappropriate behaviour.
However, Ms. Misasi testified that the arrangement created
difficulty for other staff members, particularly as there were two other
phlebotomists who required accommodation because of physical disabilities.
According to Ms. Misasi, further restricting the schedule to accommodate the
conflict between the Grievor and Ms. Koivisto created an undue hardshio for
c - ,
other employees, who felt constrained in arranging shift exchanges with the
Grievor or Ms. Koivisto, as such exchanges could potentially aggravate the
situation by putting the Grievor and Ms. Koivisto on the same shift and/or at the
same site. As well, Ms. Misasi was concerned that restricting the schedule in
order to accommodate the conflict between the two co-workers could adversely
affect patient service. For instance, even if they could be physically separated,
the two employees would still be required to communicate with each other to
... explain, for instance, that specimens had to be collected, or recollected, as the
case might be, on an urgent basis and, apparently, their relationship had
7
deteriorated to the point where they could not even speak on the telephone.
Indeed, it was agreed that there were occasions when the Grievor would try to
have another available staff member accept calls from the chute area. at the
Plummer site when she believed that the caller might have been Ms. Koivisto.
Moreover, even when scheduled at opposite sites, there were occasions when
the two employees would have had contact or interaction, such as when
delivering samples from one site to the other, when attending staff or committee
meetings or if one or the other was assigned to the chute area at the Plummer.
Finally, it would appear that Ms. Koivisto complained of problems even when the
two employees were working at opposite sites.
Although it would seem that Management had no further
involvement until 1998, problems persisted between the two co-workers.
Sometime in March, 1998, the Grievor reported for work to discover that, as the
result of a shift exchange, she was required to work with Ms. Koivisto. Evidently,
it was unusual for the Grievor not to know in advance that she would be working
with Ms. Koivisto. In any event, this was a stressful time for the Grievor, whose
father was terminally ill, and she was upset at having to work with Ms. Koivisto.
She, therefore, called around to other laboratory staff to arrange for relief so that
she could avoid contact with Ms. Koivisto.
...
Subsequently, on April 12, 1998, Ms. Koivisto sent another letter
complaining about the GrievOl"s conduct. The nature of the complaints was
8
essentially the same as in 1996, Le., that the Grievor refused to speak to her on
the telephone or convey telephone messages; that the Grievor refused to co-
operate with her in any way; that the Grievor took action that was designed to
intimidate her; and that the Grievor watched and monitored her every move. Ms.
Misasi testified that it was not until she received Ms. Koivisto's complaint that she
realised that the conflict between the two co-workers had not been resolved. In
any event, on April 20th, a meeting was convened by the Manager of Labour
Relations, Terry Scott, to discuss the complaint. In attendance at the meeting, in
addition to Ms. Scott, were Ms. Misasi, Ms. Koivisto and Robin Thibault, a
bargaining unit member who provided Union representation. In the course of this
meeting, Ms. Koivisto provided some background information regarding the
conflict between the two co-workers, including the complaint she had submitted
to Mr. Webb in December, 1996, as well as anecdotal notes, which Ms. Koivisto
kept on an ongoing basis beginning in 1994 at the suggestion of an EAP
counsellor. As well, Ms. Koivisto referred to attempts which had been made to
resolve the conflict, including scheduling the co-workers apart (to the extent
possible), as well as a liberal shift exchange policy, which enabled them to avoid
working together. Finally, Ms. Koivisto indicated that although she had agreed to
attend joint EAP counselling, which had been suggested by her Manager, the
Grievor had refused to do so. At the conclusion of the meeting, Ms. Scott
undertook to investigate Ms. Koivisto's complaint.
...
9
At about the same time Ms. Koivisto complained about the Grievor,
the Grievor complained to the Local Union President, Nicole Torgeson, of
harassment by Ms. Koivisto. According to Ms. Torgeson, when they spoke about
the matter over lunch, the Grievor was distraught and not entirely
comprehensible. She, therefore, suggested that the Grievor seek assistance
from the EAP and defer any consideration of the harassment issue until she was
feeling better.
It would appear that the Grievor took Ms. Torgeson's advice
because it was not until some two weeks later that she proceeded with an
harassment complaint. Prior to proceeding with the complaint, however, on April
14, 1998, the Grievor went off work. In this regard, the Grievor testified that her
father was seriously ill and that Ms. Koivisto was "really on [her] case that day".
Notwithstanding that the Grievor was distraught over her father's medical
condition (which had become progressively worse and culminated in his death on
April1Slh), she maintained that she left work on April 14th because of the conflict
with Ms. Koivisto. In fact, the Grievor testified that, as she had told Ms. Torgeson
over lunch, she "couldn't take it any more" with Ms. Koivisto. In this regard, the
Grievor testified that she cried constantly at home and even cried at work (which
she attempted to conceal from her co-workers). She also suffered from
insomnia. Given this range of symptoms, the Grievor recognized that she
... needed help and arranged to see her family doctor, Christine Rossi.
10
Dr. Rossi, a family physician with some experience in dealing with
mental health issues, testified that on April 141h, the Grievor presented with
symptoms of stress, similar to those described by Ms. Torgeson, namely, she
was anxious, tearful, distraught and not entirely comprehensible, symptoms
which the Grievor attributed to her work situation. As well, her father was
suffering from a terminal illness. Given her ilfragile" emotional state, Dr. Rossi
concluded that the Grievor was not coping well and recommended anti-
depressant medication. However, the Grievor felt that her problems were
predominantly work-related and that if her work situation could be changed so
that she could avoid contact with Ms. Koivisto, she would be able to cope and,
therefore, declined the offer of medication. She agreed, however, to pursue EAP
counselling and requested time off work to deal with her problems. Although it
would appear that it was the Grievor who initiated the request for time off, Dr.
Rossi felt it was reasonable to remove her from the workplace to see if she would
improve.
Dr. Rossi, therefore, prepared a medical note dated April 14th,
which the Grievor submitted to Ms. Misasi, to the following effect: "Susan will
need to be off on sick leave for the next month. I will reassess in one months
rsic] time." Although she was unclear as to the reason for the Grievorfs absence,
Ms. Misasi testified that she assumed it was somehow related to Ms. Koivisto's
'" most recent complaint. In any event, following receipt of the medical note, Ms.
Misasi left a message for the Grievor to find out why a one-month absence was
11
necessary. According to Ms. Misasi, the Grievor returned the call the following
day (April 16th), but refused to discuss the matter. However, Dr. Rossi left a
voice mail message advising that the Grievor was "unfit for work in any capacity".
Thereafter, Ms. Misasi referred the matter to the Occupational Health Nurse,
Linda Bell. Although she made an appointment for the Grievor to see Ms. Bell on
April 20th, when Ms. Misasi found out that the Grievor's father had died, she left a
voice mail message telling her to disregard the appointment and to reschedule at
her convenience, As well, in the original telephone conversation on April 16th,
Ms. Misasi suggested that the Grievor seek assistance from the EAP, which was
consistent with Dr. Rossi's recommendation.
Subsequently, following consultation with Mr. Kennedy and Ms.
Torgeson, the Grievor wrote to Ms. Piazza on April 24th advising of her complaint
against Ms. Koivisto~ She also complained of harassment by Ms. Misasi. The
essence of the Grievor's complaint against Ms. Koivisto was that she was
continually scrutinising her; that she was monitoring the length of her breaks; and
that she had reorganised her work station and used profanity in addressing her,
among other matters. The alleged harassment by Ms. Misasi consisted of some
three telephone calls to the Grievor1s home questioning the medical note she had
submitted on April 14th and inquiring as to the state of her health and the reason
for her absence. Apart from the written complaint, the Grievor complained in
... these proceedings that she had been told by Ms. Misasi that she was required to
provide further medical information and indicated that such information should be
12
provided to Ms. Bell, rather than to Ms. MisasL In fact, the Grievor was told that
she need not maintain further contact with Ms. Misasi. As well, Ms. Misasi
suggested, in a tone of voice which the Grievor found objectionable, that she
needed help, which the Grievor took as a reproof and an indication that Ms.
Misasi had concluded that it was she, and not Ms. Koivisto, who was the
harasser. However, the Griever testified that she was in a "fragile" emotional
state and was looking to Ms. Misasi for support, and not reproof. For her part,
Ms. Misasi acknowledged that she had asked for further medical information and
had told the Grievor that that information should be provided to Ms. Bell, as Ms.
Misasi was interested only in knowing that Ms. Bell was satisfied as to the
legitimacy of the Grievor's absence.
Following receipt of the complaint, Ms. Scott contacted the Grievor
to set up a meeting, which took place on May 6th. In attendance at the meeting,
apart from Ms. Scott, were the Grievor and her Union Representative, Ms.
Torgeson. The decision was made to exclude Ms. Misasi as the Grievor had
implicated her in the alleged harassment. In any event, with respect to the
complaint against Ms. Misasi, Ms. Scott indicated that the Grievor had an
obligation to provide medical information; that, as a Manager, Ms. Misasi was
entitled to request such information and that such a request did not constitute
harassment. As to her complaint of harassment against Ms. Koivisto, the Grievor
... repeated the allegations she had made in her letter of complaint, namely, that
Ms. Koivisto was rude and had sworn at her, and that she had "invaded ller
13
personal space" and reorganised her work station. She also complained that Ms.
Koivisto had harassed her by manipulating the schedule to ensure that she and
the Grievor would be working together, and by documenting her actions, which
Ms. Scott felt was at the root of her complaint against Ms. Koivisto. Although Ms.
Scott testified in examination-in-chief that the complaints raised by the Grievor
against Ms. Koivisto were similar in nature to those raised by Ms. Koivisto
against the Grievor, she acknowledged in cross-examination that it was never
suggested that Ms. Koivisto had been documenting the Grievor's actions, Ms.
Scott then asked whether the Grievor would be able to provide documentation in
support of the allegations she had made against Ms. Koivisto. Pursuant to Ms.
Scott's request, on May 13th, the Grievor prepared a compilation of all of her
complaints against Ms. Koivisto, which she then forwarded to Ms. Scott in order
to facilitate her investigation of the matter.
As part of her investigation, Ms. Scott conducted interviews with
some 13 laboratory staff who worked most closely with the Grievor and Ms.
Koivisto. The purpose of the interviews was to obtain some background
information regarding the conflict, as well as input into possible solutions to the
conflict and confirmation as to the accuracy of the Grievor's perception that Ms.
Koivisto had been trying to manipulate the schedule to ensure that she and the
Grievor would be working together. Based on information provided by other staff
... members, Ms. Scott concluded that there had been a long-standing conflict
between the Grievor and Ms. Koivisto; that the conflict made it awkward for other
14
employees to work with the two individuals; and that, although efforts were made
to schedule both individuals apart, when this could not be done, there was a
flurry of activity by the Grievor to arrange shift exchanges to ensure that she did
not have to work with Ms. Koivisto. According to Ms. Scott, the other employees
complained that they felt constrained to agree to these shift exchanges. The
conflict between the Grievor and Ms. Koivisto also restricted other laboratory staff
in arranging shift exchanges, particularly because the Grievor would not agree to
exchange shifts which resulted in her working with Ms. Koivisto. Apart from the
issue of shift exchanges, other staff (particularly those who came from the
General and were unaware of the conflict between the Grievor and Ms. Koivisto
prior to the merger) indicated that they feU pressured by the two employees to
take sides in the conflict. Moreover, it would appear that all of the staff (both
from the General and the Plummer) indicated that they were "fed up" with the
behaviour of both employees, which they characterised as "childish", and wanted
something done about it.
Meanwhile, on May 14lh, the Grievor submitted another medical
note to the effect that "Susan is not fit to return to work at the present time. I will
reassess in 1 month. When she does return she will probably not need modified
work. t1 Although the evidence was not entirely clear, it would appear that,
notwithstanding instructions to the contrary, this note was submitted to Ms.
... Misasi, who then forwarded it to Ms. Bell. Despite Ms. Bell's concern about the
adequacy of the medical information provided, she testified that she did not
15
contact the Grievor in April or May because she understood that her father had
died and there was no pressing need to do so. Accordingly, it was not until the
receipt of an e-mail from Ms. Misasi on June 1 st, asking Ms. Sell to initiate
contact with the Grievor, that she became involved in the matter. Sy way of
explanation, Ms. Misasi testified that it was necessary to establish contact with
the Grievor to ensure that she was legitimately ill and, therefore, that the
Hospitals should continue paying sick benefits. However, as the Grievor had
accused her of harassment, Ms. Misasi felt that her inquiries would be
unwelcome and, therefore, suggested that Ms. Sell initiate contact with the
Grievor.
On June 15, 1998, Ms. Misasi received a medical note dated June
10th, which states, "Susan is unable to return to work at the present time. Will
reassess in 1 month." Thereafter, on June 16th, Ms. Misasi inquired as to
whether Ms. Sell had contacted the Grievor. Pursuant to this inquiry, on June
18th, Ms. Bell left a message for the Grievor to call her, which the Grievor did the
following day. Accordingly, on June 19th, Ms. Bell sent an e-mail to Ms. Misasi,
indicating that the Grievor had returned her telephone call but had been "very
evasive" as to the reason for her absence. The e-mail further indicated that
although the Grievor had referred Ms. Bell to Dr. Rossi, Dr. Rossi failed to return
her telephone calls. In any event, it would appear that the Grievor had not
,. executed a consent for the release of medical information (although it is not clear
that, as of that date, she had been asked to do so).
16
Subsequently, on July 13th, the Grievor submitted a medical note to
Ms. Misasi dated July 10th, which indicates, "Susan is to continue off work
pending outcome of July 23 meeting. I will be away until Aug. 4/98 re any
permission to return to work." Ms. Misasi testified that this was the first time she
had seen the Grievor since she went off work in April and, although she tried to
engage her in conversation about the note, the Grievor declined. Moreover,
although Ms. Misasi was aware there would be a meeting at some point to
discuss the conflict between the Grievor and Ms. Koivisto, until she saw the
medical note from Dr. Rossi, she did not know that the meeting had been
scheduled for July 23td.
Ms. Misasi took issue with the fact that Dr. Rossi's opinion as to the
Grievor's fitness to return to work appeared to be dependent upon the outcome
of the July 23rd meeting. Accordingly, in a telephone conversation on July 14th,
she advised the Grievor that the Hospitals intended to separate two issues: her
claim of illness, on the other hand, and the conflict with her co-worker, on the
other. Ms. Misasi further indicated that the claim for sick leave would be dealt
with under the attendance management programme; that, under this programme,
Ms. Misasi was responsible for monitoring the use of sick leave; and that the
Grievor was required to maintain regular attendance. Ms. Misasi also apprised
... the Grievor that the medical documentation she had submitted was insufficient to
support her claim for sick leave and that, on instructions from a Vice-President of
17
the Hospitals, Marylyn Carriere, she was suspending payment of sick leave
benefits until satisfactory medical information was provided to support her
continuing absence. Although a grievance was submitted on July 28th, that
grievance was ultimately resolved (evidently because sufficient medical
information was provided) and the Grievor received retroactive payment of two
weeks' sick leave benefits.
In the meantime, a meeting was convened on July 23rd. In
attendance at the meeting were Ms. Scott, Ms. Misasi, Mr. Kennedy, Ms.
Torgeson and two laboratory staff, one of whom was the Charge Technologist,
Ms. Bonnell. Although all of the witnesses agreed that the purpose of the
meeting was to discuss the status of Ms. Scott's investigation, there was
disagreement as to the broader purpose of this meeting and of a subsequent
meeting, which was scheduled for August 7th. According to Ms. Scott, these
meetings were also intended to explore possible solutions to the conflict between
the Grievor and Ms. Koivisto. In this regard, Ms. Scott testified that although she
had had input from members of the bargaining unit during the course of her
investigation, she wanted to involve the Union in the resolution of the conflict
between the two employees. Although Ms. Torgeson was unable to recall the
July 23rd meeting, her understanding of the August ih meeting was that the
parties (Union and Management) were working co-operatively to resolve the
on conflict between the Grievor and Ms. Koivisto. However, Mr. Kennedy claimed
that it was the Hospitals' responsibility to resolve the conflict and that the Union
18
attended these meetings in order to find out what the Hospitals intended to do to
bring about a resolution. Moreover, Mr. Kennedy testified that there is an
obligation on the Hospitals under the Occupational Health and Safety Act to
provide a safe and healthy work environment and that the conflict between the
two co-workers resulted in an unhealthy work environment. Nevertheless, Mr.
Kennedy appeared to accept that the Union had a joint responsibility to
participate in solving the problem of an unhealthy work environment. However,
he took the position that the Union had a lesser degree of responsibility for
resolving the matter than did the Hospitals. Accordingly I he disagreed that the
purpose of these meetings was to enable the parties to work together to resolve
the conflict.
In the course of the July 23rd meeting, the Hospitals proposed the
introduction of a temporary arrangement whereby the Grievor and Ms. Koivisto
would be scheduled to work on different shifts. However, the Hospitals would not
commit to a permanent arrangement of this nature, as this type of arrangement
would have had a direct impact on the other laboratory staff. Moreover, although
there was no expectation that Mr. Kennedy and Ms. Torgeson would participate
in the development of the schedule (which would be drafted by Ms. Misasi),
according to Ms. Scott and Ms. Misasi, the Union was not averse to the
implementation of this type of schedule. Apart from the issue of the schedule,
... Ms. Scott testified that she was asked by Mr. Kennedy to contact Ann O'Connor,
a Conflict Resolution Counsellor, to explore the possibility of mandatory joint
19
counselling for the Grievor and Ms. Koivisto. For his part, Mr. Kennedy testified
that, although he had no objection, it was Ms. Scott who suggested contacting
Ms. O'Connor.
Meanwhile, subsequent to the submission of the July 10th medical
note, the Grievor met with Ms. Bell on July 28th. In the course of that meeting,
the Grievor made reference to harassment by a female co-worker (although Ms.
Koivisto was not mentioned by name) and to the effect of the alleged harassment
on her emotional state, which she described as anxious and depressed. Once
again, Ms. Bell suggested anti-depressants and, although the Grievor reiterated
her conviction that her problem could be solved if she could stay away from Ms.
Koivisto, she agreed to discuss the matter of medication with Dr. Rossi. She also
agreed to keep in touch with Ms, Bell, which apparently she did,
Following her next appoIntment with Dr. Rossi, the Grievor
submitted a standard form "Injury/Illness Status Report" dated August 4th, which
indIcated, among other matters, that the Grievor was unable to return to regular
or modified work "due to stresses & stress reaction" and that a follow-up
appointment was scheduled in one month. Although Ms. Bell advised Ms. Misasi
in an e-mail dated August 6th that she was unclear as to the nature of the illness,
if any, and whether there was a treatment plan in place, she indicated that she
... would contact the doctor to clarify the matter. Meanwhile, on August 5th, the
Grievor reported to Ms. Bell on the outcome of her appointment with Dr. Hassi. lt
20
would appear that at that time, the Grievor and Dr. Rossi agreed to defer a
decision on anti-depressant medication pending the outcome of the August 7th
meeting.
The August ih meeting, at which Ms. Misasi, Ms. Scott, Ms.
Torgeson, Mr. Kennedy and Ms. Sell were in attendance, was a follow-up to the
July 23rd meeting. As with the July 23rd meeting, there was some conflict in the
evidence as to the purpose of the meeting (Ms. Scott and Ms. Torgeson being of
the opinion that the meeting was convened to involve the Union in the process of
finding a solution to the conflict between the Grievor and Ms. Koivisto, and Mr.
Kennedy being of the opinion that the meeting was intended to apprise the Union
of what the Hospitals intended to do to resolve the conflict). In any event, Ms.
Scott testified that there was a discussion in the meeting of the content of a letter
the Hospitals propo~ed to send to the two employees. As well, Ms. Misasi
reviewed a temporary schedule she had drafted, which was designed to minimize
contact between the Grievor and Ms. Koivisto. According to Ms. Misasi, there
was no objection taken to the schedule. For her part, Ms. Torgeson recalled that
the schedule was presented at a meeting at which she and Mr. Kennedy were in
attendance, and that they reviewed the schedule, although there was no formal
agreement as to its contents. Mr. Kennedy's evidence suggested that although
the schedule was reviewed in the August ih meeting, no agreement was
~ reached. He also maintained that, although he subsequently received a copy by
fax, he was not shown a copy of the schedule at the August ih meeting. Apart
21
from the schedule and the letter, Ms. Scott indicated that she had contacted the
Conflict Resolution Counsellor, Ms. O'Connor, in relation to mandatory joint
counselling. However, Ms. O'Connor did not believe such counselling would be
effective as the protagonists were not willing participants. Nevertheless, Ms.
O'Connor suggested that the Hospitals manage the behaviour, rather than the
cause of the conflict, and advised on the content of the letter that would be sent
to the two employees.
In addition to the schedule and mandatory joint counselling, Mr.
Kennedy testified that Ms. Bell made reference in the August ih meeting to the
need to get the Grievor back into the workplace. According to Mr. Kennedy, Ms.
Bell recognised that the Grievor was ill' and recommended accommodating her
within the "transitional work programme" doing filing or other clerical work outside
the laboratory. For her part, although Ms. Bell was supportive of the Grievor and
although she made significant efforts to facilitate her return to work, she testified
that she was never entirely satisfied that. the Grievor was suffering from a
legitimate illness. Nevertheless, it would appear that she recommended that the
Grievor be accommodated within the transitional work programme. That
programme, which was part of the Hospitals' extensive return to work
programme, entailed the provision of modified work for a temporary period of up
to eight weeks with a view to returning employees to their pre-injury/pre-Hlness
...
positions. In addition, there were temporary work assignments for employees
whose disabilities were unlikely to be resolved in an eight-week period, as well as
22
long-term, or permanent, accommodation in exceptional circumstances.
However, the Hospitals would not "make work", but would try to accommodate
employees within existing jobs or work assignments.
Subsequently, on August 12th, Ms. Scott faxed a copy of the letter,
which the Hospitals proposed to send to the Grievor and Ms. Koivisto, to Mr.
Kennedy and, as Ms. Torgeson was away from the office, read the letter to her
over the telephone. Although Ms. Scott asked to be advised of any objections or
suggestions for change, none was forthcoming. For her part, Ms. Torgeson
testified that she did not have any strong objection to the letter. For his part,
although Mr. Kennedy claimed in examination-In-chief that he did not comment
on the letter because he understood it would be sent irrespective of his input, he
acknowledged in cross-examination that, had he objected to the letter being sent,
he would have contacted Ms. Scott. According to Ms. Scott, a copy of the
proposed schedule was appended to the letter.
At Ms. Sell's request, on August 13th, the Grievor executed a
consent for the release of medical information to facilitate communication
between Ms. Sell and the Grievor's physician. At that time, Ms. Bell indicated
that a letter would be forthcoming from Ms. Scott setting out a schedule for the
Grievor's return to work.
..
23
Immediately thereafter, the Grievor received the following letter of
counselling, which is identical to one which was sent to Ms. Koivisto:
August 14, 1998
Ms. Susan Farrell
Dear Ms. Farrell:
Re: Harassment in the Workplace
Following our discussion about your letter to Lord Piazza, you are aware
that the Hospitals conducted a review of the situation in the Laboratory
between yourself and Nadine Koivisto. Based on the information that you
provided and the information obtained during the review process, we have
discovered that there has been a long standing serious dispute between
yourself and Nadine Koivisto for a number of years and that the efforts of
previous managers have not resolved the issue.
As I mentioned in our conversation, the Hospitals have expectations with
regards to the behavior of our staff and in that regard, I would refer you to
the Hospitals' Code of Behavior Policy 2-50 for further information.
In accordance with the Code of Behavior, the Hospitals have a right to
expect the following:
I. You will treat your co-workers with - respect,
II. You will not have open displays of anger and conflict,
III. You will speak to each other in a professional manner either face to
face or by phone as necessary while performing your duties,
IV. You will not cause other co-workers and/or patients discomfort by
the conflict with your co-workers.
Failure to meet these expectations will result in discipline upto rsicJ and
including the termination of your employment.
..
The Hospitals, in the past have attempted to schedule you in such a
manner that would minimize the opportunity for you to work together.
Further, the Hospitals have adopted a very liberal policy for shift changes
and your co~workers have been very accommodating regarding requests
to shift change thereby further minimizing the opportunity for you to work
24
together. These efforts and fsicl proven to be unsuccessful, the conflict
between you has continued and escalated.
As a result, I have enclosed a revised schedule that will be instituted for
Tech 2 position in the Laboratory. Please refer to lines 1 and 2 of the
schedule. When this schedule is implemented, you will rotate between
lines 1 and 2 as will Nadine Koivisto.
This schedule will be introduced and will run until Jan. 1999 at a minimum.
If at that point both you and Nadine Koivisto wish to discuss the possibility
of eliminating the accommodated schedule and you can demonstrate that
steps have been taken to ensure that current situation between yourself
and Nadine Koivisto has been addressed, we will revisit the schedule.
You will be advised of the projected start date of the schedule as soon as
we have that information. Please note any changes to this schedule must
be approved by Gina Misasi in advance.
Let me reiterate, that the Hospitals acknowledge that both you and Nadine
Koivisto are long standing employees with valuable skills. Your co-
workers indicated that they for the most part enjoy working with both of
you on an individual basis, however, your long standing dispute and the
resulting behavior when you are working together has caused discomfort
for your co-workers and patients. I would encourage you to seek EAP
assistance with the serious situation and if you feel that the Hospitals' EAP
program may be of assistance, I would suggest that you avail yourself of
the program.
By our actions, the Hospitals can only eliminate the potential for conflict
between you and your co-workers, the resolution of the long standing
problem is your responsibility.
Thank you,
'Terry Scott'
Theresa L. Scott
Coordinator Employee Services
...
c.c. G. Misasi
L. Piazza
M. Carriere
S. Ken nedy
N. Torgerson rsicl
25
Attached thereto was the proposed schedule, which Ms. Misasi had
developed in an attempt to minimize contact between the Grievor and Ms.
Koivisto and to accommodate the needs of the other staff, including two other
full-time phlebotomists with physical disabilities. Ms. Misasi testified that she
resorted to scheduling the Grievor and Ms. Koivisto on different shifts, as she
could not necessarily guarantee that, if they were scheduled on the same shift
(which would have been the day shift), they would be working at opposite sites or
that, if they were working at opposite sites. they would not have to communicate.
Of course, Ms. Misasi recognized that, even with the two employees working on
different shifts, there would still be problems keeping them apart. Firstly, they
could not be scheduled at the same site, because the incoming shift was
required to take report from the outgoing shift. Secondly, even if they could be
scheduled at opposite sites, there was no guarantee they could be kept apart
because of vacation~, absences due to illness, shift exchanges etc., which would
have necessitated changes to the schedule. Notwithstanding these potential
problems, Ms. Misasi decided that the best option was to schedule the two
employees on different shifts and monitor shift exchanges in an effort to ensure
that they would not be working together.
Although Ms. Sell testified that she was enthusiastic about the
proposed schedule, her enthusiasm was dampened by Dr. Rossi's reaction.
... Specifically, when Dr. Rossi was advised on August 24th of the possibility that the
Grievor might run into Ms. Koivisto under the proposed schedule, she expressed
26
her disapproval and indicated that the Grievor would remain off work until the
conflict with Ms. Koivisto was resolved, which Ms. Bell understood to mean that
Dr. Rossi was keeping the Grievor off work, not because of an illness, but
because of the conflict with her co-worker. For her part, Dr. Rossi did not recall
disapproving of the schedule because of the possibility that the Grievor might run
into Ms. Koivisto, although she did recall advising Ms. Bell that the Grievor was
"too frail" to return to work.
The Grievor was also unenthusiastic about the proposed schedule.
In fact, the Grievor testified that, when she reviewed the letter of August 14th and
the schedule attached thereto, she felt that she had been punished, because of
(1) the admonition that failure to meet the expectations set out in the letter would
result in discipline up to and including termination of employment; and (2) the
high percentage of night shifts (every other week) she would have been required
to work, whereas employees with less seniority were scheduled to work straight
days. It should be noted that, immediately before she went off work, the Grievor
had been working three or four night shifts in a 12-week rotation and f in any
event, had never been scheduled to work five nights in a row, which she would
have been required to do under the proposed schedule. Following submission of
a grievance by Ms. Farrell on August 26lh, the Hospitals agreed to clarify that the
letter of August 14th was not intended to be disciplinary. Accordingly, the letter
... was amended to eliminate the fifth paragraph, which states: "Failure to meet
these expectations will result in discipline upto [~ic] and including the termination
27
of your employment." As well, there were other minor revisions, which did not
affect the content of the letter.
On or about August 21St, a meeting was convened to discuss the
proposed schedule. In attendance at the meeting were Ms. Scott and Ms.
Misasi, for the Hospitals, and the Grievor and her Union Representative, Ms.
Torgeson. According to Ms. Scott, in the course of the meeting, the Grievor
expressed the view that the proposed schedule was unduly harsh because of the
high percentage of night shifts and made several suggestions for change (the
nature of which Ms. Scott could not recall). More importantly, however, the
Grievor asked to be scheduled apart from Ms. Koivisto on a permanent basis.
Although Ms. Scott indicated that the Hospitals would not be prepared to make a
permanent commitment to schedule the Grievor and Ms. Koivisto apart. she
suggested that they could "tweak" the schedule to eliminate the long stretches of
night shifts. The Grievor testified that she indicated her willingness to try the
schedule provided there was a reduction in the number of night shifts, which Ms.
Misasj could not recalL In any event, Ms.. Misasi understood that both Ms.
Koivisto and the Grievor were working on their own schedules and. in fact, it
would appear that Ms. Koivisto came up with a schedule. Although there was no
indication that the Grievor ever produced a schedule, Ms. Torgeson testified that,
in a meeting with Ms. Scott and Mr. Kennedy, she discussed a number of
... alternative proposals which would have eliminated some of the night shifts and
minirnized contact with Ms. Koivisto. In fact, Ms. Misasi acknowledged that there
28
were any number of ways in which to design a schedule to meet the required
objectives. However, Ms. Misasi testified that she was reluctant to accept a
schedule from either of the protagonists, as she did not wish to appear partial to
one or the other. As well, the practice was for schedules to be developed and
voted on by the staff, and Ms. Misasi did not want to disturb that arrangement by
foisting a schedule on the other staff members. AccordinglYJ the schedule
proposed by Ms. Koivisto was never shown to the Grievor. Nevertheless, the
Grievor testified in these proceedings that she would have been prepared to work
under this schedule, which provided for four night shifts in a 12-week rotation and
would also have minimized contact with Ms. Koivisto. However, both the Grievor
and Ms. Koivisto felt that the long stretches of night shifts in the schedule
proposed by Ms. Misasi presented an undue hardship.
For her part, on or about September Slh, Ms. Koivisto submitted a
doctor's note dated September 7th indicating that she had suffered a stroke (her
third) and was unable to work the proposed rotation (specifically, the high
percentage of night shifts). As well, the Grievor had submitted a grievance on
August 261h claiming that she had been "unjustly disciplined/punished" by the
introduction of the proposed schedule. Thereafter, the Grievor requested a
meeting with Manu Malkani, the President and Chief Executive Officer of the
Hospitals, which took place on August 31sl. However, following an investigation,
.. Mr. Malkani declined to intervene, because he concluded that Management was
dealing appropriately with the matter and the matter was the subject of a
29
grievance. Although that grievance was ultimately withdrawn, in light of
objections from both the Grievor and Ms. Koivisto, the proposed schedule was
never implemented.
It would appear that Ms. Koivisto's medical note and Ms. Farrell's
grievance came to Ms. Misasi's attention upon her return from vacation on or
about September 14th. On that date as well, Ms. Misasi received an e-mail from
Ms. Scott asking her to adjust the schedule to address the concerns of both the
Grievor and Ms. Koivisto regarding the long stretches of night shifts. Although
Ms. Misasi indicated that she could do "a little somethingll with the schedule, she
did not think it would solve the problem, which was the personality conflict
between the Grievor and Ms. Koivisto.' Although Ms. Misasi was anxious to
resolve the conflict, she maintained that the conflict was taking up too much
managerial time, which ought to have been devoted to operational issues.
Accordingly, she took the position that the employees should have been required
to adhere to the Code of Behaviour and that the Hospitals should have asserted
their right to develop and implement a schedule which would allow the
department to operate effectively and would not be unduly restrictive for the rest
of the staff.
On September 17'h, a step 1 grievance meeting was held with
.. respect to the August 26th grievance in which the Grievor claimed that she had
been "unjustly disciplined/punished" by the introduction of the proposed
30
schedule. This meeting also constituted the complaint stage for a subsequent
grievance referred to as the "health and safety" grievance. In attendance at the
meeting were Ms. Misasi, Mr. Kennedy and the Grievor. At that time. there were
indications from both the Grievor and Mr. Kennedy that the Grievor would be able
to return to the status quo) i.e., the normal rotational schedule, which had been in
effect when she went off work in April, provided she had minimal contact with Ms.
Koivisto. Evidently, Ms. Misasi agreed that the Grievor could return to the status
quo, with the two employees being scheduled, where practicable, on different
shifts and/or at opposite sites. In addition, Ms. Misasi agreed to monitor shift
exchanges to ensure that, to the extent possible, no exchanges were made
which put the Grievor in contact with Ms. Koivisto. However, she could not
guarantee that they would always be scheduled apart. Ms. Misasi's recollection
was that the Grievor seemed prepared to accept this arrangement. Furthermore,
Ms. Misasi agreed that the Grievor would be given a one-day orientation to the
workplace and would be allowed to return to work gradually (a ucouple" of days a
week) and use her vacation credits to supplement her income for the balance of
the week. As well, as the Grievor was anxious about returning to the workplace,
it was agreed that the staff would treat her with respect and be reminded of the
requirement to adhere to the Code of Behaviour.
Although Ms. Misasi did not know the Grievor's medical status at
... the time, she was under the impression that the Grievor had been cleared to
return to work. It would appear, however, that some two days earlier, the Grievor
31
had provided Ms. Bell with a medical note dated September 14th, which indicated
that she was not fit to return for at least another month. Notwithstanding this
note, the Grievor gave no indication in the September 17th meeting that she had
not been cleared to return to work. Furthermore, it would appear that Ms. Misasi
never saw the note that was given to Ms. Bell. Although, at one point in cross-
examination, the Grievor testified that she assumed that Ms. Bell would have
informed Ms. Misasi about the note, at another point, she was unable to explain
why she had not told Ms. Misasi about the medical note in the course of the
September 17th meeting.
On September 18th, Ms. Bell sent an e-mail to Ms. Misasi, inquiring
as to whether the Grievor could be given a modified work assignment for a
temporary period either within or outside the laboratory. Ms. Misasi testified that
although she did not know about the availability of temporary work outside the
laboratory, because of medical documentation restricting Ms. Koivisto from
working the proposed schedule, a temporary accommodation within the laboratory
was not an option. The only alternative, according to Ms. Misasi, was the one
which was discussed in the September 1 ih meeting, i.e., that the Grievor would
return to the status quo, which involved putting her back on the master rotation in
the laboratory and assigning her and Ms. Koivisto, to the extent possible, to
different shifts and/or at opposite sites. As well, Ms. Misasj would monitor shift
"" exchange requests and deny any such requests that would result in the two
employees working together. For her part, the Grievor testified that, in the fall of
32
1998, she would have been willing and able to return to the status quo, so long as
she did not have to work with Ms. Koivisto, and Ms. Misasi monitored shift
exchanges to ensure that result. However, there was no indication that, apart
from the September 1 ih meeting, the Grievor ever advised the Hospitals of her
willingness to do so. As of that date, of course, the Grievor had not been cleared
to return to work and, although she testified that she could have asked Dr. Rossi
for a note authorizing her return to work, so long as she did not have contact with
Ms. Koivisto, she did not do so. In any event, the Grievor testified in these
proceedings that although she would have been prepared to return to the type of
schedule which was in effect at the time she went off work, she did not think that
she could "handle" Ms. Koivisto any longer. However, she was prepared to work
with her "once in a blue moon".
Nevertheless, with the Grievor's assistance, Mr. Kennedy wrote to
Mr. Webb on October 19th inquiring about alternate work for the Grievor. By way
of explanation, Mr. Kennedy testified that in the August J'h meeting, Ms. Sell had
emphasized the importance of getting the Grievor back to work as soon as
possible and suggested that she be given some kind of clerical work to facilitate
her re~entry into the workplace. However, as nothing materialised, he wrote the
October 19th letter inquiring about the matter. For his part, Mr. Webb pointed out
that Mr. Kennedy's letter makes no suggestion as to the type of alternate work
... into which the Grievor should be placed. Moreover, there was never any
indication that the (3rievor had the skills or training to work outside the laboratOlY.
33
Aside from Mr. Kennedy's inquiry, on October 19th, a meeting was
convened with Ms. Misasi, Ms. Piazza, Ms. Scott, Mr. Webb, Mr. Kennedy, Ms.
Koivisto and the Grievor in attendance. The purpose of the meeting, it would
seem, was to report on the results of Ms. Scott's investigation and to clarify the
behavioural expectations for both the Grievor and Ms. Koivisto. More
particularly, the meeting was intended to indicate that the employees' behaviour
was unacceptable and would not be tolerated; that they were required to refrain
from such behaviour and put an end to the conflict between them. The tone of
the meeting was, by all accounts, didactic. Mr. Kennedy referred to having been
"hauled into the principal's office"; the Grievor, to being "read the Riot Act", which
is how Ms. Mi?asi described the meeting as well. In any event, the outcome of
the meeting is recorded in a letter from Ms. Piazza to Mr. Kennedy dated October
26, 1998, which essentially reiterates the Hospitals' position set out in the letter
of August 14th. In substance, Ms. Piazza indicated that the Hospitals had
completed their investigation and concluded that the Grievor and Ms. Koivisto
had harassed each other, which had a deleterious effect on their co-workers and
on the productivity of the department as a whole. Furthermore, as efforts to
resolve the conflict, including numerous efforts to accommodate the two co-
workers by scheduling them apart, had failed, they would be required to resume
a normal rotational schedule, adhere to the Code of Behaviour and refrain from
.", harassment and other unprofessional conduct. Finally, there was an admonition
34
that failure to adhere to these conditions would result in disciplinary action, up to
and including discharge.
Notwithstanding the admonition contained in the October 26th letter}
Ms. Scott felt that nothing had been resolved as a result of the October 19th.
meeting. The Grievor continued to insist that she was the victim and Ms.
Koivisto, the instigator. Although Ms. Koivisto denied that she was the instigator,
she seemed to accept the Hospitals' conclusion that there was some element of
blame on the part of both employees. Moreover, Ms. Scott felt that Ms. Koivisto
was willing to try to resolve the conflict, which was Ms. Misasi's impression as
well. Ms. Misasi also believed that Ms. Koivisto would comply with the
requirement to behave in a professional manner and that, although the Grievor
understood the requirement to act professionally, she held to the belief that she
had been victimised and never accepted responsibility for the conflict.
Accordingly, although Ms. Misasi felt that expectations could be set and
discipline imposed for specific infractions} she was not optimistic about the
prospects of resolving the conflict through these initiatives. Rather, she believed
that there was an underlying problem, which the two employees would have to
resolve for themselves.
Aside from the conflict with Ms. Koivisto, Ms. Piazza testified that,
...in the course of the October 19th meeting, she asked the Grievor to provide
updated medical information and a return to work date. Although no other
35
witness could recall this request having been made, Mr. Kennedy's notes of the
meeting refer to Ms. Piazza as "currently awaiting information/medical update".
Notwithstanding her inability to recall a request for medical
information, on October 21, 1998, the Grievor submitted a medical note dated
October 20th, which states, "Susan is able to return to modified duties as long as
she does not have contact [with] her regular department." With respect to this
note, Dr. Rossi testified that she had been advised by the Grievor on October
20th that her sick time was running out. Dr. Rossi felt, therefore, that it was
imperative to get this matter resolved. However, Dr. Rossi testified although the
Grievor was fit to return to work, she could not return to the laboratory without
some resolution to the conflict with Ms; Koivisto. She also testified that she
conveyed this opinion in response to Ms. Bell's request for clarification the
following day. In this regard, the evidence indicated that, on Octo~er 21St, Ms.
Bell telephoned Dr. Rossi to obtain clarification of the October 20th note. On Dr.
Rossi's evidence, she expressed the belief that the Grievor was well enough to
return to work on a gradual basis provided she did not have contact with the
individual with whom she was in conflict (namely, Ms. Koivisto). Although Ms.
Bell had no recollection of any reference to the conflict with the Grievor's co-
worker, based on information provided in the telephone conversation with Dr.
Rossi, Ms. Bell prepared the following orders, which were then sent to Dr. Rossi
... for signature:
36
. no restrictions other than no contact [with] own department until issue
resolved
. graduated work hours: 4 hrs/day X 2 wks, then increase to 6 hrs a day
X 2 wks, then 8 hrs
. may do shift work as long as fair and equitable
It was the Grievor's understanding that Dr. Rossi's orders were
based on Ms. Bell's recommendation that she be accommodated outside her
own department for a temporary period only. Although Mr. Kennedy's
understanding was to the same effect, there is nothing on the face of the October
20lh medical note or in the orders prepared for Dr. Rossi's signature, which
indicates that the restriction on contact with the Grievor's regular department was
intended to be temporary. Indeed, Ms. Bell's testimony was that Dr. Rossi had
indicated that this restriction should remain in effect until the conflict with Ms.
Koivisto was res~lved. In any event, Ms. Misasi testified that, in light of the
restriction on the Grievor's returning to work in her own department, she could
not come up with an option that would satisfy the G rievor's needs and those of
Ms. Koivisto and the rest of the staff. As to the rest of the staff, Ms. Misasi
testified that once the Grievor had gone off work, she heard complaints from
other employees similar to those that had been expressed during Ms. Scott's
investigation, Le., about tensions in the workplace as a result of the conflict
between the Grievor and Ms. Koivisto. They also complained about being asked
..
to take sides in the dispute and being restricted in their own scheduling by the
requirement to schedule the two co-workers apart. Moreover, Mr. Webb testified
37
that, in view of the restriction on the Grievor's returning to work in her own
department, the transitional work programme, which was designed to enable
employees to return to their pre-illness positions, was not available.
Subsequently, on October 26th, the Grievor filed a grievance
complaining that the Hospitals had failed to accommodate her. The following
day, Mr. Webb wrote to Mr. Kennedy indicating that the Grievor could not be
accommodated outside the laboratory and that, although part-time work was
available within the laboratory, such work could not be provided because of the
restriction on the Grievor's returning to work within her own department until the
conflict with Ms. Koivisto was resolved. However, Mr. Webb testified that it was
the Hospitals' position that, in light of the fact that behavioural expectations had
been set for the Grievor and Ms. Koivisto, the conflict between the two
employees had effectively been resolved. He, therefore, asked Mr. Kennedy to
confirm whether this resolution satisfied Dr. Rossi's restriction that the Grievor
remain off work until the conflict with her co-worker was resolved. That being the
case, that Mr. Webb would proceed with the preparation of a graduated return-to-
work schedule within the Grievor's own department. He also requested
confirmation by November 9, 1998 of the Grievor's intention to return to work in
the laboratory, failing which, she would be deemed to have "no interest in
maintaining her employment".
....
38
Before the deadline for responding to Mr. Webb's request, a step 1
grievance meeting was convened on November 4th to deal with the health and
safety grievance. Among those in attendance were Ms. Misasi, Mr. Kennedy and
the Grievor. At that time, the Union proposed that the grievance be settled on
the following terms: that the two employees would be scheduled apart to the
extent possible (although, taking into account operational requirements and the
needs of the other staff, opposite sites could not be guaranteed); that Ms. Misasi
would be involved more directly in the monitoring of shift exchanges; that the
Grievor would return to work as soon as possible (most probably by the following
Monday); that she would be given a one-day orientation period; and that there
would a gradual return to work, with the Grievor being scheduled to work less
than five days a week and allowed to' utilise accumulated vacation leave to
supplement her income for the balance of the week. As well, there was some
discussion of the removal of material from the Grievor's file.
Although the Grievor indicated in the November 4th meeting that
she was willing to return to work on the terms proposed, it was her understanding
that Ms. Misasi wished to review these terms with Ms. Piazza, and that Ms.
Piazza would contact Mr. Kennedy regarding the matter the following day. For
her part, Ms. Piazza testified that Ms. Misasi sent her an e-mail outlining the
Union's proposal respecting the Grievor's return to work and that she was
..
supportive of some, but not all, of the terms of the proposal. In any event, Mr.
Kennedy advised Ms. Piazza that the Grievor was insisting upon a written
39
guarantee that the Hospitals make "every effort" to comply with all of the
proposed terms. Moreover, although Mr. Kennedy testified in these proceedings
that the proposal was not intended as a permanent measure, according to Ms.
Piazza, Mr. Kennedy gave no indication that these terms were intended to be in
effect for a temporary period only. In any event, Ms. Piazza testified that she
advised Mr. Kennedy that the requirement that the Hospitals make "every effort"
to adhere to the teffils of the proposal was too stringent and that she would not
execute a written guarantee to this effect. In this regard, Ms. Piazza testified that
she was unwilling to bind the Hospitals for the future, particularly in light of
changing operational requirements, specifically, the department was being
downsized and consolidated to one site; job duties were being reorganised; and
contracting out was contemplated. In, addition, accommodations were being
made for other employees with physical disabilities. In the event of layoffs, Ms.
Piazza was concerned about the Hospitals' ability to fulfill a long-term
commitment to the terms proposed by the Union. As well, Ms. Misasi was
concerned that a written commitment would create a precedent which would
require the Hospitals to agree to similar arrangements in other cases involving
personality conflict. Finally, Ms. Piazza testified that she had "grave concerns"
that the Union's proposal would not resolve the matter, as this kind of
arrangement had not worked in the past. Although Ms. Piazza did not apprise
Mr. Kennedy of all of her concerns, she did indicate that she would not agree to a
... written commitment because of operational requirements and downsizing, in
particular. As it turned out, layoffs did not occur, although some phlebotomists
40
were displaced from their positions. Furthermore, although contracting out has
not taken place, consolidation of the laboratory to one site is progressing.
In any event, on November 5th, the Grievor met with Mr. Kennedy to
review the outcome of his discussions with Ms. Piazza. As Ms. Piazza was
unwilling to guarantee the Hospitals' adherence to the terms of settlement
proposed in the November 4th meeting, Mr. Kennedy indicated the Union's
intention to proceed with the grievance. At this point, the Grievor testified that
she was frustrated with the Hospitals' refusal to execute a written guarantee and,
accordingly, she asked Mr. Kennedy to explore the option of a severance
package. Although the Hospitals offered a severance package, following
consultation with her husband, the Grievor refused the offer.
Although the Grievor testified that she had not insisted upon being
assigned to work outside the laboratory as a condition of returning to work, on
November 9th, she participated i~ drafting a response to the October 2ih letter
from Mr. Webb, in part:
First, let me state quite clearly that Ms. Farrell does not wish to have her
employment severed with the hospital rsicl. ...
...
I am ... upset with the fact that the hospital chooses to ignore Ms. Farrell's
physician, who has indicated that a return to the lab at this point would be
injurious to her health and well being. The hospital has failed to recognize
this salient point. I strongly contend on Ms. Farrell's behalf that the
hospital has a duty to accommodate and so far has failed to do so. As
well, several months ago, I was led to believe that the hospital through
Linda Bell, Occupational Health Nurse, would bring Ms. Farrell back to
41
work at the hospital in some type of alternate capacity on a gradual basis.
To date, nothing has come of this initiative and I think it is quite clear that
the hospital has no intention to follow through.
Although the letter does not explicitly state that the request for alternate work
was intended to be temporary, the Grievor testified in cross-examination that the
letter was consistent with Ms. Bell's recommendation that the accommodation
proposed was for a temporary period only. Nevertheless, the Grievor
acknowledged that, notwithstanding Ms. Bell's recommendation, there was never
a commitment from anyone in Management that she could return to work outside
the laboratory.
For her part, Ms. Piazza. testified that, by November, she was
unclear as to what the Union was proposing as a resolution to this matter. On
the one hand, the Union had proposed in the November 4lh meeting that the
Grievor be brought back to work in the laboratory on a modified schedule and, on
the other hand, the Grievor had submitted medical documentation indicating that
she could not return to work in the laboratory. As well, there was
correspondence from the Union to the same effect.
Furthermore, by letter dated November 12, 1998, Mr. Webb
communicated the Hospitals' position they were under no obligation to "make
... work" for the Grievor outside the laboratory. Accordingly, unless the Grievor
advised of her intention to return to work in the laboratory on or before November
42
27, 1998, she would be deemed to have abandoned her position. The November
12th letter to Mr. Kennedy reads, in its material respect, as follows:
The Hospitals contend that Ms. Farrel rsicl is not handicapped as defined
by the Human Rights Code and as a result we have no legal or
contractual obligation to create work for Ms. Farrel. Notwithstanding this,
even if Ms. Farrel was handicapped within the confines of the Human
Rights Code the Hospital rsic] would still not be required to create work
but rather make accommodation short of undue hardship within the
person's regular job and department.
The current medical restrictions as described by her doctor can be
accommodated other than her being placed outside her department. As
described above, the Hospitals will not create work for Ms. Farrel.
Please advise Ms, Piazza or Ms. Scott if Ms. Farrel intends to return to the
lab and what date she intends to return. We would ask that we receive
this information on or before November 27. 1998. If we do not hear back
from you or Ms. Farrel, the Hospitals will terminate her employment as she
will have been deemed to have abandoned her job.
(emphasis in original)
Notwithstanding the November 1 ih letter, Mr. Webb testified that
the Hospitals recognised that they had a problem, namely, two employees in the
same department who could not get along. However, according to Mr. Webb,
Management was of the view that reasonable efforts had been made to address
the problem (by proposing alternate schedules in an effort to keep the employees
apart, among other matters). Mr. Webb further testified that it was felt that the
restrictions set out by Dr. Rossi could be accommodated by the implementation
00 of these schedules within the laboratory. Accordingly, Mr. Webb directed Mr.
Kennedy to confirm tho Grievor's intention to return to work within the laboratory
43
by November 2ih, failing which the Hospitals would terminate her employment
as she would be deemed to have abandoned her position. For her part, the
Grievor testified that she did not recall having been asked to indicate her
intention to return to her position in the laboratory. Nevertheless, she
acknowledged that she must have received a copy of the November 1 ih letter
(on which she was copied). In any event, on November 25th, Mr. Kennedy
responded to Mr. Webb's letter, in part:
Ms. Farrell's physician has made it quite clear that a return to work in the
lab would be injurious to her health, especially given the stance of the
hospital. I believe that it is appropriate to accommodate Ms. Farrell and
that such accommodation would not pose any undue hardship to the
hospital.
Presently Ms. Farrell is filing for, L TO benefits as provided for her under
the collective agreement. It is highly inappropriate for the hospital to
consider that this would be tantamount to abandoning her position. I
would caution the hospital with regards to its intent to terminate her
employment on those grounds.
Irrespective of the content of the November 25th letter and, in particular, the
statement that a return to the laboratory "would be injurious to her health", the
Grievor understood that the Union was not asking that she be scheduled to work
outside the laboratory, but only that she be scheduled to work apart from Ms.
Koivisto and, further, that if the Hospitals were unclear as to the nature of the
request, it was incumbent upon them to seek clarification.
..
44
Notwithstanding Mr. Kennedy's letter, on December 18th, the
Hospitals wrote to the Grievor as follows:
As indicated in the letter from Rick Webb dated Nov. 12f 1998, you were
requested to indicate if and when you intended to return to your position in
the Laboratory. In addition, the letter instructed you, that in the event you
failed to comply with our requests, the Hospitals would terminate your
employment as you will have been deemed to have abandoned your job.
The Hospitals maintain that you have failed to comply with our requests.
Additionally you have not provided the Hospitals with the medical
documentation necessary to support your continued absence from work.
Therefore, the Hospitals conclude you have abandoned your position with
Sault Area Hospitals. Accordingly, your termination has been processed
effective Dec. 18, 1998.
Please contact Terry Scott ... to process the required papelWork for your
termination.
A similar letter was written to Mr. Kennedy on December 18th by the
Vice-President for Support SelVices, Don Muio. In respect of this letter, Mr.
Webb testified that when the Grievor refused to return to the laboratory,
notwithstanding numerous warnings as to the consequences of such refusal, the
Hospitals reviewed the circumstances and deemed her to have abandoned her
position. For her part, the Grievor testified that it was never her intention to
abandon her position. As well, the Grievor testified that she complied with all
requests for medical information. In fact, the Grievor submitted medical notes to
Ms. Sell at monthly intelVals (or thereabouts) from April, 1998 to September,
...
1999. Indeed, it was the Grievor's understanding that she had provided all of the
required medical documentation. Nevertheless, Mr. Webb claimed that the
45
Griever failed to respond to inquiries as to when she would be able to return to
work in the laboratory. Ms. Bell testified that although she was aware that the
Grievor was emotionally "fragile", she was unclear as to whether there was any
medical condition which would have prevented her from returning to work in the
laboratory. Moreover, although the Grievor claimed that she was suffering from
anxiety and depression, in Ms. Bell's view, her claim was never substantiated.
Rather, it appeared to Ms. Bell that the Grievor was off work because of a
personality conflict with her co-worker and that Dr. Rossi had authorized her
absence until that conflict was resolved. Finally, the evidence indicated that in
the fall of 1998, the Grievor initiated a claim for long-term disability benefits,
which was denied by the insurer on the basis of insufficient medical information
to substantiate a claim of total disability. The Grievor testified, however, she
relied on Dr. Rossi to submit the required information.
On February 9, 1999, Dr. Rossi provided medical documentation, at
the Grievor's request, which indicated that the Grievor was having "a great deal
of emotional difficulty surrounding the conflict in her work place"; that she "has
certainly had stress"; that "her health has been affected by her difficulties",
although she had only recently shown signs of clinical depression. As well, Dr.
Rossi reiterated her opinion that the Grievor was "far too fragile and would not be
able to cope" in her previous work situation. In her oral evidence, Dr. Rossi
... indicated that there were elements of depression "all along", Le., from the outset
of the Grievor's absence. Moreover, although she experienced depressive
46
symptoms from the outset, by February, they had become more extreme, at
which time, Dr. Rossi diagnosed a clinical depression (referred to in cross-
examination as a "fairly significant depression"), which was evidenced by the fact
that the Grievor was enervated in all aspects of daily living, whereas previously
she had managed quite well at home,
Nevertheless, Dr. Rossi did not refer her to a psychiatrist, as there
was a shortage of psychiatrists in the community and as Dr. Rossi felt that she
could manage the Grievor within her own practice. As well, she recommended
that the Grievor continue with EAP counselling, which she did on a weekly basis.
However, it was not until February, 1999 that she started taking anti-depressants.
Indeed, although Dr. Rossi had suggested anti-depressant medication a year
earlier (in April, 1998), she acknowledged that it was not until February, when a
clinical depression was diagnosed, that such medication was required.
For her part, the Grievor testified that in the period from April to
December, 1998, she was depressed, mentally exhausted and sleep-deprived.
As well, she cried constantly, was sick to her stomach, suffered from headaches
and experienced bad dreams. In addition, she was unable to deal with her family
(her testimony being that she was impatient, hollered at her children, cried in
front of the children and did not wish to participate in family activities). Indeed,
.. she referred to herself as being "a nervous wreck",
47
The Grievor further testified that following her termination, she
continued to see her doctor every second month and to take anti-depressant
medication. As well, the Grievor maintained that she is able to return to work
and, although it would not be possible for her to work with Ms. Koivisto all of the
time, she could return to work with her on a gradual basis, although if Ms.
Koivisto "continues doing what she did, [she] probably [would not] be able to
work with her". Finally, the Grievor testified that she was prepared to adhere to
the provisions of the Code of Behaviour set out in the letter of August 14th. In
cross~examination, the Grievor acknowledged that she had a 20-year history of
conflict with Ms. Koivisto; that Ms. Koivisto essentially caused her to have a
nervous breakdown; and that, if Ms. Koivisto continued to harass her, she would
"definitely" be unable to work with her. Nevertheless, the Grievor acknowledged
that the Hospitals could not guarantee that she would never have to work with
Ms. Koivisto (Ms. Misasi had indicated that they might have to work together
"once in a blue moon"). Moreover, although the Grievor conceded that, over a
number of years, various members of Management had attempted to deal with
the conflict between her and Ms. Koivisto, she felt that things would be different
because, with the initiation of these proceedings, Management would now be
aware of the seriousness of the situation. Furthermore, although the two
employees had been admonished about the matter in the past and Management
had previously tried to ensure that they would not have to work together, the
... Grievor felt confident that the arrangement would work this time, because the
admonition had been put on writing and because Ms. Misasi had agreed to
48
monitor the situation. Nevertheless, the Grievor conceded that the most viable
alternative might be for her to find another job, which was consistent with Dr.
Rossi's opinion. However, the Grievor's financial circumstances preclude her
from doing so. As well, the Grievor has no formal education or training for jobs
other than phlebotomist. Finally, although she acknowledged that Ms. Koivisto
took the opposite position, the Grievor maintained that Ms. Koivisto was
responsible for the harassment and that she had done everything in her power to
ensure that Ms. Koivisto did not bother her. For her part, following an
investigation of the Grievor's harassment complaint against Ms. Koivisto in the
spring of 1998, Ms. Scott came to the opposite conclusion, i.e., that although Ms.
Koivisto was not blameless, the conflict was, in large measure, attributable to the
Grievor.
In any event, Dr. Rossi testified that the Grievor had improved on
anti-depressant medication and that by May 10, 2000, which was her last
appointment prior to Dr. Rossi's testimony, her depression was resolved.
Nevertheless, Dr. Rossi testified that she would be concerned for the Grievor's
mental health if she were to return to the same work environment she had left in
April, 1998. She further testified that it would be ideal if the Grievor had no
contact, or minimal contact, with Ms. Koivisto and that, if she had a supportive
work environment and could be scheduled apart from Ms. Koivisto, she could try
... to return to work in the laboratory. Dr. Rossi acknowledged that she was not
aware that since 1996, efforts had been made to ensure that the Grievor and Ms.
49
Koivisto were scheduled apart or that there was a liberal exchange policy in
effect, which allowed the two co-workers to avoid working together. She was
aware, however, that a schedule had been proposed in August, 1998 under
which the two employees would be working, to the extent possible, at opposite
sites and on different shifts. That schedule was not acceptable to the Grievor, as
it involved her working significantly more night shifts than had previously been
required.
Decision
The first issue is whether there was any basis upon which to
conclude that the Grievor abandoned her position with the Hospitals.
Abandonment is generally dealt with by analogy to the resignation line of cases.
The issue in cases of this nature is whether the employee intended to sever the
employment relationship. In the case of abandonment, in particular, that
intention is generally inferred from the employee's objective conduct, which may
include securing employment with another employer or being absent for a
prolonged period, among other matters.
In this case, although the Grievor was absent for a prolonged
period (April to December), we find that she did not manifest an intention to sever
'" the employment relationship. To the contrary, the Grievor responded to all
requests for medical information and maintained contact with the Hospitals
50
through the submission of monthly medical notes. As well, she attended
meetings and returned telephone calls (or at least the majority of them), as
requested. Furthermore, she engaged in return-to-work discussions and,
through her Union Representative, confirmed her intention, not once, but twice,
to maintain her employment with the Hospitals. In these circumstances, there is
no basis upon which to conclude that the Grievor abandoned her employment
with the Hospitals.
Although the facts do not support a finding of abandonment, there
was no objection to the Hospitals' relying on the same facts to claim, in the
alternative, that there was just cause for discharge. With respect to the
allegation of just cause for failure to return to work, the evidence indicated that,
for some 20 years, the Grievor was locked in a conflict with her co-worker,
Nadine Koivisto. Although there was some attempt to apportion blame between
the two employees, the Hospitals concluded that both employees bore some
responsibility for the conflict. In any event, the evidence indicated that the
conflict escalated to the point where, in 1996 and 1998, each of the employees
filed harassment complaints against the other. As well, the Grievor filed an
harassment complaint against the Manager of the Laboratory, Gina Misasi.
Concurrent with the harassment complaints, in April, 1998, the
.. Grievor went off work. This was a particularly stressful time for the Grievor,
whose father was terminally ill and died shortly thereafter. Nevertheless, the
51
Grievor attributed the reason for her absence to the workplace conflict rather
than her bereavement. In any event, when the Grievor attended at her doctor on
April 141h, Dr. Rossi found her emotionally "fragile" and recommended anti-
depressant medication, which the Grievor declined, Although Dr. Rossi testified
in these proceedings that the Grievor presented with depressive symptoms,
which continued throughout the period of her absence, the only information
available to the Hospitals up until July was in the form of cursory medical notes,
indicating that the Grievor was unfit to return to work and would be reassessed at
monthly intervals. As well, inquiries in the spring of 1998 as to the reason for the
Grievor's absence either went unanswered or the answers were not particularly
informative.
Apart from these rather perfunctory notes, medical documentation
was submitted in July, which suggested that the Grievorts fitness to return to
work was dependent upon the outcome of a meeting convened to deal with the
resolution of the conflict between the Grievor and Ms. Koivisto. The final medical
documentation submitted prior to termination indicated that the Grievor was fit to
return to work outside her own department. In response to a request for
clarification from the Occupational Health Nurse, Linda Bell, Dr. Rossi indicated
that the Grievor could return to work on a gradual basis (increasing from four to
eight hours a day over a four-week period), provided she did not have contact
... with Ms. Koivisto.
52
As this was the only information available prior to termination, it is
perhaps not surprising that the Hospitals would conclude that the Grievor's
absence from work was attributable to the conflict with her co-worker. And, in a
sense, it was. In fact, a letter from Dr. Rossi in February, 1999 stated that the
Grievor was having "a great deal of emotional difficulty surrounding the conflict in
her work place". Although the letter also indicated that it was not until February,
1999 that a clin ical depression was diagnosed, her oral evidence suggested that
there were elements of depression "all along". In any event, apart from the onset
of a clinical depression, there can be no doubt from Dr. Rossi's letter, and the
Grievorfs anecdotal evidence, that the Grievor was suffering from stress. In
these circumstances, it would appear that there was some form of disability.
What is troublesome is the extent of the Grievor's involvement in the conflict with
Ms. Koivisto, which the Grievor and Dr. Rossi identified as the cause of her
disability. It is generally recognized, however, that the determination of disability
turns not on the cause of the disablement, but on the degree of impairment.
Although not determinative of the matter, in view of the limited amount of
information available, it would appear that the Hospitals agreed to the payment of
sick leave benefits for the period from April to August. Moreover, although an
attempt was made to cut off benefits some time in July, a grievance complaining
about the matter was resolved by the retroactive payment of two weeks' sick
leave benefits, apparently because sufficient medical information was provided to
... establish entitlement. As well, the Grievor was in receipt of employment
insurance sickness benefits (rom August to October.
53
The issue which then arises is whether the Grievor's disability was
one which triggered the obligations under the Human Rights Code and,
specifically, the obligations relating to accommodation. Having regard to the
Guide to the Human Rights Code, there is some basis upon which to conclude
that (1) this was a disability (or handicap) within the ambit of the Human Rights
Code, which triggered the duty to accommodate to the point of undue hardship;
and (2) although the Hospitals were not convinced as to the existence of a
disability, efforts were made to accommodate the Grievor. In this regard, the
evidence indicates that, even prior to the onset of disability in the spring of 1995,
the Hospitals made successive attempts to manage the conflict between the
Grievor and Ms. Koivisto, assigning them to different areas and scheduling them
on different shifts or, subsequent to amalgamation, at opposite sites, with no
apparent success. It would appear, however, that these arrangements had an
adverse impact on other laboratory staff, whO complained of being restricted in
arranging their own shift exchanges. As well, even when the two employees
were scheduled at different sites, their inability to communicate had potential
consequences for the seminal blood collection function of the laboratory (the
evidence being that the Grievor tried to avoid answering the telephone when she
had reason to believe the caller might be Ms. Koivisto).
,.., Similar efforts continued in the summer of 1998. These efforts
included the issuance of a letter dated August 14th to both the Grievor and Ms.
54
Koivisto outlining behavioural expectations and setting out a temporary schedule
designed to minimize contact between the two employees. Although Ms. Scott
testified that the Hospitals were optimistic that the employees would recognize
that returning to their normal rotational schedule was preferable to working this
temporary schedule (which contained a high percentage of night shifts), Ms.
Misasi, who prepared the schedule, testified that she could not guarantee that, if
the employees were scheduled on the day shift, they could necessarily be kept
apart. Accordingly, she decided that the best option was to schedule them on
different shifts (which meant that one of them could not be scheduled on the day
shift). Moreover, although there was no indication that the Union participated in
the preparation of the schedule, it was provided to the Union Representatives
prior to its issuance. Nevertheless, the Union took no objection to the schedule.
Apart from the issuance of the schedule, an attempt was made to refer the matter
to a Conflict Resolution Counsellor. Although the evidence was unclear as to
which party recommended the referral, there can be no doubt that Mr. Kennedy
concurred both in the approach to the Conflict Resolution Counsellor and in the
advice given by the Counsellor, which was to manage the behaviour, rather than
the cause of the conflict.
In any event, upon receipt of the August 14th letter and schedule
attached thereto, the Grievor took the position that she had been punished
.. because of the admonition that failure to meet the behavioural expectations set
out in the letter would result in the imposition of discipline up to and including
55
termination and because of the high percentage of night shifts she would have
been required to work under the proposed schedule. In an effort to be
conciliatory, the Hospitals agreed to clarify that the letter was not intended to be
disciplinary by removing the offending portions. As well, Ms. Misasi offered to
adjust the schedule to eliminate the long stretches of night shifts. Although the
Grievor appeared willing to try the schedule provided there was a reduction in the
number of night shifts, Ms. Bell testified that when Dr. Rossi found out that there
was a potential for the Grievor's running into Ms. Koivisto under the proposed
schedule, she expressed her disapproval and stipulated that the Grievor would
remain off work until the conflict with Ms. Koivisto was resolved. Although Dr.
Rossi did not recall disapproving of the schedule because of the possibility that
the Grievor would run into Ms. Koivisto, the Board prefers Ms. Bell's evidence in
this regard, which was consistent with the entry in her nursing notes. Moreover,
aside from its effect on the Grievor, on September ih, Ms. Koivisto submitted a
medical note indicating that she was unable to work the proposed rotation
because of a medical condition (she had suffered three strokes), which made it
impossible for her to work the long stretches of night shifts.
Apart from the proposed schedule, the evidence indicated that Ms.
Koivisto produced a schedule which eliminated some of the night shifts and
minimized contact between the two employees. However, for reasons which
'" were understandable, given the nature of the conflict, this schedule was never
shown to the Grievor (the evidence being that Ms. Misasi did not wish to appear
56
partial to either of the protagonists). Furthermore, although the evidence
suggested that the Grievor discussed alternative schedules with her Union
Representatives (Ms. Torgeson and Mr. Kennedy), there was no indication that
she ever produced a schedule. Finally, although it would appear that Ms. Misasi
acknowledged that there may be many ways in which to design a schedule to
achieve the desired objectives, namely, reducing the number of night shifts and
minimizing contact between the two employees, no other schedule was ever
produced (apart from the one which was presented to both employees in the
August 14th meeting). Although it would appear that Ms. Misasi was anxious to
find a resolution to the matter, she feU that the conflict was taking up entirely too
much managerial time, which ought to have been devoted to operational issues.
Accordingly, she took the position that the Hospitals ought to have established
behavioural expectations for the two employees and exercised their right to
develop and implement a schedule which would allow for the efficient operation
of the laboratory and not be unduly restrictive for the rest of the staff. In fact, it
would appear that the Hospitals purported to exercise this right when they
announced at the October 19th meeting, which dealt with the establishment of
certain behavioural expectations, that accommodative efforts had failed and that,
henceforth, the Grievor and Ms. Koivisto would be required to resume a normal
rotational schedule. This position was reiterated in a letter from Ms. Piazza to
Mr. Kennedy dated October 26, 1998.
."
57
In any event, whatever position was taken subsequently, the
Hospitals engaged in yet another effort at accommodation on September 1 ih,
when, in the course of a grievance meeting, the Grievor announced that she was
able to return to the status quo, so long as she did not have contact with Ms.
Koivisto. Evidently, Ms. Misasi indicated that the Grievor might have to work with
Ms. Koivisto "once in a blue moonJl, which the Grievor seemed prepared to
accept. Accordingly, Ms. Misasi agreed to a protocol under the Grievor would
return to work. Specifically, she agreed that the Grievor could return to the status
quo, with the two employees being scheduled, to the extent possible, on different
shifts and/or at opposite sites, and with more direct monitoring of shift
exchanges. Although Ms. Misasi assumed that, by engaging in such
discussions, the Grievor had been c1ear.ed to return to work, it would appear that
some two days earlier, the Grievor had provided Ms. Bell with a medical note
dated September 14th) which indicated that she was unable to return for at least
another month. Although the Grievor attempted an explanation, she was unable
to clarify why she had not told Ms. Misasi about the note in the course of the
September 17th meeting.
In any event, immediately prior to the October 19th meeting, Mr.
Kennedy (apparently in consultation with the Grievor) wrote to Mr. Webb
inqUiring about alternate work for the Grievor, which was understood to be a
... reference to work outside the laboratory. This request was evidently based on a
recommendation by Ms. 8ell that the Grievor be accommodated in a clerical, or
58
other similar, capacity as a way of getting back into the workplace and was
consistent with the medical information provided from October 20th onward. This
information (in the form of notes and orders issued by Dr. Rossi) indicated that
there was a restriction on the Grievor's returning to work in her own department
until the conflict with Ms. Koivisto was resolved.
Subsequently, on October 27lh, fOllowing the filing of a grievance
claiming failure to accommodate, Mr. Webb advised Mr. Kennedy in writing, that
the Grievor could not be accommodated outside the laboratory and that, although
there was modified work available within the laboratory, this work could not be
provided because of the restriction on the Grievor's working within her own
department until the conflict with Ms. Koivisto was resolved (which represented
somewhat of a departure from the position taken in the October 19lh meeting that
accommodative efforts had failed and the Grievor and Ms. Koivisto would be
required to resume a normal rotational schedule). Mr. Webb then set out the
Hospitals' position that the establishment of behavioural expectations for the
Grievor and Ms. Koivisto (in the October 19th meeting and August 14th and
October 26th letters) had effectively resolved the conflict between the two
employees. He, therefore, asked Mr. Kennedy to confirm whether this resolution
satisfied the restriction on the Grievor's returning to work. (Although not relevant
to the issue of accommodation, Mr. Webb also requested confirmation by
"" November 9th of the Grievor's intention to return to work in the laboratory, failing
59
which she would be deemed to have "no interest in maintaining her
employment" .)
However, before the deadline for responding to the Hospitals'
request, a meeting was convened on November 4th in relation to another
grievance (the health and safety grievance). In the course of this meeting, the
Union proposed a settlement, whereby the Grievor would return to work in the
laboratory and be scheduled apart from Ms. Koivisto to the extent possible.
Although the Grievor appeared willing to accept these terms of settlement,
among others, Ms. Misasi indicated that she would have to review the terms with
Ms. Piazza. Although it was unclear whether Ms. Piazza would have accepted
all of the terms of settlement, the issue became moot when Ms. Piazza was
advised by Mr. Kennedy that the Grievor was insisting on a written guarantee
that the Hospitals would make "every effort" to schedule the Grievor and Ms.
Koivisto apart and that Ms. Misasi would be involved more directly in monitoring
shift exchanges. For her part, Ms. Piazza testified that, because of changing
operational requirements (downsizing and consolidation of the laboratory to one
site, among other matters), she could not agree to a written guarantee, which
would bind the Hospitals in future. Accordingly, the settlement foundered and the
Union indicated its intention to proceed with the health and safety grievance.
..
Following this abortive attempt at settlement and notwithstanding
the Grievor's evidence that she had not insisted on being assigned outside the
60
laboratory as a condition of returning to work, on November 9th, the Grievor
participated in drafting a letter, indicating that she ought to be brought back to
work in an alternate capacity, as a return to the laboratory would be "injurious to
her health and well being". Following a subsequent refusal to accommodate the
Grievor outside the laboratory, on November 25th, Mr. Kennedy reiterated the
position taken in the November 9th letter, Le., that a return to work in the
laboratory would be injurious to the Grievor's health.
Based on this chronology, and notwithstanding the Hospitals'
skepticism as to the existence of a disability, there can be no doubt that efforts
were made to accommodate the Grievor within the laboratory. At some point, the
Union, as well as the Grievor, took the' position that the Grievor ought to be
accommodated outside the laboratory. Mr. Kennedy's evidence, which was
consistent with that of the Grievor, \Afas that he took this position because the
Hospitals had not provided proper accommodation within the laboratory and
because Ms. Bell had suggested that the Grievor be given work outside the
laboratory as a means of facilitating her re-entry into the workplace. It is
unnecessary, however, to decide whether the Union (and the Grievor for that
matter) intended to relinquish its claim for accommodation within the laboratory,
because it has been demonstrated that the Hospitals offered accommodation
within the laboratory and that, with the exception of the August 14th schedule, the
... Grievor frustrated these accommodations. Although the August 14th schedule,
which was reviewed by the Union prior to its issuance, contained a high
61
proportion of night shifts, which Ms. Scott thought would convince the employees
to return to the normal rotational schedule, Ms. Misasi, who drafted the proposed
schedule, testified that it was necessary to schedule the employees on different
shifts to minimize contact between them. In any event, apart from the proposed
schedule, other reasonable efforts at accommodation were frustrated by the
actions of the Grievor. For instance, the September 1ih return-to-work
discussions, which involved the Grievor's return to the status quo, with the two
employees being scheduled on different shifts and/or at opposite sites, to the
extent possible, and more direct monitoring of shift exchanges, foundered
because the Grievor failed to inform Ms. Misasi that she had not been cleared to
return to work. Although the Union suggested that the Hospitals should have
contacted the doctor to obtain clearance, this was not a case in which an
employee presented an ambiguous medical certificate, which the employer was
obliged to clarify. In this instance, the Grievor presented a medical certificate
which stated unequivocally that she was not fit to return to work. There was no
need for clarification. Finally, the November 4th proposal, under which the
Grievor would return to work in the laboratory.and be scheduled apart from Ms.
Koivisto, to the extent possible, failed because of the Grievor's insistence on a
written guarantee that the Hospitals would make every effort to adhere to the
terms of the proposal (although it was understood that, due to operational
requirements, opposite sites could not be guaranteed).
on
62
Furthermore, while, in other circumstances, the Hospitals would
have been required to look for a position outside the laboratory in an effort to
accommodate the Grievor, in this case, the Grievor acknowledged that she had
neither the skills nor training for jobs other than phlebotomist. In these
circumstances, it cannot be concluded that the Hospitals were required to
accommodate the Grievor outside the laboratory.
Nevertheless, in the Board's view, the Hospitals acted precipitously
in terminating the Grievor's employment. In December, 1998, whether or not she
. was entitled to the protections of the Human Rights Code, the Grievor was, to
some extent, disabled. The cause of her disability may have been the conflict
with Ms. Koivisto, for which she was, in .part, responsible. However, there was
some degree of disablement, which prevented the Grievor from reporting for
work. In these circumstances, we find, termination was not justified as the
Grievor was unable to comply with the direction to return to work by the
prescribed date (November 27, 1998). Moreover, as it was uncertain as of the
termination date whether the Grievor would be able to return to work at any point,
given her long service, the Hospitals ought to have allowed her to remain off
work for some reasonable period until it became clear that she either would or
would not be able to return.
...
Had the Hospitals taken this approach, they would have discovered
that. according to Dr. Rossi, the Grievor's depression was resolved by May 10,
63
2000 and, therefore, as of that date, there was no medical impediment to her
returning to work. Nevertheless, the Board is not persuaded that it would be
appropriate in the circumstances to order reinstatement. Even prior to the onset
of disability, there was conflict between the Grievor and Ms. Koivisto. Although
efforts were made to resolve the conflict, including various scheduling initiatives,
these efforts proved unsuccessful. At this point, there is no reason to believe
that the conflict has been resolved or that these initiatives, which were previously
unproductive, would now succeed. As well, the possibility of scheduling the two
employees at opposite sites will no longer exist once the laboratory is
consolidated, which is expected to take place within the next one to three years.
In these circumstances, the Board is not persuaded that if the Grievor were to be
reinstated, the employment relationship .would be viable. In fact, there is every
indication to the contrary. Although the Hospitals concluded that both employees
bore some responsibility for the conflict, the Grievor has assiduously held to the
belief that she was victimised and not to blame. Although the Grievor and her
doctor were able to come up with ideal conditions under which the Grievor would
be able to return to work, they were premised on little or no contact with Ms.
Koivisto. The reality, however, is that Ms. Koivisto is a full-time employee of the
laboratory and has been so for many years. While Ms. Koivisto bears equal
responsibility for the conflict, this is not a case of preferring one employee over
the other by disciplining the Grievor for the conflict, while exempting Ms. Koivisto
... from discipline. This is also not a classic case of friction between two
employees. Rather, it is a case in which, according to the medical evidence, the
64
conflict has been harmful to the Grievors health and, in fact, the Grievor and her
doctor have expressed serious reservations about her returning to the workplace.
In these circumstances, we are not persuaded that reinstatement would be an
appropriate remedy.
However, the Board is of the view that the Grievor is entitled to
compensation. Having regard to all the circumstances, including her length of
service, the Board directs that the termination be removed from the Grievor's
record and replaced with a notation that her employment ended effective
December 18, 1998. As weil, the Board remits the matter of compensation to the
parties and remains seised until March 31, 2002 in the event they are unable to
reach agreement by that date.
.2.0 I'H OEUiJ"lI3E'~
DATED AT TORONTO, this day ~ 2001.
---,
_,-,V ///
h .~~
~.,/h<:.~/!"/~' '-
Chair
"I concur"
See Addendum Attached
Hospitals Nominee - James A. Pearce
...
~I dissent"
See Dissent Attached
Union Nominee - John McManus
Hosvitals Nominee's Addendum
In my view the facts would support a finding of abandonment, howevel' in the
absence of that finding by my colleagues I do concur with the finding that the
employer/employee relationship is irreparably damaged and the greivor's
employment has ended.
While I have concurred with the result, I am compelled to comment as
follows:
The evidence reveals that a tremendous effort was made by the grievor's co-
workers; her supervisors; her Union Representatives, and the Human
Resources Department to find some means by which the greivor's concern
over her personality conflict with one other employee could be satisfied. It is
indeed unfortunate that this effort was in vain. It is my personal belief that
had the grievor been forthright in her dealings with her co-workers;
supervisors; Union; Doctor; and Employer, a different result could have been
achieved. To this extent, the grievor was the author of her own misfortune.
(J,~
aX (Jim) Peal'ce
Employer Nominee
..
DISSENT
I have reviewed the majority's decision in this matter and have two grave concerns about the
ultimate disposition of the case.
One major dispute that I have with the decision is the finding at page 63 that reinstatement
is not the appropriate remedy.
This determination is arrived at based on the fact that "there is no reason to believe that the
conflict between the co-workers has been resolved)>. There was evidence from the co-worker,
Nadine Koivisto, that suggested that she was willing to put the issues behind her. Similarly, there
was evidence froin the grievor that she was prepared to work with Ms. Koivisto on a limited basis,
and deal with her in a professional manner.
There was no evidence before the Board that the conflict had continued. The 3 year hiatus
berween the grievor' s December 1998 termination and the release of the decision has provided each
of the co-workers with some time to ICco~1 their heels". Had both individuals been working over this
period oftime, there would have been sufficient time and possibly sufficient evidence to determine
whether in fact their issues could be resolved and whether there was any impact on their work. The
grievor was not afforded this opportunity.
It is also important to note that Management had allowed this co~worker conflict to continue
and escalate for some 20 years time. Management created this problem by allowing it to continue
tor so long without addressing it. The majority decision essentially allows them to wash their hands
of their responsibility to address this as a workplace issue. Quite simply, they no longer need to
address the conflict because the conflict has created an illness for the grievor that has put her off
\\'ork.
..
The case law that \WIS introduced by counsel regarding when reinstatement is not an option
indicates that the employment relationship must be completely frustratcd or severed beCore
compensation is preferred to reinstatement.
The Union did not dispute that the grievor would likely have a difficult time in transitioning
to a return to work. It is never easy, the Union acknowledged, for an employee who has been offfor
a period of time to come back into the workplace.
The Union, however, argued and this Board in my respectful opinion failed to consider, the
fact that an employee who has invested 20 years on the job should be afforded the opportunity to
return to work, based on the finding that her termination was without cause.
The Tenant Hotline and City a/Toronto decision, the leading case on this issue, says that
reinstatement should be declined only in extreme circumstances and should be the exception to the
rule. There is no reason to deny the grievor the same rights that other employees have just because
of a dislike that has arisen between herself and a co~worker.
In the City o/Toronto decision, although the grievor feIt that there had been some massive
conspiracy to fire him, he was still afforded reinstatement.
The cases relied on by the Employer aU deal with situations where there has been a breach
of trust by the employee. These included cases like the Sa/eway and Northwest Territories Power
case, as weB as the WestPark case, where there had been patterns of theft, and the Saviour Hospital
case, where there was deliberate lying about use of sick time. That type of breach oftrust situation
simply cannot be made out in the case of Susan Farrell.
r don't believe that either the grievor's manner nor the evidence in total about the potential
difficulties for her in a return to work render her employment relationship null and void. The onLls
is on both her and her co-worker to behave in a professional manner at work, or management has the
m~ans to address this. Both the grievor and her doctor said she could attempt a return to work at
this point. Dr. Rossi said that her medical status is sLlch that she could try a return to work at this
point. The Hospital has not consolidated the Lab to onc site and therefore her request that contact
with the co-worker be limited can and ought to be accommodated. The grievor should be given the
opportunity to attempt a return to work.
The issues in this case were whether or not there had been job abandonment, whether the
Hospital had appropriately discharged this employee, and whether the Hospital had properly
accommodated their long-service employee's medical needs. The issue before the Board was not
one of just cause and therefore any attempt to inject issues of blame into the decision are irrelevant
and improper.
Secondly, I have significant problems with the conclusion of the majority at pages 60 to 61
[hat the Hospital's efforts at returning the grievor to work were entirely frustrated by the employee.
At least as of the November 4th meeting, the Hospital had the information from the doctor that the
grie\'or could return to work with minimal contact with the co-worker. They had infonnation that
the grievor was willing to return to work with some limited contact with the co-worker. There was
evidence before the Board that the schedules could be configured to allow this to occur,
Although the decision outlines the evidence in some considerable detail, there is little
guidance concerning the issue of Hospital's responsibility to accommodate.
The Employer argued that it had met its obligation to accommodate, based on the fact that
ill11~( with the grievor and her co-worker, "read them the riot act", and then left it to the grievor to
'"
return back to her regular shift schedule.
There was clear evidence that the Employer did not consider any alternative shift schedules
after its proposal of August 12"\
The Union argued that the Employer utterly failed to meet its obligation to accommodate the
employee for her disability.
The evidence was clear that there was no consideration given to a temporary work transition
outside the lab, even though the Health Nurse advised that this was the optimal solution.
The Union relied on the Metropolitan General Hospital case, in which an Arbitration Board
found that the Employer was obliged to offer an employee a temporary opportunity outside her home
position in order to accommodate her.
The Employer also contended that there was no way to accommodate the grievor within her
own department. That suggestion cannot be maintained, based on the evidence both from the Union
and from the Employer.
The HtunanRights Code requires an Employerto accommodate an employee's health needs,
so long as the accommodation does not create an undue hardship for the Employer.
Its clear that the grievor was able to perfonn the essential duties of her phlebotomist position.
According to the "standards for assessing undue hardship", provided by the Union in its casebook,
by including "cost and health and safety factors as detenninants of undue hardship", the Human
Rights Code notably excludes provisions for "business inconvenience" or "undue interference" with
the enterprise responsible for accommodation in determining undue hardship. Also, the "undue
har~ship" cannot include the preference of a third party including a co~worker.
There was evidence before the Board of shift schedules that would have permitted the grievor
to. return to. wark with minimal cantact with the ca-warker, which was cansistent with what her
dactar recammended.
Its clear that "undue hardship" cannat include the Emplayer's abligatian to. manage
emplayees' interpersanaJ canflicts.
By failing to. require the Emplayer to. accammadate to. the paint af undue hardship, the
majarity has failed to. praperly interpret the applicatian af the Human Rights Cade as it applies to.
this Callective Agreement and to. the grievar's situatian.
The law is clear that what the Baard has to. cansider is whether the Haspital had exhausted
all reasanable effarts at accammadatian. The decisian afthe Lab Manager, Gina Misasi to. provide
anly ane schedule, and make no. effarts to. change it ar cansider alternatives [even with health issues
far the ca-warker precluding her chasen schedule] clearly supparts a finding that the Haspital was
nat willing to. make reasanable effarts to. accammo.date.
The suggestian made in the Octaber 19th meeting that bath ca-warkers resume their narmal
rotatianal schedule may have been an apprapriate response to. the managemenUemplayee issue but
was nat a respanse to. the grievar's accammadatian needs. The fact that Ms. Misasi indicated that
there were camplaints from ca-warkers abaut nat being able to. switch their shifts due to. the grievar's
needs ignares the abligatian af the ca-warkers to. accammadate and Management's respansibility
to. ensure that accammadatian can take place.
Finally, there is no. analysis cancerning why the grievar's request far wording that the
Haspital make "every effart" to. avaid scheduling the ca-warkers together was nat cansidered. The
Haspital has an abligatian to. accommadate to. the paint afundue hardship. The language suggested
by the grievar wauld have simply meant that the Haspital had to. make best effarts ar to. avaid
schs,duling them tagether, but that in the end if they were scheduled together that the Haspital wauld
ha ve still fulfilled its respansibility under the agreement. This is the same or even less anerous than
what the Hospital through Ms. Misasi had indicated, which was that they might wark tagcther ollce
in a blue moon. This does not constitute undue hardship.
In summary) I agree with the finding that there is no evidence that the grievor abandoned her
position.
I agree with the finding that the Hospital did not have justification to terminate this employee.
I do not agree that the Hospital has met its obligation to accommodate.
I do not agree that reinstatement is not a viable alternative.
Dated:
..
ADDENDUM
Although there are significant differences between the dissent and
the majority award, these are addressed, for the most part, in the award.
Nevertheless, the following comments should be made:
(1) Although the dissent suggests that the Grievor was prepared to
work with Ms. Koivisto on a limited basis and deal with her in a
professional manner, the majority found in the evidence no reason
for optimism that the Grievor would behave professionally or that
the employment relationship, if reinstated, would be viable. The
Grievor has held assiduously to the belief that she was victimized
and is not to blame for the conflict with her co-worker. Although the
Grievor and Dr. Rossi conceived of ideal conditions under which
the Grievor might be able to return to work, the underlying
assumption was that there would be little or no contact with Ms.
Koivisto (the Grievor1s evidence being that she could work with Ms.
Koivisto "once in blue moon")! which seems unrealistic given the
interaction of the phlebotomists across shifts and between sites and
will be virtually impossible once consolidation takes effect.
...
(2) Although the majority made no specific finding as to the applicability
of the Fluman Rights Code, the majority, nevertheless, found that
2
the Hospitals made reasonable efforts at accommodation.
Although the schedule which had been proposed on August 14,
1998 was not objected to by the Union, it was objectionable to the
Grievor. Accordingly, Ms. Misasi agreed to modify the schedule.
However, the majority found that Dr. Rossi disapproved of the
schedule because of the potential that the Grievor would encounter
Ms. Koivisto. Subsequent efforts to accommodate the Grievor
within the laboratory were thwarted on September 17th by the
Grievor's failure to advise Ms. Misasi that she had not been cleared
to return to work and, on November 4th, by her insistence on a
written guarantee that the Hospitals would make every effort to
schedule her apart from Ms. Koivisto and involve Ms. Misasi more
directly in the monitoring of shift exchanges which, in the view of
the majority, goes beyond what can be reasonably expected of an
employer, even one under a duty to accommodate.
...
Interspersed with these requests for accommodation within the
laboratory were requests on October 19th and November 9th that
the Grievor be accommodated outside the laboratory, which the
majority would have required had the Grievor not testified that she
had neither the skills nor the training for jobs other than
phlebotomist. Moreover, there was no indication of accommodation
having been denied because of "business inconvenience",
~
3
Furthermore, although restrictions on other staff were taken into
account, the evidence supports the conclusion that the
overwhelming consideration in offering accommodation was the
effective operation of the laboratory.
(3) FinallYl although issues of abandonment, just cause and
accommodation were argued in full, no other workplace issue was
ra ised.
DATED AT TORONTO, this 17th day of December, 2001.
~~
Chair
on