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Taylor 12-02-21
IN THE MATTER OF AN ARBITRATION (Under the Labour Relations Act, 1995) BETWEEN: CANADIAN MENTAL HEALTH ASSOCIATION (Oxford County Branch) (the “CMHA”) -AND- ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 133 (the “Union”) AND IN THE MATTER OF an arbitration of under the termination grievance of Rebecca Chapman (nee Taylor at the material times) under the collective agreement between the parties BEFORE: G. T. SURDYKOWSKI – Sole Arbitrator APPEARANCES: For the CMHA : Frank A. Angeletti, Counsel; Joe Penton, Executive Director; Bob Fehir, Program Director; Lynn Wardell, Team Leader – Crisis Response Program. For the Union: Mihad Fahmy, Counsel; Tischa Battram, OPSEU Local 133 President; Carol Warner, OPSEU Staff Representative; Rebecca Chapman, Grievor. HEARINGS HELD IN WOODSTOCK, ONTARIO ON JANUARY 13, OCTOBER 12, NOVEMBER 21, 23, DECEMBER 14, 2011. Copyright © George T. Surdykowski Arbitration/Mediation Inc. 2012 [All rights reserved. Reproduction or storage in any retrieval system in whole or in part, in any form or format, by anyone other than the parties, or for use in legal proceedings, for not-for-profit educational purposes, or as required or permitted by law, without express written consent is prohibited.] 2 AWARD I. INTRODUCTION 1. The CMHA hired the grievor as a bargaining unit “Crisis Response / Community Support Worker” (or simply “crisis worker”) on a fixed term contract from March 1, 2010 to July 4, 2010. At all material times, the grievor was (and would have been) a probationary employee under the terms of the collective agreement between the parties. 2. The CMHA terminated the grievor‟s employment on April 22, 2010, after she completed some 8 weeks (i.e. less than half) of her 18 week contract. No termination letter was issued, but the CMHA‟s notes of the termination meeting reflect that it was explained to the grievor that she had not progressed as far as the CMHA had hoped and that because “… it was just not a good match either way, and it wasn‟t working so we were releasing her from her employment …” 3. The Union grieves that the termination was discriminatory, contrary to the Ontario Human Rights Code, and also contrary to Articles 1.01, 6.04, 9.01, 9.02, 9.06, 9.07, 9.09, 13.01, and 13.05 of the collective agreement. In the grievance as filed that Union asked that the grievor be reinstated and “made whole”. 4. In her opening statement, counsel for the Union identified the relief sought as reinstatement for the equivalent of the duration of the grievor‟s contract and/or damages for lost wages and breach of the Human Rights Code. In final argument, the Union abandoned the claim for reinstatement. The remedy now requested is damages for loss of the wages that the grievor would have been earned if she had completed her contract, Human Rights Code damages, and “any other public interest remedies deemed necessary to get the employer to comply with the Code”. II. FACTS 5. The Union called 4 witnesses in chief (the grievor, Cindy Drake, Terri McCartney, and Jillaine Blair). The Union also filed a medical report, marked as Exhibit #12 on consent (but subject to argument). The Union called the grievor in reply. The CMHA called one witness (Lynn Wardell). 6. The grievor has epilepsy. She testified that she was diagnosed with the disability in December 1995 after her first grand mal seizure in November that year. She was 3 placed on medication but suffered several more seizures over the next five years while her medication was adjusted. Exhibit #7 is an April 27, 2010 medical note obtained from her treating specialist physician (Dr. Seyed Mirsattari). Although this note was not obtained until after the grievor‟s contract was terminated, it indicates that the grievor has a “seizure disorder due to nodular heterotopias and non-eplieptic attacks”, and that she was being treated with “Topamax 150 mg q.a.m. and 175 mg q.h.s.” It further states that: “Functional inquiry was remarkable for occasional difficulties with reading.”; and that this could be related to her Topamax treatment because speech impairment or difficulty reading is a recognized side effect of that medication. The grievor testified, and Dr. Mirsattari‟s subsequent November 7, 2011 medical report (Exhibit #12) indicates that her grand mal seizures stopped in 2004, and that her epilepsy has remained stable on a combination of Topamax 150 mg q.a.m. and 175 mg q.h.s., and Clobazam 15 mg b.i.d. since then. The grievor testified that she continues to have occasional difficulty with words and language, that she sometimes experiences cognitive processing delays which cause her to be slow in completing tasks, and that the mood stabilizing effect of Topamax has a blunting effect on her emotions and facial expressions. I will return to the medical evidence below. 7. The help that she received for her epilepsy inspired the grievor to “give back” by becoming a social worker in the mental health area. The grievor provided the CMHA with her resume (Exhibit #8) in support of an application for employment in 2009 (see paragraph 11, below). It reveals that after she concluded her secondary school education the grievor pursued that objective by obtaining a 4-year General Arts B.A. (2006) from the University of Waterloo, a 4-year Honours Bachelor of Social Work degree (2008) from the University of Windsor (presumably with advanced standing from her University of Waterloo studies, and a Master of Social Work degree (2009) from the University of Western Ontario (King‟s College). Cross-examination revealed that the grievor completed all of her university degree requirements with a B+ average, and confirmed that she was on the Topamax medication throughout. 8. While at university the grievor enjoyed casual work and volunteer experiences with the CMHA in Kitchener, and various volunteer experiences, including brief non- crisis stints (May-August 2006 and June 2007) with the CMHA herein (i.e. in Woodstock). The grievor also had enjoyable academic practicum experiences. 9. The CMHA is part of an integrated country-wide 24-hour mental health service network. It employs staff trained in a number of professional disciplines, including social work, mental health nursing and occupational therapy. The CMHA currently provides treatment and support to adults with serious mental health concerns in Oxford County, including a crisis response and a case management services. 4 10. Crisis response is a 24-hour service which responds by telephone or mobile personal contact as appropriate to persons who experience a sudden or unexpected distress event. Hospital crisis services are provided at the three local area hospitals: Woodstock General Hospital, Alexandra Hospital in Ingersoll, and Tillsonburg District Memorial Hospital. A Hospital may call the CMHA to do a mental health assessment (including of suicide or homicide risk) if a patient presents in apparent mental health crisis. The CMHA‟s professional crisis workers are expected to be able to recommend hospitalization in appropriate cases, and to provide appropriate referrals and a follow up service with appropriate community service links. Case management provides individualized community-based support and skills training to people with serious mental illness. The hours and location of the service are flexible. The goal is to assist the “client” to live as independently as possible. 11. The grievor testified that after she completed her studies she looked for social work related employment and sent 12 -20 applications in that respect. However, because she preferred to work in Woodstock and was familiar with the CMHA from her volunteer experiences there in 2006 and 2007, she gave Bob Fehir her resume when she “bumped into him” after she completed her MSW degree after hearing from her father that the CMHA might be interested in employing her. She says that Fehir told her that he didn‟t foresee any openings before November 2009 when a maternity leave was expected to begin, but that he would keep her in mind. True to his word, in October 2009 Fehir called the grievor to interview for a 1-year contract to cover a maternity leave in a crisis position. 12. The grievor was interviewed by a panel of three, including Fehir and Lynn Wardell. By grievor‟s own account, the interview went badly because she was unable to articulate answers to the questions she was asked. In cross-examination, the grievor reiterated that she “blew” the interview. 13. The grievor was not offered the position, but Fehir offered to in effect debrief the grievor in order to help her in future interviews. The grievor acknowledges that Fehir didn‟t have to do that, and that he did so to assist her. She also acknowledges that Fehir suggested that she might be better suited to a case management position than a crisis position, and says that he told her he would keep her in mind in that respect; which she clarified in cross-examination was for a case management position. 14. In mid-February 2010, and notwithstanding that earlier bad interview, Wardell called and asked the grievor if she was interested in a 4-month contract in the same crisis position, which the grievor acknowledged was to cover an employee‟s education leave. 5 The grievor acknowledges that the CMHA was under no obligation to do that. The grievor responded that she was interested in the position and agreed to a 4-month probationary contract for her first “regular” job. No interview was held in that respect. 15. The March 1, 2010 CMHA “employment letter” to the grievor (Exhibit #3) confirms the agreed to March 1-July 4, 2010 contract period in the position of “Crisis Response / Community Support Worker”. It specifies that the grievor‟s employment would be governed by that letter, the CMHA‟s policies and procedures, and the collective agreement between the parties. The March 1, 2010 letter of employment (Exhibit #3) goes on to specify the following terms and conditions of employment: o Your position at CMHA will be Crisis Response/Community Support Worker, or such other reasonable positions or duties as may be assigned to you from time to time. This position will require you to work out of any of the offices that CMHA carries on business in accordance with the operational needs and requirements of CMHA. Initially, you will report to: Lynn Wardell, Team Leader, Crisis Response Program, or his/her designate. o In accordance with the provisions of the Collective Agreement, your employment with CMHA will be probationary for a period of 1040 hours of work from the date of hire and during which time you may be terminated without notice or cause. Thereafter, your employment is dependant upon your performance and your employment may be terminated in accordance with the provisions of the Collective Agreement. o Your hourly rate shall be $24.67 (Canadian), payable bi-weekly. Your hourly rate will be adjusted in accordance with the provisions of the Collective Agreement. o Your hours of work will be in accordance with the provisions of the Collective Agreement and the Policies and Procedures of CMHA, o Upon completion of your probationary period, you will be entitled to paid vacation per annum in accordance with the provisions of the. Collective Agreement. o Upon completion of your probationary period, you will be provided with benefits in accordance with the provisions of the Collective Agreement. o You may be laid you off in accordance with the provisions of the Collective Agreement. o You are to conduct your private business and personal activities in a manner, which does not conflict with the interests of CMHA. o You must review and comply with CMHA policies and procedures. You must execute an acknowledgment that you have read, and understand CMHA policies and procedures within one (1) month of your employment start date. You are to 6 return all copies of manuals or other property of CMHA forthwith upon termination of employment. [Sic; underlined emphasis supplied; bolded emphasis added.] Notwithstanding that reference to the completion of the probationary period, neither the grievor not the CMHA had any expectation that the grievor‟s employment would continue beyond the July 4, 2010 contract end date. 16. There is no material factual dispute up to this point. The grievor was grateful for the job and acknowledged in cross-examination that she understood that she would be a probationary employee for the entire term of the contract, and (without prompting or being led by counsel) that she understood that her performance would be assessed and she could be fired without just cause if she failed to meet all expectations. As the grievor herself stated: “This is a time for the employer to see if you are right for the job.” 17. The grievor testified in chief that she did not receive the job description for the crisis position she was backfilling (Exhibit #9), but in cross-examination she not only acknowledged that she may have been provided with a copy when she interviewed for the 1-year contract for the same position in 2009, but also that she read it and the CMHA‟s policies and procedures as part of her orientation when she began her 4-month contract. Although she maintains she was not given her own copy, she also agreed with CMHA counsel that one was available for her to review or copy whenever she wished. 18. In any event, it is clear that the grievor understood what her duties and responsibilities were. In examination-in-chief the grievor testified that her four primary duties and responsibilities were to: 1. answer the 24/7 crisis telephone line and support the callers; 2. deal with walk-in clients needing support during the regular 8:30 a.m. to 4:30 p.m. Monday through Friday business hours; 3. perform intake assessments of case management clients; 4. respond to calls from area hospitals to assess and provide support for persons who presented as being in crisis. The grievor added that she was also responsible for following up on crisis calls and assisting case managers. 7 19. The evidence reveals that the grievor had performed functions in the nature of duties and responsibilities #1, #2, and #3 in her casual and volunteer work and in her practicum placements. She had not done hospital calls before she took on the 4-month contract position. 20. In cross-examination, the grievor agreed that she was familiar with duty and responsibility #1 from her volunteer and practicum experiences, and that duty and responsibility #2 was much like dealing with someone on a crisis line except that it was face-to-face and that she had some experience doing that as well. She testified that the essence of duty and responsibility #3 was asking interview questions and filling out an assessment form, and that that was something she had learned to do as part of her MSW training. The grievor agreed that hospital call duty and responsibility (i.e. #4) requires a crisis worker to go to a hospital and do what is essentially an intake assessment using the same social work skills, but in a different setting and with clients at higher crisis risk. The grievor agreed that all of the social work components of these duties and responsibilities were familiar to her but added that she was still developing her skills. 21. The grievor described the training provided by the CMHA as consisting primarily of “shadowing” and being shadowed by other employees in order to gain experience and obtain performance feedback. In cross-examination, the grievor testified that as far as she knew the training and assistance that she received was no different from any other employee‟s. She understood the purpose of job shadowing to be to permit her to see how other employees did things and to become familiar with the processes, and then perform the necessary tasks with a co-worker present to both assess her performance and assist when and as required. The grievor acknowledged that she understood that her shadowing co-workers would report to Wardell about her performance. However, she complained that she didn‟t always receive feedback from her co-workers and that when she did the message wasn‟t always the same. The grievor claims that some co-workers told her she was improving and doing a good job, but she also acknowledged that they also gave her suggestions for improvement, including other ways of approaching things which the grievor referred to as “style”. Although she testified that she took crisis calls on her own after “a couple weeks”, the grievor acknowledged that she was slower to pick up on intake assessments. She also acknowledged that it was not until the fifth week that she did even a shadowed intake assessment, but explained that that was due to the way those were booked. 22. Notwithstanding the grievor‟s acknowledgement of the similarities between office intake assessments and hospital calls, she agreed in cross-examination that the hospital calls presented a greater learning curve for her. Although she was shadowed on hospital 8 calls by Jillaine Blair, Judy Sutton, Lori Buick, Jeanine Donner and Wardell (i.e. on at least five such calls) the grievor never progressed to doing one on her own. 23. On March 30, 2010, after she had completed four weeks of her 4-month contract, the grievor met with Wardell. The grievor testified that by that time she was taking calls and walk-in clients (but not intake assessments) on her own, and that she asked for the meeting because she wanted feedback on her progress and felt ready to respond to hospital calls on her own. She says that Wardell told her she wanted to meet as well. The grievor has no doubt that the purpose of the meeting was to review her performance. 24. The feedback the grievor received at that meeting was not positive. The grievor testified that Wardell told her that her co-workers felt that she was not connecting with clients, and that Wardell was concerned that she lacked basic social worker skills. She says that Wardell told her she had a week to improve, and that she needed to work on listening skills and on picking up non-verbal clues, which the grievor acknowledges are “very basic things”. The grievor says that by that time she had been shadowed by Blair (who was called as a witness), Sutton, Buick, and Donner (none of whom testified). The grievor testified that the feedback she received from these employees was “not overly negative” and that she was told she was getting better. However, the grievor says that she had personality and work style issues with Donner who she says wanted her to go faster and would quickly “jump in” when the grievor was using the skill of silence. 25. Exhibit #4 is an April 14, 2010 letter written by Wardell which among other things purports to summarize the March 30, 2010 meeting. In that respect, Wardell wrote that: On March 30, 2010 I met with you and discussed that generally after 4 weeks of orientation we had new workers doing hospital crisis calls on their own> I explained that we had some concerns with your ability to be able to do this based on your progress through orientation thus far and that we needed to see some improvement in certain areas. I reviewed the identified areas of improvement with you and these included: Basic attending skills Demonstrating affect to clients Connecting with the clients in a way that they felt supported and understood Exploring areas further when clients mention something, probing for further information and "going where the clients goes" during the meeting Awareness of clients' body language and reading their body language so that you know when they appear to be engaged and when they may be increasing in anxiety Identifying the type of call (i.e.. suicidal, situational crisis, etc.) and assessing how to respond accordingly (i.e. contracting for safety, deescalating [sic] and forming a coping plan, providing resources and follow 9 up, etc) I summarized that essentially we needed to see you utilize those basic social work skills related to dealing with people. I asked you if you were surprised by any of this feedback and you indicated that you were not and that you were open to constructive criticism. You identified that at times when another worker was present that you did "freeze" a little and that as a result they would jump in which you were then finding it difficult to take back over the meeting. You did identify that you had some apprehension with youth and mental health and also when to call CAS. In response, I preauthorized and encouraged you to stay for overtime if the opportunity arose for you to go out on a hospital call with youth I further advised you to always call and review the case with the on call Supervisor if you have any uncertainty and particularly to consult regarding CAS reporting, I explained that we wanted to give you an opportunity for improving as opposed to just ending your contract. 26. In examination-in-chief the grievor testified that Wardell didn‟t show her anything she had received from any of her co-workers regarding her performance, but she agreed with everything in Wardell‟s summary of the March 30, 2010 meeting except the last point. Notwithstanding that she testified that Wardell told her she had a week to improve, the grievor denies that there was any discussion about ending the contract or termination. She acknowledges that Wardell asked if she understood or wanted the discussion summarized in writing, and that she told Wardell that she understood and didn‟t need it in writing. 27. In cross-examination, the grievor agreed that the first four sub-bullets under the second main bullet point in the March 30, 2010 summary (in paragraph 25, above) were all things she would have learned as part of her university education and practicum experiences, and that the fifth sub-bullet referred to a basic social work skill. The grievor also testified that she accepted Wardell‟s points and agreed with her that these were all things she needed to work on. The grievor agreed that the sixth sub-bullet was important because a lot of social work turns on it, and that she and Wardell discussed the point in the seventh sub-bullet that she was not utilizing basic social work skills. Indeed, the grievor acknowledged not only that she was “not the best on the team”, but that even her basic social work skills were in issue and that she was “not meeting the learning curve quickly enough” and not applying those skills to the situations presented. In short, the grievor reiterated in cross-examination her acknowledgement that Wardell‟s concerns were legitimate and accurately recorded, and that she was under no illusion that she was doing a good job and knew she had to improve. However, she maintained that the last bullet (concerning ending her contract) was not discussed. 28. The grievor testified that a week later, on April 7, 2010, she followed up with Wardell. She says she wanted to see how her performance had improved. The grievor 10 testified that felt able and ready to do hospital calls on her own and “wanted to know where I stood”. The grievor agrees that this meeting was also about her performance, and that the focus of the meeting was on hospital calls. 29. Wardell summarized the April 7, 2010 meeting in her April 14, 2010 letter as follows: On April 7. 2010, you approached me to discuss the need for continuing to have someone shadow you for hospital calls and Intakes. You identified that you found it difficult to have someone with you and jumping in with questions while you were trying to conduct an assessment at the hospital and that it was hard to pick the interview back up after this occurred. I asked you if you were aware that at times there are long pauses in between the questions you asked and you acknowledged some awareness of this. I again mentioned the need for improvement with some of your attending skills and encouraged demonstrating empathy and active engagement with the clients. I acknowledged that some of the crisis workers personalities may be overwhelming for you when being shadowed by them and agreed to try and arrange that only certain workers would shadow you. I also checked the schedule while you were here to verify whom you would be working with for your weekend shifts, to ensure you were paired with one of the workers who may have a more passive approach. You disclosed that you have a medical condition which warrants the use of certain medication. I acknowledged that as an employer we would attempt to provide accommodations if necessary with respect to length of shifts and advised that you would need to keep me apprised if you felt this was needed. I advised I would have to get back to you regarding your request to do Intakes independently. (Emphasis added.) 30. The grievor says that when she identified difficulties with Donner, Wardell seemed to recognize that their personalities didn‟t mix and told her she wouldn‟t have Donner shadow her any more, but that Wardell wanted her to continue to be shadowed for hospital calls. The grievor testified that Wardell also told her she could do the intake assessment scheduled for April 15, 2010 on her own, but that client cancelled and she never did do an intake assessment on her own. The grievor says there were no issues with walk-in clients or crisis calls at the time, and that Wardell wanted her to focus on client connection because she had received feedback from co-workers about pauses and being “stone faced”. She says that Wardell seemed to have trouble describing the issue but she thought it paired up with the side effects of her medication so she told Wardell that she was an epileptic and taking Topamax so that Wardell could understand these issues. The grievor says that as soon as she mentioned Topamax Wardell responded “that makes sense” and mentioned that there had been discussion at a management meeting about whether she was “on something”. She says she told Wardell that she didn‟t understand because Fehir knew she is an epileptic, but that Wardell said “he didn‟t say 11 that”. The grievor believes that Fehir knew about her epilepsy from his association with her father before she was hired. 31. In cross-examination, the grievor agreed that hospital calls deal with emergency department patients who present with mental health issues and that it is important to deal with the client‟s issues and needs as soon as possible. She acknowledged that Wardell reiterated the same need to improve attending skills and engage with clients that had been identified in the March 30 meeting, and that Wardell was trying to assist her. The grievor acknowledged that “sometimes” there were long pauses between the questions she asked such clients. She says that some pauses were due to her trying to decide what to do, but that others were due to her epilepsy medication, and that that is why she felt the need to disclose her epilepsy and medication at that meeting. The grievor specifically agreed in cross-examination that neither her epilepsy nor her medication had anything grievor to do with any of the other performance issues. 32. The grievor testified both that Wardell did and did not ask what she could do to accommodate her, but she acknowledged Wardell‟s offer of shorter shifts. In examination-in-chief the grievor testified that she told Wardell that shorter shifts were “not an issue right now”, and in cross-examination she acknowledged that she told Wardell that she could not think of any accommodation. However, the grievor says that Wardell said she would bring the “issue” up at a management meeting and get back to her in a week. I can discern no reason for Wardell to say or do that given the grievor‟s responses. In any case, the grievor testified that there was no further discussion about the side effects of Topamax, and that Wardell didn‟t ask for any medical information or tell her that she a had a right to accommodation. In cross-examination, the grievor agreed that Wardell took her at her word that she had epilepsy and was on medication to manage it, and acknowledged that she didn‟t provide any medical or other accommodation information. Nor did she offer to do so. 33. The grievor acknowledges that she received accommodation in her final year of high school and in university. That accommodation consisted of a note taker, and a separate area and extra time for test taking purposes. The grievor did not receive accommodation in any of her practicum placements. When asked in examination-in- chief why she didn‟t ask for accommodation when she disclosed her epilepsy, the grievor testified that she had received no training in accommodation, and that: “I didn‟t know I could ask for it or that it was available.” In cross-examination, the grievor acknowledged that she asked for accommodation when she felt she needed it at school. She also acknowledged that she had never asked for, received or required any non-academic accommodation before she took the CMHA contract position. The Union revisited the issue in re-examination. When Union counsel asked why she did not ask the CMHA for 12 accommodation, the grievor responded that: “There were no issues or need. I was able to work with my clients and build relationships. There was no need.” This reflects the grievor‟s specific agreement in cross-examination that she never told Wardell or anyone else in CMHA management that she required accommodation. 34. Notwithstanding her testimony in chief and cross-examination, in re-examination the grievor testified that she believed that if accommodation was required it would be discussed with her supervisor (i.e. Wardell), and that after she made her disclosure on April 7, 2010 Wardell was going to raise it at a management meeting and then discuss with her whether anything could be done. She testified that: “I understood that I had done what I could and should have done.” But the grievor never gave any indication that she required accommodation. Indeed, she even when she testified she said she did not require accommodation. 35. In cross-examination, the grievor agreed that she knew that her performance would continue to be monitored. She believes there was a management meeting on April 13, 2010, and says that on Wednesday, April 14, 2010 Wardell asked to see her about her performance issues. She says Wardell handed her the April 14, 2010 letter, and informed her that the management plan for the next two weeks was for her to shadow hospital calls on Thursday and Friday and that she should pay attention to connecting with clients. Wardell said that she could take the lead and be shadowed the following week. The grievor acknowledges that Wardell also said that she would have to show significant improvement in the areas mentioned in the March 30 and April 7 meetings, or she would be terminated. The grievor says that Wardell said “I know it sucks, but …”, gave her the April 14, 2010 letter, and offered to let her leave early, which she did. The grievor testified that she felt distraught and believed that this was really a termination with two weeks‟ notice. She feels she should have received more support in the form of reviews, warnings, etc. that she did. There was no discussion about the grievor‟s medical condition on April 14, 2010. 36. The April 14, 2010 letter begins as follows: As a follow up to our meetings on March 30, 2010 and April 7, 2010 regarding your progress through orientation with CMHA, Oxford County as a Crisis Worker, the management team has discussed the situation and the identified concerns. Please be aware that we also have had a couple of complaints from clients regarding your interactions with them on the phone when they called in crisis. I am advising you that we have developed the following plan: For your scheduled crisis shifts from 9am to 9pm on April 15th, 2010 and April 16th, 2010 we are going to have you shadow other crisis workers during hospital calls. We want you to pay specific attention to the crisis workers attending and engagement Wills, their interactions with the client and the exploratory and probing questions that they ask, 13 as well as how they assess and determine a response for each situation. You may complete your scheduled Intake independently on April 15th, 2010. Your scheduled shifts for the week of April 19th to the 25th will require that someone shadow you for all hospital calls. Improvements in the areas originally identified in our meeting on March 30, 2010 (and identified below) must be to a standard that is satisfactory for you to complete hospital calls independently, otherwise we will have no option but to terminate your employment contract with this agency. Your progress will be reviewed in detail next week on April 21st and/or April 22nd, 2010. A review of our previous meetings and discussion is as noted below: … (Namely the summaries of the March 30 and April 7 meetings as quoted in paragraphs 25 and 29, above.) [Sic.] 37. The grievor agrees that this accurately records the discussion, that it reflects the CMHA‟s continued efforts to assist her, and that her performance would continue to be assessed with a further (fourth) review to occur on April 21 or 22, 2012. 38. I have already noted that the grievor testified that the intake scheduled for April 15, 2010 referred to in the second paragraph was canceled by the client. The grievor also testified that there were no hospital calls while she was at work on April 19. She says there was a hospital call on April 20, 2010 and that Donner was going to shadow her on that call. She says that as they were leaving Fehir appeared and called Donner over, and that upon returning Donner said to her that “it‟s all about the connection; it‟s all about the empathy”. As it turned out, the client declined services, but the grievor testified that for some reason Donner said: “Don‟t worry. That was not a real call. I won‟t say anything.” The grievor says that after this she went to Wardell and asked what would happen if there were no hospital calls to allow her to show what she could do, and that Wardell told her not to worry, there would be one and they would talk on Thursday (April 22, 2010). 39. There were no hospital calls for the grievor on Wednesday, April 21, 2010, but there was a team meeting on either late that day or on Thursday, April 22, 2010. The grievor testified that Wardell announced that a new crisis worker would be starting the following Monday and glanced at and looked away from her, which the grievor says made her 99% certain she was being fired the next day because no one else was leaving to make room for the new person. When challenged in cross-examination, the grievor acknowledged that there had been discussions about staff changes. The details of these changes were put to the grievor. Although the grievor only grudgingly acknowledged these, she certainly did not dispute them. However, she maintained that she hadn‟t understood that they would be occurring so quickly. 14 40. The grievor recalls that her first time as the lead on a hospital call was difficult because the client was in the health profession. The grievor testified that the single occasion on which Wardell observed her performance was the second time she took the lead on a hospital call. In cross-examination, she said it was her second or third such call. In any case, the grievor says that because the first call did not go well she was even more nervous with her supervisor sitting right beside her for the second call. She says that the hospital client issue and medication on that occasion were unfamiliar to her but happened to within Wardell‟s specialty, and that while she was trying to figure out what was going on with the client Wardell took over the lead. She says she allowed that to happen because she did not want to overstep her supervisor and it appeared to be in the best interests of the client. She therefore took a shadowing role and treated it as a learning experience. When it was suggested in cross-examination that this suggested a pattern and reflected the performance issues discussed at the March 30 and April 7 meetings, the grievor responded “perhaps”. The grievor also testified that when Wardell subsequently asked whether she had noticed certain things she responded “no”, and that it was “only my second time”. 41. The grievor says she came to work on Thursday, April 22, 2010 just wanting to tidy up her work and get it over with. Sure enough, Fehir called her into his office at around 2:00 p.m. Wardell was already there. The grievor testified that Fehir said that he though she knew why she was there and that she responded that she did. Fehir continued that they had hoped it would work out but it hadn‟t, that they had considered her for a case management job for her for the balance of the contract but that there wasn‟t one available, and that her contract was therefore terminated. 42. The grievor testified that she was not offered Union representation at the termination meeting or before she was escorted out of the building and that she never received a letter or other notice of stating the reasons for termination (other than a Record of Employment – which is not in evidence). Indeed, there is no such letter or notice. However, Wardell prepared a summary of the termination meeting. That summary, both separately and as emailed to the Union (Exhibits #5 and #6 respectively), reads as follows: Termination Meeting of Rebecca Taylor, Contract Crisis Worker, CMHA Oxford April 22, 2010 -1:55 pm Bob Fehir and I met with Rebecca Taylor in Bob's office as a follow up to the meeting I had with Rebecca on April 14, 2010. Rebecca had also been provided with a letter from me on April 14, 2010, outlining the plan for the remainder of her extended orientation up until April 22, 2010 and identifying the need for marked improvement in her skills or else 15 we would have to terminate her employment contract. Rebecca was aware that we would be meeting on either April 21st or 22nd, 2010 as a follow up to our April 14, 2010 meeting, Bob explained to Rebecca that it had been 8 weeks since the commencement of her employment contract and that we had hoped she would have progressed farther in the acquisition of her skills and abilities to perform the job. Bob advised that it was just not a good match either way, and it wasn't working so we were releasing her from her employment with our Agency, effective immediately. Bob advised Rebecca that we would require her to turn in her keys, Identification and employee cell phone and that we would escort her to her desk to pack her belongings. Bob encouraged Rebecca to reflect on her employment here for a couple of weeks and then to contact me for a meeting if she wanted to discuss her reflections or receive any further feedback. I advised Rebecca that we had considered the possibility of moving her into a case management role for the remainder of her contract, as she and I had previously discussed that she has worked in a case management capacity before and that she was familiar with that role. I further advised Rebecca that unfortunately there were not any opportunities for a transfer of this kind at this time. I reiterated encouragement to contact me in a couple of weeks if she would like to. Bob escorted Rebecca to her desk where she packed her belongings and then Bob accompanied Rebecca to the door and ensured she exited the building. I emailed Tischa Battram, Chief Executive Officer of OPSEU Local 152 at 2:19 pm on April 22, 2010 as follows: Hi Tischa, As per Article 4.04 of the Collective Agreement I am notifying you that we have terminated Rebecca Taylor's employment with CMHA, effective today. As per Article 10.01, Rebecca was still in her probationary period and thus was considered employed on a trial basis, Thanks, Lynn 43. The grievor agrees that Wardell‟s summary is accurate, and acknowledges that the third paragraph indicates that even at termination Fehir and Wardell continued to be willing to assist her. 44. The grievor testified in chief that she thought she would have and should have received more warnings about her performance. When asked in cross-examination how she could have believed that, the grievor responded that the March 30 and April 7 meetings “felt like” constructive criticism meetings to identify areas requiring 16 improvement, while the April 14 meeting seemed different and “very immediate”, and that she should have received more warnings before the one she acknowledges on April 14. The grievor says this notwithstanding her acknowledgement that Wardell told her on March 30 that she had a week to improve – which was clearly a warning. In re- examination, the grievor acknowledged the differences between case management and crisis work. She testified that crisis work is faster paced with a learning curve that she wasn‟t able to adapt to as quickly as she would have liked. 45. Cindy Drake was a Union Steward at all material times. She has been a social worker in the mental health field for over 11 years. She has been employed by the CMHA as a community support worker for over 5 years. Drake testified that near the end of the workday on April 22, 2010 she received an email notice that the grievor was no longer employed. Drake testified that she subsequently met with the grievor at grievor‟s home. The grievor showed her the April 14, 2010 letter. They discussed the possible violations of the collective agreement and Drake advised the grievor of what she believed were the grievor‟s rights in that respect. It was only then that Drake became aware of the grievor‟s disability. 46. Drake testified that she was not requested to attend any meetings regarding the grievor‟s performance or termination. She says she asked Wardell for a termination letter for the grievor and expressed concerns about the dismissal process to CMHA Executive Director Joe Penton. She says that Wardell initially said she would provide a termination letter, but subsequently said she would not do so until she was advised which collective agreement provisions had been violated. Drake says that then “Lead” Steward (now Local Union President) Tischa Battram provided that information but that she was not involved with that issue after that. 47. Drake was asked questions about the April 14, 2010 letter. She has no direct knowledge of the facts specific to this case in that respect. However, she agrees that the all of the sub-bullets of the second bullet in the Exhibit #4 summary of the March 30, 2010 meeting (see paragraph 25, above) are basic social worker skills every social worker should have. Although Drake added that the 3rd sub-bullet has to be measured using client feedback, she agreed this would include client complaints. She also described what she says is the CMHA‟s normal client complaints process and identified the CMHA‟s policy document (Exhibit #10) in that respect. In cross-examination, Drake agreed that the purpose of the policy is to provide a mechanism for public or client complaints and to ensure that these are dealt with expeditiously. Drake acknowledged that the policy states only that complaints will be discussed with a community support worker (i.e. employee of the CMHA) “as appropriate”, and that the policy doesn‟t require that every complaint be discussed with the employee involved. 17 48. Drake also testified that the CMHA does not provide training other than the job shadowing process. She acknowledges that their training requires social workers to acquire the skills listed in the April 14, 2010 letter‟s summary of the March 30, 3010 meeting, and that they are assessed in that respect before they graduate. 49. Drake has shadowed probationary employees herself. In cross-examination she testified that this is part of the orientation intended to familiarize the new employee with the work environment and the skills used, but (surprisingly) would not agree that a purpose of job shadowing is to observe the new employee‟s performance in the work environment. She also testified that as a job shadower she provides feedback to the probationary employee to both validate what the new employee is doing right and to point out problems. Although Drake testified that she has never been asked to and does not consider it to be her job to provide feedback to management, she agreed that she had provided an informal assessment of the last probationary employee she job shadowed – which sounds a lot like feedback, but in fairness it is not clear from the question asked and the answer given whether that assessment was given to management or just the employee. 50. Drake testified that from her work as a social worker she is familiar with Topamax as medication used as a mood stabilizer and for seizures. She says the side effects include a sedative effect, processing difficulties, slowed motor skills, conversation tracking and memory issues, and expression blunting. In cross-examination, Drake testified that Topamax could impact someone‟s social skills, she agreed the 5th and 6th sub-bullets (awareness of clients' body language and reading their body language so that you know when they appear to be engaged and when they may be increasing in anxiety; and identifying the type of call (i.e.. suicidal, situational crisis, etc.) and assessing how to respond accordingly (i.e. contracting for safety, deescalating and forming a coping plan, providing resources and follow up, etc) in the March 30, 3010 meeting summary are not subject to Topamax side effects. 51. Terri McCartney was on the CMHA‟s Board of Directors from 1985 to 1990. She became an employee in 1994 and has been the CMHA‟s Educator/Volunteer Coordinator since 1995. McCartney first met the grievor in May 2006 when the grievor interviewed for the summer volunteer position she had that year. She was aware of the grievor‟s epilepsy then. McCartney explained that she met the grievor‟s father on the Board of Directors and became aware of the grievor‟s epilepsy from him. She testified that volunteers essentially shadow and assist community support workers and do not engage clients one-on-one, and that the grievor did some group work and spent two full days each week providing reception services. She says that in her 2007 volunteer position the 18 grievor assisted with mental health wellness week registration, set-up and presentation. The grievor did not require accommodation during her volunteer work. (In that respect, I do not consider the fact that McCartney gave the grievor rides as required because the grievor was not licensed to drive to be accommodation as such in the circumstances.) 52. McCartney testified that she was given a reference form to complete for the CMHA‟s records after the grievor was hired for (but before she began) the 4-month contract. The only thing of real note in that reference (Exhibit #11) is the statement that the grievor “… has overcome some personal hurdles to complete her education.” McCartney testified that by “hurdles” she meant her health, which I take to mean her epilepsy. McCartney testified that she had no discussions with Wardell about the grievor, and there is no evidence that she discussed the grievor with anyone else in management. 53. Jillaine Blair obtained her Bachelor of Social Work degree in 2009. She started as a member of the CMHA crisis team in December 2009. Like the grievor, this was Blair‟s social work first job after graduation. Blair testified that she participated in the job shadowing process when she started. Blair says that the grievor shadowed her on the first hospital call and the intake assessment, and that although they did the second Hospital call together she (Blair) took the lead. All three shadowings were near the beginning of the grievor‟s contract. 54. Blair testified about her first hospital call which the grievor job shadowed. She says that she (Blair) was the only one who spoke to the client, after which she and the grievor discussed what had happened, and that emphasized the key points. Blair asked the grievor if she could give the report to the Emergency Department doctor. The grievor said she could but in the result was unable to do so and Blair had to jump in and give the report herself. Blair testified that the grievor “froze” and was unable to say anything so she had to jump in. Notwithstanding this obvious problem, Blair reported that it went “fine” when Wardell asked how things had gone. 55. Blair‟s second shadowing experience with the grievor was the intake assessment. This seems to have been uneventful. 56. The second hospital call (Blair‟s third experience with the grievor) was in Tillsonburg. Although Blair first said that they did the assessment together she allowed that she really took the lead and “did the micro [conversational] skills”, leaving the grievor to ask the questions on the assessment form. Blair testified that the grievor started asking the client questions but that the client was emotional and she felt it necessary to “respond on the emotional side” while the grievor asked the questions from the assessment sheet. In cross-examination, Blair explained that the grievor asked the 19 questions focusing on the form without looking at the client, and that as a result she was missing opportunities to probe further based on body language and voice tone cues, which is an emotional interaction component typical of hospital clients and which Blair testified is basic social work. In re-examination, Blair testified that by the time of her second Hospital call experience with the grievor she had done “quite a few” such calls and had memorized the assessment form. Still, Blair reported to Wardell that things went “better than the last time”. 57. Blair says that she was not aware that the grievor has epilepsy until the grievor disclosed it during the ride back from this second Hospital call. She told no one because she felt the disclosure had been in confidence. The grievor never mentioned anything about accommodation to Blair. 58. In cross-examination, Blair testified that she was able to do Hospital calls on her own less than three weeks into her probationary period. She described her job shadowing experience and testified that the grievor was treated no differently than she was during her probationary process. It was put to Blair that the purposes of the probationary period and job shadowing include providing the new employee with an opportunity to become familiar with processes and procedures and “see how things are done”. She agreed. 59. Lynn Wardell was the CMHA‟s sole witness. She has been the “Team Leader – Crisis Response Program” since October 5, 2009. As such she is responsible for overseeing the program and supervising the crisis workers. As the grievor acknowledged was the case, Wardell testified that the grievor struggled in articulating her answers in her 2009 interview for the 1-year contract position, and that Fehir subsequently provided her with some feedback in that respect. Wardell testified that when the need arose in February 2010 to back-fill a crisis worker position for an employee who had been granted an education leave, the management team decided to offer the 4-month contract directly to the grievor instead of going through an interview process despite the grievor‟s struggles in her earlier interview. Wardell explained that this was because it was a short- term probationary contract and the CMHA wanted to give the grievor an opportunity to show how she performed in the job. The grievor was offered and accepted the job on the terms set out in the March 1, 2010 probationary employment letter (paragraph 15, above). 60. Wardell testified that the CMHA considers the purpose of a probationary period to provide the employee with an opportunity become familiar with the organization and learn the parameters of the position, and to provide the CMHA with an opportunity to assess the employee‟s ability to perform the job as required. Wardell identified an orientation process which (among other things) requires new hires to read through the CMHA‟s policy and procedures manual, and that after a day or two they start job 20 shadowing other employees. Wardell explained that this is the main way for new hires to become familiar for the job they have been hired for. Shadowing consists of matching up the new hire with different workers so that they can observe different approaches. After a period of job shadowing other employees, and once the new hires feel comfortable and ready, the roles switch. That is, the new hire performs the job in the presence of the experienced worker who is available to answer questions and “jump in” as required. The experienced workers are expected to provide Wardell with informal feedback and share any concerns as they consider appropriate. 61. When asked whether there is a mechanism in place for assessing the performance of new hires, Wardell described a rather informal process which utilizes feedback from other employees, that she generally job shadows 1-2 calls herself after the new hires have been there “for a while” so as not to make them too nervous. She says that she also generally meets with the probationary employees to discuss how they are doing and any concerns that they have. Wardell says she also randomly pulls their crisis assessments or case notes to review their documentation. 62. Wardell testified that the orientation and job shadowing process was the same for the grievor as for any other new employee, except that in the grievor‟s case it was extended. She says that new crisis workers are generally able to do hospital calls on their own by the third or fourth week, but that by week eight when she was released the grievor was still unable to do so. 63. Wardell does not recall who initiated the March 30, 2010 meeting, but she recalls that she needed to speak to the grievor because of concerns with the grievor‟s performance as a result of the job shadowing feedback she received from other crisis employees. Wardell says she discussed those concerns and the areas in which improvement was required with the grievor. In essence, Wardell reiterated and somewhat expanded upon the concerns described in the synopsis of the March 30 meeting contained in the April 14, 20110 letter (paragraph 25, above). Having regard to the grievor‟s evidence in that respect, I consider it unnecessary to detail Wardell‟s expansions for purposes of this Award. However, I note that Wardell testified that the grievor said she was not surprised by what she (Wardell) said, that the grievor specifically acknowledged “freezing up”, and that she said she was open to constructive criticism. Wardell insists that although it was not “a long discussion” she specifically told the grievor that the CMHA wanted to give her an opportunity to improve instead of ending her contract. 64. Wardell testified that she determined that the grievor was not able to do hospital calls on her own, noting that “clients” who present in crisis to a hospital are particularly 21 vulnerable and sometimes suicidal so it is important to be confident in the crisis worker‟s skills. 65. Wardell also testified about the April 7, 2010 meeting. She says that the grievor came to her to discuss whether it was still necessary to have another employee shadow her. Wardell testified that the feedback she had received since their last meeting suggested that the grievor had not improved sufficiently to respond to hospital calls independently, that the grievor‟s suggestion that she was able to do so, notwithstanding that she acknowledged that there continued to be concerns about her performance, brought her judgement into question. 66. Wardell chronicled the occasion on which she job shadowed the grievor between March 30 and April 7, 2010 – before the grievor disclosed that she had epilepsy. She described how she became concerned as the grievor was asking questions because the client continued to be upset and the grievor failed to engage with the client or react appropriately to the client‟s responses. Wardell says that the client was suffering from post-partum mood disorder. Although she acknowledges that this is an area of her expertise she says that she jumped in and took over from the grievor primarily because the grievor was failing to connect or engage with the client. 67. In cross-examination, Wardell testified that the office setup is such that she overheard some of the crisis calls that the grievor took, and that she considered all of the information that she had, regardless of the source, when she assessed the grievor‟s performance, but that she largely relied on the feedback she received from other employees. She acknowledged that evaluating other employees is not part of the formal duties and responsibilities of a crisis worker. 68. Wardell testified that she had no knowledge of the grievor‟s epilepsy until the grievor‟s disclosure on April 7, 2010. She says the grievor told her she had recently had 2-3 auras, and that she was tired because if the shift work and she was planning her wedding. Wardell acknowledged that the crisis schedule is an adjustment and offered the grievor shorter shifts to help. The grievor declined, and it was then that Wardell says the grievor told her she has epilepsy and was taking Topamax. Wardell says she asked the grievor if she required accommodation. When the grievor responded that she couldn‟t think of any, Wardell says she did not ask the grievor for medical documentation because she took the grievor at her word in that respect, and that she told the grievor to get back to her if she required accommodation. 69. The grievor did not raise the issue of her disability of accommodation before her contract was terminated on April 22, 2012. 22 70. Wardell testified about documents containing feedback she received after the March 30, 2010 meeting. She has no personal knowledge of the contents of these documents. Notwithstanding this and the CMHA‟s statement that it did not intend to call the authors of any of the documents as witnesses, I admitted that documents as Exhibits #15, #16, #17 and #18 over the Union‟s hearsay objection, in the exercise of my discretion under s. 48(f) of the Labour Relations Act, 1995, and subject to further evidence and argument and assessment of the weight to be given them. The documents had been identified and referred to by CMHA counsel in his opening statement. Further, they were admissible as evidence of what Ms. Wardell received or was aware of and considered with respect to the decision to release the grievor from employment, and therefore appeared to form part of the relevant res gestae (in the sense that they are part of the circumstances surrounding the release of the grievor) in that respect. I was satisfied that the documents spoke to the primary issue in this case; namely, whether the CMHA acted in a manner that was arbitrary, discriminatory or in bad faith when it released the grievor. 71. In fact, the CMHA did not call anyone with personal knowledge to testify about any of Exhibits #15, #16, #17 and #18. However, the Union called the grievor to testify in reply to Exhibits #16 and #17. 72. Exhibit #15 is an April 6, 2010 email from Crisis Support Worker Jennifer Bechtel to Wardell with feedback about a hospital call she did with the grievor that evening. Wardell testified she received this mildly critical email before they met on April 7, 2010. Exhibit #18 is a “Crisis Evaluation” form apparently completed by a CMHA client with respect to a telephone contact with the grievor. The grievor had nothing to say about these documents in reply. 73. Exhibit #16 is an April 12, 2010 email from Sandra Kelebuda (a Case Manager) to Wardell about a negative report she had received from a client about a telephone contact with the grievor. In reply, not only could the grievor not recall the conversation with the client that is referred to, she testified that she did not work the Friday, Saturday, Sunday or Monday of the 2010 Easter weekend, which according to the document appears to be when the contact allegedly occurred. However, in cross-examination, the grievor clarified that she did not deny that the contact referred to in the document occurred but that she simply did not recall it. 74. Exhibit #17 is an April 14, 2010 email from Lori Buick (a nurse) to Wardell. This email is highly critical of the grievor. In reply, the grievor did not take issue with the contents of the document. She agreed that she was anxious during the assessment 23 described by Buick and described the circumstances to explain why she was anxious. In cross-examination, the grievor agreed that Buick‟s concern was that her lack of connection and the manner in which she interacted with the clients was making them feel more anxious, and that she understood that Buick did not feel comfortable going on hospital calls with her. 75. Exhibit #18 is a client “Crisis Evaluation) form which the CMHA received form a client on April 19, 2010. It relates to the same client contact as Exhibit #16. 76. I am not satisfied that any of Exhibits #15, #16 and #18 can be given any weight as evidence of the truth of the contents. Having regard to the grievor‟s testimony in reply, I am satisfied that Exhibit #17 can be given some weight in that respect to the extent that, having been given the opportunity to do so, she does not dispute the truth of the contents. I am also satisfied that Exhibits #15, #16 and #17, are relevant and can be given some weight when it comes time to consider the process or procedure issue raised by the Union. I consider it unnecessary to detail the contents of Exhibits #15, #16 and #18, but I am compelled to set out the contents of Exhibit #17 as follows: I am late in providing you an update on my last hospital visit with Rebecca for which I apologize. The client we met with the last time we worked together attended the hospital with anxiety and a high heart rate. This time I was determined to not interrupt as I had previously, however I could see that the client was having a difficult time. This created turmoil and difficulty for me. At one point he interrupted the assessment and looked at Rebecca and stated that he knew she was a student and that she was making him more anxious by her questions. Rebecca paused for a few moments, and without acknowledging his comments, continued questioning him. At one point Rebecca seemed to debate him about providing a follow up call, when he said he would call in, Rebecca seemed to push him to commit to a follow up call, in which he finally said , whatever that‟s fine. Rebecca turned to me and asked if I wanted to add anything. At this time I jumped in and attempted to reduce his anxiety by providing education and resources that had not been discussed. I tried to express to Rebecca my concerns that she was unable to connect with this person. I guess I focused more on experience and that she lacked experience in hopes that she would be able to connect on a deeper level with clients as she gained more experience. I really don‟t know where to go from here apart from I am very uncomfortable sitting in with Rebecca on hospital calls as it‟s seems to be so difficult to not be engaged with the client. I am just as accountable for the assessment and report in which I did not really participate in fully and find it difficult to make sense of it all. Everything is so disjointed. As a nurse responsible to the College of Nursing, I feel that Rebecca should be buddied up with a social worker. 24 I really find it difficult to put words to this, apart from the clients on the two occasions that I have gone with Rebecca to the hospital, are more anxious and have presented as unhelped. This troubles me. I wish to not attend hospital calls with Rebecca if that is possible. I am thinking that you may understand better my struggle should you be able to attend the hospital with Rebecca, and sit in silence to see how she handles the situation. (Sic; emphasis added.) 77. There is documentary evidence which indicates that the grievor‟s arrival on the 4- month contract was confirmed at a March 2, 2010 management meeting (Exhibit #24), that Wardell raised concerns about the grievor‟s performance at a March 16, 2010 management meeting (including that she was “freezing during calls and appeared unable to communicate empathy to clients, and appeared not to be ready to work independently – Exhibit #22), and that Wardell repeated the same concerns at a March 23, 2010 management meeting (Exhibit #23). Wardell testified that she raised her concerns, and Exhibits #15, #16, #17, and #18 with the management team (consisting of Executive Director Joe Penton, Program Manager Bob Fehir, Team Leader Case Management / Supportive Housing Pat Baigent, and herself) at a meeting after her April 7, 2010 meeting with the grievor (and which therefore had to be after April 19, 2010 when Exhibit #18 was received). There is no documentary evidence specifically in that respect, but an April 20, 2010 management meeting minutes document (Exhibit #19) indicates a decision to meet with the grievor on Thursday (April 22, 2010) and that because her performance had not improved sufficiently the grievor would “most likely be terminated at that time”, which indeed what happened. Wardell testified in cross-examination that she informed the management team of the grievor‟s disability and of her April 7, 2010 accommodation discussion with the grievor, but there are no management meeting minutes which reflect any such discussion. 78. Union counsel cross-examined Wardell at some length about the plan for the grievor described in the second and third paragraphs on the first page of the April 14, 2010 letter and the lack of actual opportunities that the grievor had do demonstrate improvement after April 14, 2010. Wardell agreed that the letter suggested that the grievor would have the week of April 19 to show improvement, but notwithstanding that she allowed that there may have been some improvement “in the next couple days”, Wardell agreed that the decision to terminate the grievor was most likely at the April 20, 2010 management meeting. However, Wardell also testified that she and Fehir made the final decision to terminated the grievor‟s employment just before they met with her on April 22, 2010. 25 79. Wardell agreed in cross-examination that by April 7, 20101 the grievor was doing crisis calls and dealing with walk-ins independently, and that she had been cleared to do an intake assessment by herself. 80. Wardell was cross-examined on Exhibits #16 and #18, and the CMHA‟s complaints policy (Exhibit #10). The responses elicited do nothing to inform the determinations that must be made in this case. She was also cross-examined about the reference document McCartney prepared (Exhibit #11) and reference check she did with Blodwen Reitz, who is a Community Development Worker with “Ready-Set-Go” in Windsor, and who was the grievor‟s field instructor during her 3rd year undergraduate practicum placement (Exhibit #21). Wardell noted on that Reitz reference check indicated that the grievor had overcome some serious health problems, but that these had affected her socialization and she was missing negotiation skills. Wardell explained that she didn‟t probe McCartney‟s “personal hurdles” comment or Reitz‟ health problems or socialization comments because that would have been “outside the boundary” of the reference check. Wardell recorded Reitz‟ observation that the grievor would be a good administrative assistant, but that she would probably not hire the grievor because of the complex clients (at “Ready-Set-Go”). Reitz told Wardell she was “unsure of [the grievor‟s] suitability for a crisis line, unsure if she can wing it or not”. 81. Wardell spoke to the April 21, 2010 meeting the grievor had testified about, and identified the minutes of the Crisis Team Meeting in that respect (Exhibit #20). This document includes a staffing changes section, but nothing in it substantiates the grievor‟s suspicions or have anything to do with the grievor or her by then clearly imminent release. Union counsel cross-examined Wardell at some length in that respect as well. Wardell did not deviate from Exhibit #20. 82. Wardell acknowledges that management did not notify the Union about the grievor‟s pending release from employment or the April 22, 2010 meeting with the grievor, and that it did not offer the grievor Union representation at that meeting or an opportunity to speak with a Union Steward before she left the premises. 83. Finally, the evidence includes April 27, 2010 and November 7, 2011 medical reports from Dr. Seyed Mirsattari (Exhibits #7 and #12, respectively), who is a neurologist who treats patients who have epilepsy. It bears repeating that Dr. Mirsattari‟s April 27, 2010 report states that the grievor has a seizure disorder due to nodular heterotopia and non-epileptic attacks, but had been seizure free since she became his patient on April 29, 2007. Dr. Mirsattari stated that the grievor was taking Topamax and doing exceptionally well on that medication, but noted that the grievor had occasional reading difficulties, which is a recognized side effect of that medication. 26 84. Dr. Mirsattari‟s November 7, 2011 medical report states that he initially evaluated the grievor as an outpatient at the London Health Sciences Centre (University Hospital) on August 11, 2004, and that he re-evaluated her at the same clinic on February 2, 2005, August 10, 2005, March 1, 2006, April 26, 2007, May 1, 2008, May 6, 2009, October 7, 2010 and August 10, 2011. (I consider the reference to April 26, 2007 instead of the April 29, 2007 date in the April 27, 2010 report to be a typo, and the discrepancy is insignificant in any event.) The grievor was also admitted to the Epilepsy Monitoring Unit for video-EEG telemetry between April 16 and April 21, 2001. Dr. Mirsattari‟s report also states that: … [The grievor] is a 29-year-old-woman with a seizure disorder due to periventricular nodular heterotopia that is a congenital condition in which the brain cells (neurons) did not migrate properly from the ventricular zone to their target in the cerebral cortex in the early development and instead formed clusters of abnormal cells around the ventricles. This was discovered by the Magnetic Resonance Imaging (MRI) of her brain after [the grievor] developed seizures. It has otherwise been asymtomatic in her case. She has an essentially normal intelligence. [The grievor] has been a patient of mine since August 11, 2004. Her epliepsy has remained very stable on a combination of Topamax 150 mg q a.m. and 175 mg q h.s. (i.e. 325 mg per day) and Clobazam 15 mg b.i.d. Her only other medication in Aoril 2010 was Ortho 7-7-7. She had intermittent difficulties with reading at that time which is a well recognized side effect of Topamax. Its impact on speech and communication skills is well documented. This medication can also result in other cognitive slowing. Therefore, I am convinced that high dose Topamax was sufficient to impair her ability with basic attending skills and demonstrating affect for her clients at work. For a review, see Loring DW, Williamson DJ, Meador KJ, Wiegand F, Hulihan J. Topiramate dose effects on cognition: a randomized double-blind study. Neurology 2011; 76(2):I31-7. This study showed that the neuropsychological effects of Topamax was dose- dependent that emerged only at the higher doses, i.e. 15% at 192 mg per day and 35% at 384 mg per day. I have found [the grievor] otherwise quite engaged and appropriate with respect to her communication skills and affect. Given that she had experienced 3 episode of status epilepticus (i.e. seizures lasting > 30 minutes that are considered neurological emergencies) between 1996 and 1997 requiring an admissions to the Intensive Care Unit (ICU) in Woodstock General Hospital, she was understandably very reluctant to lower her dose of her Topamax despite those side effects. Such a reduction and possible breakthrough seizure secondary to it could have also jeopardized her driving privileges. [The grievor‟s] side effects had remained persistent but they were very much improved when I last saw her on August 10, 2011. She was on the same medications at the same doses at that time without any recurrent seizures in that interval. 27 I have come to respect [the grievor] and her resolve to better herself and contribute to society despite her frequent seizures requiring multiple anti-epileptic drugs that she has taken over the years to stabilize her condition. She has completed several degrees in post-secondary education despite taking these medications. It is not uncommon for patients with epilepsy on this amount of medications to apply for and be granted long- term disability. I am fully prepared to provide a statement in person if deemed necessary in order to highlight the impact of [the grievor‟s] AEDs [Antiepileptic Drugs] on her communication skills that could have led to her potentially unlawful dismissal secondary to an underlying genuine incurable neurological disorder and its treatment. … 85. I accept Dr. Mirsattari‟s reports for their medical evidence, but not for the non- medical comment. III. THE COLLECTIVE AGREEMENT PROVISIONS, THE HUMAN RIGHTS CODE, AND THE ONTARIO HUMAN RIGHTS COMMISSION’S “POLICY AND GUIDELINES ON DISABILITY AND THE DUTY TO ACCOMMODATE” (A) The Collective Agreement 86. Several collective agreement provisions were referred during the hearing. Article 1.01 of the collective agreement does not warrant repeating because it is merely a “motherhood” purpose provision which adds nothing to the parties‟ actual rights and obligations under the agreement. Articles 2.06, 6.04, 7.06, 9.01, 9.02, 9.06, 9.07, 9.09, 10.01, 10.15, 13.01, and 13.05 of the collective agreement read as follows: ARTICLE 2 – SCOPE AND DEFINITIONS … 2.06 A “contract employee” is an employee whose period of continuous employment shall not exceed twelve (12) months, unless otherwise mutually agreed to by the Union and the Employer. … ARTICLE 6 – UNION REPRESENTATION … 6.04 When discipline is imposed, an employee is entitled to be represented by a Union Steward. … ARTICLE 7 – GRIEVANCE PROCEDURE … 28 7.06 The discipline, discharge, or lay-off of a probationary employee shall not be the subject of a grievance and/or arbitration pursuant to the provisions of this Agreement unless the probationary employee is discharged or released for reasons which are discriminatory under the Human Rights Code. … ARTICLE 9 - DISCHARGE AND DISCIPLINE 9.01 When the Employer imposes discipline on an employee, the Employer agrees to provide notice of discipline to the employee concerned and to the Chief Unit Steward. The disciplinary meeting shall be scheduled to allow for union representation at such meeting. 9.02 An employee who is discharged or suspended shall be given a reasonable opportunity to meet with her steward before leaving the Employer's premises unless in the circumstances it is necessary to require the employee to leave the premises immediately. The employee shall be notified in writing of such discharge or suspension. … 9.06 The employer shall provide an employee a copy of each performance appraisal conducted by the employer. A copy of any completed evaluation, which is to be placed in an employee's file, shall be first reviewed with the employee. The employee shall sign such evaluation as having been read. 9.07 An employee shall be given an opportunity to provide written comments on the performance appraisal form. … 9.09 The Employer shall provide an employee with written reasons for any disciplinary action. ARTICLE 10 - SENIORITY/LAY OFF 10.01 Newly hired employees shall be on probation for a period of 910 hours of work from the date of hire for positions regularly scheduled to work 35 hours per week and 1040 hours of work from the date of hire for positions regularly scheduled to work an average of 40 hours per week (exclusive of sick time, personal days or leaves of absences) within a continuous period of twelve (12) months. During the probationary period, the employee shall have no seniority rights and shall be considered as being employed on a trial basis. The release of the probationary employee will be at the discretion of the employer subject to the provisions of the Ontario Human Rights Code. If retained after the probationary period, the employee shall be credited with seniority from the date of last hire. … 10.15 Probationary employees may be provided with feedback during the course of their probationary period. A written performance appraisal may be conducted during the 29 probationary period. Any such evaluation may describe the progress being made on the job and the supervisor‟s expectations regarding any improvements required. … ARTICLE 13 – NO DISCRIMINATION 13.01 The Employer, employees and the Union agree to conduct their affairs in accordance with the Ontario Human Rights Code and agree that there shall be no discrimination or harassment against any employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, family status, marital status or disability. … 13.05 The Employer shall accommodate the needs of employees in accordance with the provisions of the Ontario Human Rights Code. [Emphasis added.] (B) The Human Rights Code 87. The Ontario Human Rights Code provides as follows: PART I FREEDOM FROM DISCRIMINATION Employment 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. … Infringement prohibited 9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. … PART II INTERPRETATION AND APPLICATION Definitions re: Parts I and II 10. (1) In Part I and in this Part, … “disability” means, 30 (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device, (b) a condition of mental impairment or a developmental disability, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; … Constructive discrimination 11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. Idem (2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. … Disability 17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability. Accommodation (2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. Determining if undue hardship (3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations. (Emphasis added.) 31 (C) The Ontario Human Rights Commission‟s “Policy and Guidelines on Disability and the Duty to Accommodate” 88. The Ontario Human Rights Commission‟s “Policy and Guidelines on Disability and the Duty to Accommodate” (the “Policy”) has been cited with deference by both courts and arbitrators. There is no doubt that it is entitled to deference, but the Policy is just that. It is not legislation, and like any policy it is not binding or conclusive either generally or in a particular case. Every case must be determined by applying the law (i.e. the Code and any binding court decisions or other authorities). 89. The Policy observes (in Section 2.4) that mental illness is a form of non-evident disability. The Canadian Psychiatric Association has described mental illness as: “significant clinical patterns of behavior or emotions associated with some level of distress, suffering (pain, death), or impairment in one or more areas of functioning (school, work, social and family interactions)” rooted in symptoms of biological, psychological or behaviour dysfunction (as cited in endnote 12 of the Policy). But does every mental illness result in a disability that requires accommodation in every workplace? I am reluctant and unable to say “always”, because I have never seen such an assertion much less proof that that is so. 90. As the Policy observes in general terms (Section 4.1.1), the objective of accommodation is to maximize integration and participation in the workplace and respect for privacy, confidentiality, comfort, autonomy, individuality and self-esteem are important considerations in that respect. Accommodation in employment is an individualized process. It is individualized for the employee and the employer. The first step is to establish that there is a disability which requires accommodation. The next step is to find the most appropriate accommodation which does not create undue hardship for the employer. Although subjective considerations can come into play at various points, ultimately the test must be an objective one. A disabled employee is not necessarily entitled to the accommodation that she desires or thinks is best. 91. A disabled employee is entitled to return to or continue to work if she can perform the essential duties and responsibilities of her pre-disability job with required accommodation to the point of undue hardship. Accommodation is a process, and everyone affected is obliged to cooperate in the process, and to share necessary information and accept appropriate accommodation solutions. The Human Rights Commission‟s Policy suggests (at page 19) that the person with the disability is required to: 32 advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is) make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed participate in discussions regarding possible accommodation solutions co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability meet agreed-upon performance and job standards once accommodation is provided work with the accommodation provider on an ongoing basis to manage the accommodation process discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff. (Emphasis added.) 92. I note that the Policy also lists what is required of employers and Unions, but those are not necessary to this Award. IV. SUBMISSIONS (a) The Union 93. The Union asserts that the manner in which the CMHA terminated the grievor‟s contract and released her from employment violated the collective agreement. More specifically, the Union submits that the CMHA violated the collective agreement by failing to provide the grievor with the required Union representation and by failing to provide the grievor or the Union with written notice of termination, contrary to Articles 9.01, 9.02 and 9.09 of the agreement. Counsel submits that the CMHA denied the grievor her substantive rights in that respect. 33 94. Notwithstanding that the Union claims that the CMHA has violated the collective agreement, it asserts that this case is fundamentally about a probationary employee with a disability not being given a proper chance to demonstrate her ability to do the job with accommodation. 95. The Union submits that the CMHA was or ought to have been aware of the grievor‟s epilepsy, and that after it became aware that the grievor was having performance difficulties because of her disability the CMHA did not comply with its duty to ask the questions necessary to determine whether the grievor could be accommodated in that respect. Counsel submits that the Ontario Human Rights Code requires an employer in the CMHA‟s position to make an individualized assessment of an employee‟s condition and requirements against the requirements of the employee‟s job and the ways that that job can be done, and that in this case the CMHA failed to do so. 96. Counsel argues that all the Union has to do is establish that the grievor was treated adversely on the basis of a prohibited ground under the Code, and that once the Union has done so the onus shifts to the CMHA to prove that it has complied with its procedural and substantive obligations under the Code which are triggered when an employer becomes or reasonably should be aware of an employee‟s disability. Counsel emphasized what she asserts was the CMHA‟s failure to comply with its procedural obligations, and submits that that is by itself a violation of the Code. Counsel submits that the CMHA failed to conduct the required individualized assessment of the grievor‟s situation in that respect. Counsel asserts that that assessment should have been performed when the grievor was hired because the CMHA should have been aware from the grievor‟s volunteer work in 2006 and 2007 and the reference checks it performed that the grievor has epilepsy. Counsel also notes that the grievor believes that Program Manager Bob Fehir knew before she was hired that she has epilepsy because of Fehir‟s relationship with her father, and asks that I draw an adverse inference from the CMHA‟s failure to call Fehir in that respect. 97. The Union asserts that the impact of the grievor‟s disability on her job performance is demonstrated in the CMHA‟s concerns in that respect, as catalogued in the April 14, 2010 letter (Exhibit #4), the medical evidence, and the grievor‟s evidence in that respect, but that the grievor was nevertheless able to perform 3 out of the 4 primary functions of the job satisfactorily; that is, all but the hospital visits. The Union submits that the grievor‟s disability-related performance issues were exacerbated by the strong personalities of her crisis co-workers and that the CMHA failed to address that issue. 34 98. The Union submits that the CMHA failed to recognize or address the grievor‟s special needs, either by following through with the proposals in its April 14, 2010 letter, or at all. 99. The Union observes that the grievor was released very soon after she disclosed her disability to the CMHA, and asserts that that and the circumstances of the disclosure and Wardell‟s reaction and failure to make any reasonable inquiry or conduct any investigation are suspicious, particularly given the nature of the CMHA‟s “business”. 100. Although the Union seems to concede that the grievor did not ask for accommodation, counsel submits that she was not required to do so, or to identify the accommodation required. The Union asserts that accommodation is a multi-party responsibility and process but that the employer bears the primary duty in that respect. The Union denies that the grievor said that she did not require accommodation. 101. The Union notes that the grievor was new employee and that she had no Code training. In that respect, counsel submits that student accommodation is not the same as employment accommodation. 102. Finally, the Union submits (in reply) that the CMHC was in the best position to investigate and assess the grievor‟s needs and the accommodation available to her, and that it was not up to the grievor to tell the CMHA what her needs were. The Union submits that the CMHA simply did not do enough, and that its failure constitutes a violation of the Code. (b) The CMHA 103. The CMHA submits that the nature and purpose of probationary employment is such that the just cause standard of arbitral review does not apply, and that the Union bears the onus proving that the decision to terminate the grievor‟s probationary employment was arbitrary, discriminatory, made in bad faith, or otherwise unreasonable. 104. The CMHA denies that it violated the collective agreement when it released the grievor as unsuitable in accordance with Article 10.01. Counsel submits that the release was not disciplinary and that Articles 6.04 and 9.01 do not apply. 105. The CMHA submits that the grievor was treated and assessed like any other probationary employee. Counsel notes that Article 10.01 of the collective agreement gives the CMHA the discretion to terminate a probationary employee at any time subject only to review for arbitrariness, discrimination or bad faith. Counsel submits that the 35 Union has failed to establish any link between the CMHA‟s decision to terminate the grievor‟s probationary contract and her disability. 106. Counsel submits that Wardell‟s conclusion that the grievor was unsuitable was reasonable based on the performance feedback she received from several sources and her own observations, and that the decision to release the grievor had nothing to do with the grievor‟s disability. Counsel argues that Wardell made no connection between the grievor‟s performance issues and her disability or medications. He points to the grievor‟s failed interview when she first applied for a job with the CMHA, and the CMHA‟s willingness to give her a work opportunity notwithstanding that failure. He argues that Wardell made significant efforts to assist the grievor to no satisfactory effect, asked whether she required accommodation and offered a form of it, and told the grievor to get back to her if there was anything that the CMHA could do to assist her. 107. The CMHA denies that management had any knowledge of the grievor‟s disability before she disclosed it to Wardell on April 7, 2010. It denies that the grievor‟s volunteer work or the reference checks disclosed anything in that respect, or that there is any cogent evidence that Fehir knew about it. Counsel argues that there was no need to call Fehir to testify because the Union did not call the grievor‟s father, and that if there is a negative inference to be drawn in that respect it is against the Union. 108. The CMHA denies that Wardell was under any obligation to do any more than she did when the grievor disclosed her disability, and submits that there was no procedural failure in that respect. The CMHA submits that the onus is on the employee to identify a need for and request accommodation and to provide medical information in that respect. Counsel submits that the grievor was fully aware of her right to accommodation, and what he asserts was required of her, from her academic experience and that the grievor failed to ask for accommodation or provide any medical information in a timely way (i.e. before her contract was terminated), refused the accommodation that was offered, and was unable to suggest accommodation that would assist her on the job. Indeed, counsel; submits that contrary to what the Union asserts, the grievor said she did not require accommodation. Counsel submits that the grievor did not give any indication that she required accommodation until after her employment was terminated, and that there has never been any indication of what that accommodation might be. (c) Authorities Cited 109. Between them, counsel referred to the following decisions in argument: Re Municipality of Metropolitan Toronto and C.U.P.E., Local 79, (1984) 18 L.A.C. (3d) 52 (O‟Shea); Re General Coach, Division of Citair Inc. and C.J.A., Local 3054, (1988) 35 36 L.A.C. (3d) 235 (Roberts); Re The Wellesley Hospital and O.N.A., unreported, March 6, 1989 (Swan – Chair); Re Hawker Siddeley Canada Inc. and I.A.M., District Lodge 717, (1991) 21 L.A.C. (4th) 289 (Joyce); Re Brantwood Residential Development Centre and O.N.A., [1992] O.L.A.A. No. 265 (Starkman); Re Belleville General Hospital and S.E.I.U., Local 183, [1993] O.L.A.A. No. 312 (Thorne); Re Miracle Food Mart of Canada and U,F.C.W., Locals 175 & 633, (1995) 48 L.A.C. (4th) 87 (M.R. Newman); Re Abitibi Consolidated Ltd. and C.E.P., Local 92, (1998) 75 L.A.C. (4th) 414 (Mitchnick); Re Messier-Dowty Inc. and International Association of Machinists and Aerospace Workers, Local 905, [2000] O.L.A.A. No. 225 (Whitaker); Re Toronto Board of Education and C.U.P.E., Local 4400, [2000] O.L.A.A. No. 326 (Davie); Re Ahkwesahsne Police Assn. and Mohawk Council of Akwesasne, [(2003) 122 L.A.C. (4th) 161 (Chapman); Re Dashwood Industries Ltd. and U.S.W.A., Local 1-500, (2007) 161 L.A.C. (4th) 124 (E. Newman); Re Sobeys Inc. and C.A.W. Local 1090, [2008] O.L.A.A. No. 53 (Reilly); ADGA Group Consultants v. Lane, (2008) 91 O.R. (3d) 649, 2008 CanLII 39605 (ON Div. Ct.); Wall v. The LippE Group (c.o.b. Hubert LippE Enterprises Ltd.), 2008 HRTO 50 (Mullan); McLean v. DY 4 Systems Inc. (c.o.b. Curtiss Wright Controls), 2010 HRTO 1107 (Keene); Ouji v. APLUS Institute, 2010 HRTO 1389 (Manwaring); Machado v, Terrace Ford Lincoln Sales Inc., 2011 HRTO 544 (Wiggins). V. DECISION 110. I agree with the Union that this case is primarily about the grievor‟s right to non- discriminatory treatment and accommodation. (A) The Non-Discrimination Collective Agreement Component of the Grievance 111. The Union‟s collective agreement arguments can be disposed of summarily. 112. The grievor was a probationary employee. As is typically the case, there are significant differences between the collective agreement rights of seniority employees and probationary employees. 113. As Wardell and the grievor both recognized, the purpose of a probationary period is to provide the employer with an opportunity to assess a new hire‟s overall suitability for the job she is hired to do – whether on a permanent or temporary basis. On her own evidence, the grievor was well aware of and accepted this when she accepted the 4-month contract. Most collective agreements therefore give probationary employees fewer procedural or substantive employment rights than regular employees, and the employer enjoys a concomitantly broad discretion when it comes to assessing the performance and 37 suitability of probationary employees for continued employment. Regular employees typically enjoy just cause protection, and probationary employees typically do not. It is well-established that unless the collective agreement specifies otherwise the onus is on the union and the grievor to establish that the decision to terminate a probationary employee‟s employment was arbitrary, discriminatory or made in bad faith. 114. That is so under the collective agreement in this case. Article 10.01 specifies that a probationary employee “shall have no seniority rights and shall be considered as being employed on a trial basis. The release of the probationary employee will be at the discretion of the employer subject to the provisions of the Ontario Human Rights Code”, and Article 7.06 emphasizes that a probationary employee has no collective agreement right to challenge discipline, discharge or layoff other than for reason contrary to the Human Rights Code. 115. In any case, there is no evidence that there was any disciplinary component to the CMHA‟s decision to terminate the grievor‟s probationary 4-month contract. I am satisfied that the grievor was discharged or released because the CMHA considered her unsuitable for the crisis worker job she was hired to perform. Accordingly, Article 9 of the collective agreement, which is titled “Discharge and Discipline” and is structured in a manner in a typically discipline oriented way. Article 9.01 specifically refers to the CMHA‟s obligation to give the Union notice and allow for Union representation when discipline is imposed. I am satisfied that when read in the context of Article 9 and the collective agreement as a whole, the employer obligations specified in Article 9.02 and 9.09 are only engaged in the case of a disciplinary discharge or suspension. I am satisfied that Articles 9.02 and 9.09 do not apply to the non-disciplinary release or termination of a probationary employee. 116. Similarly, Article 10.15 states that probationary employees may be provided with feedback, or a performance appraisal or evaluation. I am satisfied that this specific provision for probationary employees takes precedence over the more generally applicable provisions in Articles 9.06 and 9.07. The collective agreement did not oblige the CMHA to provide the grievor with any formal performance evaluation, although the March 30, April 7 and April 14, 20110 did provide the grievor with performance feedback in any event. 117. I am satisfied that nothing the CMHA did or did not do during its assessment of the grievor‟s performance or when it terminated the grievor‟s probationary 4-month contract violated the Article 9 or Article 10 of the collective agreement, either as alleged or at all. 38 118. I note that even if any of the representation provisions did apply, the termination of the grievor‟s probationary 4-month contract would not necessarily have been void (see, Hamilton Health Sciences v. Ontario Nurses’ Association, 2010 CanLII 35848 (ON LA – Surdykowski). The decision of Arbitrator (as he then was) Whitaker in Messier- Dowty Inc. does not reflect the current arbitral approach to the issue. 119. The grievance in that respect is therefore dismissed. (B) The Discrimination Component of the Grievance (i) Onus 120. The onus is on the Union to establish that the grievor has been discriminated against contrary to the collective agreement or the Code. There is no legislated reverse onus in discrimination cases. Although the duty to accommodate is not engaged until a disability is established, it is part and parcel of the obligation not to discriminate on a prohibited ground. 121. There is an evolving theory that the onus is on the employer to establish that it has met separate procedural and substantive duties to accommodate employees with a disability to the point of undue hardship, rather than the employee having to establish that the employer has breached the Code. Perhaps the clearest statement of this proposition that I am aware of is in the Divisional Court‟s decision in ADGA Group Consultants cited by the Union. In paragraph 103 of that decision the Court stated just that, relying on paragraph 62 of the Supreme Court of Canada‟s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (a.k.a. “Meiorin”), and paragraphs 22 and 32 of the Supreme Court of Canada‟s decision in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (a.k.a. “Grismer”). 122. But what were the cases before the Supreme Court of Canada in Meiorin and Grismer, and just what did that Court say in those cases? 123. Meiorin concerned a British Columbia Human Rights Code challenge to a new provincial government imposed minimum physical fitness standards for forest firefighters which adversely affected a female firefighter who had previously performed her work satisfactorily. That is, the challenge required the government to justify the general application of the new standards and its failure to make allowances for the physiological differences between men and women and accommodate women on an individualized basis in that respect. That is why the Court developed (in paragraphs 54-55) the 3-step case for determining whether a prima facie discriminatory standard is a bona fide 39 occupational requirement (BFOR). This test requires an employer to establish, on a balance of probabilities, that it adopted the standard for a purpose rationally connected to the performance of the job, that it adopted the particular standard in an honest and good faith belief that it was necessary to fulfill that legitimate work-related purpose, and that the standard is in fact reasonably necessary to accomplish that legitimate work-related purpose. In order to show that the standard is reasonably necessary, the employer must demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the claimant without undue hardship. Then in the paragraph 62 referred to by the Divisional Court in ADGA Group Consultants, McLachlin J. wrote for the unanimous Court that: 62 The employer‟s third and final hurdle is to demonstrate that the impugned standard is reasonably necessary for the employer to accomplish its purpose, which by this point has been demonstrated to be rationally connected to the performance of the job. The employer must establish that it cannot accommodate the claimant and others adversely affected by the standard without experiencing undue hardship. When referring to the concept of “undue hardship”, it is important to recall the words of Sopinka J. who observed in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, at p. 984, that “[t]he use of the term „undue‟ infers that some hardship is acceptable; it is only „undue‟ hardship that satisfies this test”. It may be ideal from the employer‟s perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. 124. In Grismer the Supreme Court of Canada applied the Meiorin test to a British Columbia public service provider (of driver‟s licenses) and reiterated that once a complainant establishes that a standard of general application is prima facie discriminatory, the onus shifts to the respondent to establish on a balance of probabilities that the discriminatory standard is a bona fide occupational requirement or has a bona fide and reasonable justification. In the paragraphs 22 and 32 referred to by the Divisional Court in ADGA Group Consultants, McLachlin J., again writing for the unanimous Court, stated that: 22 “Accommodation” refers to what is required in the circumstances to avoid discrimination. Standards must be as inclusive as possible. There is more than one way to establish that the necessary level of accommodation has not been provided. In Meiorin, the government failed to demonstrate that its standard was sufficiently accommodating, because it failed to adduce evidence linking the standard (a certain aerobic capacity) to the purpose (safety and efficiency in fire fighting). In Mr. Grismer‟s case, a general connection has been established between the standard (a certain field of peripheral vision) and the purpose or goal of reasonable highway safety. However, the appellant argues that some drivers with less than the stipulated field of peripheral vision can drive safely and that the standard is discriminatory because it does not provide for individualized assessment. Failure to accommodate may be established by evidence of arbitrariness in setting the standard, by an unreasonable refusal to provide 40 individual assessment, or perhaps in some other way. The ultimate issue is whether the employer or service provider has shown that it provides accommodation to the point of undue hardship. … 32 Against this background, I come to the question of whether the Superintendent met the burden of showing that the standard he applied to people with H.H. – an absolute denial of a driver‟s licence – was reasonably necessary to achieve the goal of moderate highway safety. In order to prove that its standard is “reasonably necessary”, the defendant always bears the burden of demonstrating that the standard incorporates every possible accommodation to the point of undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost. In this case, there are at least two ways in which the Superintendent could show that a standard that permits no accommodation is reasonably necessary. First, he could show that no one with the particular disability could ever meet the desired objective of reasonable highway safety. For example, using current technology, someone who is totally blind cannot safely operate a motor vehicle on the highway. Since accommodation of such a person is impossible, it need not be further considered. Alternatively, if the Superintendent could not show that accommodation is totally inconsistent with his goal, he could show that accommodation is unreasonable because testing for exceptional individuals who can drive safely despite their disability is impossible short of undue hardship. 125. Meiorin and Grismer both concerned safety based standards imposed generally without any individualized consideration of accommodation and rightly determined that where a standard is prima facie discriminatory, or makes no provision for individualized assessment the onus is on the employer or service provider to establish that the standard in issue is reasonably necessary and appropriate. That is, with respect, a far cry from being authority for the more general proposition that the onus is on an employer to establish in every case that it has met separate procedural and substantive duties to accommodate an employee with a disability to the point of undue hardship. 126. Grievance arbitrations are in the nature of civil proceedings and the general civil litigation proposition is that “he who asserts must prove” and that a party should not be obliged to prove a negative unless a statutory (or contractual) provision specifies, or fairness and the nature of the case clearly call for such a reverse onus. In my respectful view, in a case where an employee asserts that the employer violated her right to accommodation under the Ontario Human Rights Code, the employee properly bears the onus of proving that she has a disability, that she requires accommodation in the workplace, that she did what was required to inform the employer of her disability and need for accommodation, and that the employer did not accommodate her. It is only then that the onus shifts to the employer to prove that it has or is unable to accommodate the employee. 127. In any event, in this as in most cases onus does not determine the result. 41 (ii) Burden of Proof 128. Regardless who bears the onus, the burden of proof on a balance of probabilities, which is the applicable standard in all civil cases (see, F.H. v. McDougall, [2008] 3 S.C.R. 41 (S.C.C.) per Rothstein J. writing for the unanimous Court, at paragraphs 26- 49). This includes proceedings under or concerning the Human Rights Code (see, Meiorin, Grismer, and Shaw v. Phipps, 2010 ONSC 3884 ON Div. Ct. (CanLII), per J. Wilson and Swinton JJ.). (iii) The Nature and Separation of Procedural and Substantive Duties to Accommodate 129. There is jurisprudence (including the Ontario Human Rights Tribunal decisions in Ouji, Mclean and Machado, but not Arbitrator Chapman‟s decision in Ahkwesahsne Police Association (see paragraph 64), cited by the Union in that respect) which suggests that a flawed accommodation process is by itself sufficient to find constitute a breach of the employer‟s duty to accommodate. Although I agree that that may be the case, I respectfully disagree with the notion it is necessarily so in every case. 130. There are procedural rights or obligations which have a substantive component or effect (the rules of natural justice and the duty of fairness for example). But these are readily discernable legal process rules of general application, not a general unspecified ad hoc obligation to assess disability and accommodation needs on the requisite individualized basis. 131. Human rights are fundamental rights which all humans in an ordered and just society are entitled to. Human rights legislation has therefore been accorded near or quasi-constitutional status. The recent Supreme Court of Canada human rights jurisprudence makes it clear that there is a substantive quality to procedural rights and obligations associated with substantive human rights. But at least two things that must not be lost in the semantic sound bites that pervade modern discussions of human rights issues. First, the fundamental underlying principle is substantive fairness. The objective of all human rights legislation is to ensure equal access to services and accommodation (in the sense of living space), and equal treatment in employment, without discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance. 132. As a matter of general principle, substantive law establishes rules that govern society, and creates and defines rights and obligations, and limits on rights and 42 obligations in society. Procedural law establishes the rules which protect substantive rights, and provide the means for accessing or enforcing rights – including human rights. 133. It is wrong to call all procedural rights substantive, or to say that that all procedural obligations include a separate actionable substantive component in addition to the substantive rights the procedural obligations are intended to facilitate. Procedural is procedural and substantive is substantive. The terms are not synonymous. Procedures and procedural rights are not there for their own sake. When it comes to human rights, they are there to protect and facilitate the exercise of the legislated substantive human rights, without which they are meaningless. The purpose of process is to protect fairness and access to substantive rights, not to create an inescapable legal straightjacket. Process is important, but procedural requirements or debate cannot be allowed to obscure substantive rights and obligations, or the limits to substantive rights and obligations, under human rights legislation. 134. I agree with Arbitrator Davie‟s observation in Re Toronto Board of Education and C.U.P.E., Local 4400 (2000) 60 C.L.A.S. 184 (at paragraph 99) that the procedural component of the duty to accommodate is “part and parcel” of the substantive duty to accommodate, not separate from it. Although a flawed process is more likely to lead to a flawed result, it will not necessarily do so. The purpose of the process is to facilitate an employee‟s substantive rights and the employer‟s substantive obligations under the Code. Neither the procedural nor the substantive components of the duty to accommodate are “one size fits all”. What is required in terms of both process and substance depends on the circumstances. If accommodation to the point of undue hardship is demonstrably unnecessary or impossible, an employer‟s procedural failings will not constitute a breach of the Code. 135. Were it otherwise, as some have suggested; that is, if a defective process is actionable as a violation of the obligations created by the Human Rights Code separate and apart from an actionable violation of substantive rights, a remedy could be ordered even if an employee‟s disability was suitably accommodated. That is, a remedy would be available to an employee notwithstanding that her substantive rights under the Code have not been violated. For example, an employer who accepted an employee‟s request for accommodation in good faith (as the Ontario Human Rights Commission‟s Policy suggests an employer should) and delivered exactly the accommodation requested without conducting any inquiry or investigation could nevertheless be on the hook for that procedural failure. I suggest that those who scoff that this could never happen have little or no experience in the area, and the sometimes spurious claims which undermine the application of the Code, tax resources and delay the determination of legitimate 43 claims. In any event, the point is that the focus in human rights matters should be on substance and substantive rights, not on process. (iv) The CMHA‟s Awareness of the Grievor‟s Disability 136. There is no evidentiary basis upon which I can conclude that it is more probable than not that the CMHA knew or reasonably ought to have known that the grievor has epilepsy before she disclosed this to Wardell on April 7, 2010. I reject the Union‟s assertion that the CMHA ought to have known or even suspected from the grievor‟s 2006 and 2007 volunteer work, or from the reference checks, that the grievor has epilepsy or required accommodation. 137. Epilepsy is a chronic neurological condition. Untreated, it is characterized by recurrent seizures which reflect disturbances in electrical brain activity and can affect a variety of mental and physical functions. The nature, extent and manifestations of epilepsy vary. There are many types of seizures, and their symptoms can vary from convulsions and loss of consciousness to those which may not be recognized as seizures by the individual or observers, including health care professionals. The Human Rights Code specifically recognizes epilepsy as a disability (s. 10(1)(a)). 138. There is no evidence that the grievor performed any crisis related or other stressful work, or that she experienced any seizures or displayed any symptoms which could reasonably have been attributed to epilepsy during either of her volunteer stints with this CMHA. Neither of the references in evidence mentions epilepsy or suggests any chronic medical condition. They merely describe “personal hurdles” and “health problems” which have been overcome, suggesting that whatever the issues were they are in the past. The grievor‟s belief that Fehir knew that she has epilepsy from his association with her father before she disclosed it on April 7, 20110 is proof of nothing, and there is no merit to the Union‟s submission that I should draw an adverse inference against the CMHA for failing to call Fehir as a witness in that respect. On the contrary it is the Union who alleges that the employer knew or ought to have known of the grievor‟s disability before she disclosed it, and the onus is on the Union to prove that alleged fact, not for the CMHA to prove the negative; i.e. that it did not and could reasonably have known. There being no suggestion that the grievor‟s father was not available to testify the appropriate adverse inference to be drawn, if any, is against the Union for failing to call him as a witness. 139. In any event, I believe Wardell‟s assertion that she had no knowledge of the grievor‟s disability until the grievor disclosed it on April 7, 2010, and I so find. 44 (v) The Grievor‟s Performance, Training and Warnings 140. Although the Union‟s suggestion that the grievor was able to satisfactorily perform 3 of the 4 primary functions of the crisis worker position stretches the evidence somewhat, I am satisfied that the grievor more probably than not performed duties and responsibilities #1 (answer the 24/7 crisis telephone line and support the callers) and #2 (deal with walk-in clients needing support during the regular 8:30 a.m. to 4:30 p.m. Monday through Friday business hours) well enough. With respect to duty and responsibility #3, the evidence is that the grievor was cleared to but never actually did an intake assessment of a case management client on her own. Of course, that doesn‟t mean she wasn‟t able to perform that function, and notwithstanding the grievor‟s admission that she was slow to pick up on intake assessments (paragraph 21, above), the fact that she was cleared to do so suggests that the CMHA thought she could do so. I consider it more probable than not that the grievor was able to perform duties and responsibilities #1, #2, and #3 with sufficient competence to survive the duration of her 4-month probationary contract. 141. However, as the Union rightly concedes, the grievor was demonstrably unable to perform duty and responsibility #4 (hospital calls) even with assistance, much less on her own. The evidence is very clear in that respect. I find the grievor‟s own evidence and the evidence of Jillaine Blair (paragraphs 54 and 56, above) so telling in that respect that it is unnecessary to resort to Lori Buick‟s email (Exhibit #17 – paragraph 76, above) which is entirely consistent with that evidence. 142. As a probationary employee the grievor knew, and her probationary contract (paragraph 15, above) gave her fair warning that the contract could be terminated without notice or cause. On her own evidence, the grievor was aware that as a probationary employee her performance and suitability for the job would be monitored and assessed (paragraphs 16 and 35, above). Further, although the grievor denies that Wardell told her that her job was in jeopardy, she concedes the performance issues that Wardell identified on March 30, 2010 and that Wardell told her she had one week to improve. Although the grievor does not as readily accept the April 7, 2010 performance criticisms, neither does she deny them. Although the testified that her job shadowing co-workers told her she was improving and doing a good job (an assertion for which there is no corroborating evidence), she concedes that they also provided what she described as constructive criticism and that the feedback she received from the co-workers was not “overly negative”. Read together with Blair‟s evidence, this suggests that those co-workers were merely trying to be supportive and encouraging. It is apparent from the grievor‟s own evidence that she knew that the CMHA perceived and that she was in fact not doing a 45 satisfactory job when she met with Wardell on March 30, 2010 – a full month into her 4- month contract. 143. I can discern no evidentiary basis for the grievor‟s belief that her performance had improved when she met with Wardell on April 7, 2010, or for her belief that she could do hospital calls on her own. Indeed, I agree with Wardell that this called the grievor‟s judgment into question. It is clear that some 8 weeks into the 4-month (18-week) contract the grievor‟s performance of job duties and responsibilities #1, #2 and #3 was barely satisfactory and that she was unable to perform the hospital calls component (#4) of the job at all, much less satisfactorily. I am troubled by the fact that the grievor persists in her view that she able to provide an appropriate hospital call service to people in extreme crisis, notwithstanding all of the evidence that she cannot. I am satisfied that the crisis hospital call function is an essential, significant, and integral component of the crisis worker position, and that the grievor was unable to perform that function. 144. Although not pursed at length in final argument, part of the Union‟s complaint is that the CMHA failed to provide the grievor appropriate training for the job. The evidence is clear that the grievor went through the same orientation and job shadowing as every other new employee, and there is no evidence that the grievor made any complaint about other than the strong personalities of her job shadowing co-workers in that respect – something which it seems to me is a desirable characteristic in a crisis worker. The grievor did not suggest either at the time or when she testified that she required additional training. Further, training is what the grievor went to social work school for. What additional training can reasonably be expected or required by a new graduate who is hired to temporarily back-fill a position with no prospect or expectation of regular or any continued employment beyond that? I consider it reasonable for an employer like the CMHA to expect a newly graduated social worker, who by accepting a short-term crisis worker position represents that she is ready and able to do the job, to bring her social work training and skills immediately to bear with the assistance of a brief orientation and job shadowing familiarization program, and to in effect “hit the ground running”. In any event, I am not satisfied that any subsequently alleged training deficiencies were a significant cause of the grievor‟s performance failings. 145. The Union also suggests that the grievor received insufficient warning that her continued employment was in jeopardy. I reject that suggestion. On the grievor‟s own evidence she was aware that things were not going well before March 30, 2010, and notwithstanding her denial that Wardell gave her any indication on March 30 that her employment was in jeopardy (which I am satisfied Wardell more likely than not did) the grievor concedes that she knew when she left the meeting that day that the CMHA was unhappy with her performance and that she had to improve. Any reasonable employee 46 would have understood and I am satisfied that the grievor understood after that meeting that her continued employment was in jeopardy. The grievor must also have understood after her April 7, 2010 meeting with Wardell that the CMHA continued to be dissatisfied with her progress. I am satisfied that the grievor received ample warning. Although the Union also criticized the extent of the opportunity the grievor had to improve, I am satisfied that she had ample such opportunity. 146. The Union submits that the grievor‟s performance issues were due to her disability, and that the CMHC failed to recognize and accommodate her in that respect. The Union alleges procedural failure and substantive failure as independent bases for its assertion that the CMHA had breached its collective agreement and Human Rights Code obligations in that respect. This is really the main part of the Union‟s case. (vi) Accommodation 147. The grievor agrees that neither her epilepsy nor her medication had anything grievor to do with any of the other performance issues in other than the hospital calls (paragraph 31, above). I agree with the Union that the grievor‟s hospital call performance issues that the grievor‟s performance issues were caused by or related to her disability or medication. 148. However, I find it impossible to believe that the grievor was naïve or completely uninformed about her right to accommodation when she met with Wardell and disclosed that she has epilepsy. Although I have no evidence about the undergraduate or graduate social work programs which the grievor completed and received degrees for, surely our universities do not cast social work graduates into the modern professional working world without ensuring that they have at least an awareness and passing familiarity with the Ontario Human Rights Code. If that is the case, those institutions have seriously failed their graduates. In any case, this grievor was quite familiar with the concept of accommodation. She had asked for and received it as required during her academic career. There is little merit to the Union‟s assertion that there is such a big conceptual difference between accommodation in the academic world and accommodation in the working world that the grievor would not have been alert to the possibility. There are differences to be sure, but those are differences are in the kind of accommodation that may be available in one versus the other, and not in the right to accommodation. I am satisfied that the grievor was or ought to have been familiar with at least the concept of accommodation. Indeed, her reaction to Wardell‟s offer of shift length accommodation was not to ask “what‟s that?”; but that she didn‟t require any. 47 149. The Union asserts that it was not up to the grievor to identify her special needs that required accommodation. With respect, I disagree. As the Ontario Human Rights Commission‟s Policy indicates (paragraph 91, above) the employee has an obligation to ask for accommodation and to provide sufficient information (including necessary otherwise private confidential medical information) to establish the accommodation required, and to participate in and facilitate both the search for and implementation of accommodation – whether or not the accommodation available is “perfect” from the grievor‟s subjective perspective. The employer has a legitimate need for sufficient information to make it aware that accommodation is required and to permit it to satisfy its accommodation obligations. An employee cannot expect accommodation if she does not ask for it and indicate the accommodation required to the best of her ability. In this case, the grievor not only did not ask for accommodation, she testified that she did not require accommodation. An employer has no duty to accommodate an employee whose disability does not require accommodation (see, for example, Re Peel Regional Police Services Board and Peel Regional Police Ass’n (2004) 204 L.A.C. (4th) 65 (Trachuk)). Neither does an employer have an obligation to engage a process which will invade the employee‟s medical information privacy when an employee says she does not need or want accommodation. The Human Rights Code does not require (or permit) an employer to take a Big Brother approach to accommodation. 150. The Union asserts that the CMHA failed to recognize or accommodate the grievor‟s special needs. What special needs? What accommodation? Not only did the grievor not identify her special needs (indeed she says she had none), there is no suggestion in either evidence or argument as to how the CMHA could possibly have accommodated the grievor‟s disability or medication side effects in order to permit her to satisfactorily perform the essential hospital calls function that is integral to the job. By definition, crisis workers provide social work services to people in crisis. Hospital calls require a crisis worker to attend to and engage with a person who has presented in extreme crisis, who is extremely vulnerable and perhaps suicidal. The crisis worker must be alert and be able to respond quickly to verbal nuances and ambiguities and to non- verbal clues that a person in crisis will often present. How could the grievor‟s processing, engagement, or articulation issues have been accommodated to enable her to deliver the necessary hospital call service without compromising the needs and safety of the people in desperate need of the service? 151. The evidence of the grievor‟s failed 2009 interview and of her performance on job shadowed Hospital calls (particularly Blair‟s evidence in that respect) suggest that the grievor freezes under pressure. Crisis hospital calls are high stress situations. The CMHA must be able to count on the crisis worker dispatched to deal with the situation to engage the person in crisis appropriately and not freeze up. And both the hospital which 48 put out the call and the person who presents in crisis at the hospital require the assistance a crisis worker who engages appropriately and does not freeze up under stress. There is no evidence that the grievor‟s inability to respond to or engage with a person in crisis in a timely way, or her tendency to freeze up, can be accommodated, and I can discern no possible accommodation. (vii) Conclusions 152. I am satisfied that the CMHA was not required to investigate further after the grievor indicated that she did not need accommodation. I am satisfied that the CMHA did not fail to meet any of its procedural obligations under either the collective agreement or the Human Rights Code in that respect. 153. I am not satisfied that it was possible to accommodate the grievor to permit her to properly and adequately perform crisis hospital calls, which is an essential and integral duty and responsibility of the crisis worker job the essential duties. I am satisfied that the manner in which the CMHA treated the grievor did not violate the grievor‟s right to equal treatment or accommodation under the Human Rights Code, and that the CMHA did not discriminate against the grievor, or otherwise violate the collective agreement or the Human Rights Code. 154. In the result, I am satisfied that nothing that the CMHA did or failed to do in its treatment of the grievor constitutes a violation of the collective agreement or the Ontario Human Rights Code. 155. The grievance is therefore dismissed. (viii) Note 156. Although there is no cure, epilepsy can often be controlled with medication. A properly medicated motivated epileptic who receives appropriate available accommodation, if required, can often function normally in most occupations and workplaces. There is no evidence that epilepsy necessarily affects job performance or productivity in most jobs. However, some occupations or jobs are contraindicated. It is generally accepted that the occupations of airline pilot, trauma surgeon, firefighter, and some construction jobs (ironworker rigging, electrical lineman, for example) are not suitable for a person who has epilepsy. The consistent rationale in that respect is based in the reasonable concern for the health and safety of the individual or others in the event that a seizure or other significant symptoms occur. It seems to me that front line first 49 responder or crisis reaction/support positions are also be inappropriate for a person who has epilepsy. 157. The grievor deserves a great deal of credit for facing and overcoming the challenges of her disability to obtain three university degrees. She deserves to be congratulated for trying to make a contribution in her chosen field of social work. Indeed, notwithstanding how difficult it is for new graduates today to find employment in their chosen field, I have no doubt that the grievor will find employment as and be a good social worker. But that does not mean that she is suited to every social work position if she perseveres. 158. On the evidence presented (including the grievor‟s own testimony), I am constrained to conclude, as Fehir and Reitz (the grievor‟s own reference) recognized early on, that the grievor is ill-suited to a crisis position. She seems better suited to a case management or similar position. DATED AT TORONTO THIS 21ST DAY OF FEBRYARY 2012. George T. Surdykowski . George T. Surdykowski – Sole Arbitrator