Loading...
HomeMy WebLinkAbout2006-1704 Fenech.12-07-17 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2006-1704, 2006-1705, 2006-1706, 2007-0707, 2007-0708 UNION#2006-0528-0004, 2006-0528-0005, 2006-0528-0006, 2007-0528-0003, 2007-0528-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fenech) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Janina Fogels (Counsel) June 20, 2007 to July 15, 2009. Jorge Hurtado (Counsel) October 14, 2009 to July 13, 2010 Inclusive. Robyn White (Counsel) September 24, 2010 to May 30, 2011 Inclusive. Cavalluzzo Hayes Shilton McIntyre & Cornish Barristers & Solicitors - 2 - FOR THE EMPLOYER Yasmeena Mohamed (Counsel) June 20, 2007 to October 2, 2007 Inclusive. Paul Meier (Counsel) March 6, 2008 to December 15, 2009 Inclusive. Cathy Phan (Counsel) April 19, 2010 to May 30, 2011 Inclusive. Ministry of Government Services Labour Practice Group Counsel HEARING June 20, September 5, October 1 & 2, 2007, March 26, April 4 & 15, June 19 & 26, September 12, September 17 & 18, October 22, December 19, 2008, February 10 & 11, February 24 & 26, March 26, June 4, July 10 & 15, October 14 & 26, November 6 & 30, December 15, 2009, April 19, May 13 & 25, May 31, July 13, September 24 & 29, December 13, 2010, February 23, March 30, May 30, 2011. - 3 - Decision [1] The grievor, Ms. Catherine Fenech, is employed at the Office of the Worker Advisor (“OWA”), an agency of the Ministry of Labour. She has filed five grievances, which were consolidated on agreement. The grievances are as follows: Grievance No: 1 Grievance dated March 24, 2006 grieving that the employer had failed to accommodate her disability; discriminated against her on the basis of disability and workplace injury; and failed to make reasonable provisions for her health and safety, contrary to articles 3 and 60.1 of the collective agreement, and the Ontario Human Rights Code. Grievance No: 2 Grievance dated June 1, 2006 is very similar to grievance no: 1, with the addition, “Specifically the employer has failed to renew my temporary assignment to the full- time Program Assistant position at the OWA Toronto office and is instead running a competition for the position …”. Grievance No: 3 Dated August 3, 2006, it reads: I grieve that the employer has discriminated against me on the basis of disability and workplace injury and has contravened Article 3, 6, 8, 44 and/or 71 of the Collective Agreement, the Ontario Human Rights Code and any other Article of the Collective Agreement or other legislation that may apply. Specifically, the employer has (a) refused to allow me to return to work with accommodations as recommended by my physician; (b) failed to offer me an interview in the competition for the temporary full-time program assistant in Toronto (File No. LB-36-0605); (c) changed my status from full-time while I was off on sick leave and had applied for WSIB benefits, and; (d) refused to pay travel expenses incurred to attend appointments with my physician required to obtain employer-requested medical opinions. This grievance is in addition to and does not in any way withdraw or modify my grievance dated June 1, 2006. Grievance No: 4 Dated February 22, 2007, this reads: I grieve that the employer has violated the collective agreement, the Ontario Human Rights Code and any other policy or legislation that may apply by failing to accommodate my disability and, in particular failing to do so in a timely - 4 - fashion and by suspending ongoing accommodation efforts with respect to use of computers and other office technology. Grievance No. 5 The final grievance dated March 7, 2007 reads: I grieve that the employer’s February 22, 2007 instructions that I complete a Conflict of Interest Reporting Form regarding my volunteer involvement in RSI Day and the accompanying order that I not discuss my employment situation constitute retaliation for exercising my rights under the collective agreement and the Ontario Human Rights Code (including filing grievances) and interference with my union free speech rights. I further grieve that the employer’s conduct constitutes a violation of Articles 2 and 3 of the collective agreement and the Ontario Human Rights Code. [2] The parties agreed that for this proceeding evidence would be limited to the “cut off” date of June 18, 2008. The hearing was complex and lengthy. A total of 128 exhibits were filed. Hearings were held on 38 days, spanning a period of just under four years. Counsel on each side changed twice during the course of the hearing. The primary issue between the parties is the union’s allegation that the employer unreasonably delayed Ms. Fenech’s accommodation and return to work. While other distinct issues including health and safety, reprisal and discrimination with respect to job opportunities are raised in the various grievances, they all revolve around the primary allegation of delay in accommodation. [3] Ms. Fenech was first hired by the OWA at its Toronto office effective July 5, 2004 as a temporary Program Assistant (“PA”). PA was very much a front line position, providing advice and information to injured workers who call or visit. The PA position also included administrative and clerical functions in support of other staff, particularly Worker Advisors. Starting in October 2004, Ms. Fenech received a part-time unclassified contract as PA to work 3 days a week, on Wednesdays, Thursdays and Fridays. However, in fact, she worked substantially more, and worked 5 days on some weeks. Then on October 19, 2005 Ms. Fenech attained the status of permanent part-time PA. At this time the OWA office also employed a full-time PA, Ms. Rhonda Charles. Both PAs reported to Ms. Mary Tzaferis, Manager for Toronto and Eastern Ontario. The OWA director at the time was Mr. Alex Farquhar, who was subsequently succeeded by Mr. Jorma Halonen. The other members of the management team were, Ms. Daphne - 5 - Greene (Manager of Planning, Finance & Electronic Service Delivery) and Ms. Cindy Trower (General Counsel and Manager of Central Client Services Unit). The grievor’s testimony [4] There is no dispute that since 1994 Ms. Fenech has been afflicted with a Repetitive Strain Injury (“RSI”). Ms. Fenech had discussed with Ms. Tzaferis her RSI disability at the time of hire. She testified that during her first year of employment at the OWA she managed her disability by adjusting her seat, desk and equipment to suit her, avoiding twisting and repetitive work, and by pacing herself. She also brought in her own touch pad phone and document holder. Shortly after she started, Ms. Drinkwater, and then Director Mr. Farquhar, told Ms. Fenech that her work station may not be appropriate for her. This led to Ministry ergonomist, Ms. Julie Frauts, conducting an assessment on November 4, 2004. In her report Ms. Frauts recommended that Ms. Fenech’s work station be equipped with a height adjustable keyboard and mouse platform, and that her present monitor be replaced with a flat panel LCD monitor attached to an adjustable arm. Ms. Frauts also noted that it had been reported that “workers” had difficulty accessing the existing file cabinet, and advised that it be replaced. Ms. Fenech testified that Ms. Fraut’s recommendations were implemented, except that the file cabinet was not replaced. [5] Ms. Fenech testified that with these changes she coped well. In the spring of 2005, she heard that a new Case Management System (“CMS”) would be implemented at the OWA. Ms. Fenech inquired from Ms. Greene whether it would be fully mouse driven. Ms. Greene informed that Mr. Halonen, who at the time was Regional Manager in the Thunder Bay office would know. Ms. Fenech did not contact Mr. Halonen because as a contract employee she was not sure whether she would even be employed at the OWA by the time the new CMS came in. However, when Ms. Fenech became a permanent part- time PA in October 2005, she realized that she would in fact have to use the new CMS and was concerned that excessive mousing would aggravate her RSI. [6] The launch of the new CMS was scheduled for November 15, 2005. Ms. Fenech testified that she participated in a conference held at the CAW Training Centre in Port Elgin, - 6 - Ontario on November 5, 2005. Ms. Trower and Mr. Halonen also attended this event. That night while in Port Elgin, Ms. Fenech met Mr. Halonen at the bar in the training centre. She testified, “I told Mr. Halonen that I have concerns that the new CMS has lots of mousing. That it will cause problems for me and for others. He said that they had already spent X dollars on it and cannot change it now. He said that I can use voice recognition and I said it’s not appropriate because my job is on the phone. I left it at that”. [7] On Thursday November 10th, Ms. Charles, the full-time PA, had the test version of the new CMS and Ms. Fenech tried it out. She testified that after 20 minutes her arms were sore, and had to call in sick on Monday November 14. When she returned on November 16th, she informed Ms. Tzaferis that she had difficulty with the excessive mousing required by the new CMS and requested that an ergonomist be brought in. Ms. Fenech testified that at this time she also requested that she be provided a touch pad and document holder and that her work days be changed from Wednesday, Thursday, Friday to Monday, Wednesday, Friday, to allow a rest day in between work days. Ms. Tzaferis instructed Ms. Fenech to ask Ms. Drinkwater to order the devices and commented that changing the days of work should be “no problem”. However, since it would impact on Ms. Charles’ schedule, Ms. Tzaferis undertook to speak to Ms. Charles before implementing the change. Ms. Fenech testified that the next work day, she asked Ms. Tzaferis again about changing her work days. Ms. Tzaferis responded that she needed some medical substantiation indicating that Ms. Fenech had a disability which requires accommodation by changing the work schedule. On November 29, 2005 she filed a formal written request for accommodation, requesting that the change in work days be implemented “as soon as possible”. In response, Ms. Tzaferis wrote to Ms. Fenech on December 5, 2005, enclosing a Health Information Form to be filled and returned by Ms. Fenech’s physician no later than December 15, 2005. Dr. Heather Tick, runs a RSI Injuries clinic. On December 12th, Dr. Tick completed the Health Information Form. It stated that Ms. Fenech “should work Mon/Wed/Fri due to RSI related injuries. Should limit repetitive work, specifically mousing”. Those restrictions were stated to be “temporary” and the expected duration “uncertain”. Ms. Fenech testified that following - 7 - her formal request, pending Dr. Tick’s medical, her schedule was changed to Monday- Wednesday-Friday. [8] At the time, the incumbent in the position of Finance & Accountability Assistant (“FAA”) had accepted a secondment for 5.5 months and her position had been posted. Ms. Fenech requested that she be accommodated in the FAA position to work only Mondays, Wednesdays and Fridays. Ms. Tzaferis pointed out that it was a full time position, and must be filled 5 days a week, and suggested that she apply for the temporary posting. Ms. Fenech applied and participated in the competition but was not successful. In the de-brief, she was told that she was outstanding in the written test, but lost significant points due to her lack of experience in OPS finance systems. As a result, she ended up relatively equal to the winner who got the position by virtue of her greater seniority. Ms. Fenech testified that she did not grieve because she respected the priority accorded by the collective agreement to seniority. Since that position was won by the incumbent of the Head Office Assistant position, the latter position became temporarily vacant and was posted. Since that also did not involve CMS, Ms. Fenech applied, but was not successful again. [9] In the meantime, Ms. Fenech understood that the employer was making inquiries from its CMS programmers whether short-cuts could be developed to enable her to use CMS without excessive mousing. Ms. Fenech took the initiative to contact a specialist in the field, Mr. Alan Cantor, who she knew. Mr. Cantor advised her that there are ways of avoiding mousing, and referred her to a case study he had done for another individual. The following week Ms. Tzaferis told Ms. Fenech that engaging an external specialist like Mr. Cantor would be easier if a recommendation is obtained from an ergonomist. Arrangements were made for the MOL ergonomist, Ms. Frauts to visit again. On February 22 Ms. Frauts did an assessment of Ms. Fenech’s work station and issued a report dated February 23, which recommended, inter alia, that “a software specialist” will be able to suggest software that would reduce keyboard strokes and mousing. [10] On March 14, 2006, Ms. Fenech wrote to Ms. Tzaferis, expressing her dissatisfaction with the lack of progress on her request for accommodation, and made a request that - 8 - certain steps be taken as soon as possible, including that an “accommodation expert, preferably Alan Cantor, be hired to oversee my accommodation in particular the development of macros to eliminate mousing in CMS in the short term”. Ms. Fenech testified that she wrote this letter because at this time she was overburdened with work, because the full-time PA was off sick. When she raised this concern, Ms. Tzaferis suggested ways to reduce her workload, such as forwarding telephone calls to the Ottawa Office. Ms. Fenech responded that the solution was to employ her five days a week. She pointed out that she had worked 4 and 5 days a week in the past although hired on the basis of 3 days a week, and that she needed to work full-time anyway because of her financial circumstances. She accused Ms. Tzaferis of discrimination by denying her full- time work. Shortly after, Ms. Tzaferis scheduled Ms. Fenech on a five days a week basis. [11] On March 16, 2006, Ms. Fenech was informed that the Ministry CMS programmers and IT staff had concluded that her difficulty with mousing could be addressed by developing a F12 Macro key to allow short-cuts to be used and that IT staff had been instructed to research Mr. Cantor’s website to determine whether his expertise suits Ms. Fenech’s needs. On March 20, 2006, Ms. Fenech forwarded to Ms. Tzaferis the study authored by Mr. Cantor describing how he had assisted an individual who had difficulty with mousing. Ms. Fenech’s cover letter asserted that she was “more convinced than ever that Alan Cantor is the right person to undertake my workplace accommodations” and that “anything less, in my view, would be a failure to accommodate”. [12] At a meeting held on March 21, 2006, Ms. Tzaferis was accompanied by Ms. Christine Fulton from Human Resources. Ms. Fenech objected to Ms. Fulton’s presence, and demanded that she be provided a union representative. However, the meeting proceeded after it was explained to Ms. Fenech that Ms. Fulton was there only to explain the tendering process that had to be undertaken in order retain Mr. Cantor. Ms. Fenech testified that at that meeting Ms. Fulton was “nasty and very confrontational”. She advised Ms. Fenech that in order to hire an outside consultant, the OPS procedure required that three bids be obtained. She also expressed her surprise when she became aware that Ms. Fenech was working 5 days a week. Ms. Fulton took the position that it must “stop immediately” because the medical evidence received was to the effect that - 9 - Ms. Fenech should only be working Mondays, Wednesdays and Fridays. She also questioned the adequacy of the medical substantiation provided to date. An argument ensued, with Ms. Fenech asserting that her right to equal treatment entitled her to work full-time, and pointing out that she had returned the only Health Information Form provided to her, duly completed by Dr. Tick. Ms. Fulton stated that the information in that form was inadequate. Ms. Fenech testified that due to the request for medical substantiation at the end of the meeting she was left thinking that she was being accused of “faking the whole thing”. [13] On March 21, 2006, Ms. Tzaferis wrote to Ms. Fenech, requesting that she take a letter and a more detailed Health Information Form to Dr. Tick. The letter to Dr. Tick from Ms. Tzaferis, included the following: At no time has Catherine been required to work in excess of three days per week, however, Catherine has agreed to work 5 days per week for the period of March 6-31, 2006. Please advise is this possible in light of Catherine’s restrictions. As you can see, we are committed to supporting our employees and meeting their accommodation needs. In order to continue to accommodate Catherine appropriately, we ask that you provide clarity by completing the attached form and answering the following questions. . Catherine’s current restrictions; . If the restrictions are temporary or permanent; . The expected recovery time if the condition is temporary; . Dates that you will complete reviews and update us on any changes in her restrictions. [14] Correspondence between Ms. Fenech and Mr. Cantor that followed indicates that Ms. Fenech was of the view that the requirement for three tender bids to hire a software specialist for her accommodation was “just further delaying tactics” by the employer. While Mr. Cantor indicated his willingness to submit a bid if required, and to explore means of obtaining Vendor of Record status to be able to do so, it is very clear that Ms. Fenech was very suspicious about the employer’s good faith. She informed Mr. Cantor that a grievance would be filed because she was advised by her union representative that “this is the only way to speed up the process and cut through some of the red tape”. - 10 - [15] The evidence is that on March 29, 2006, Mr. Cantor, who had not yet been hired, was brought in for an initial consultation. It was attended by Ms. Fenech, Ms. Greene and a Ministry IT person. Ms. Fenech testified that Mr. Cantor spent about 3 hours observing her at work and showing what could be done to minimize mousing. Ms. Fenech testified that the session with Mr. Cantor was very helpful and encouraging. Following this consultation, Mr. Cantor issued a report dated April 3, 2006, in which he recommended that Ms. Fenech be provided a particular type of chair, an adjustable key board tray, and a key board. Ms. Fenech testified that Ms. Tzaferis promptly approved the purchase of all three items. While a chair was identified as suitable, Mr. Cantor advised that it be not purchased until the modifications to Ms. Fenech’s work station are completed. Ms. Fenech ordered the adjustable key board tray Mr. Cantor had recommended on-line, but when it arrived, it was different from the one she had seen on-line, and was not satisfactory. While Mr. Cantor had offered in his report to loan several key boards for Ms. Fenech to try out, and to build a strap for the touch pad, he did not do that because he had not yet been formally hired. Therefore, Ms. Fenech did her own research and ordered a Kinesis key board. On April 20, 2006, Ms. Fenech e-mailed Ms. Tzaferis requesting that she be purchased a book entitled “Keyboard Access Tips” authored by Mr. Cantor and a particular type of larger barrelled pen. Within minutes Ms. Tzaferis responded directing Ms. Drinkwater to “order ASAP” the requested items. [16] The evidence indicates that in April 2006, discussions were on-going for the development of an accommodation plan for Ms. Fenech. Ms. Fenech was reminded that the employer was still awaiting medical information to be able to hire Mr. Cantor. Also, Ms. Fenech had been assigned a new duty relating to a WEB inquiry referral list. Ms. Fenech requested that she be not required to perform that duty and Ms. Tzaferis agreed. Also, in response to Ms. Fenech’s complaint about being burdened with two much work, directions were issued by Ms. Tzaferis on April 20, 2006 that, when Ms. Fenech was the only PA on duty in the Toronto office, she should forward “Toronto phones to Ottawa” and that the Mississauga and Scarborough offices should not send calls to the Toronto Office. She testified that when she complained about being over worked due to the full- time PA being off sick, Ms. Tzaferis agreed to hire an additional part-time PA. That PA was to work Tuesdays, Wednesdays and Thursdays, while Ms. Fenech would continue - 11 - working Mondays, Wednesdays and Fridays. Ms. Fenech was critical of Ms. Tzaferis for hiring only a part-time PA to replace a full-time PA. According to Ms. Fenech, at this meeting Ms. Fulton stated, in a nasty tone, that if Ms. Fenech felt that she was not being properly accommodated, she should stay home on sickness benefits. Ms. Fenech responded that she would not use up her sickness benefits for a workplace injury. She testified that Ms. Fulton “kept challenging my integrity” by repeatedly stating that she had not provided adequate “medicals” to substantiate her disability. At this meeting, for the first time a written accommodation plan was presented by the employer. Ms. Fenech expressed disagreement with several of its provisions. Ms. Tzaferis agreed to revise it to incorporate the changes Ms. Fenech wanted. However, when Ms. Tzaferis returned a revised copy, Ms. Fenech was not satisfied. Therefore, together with Mr. Brown, Ms. Fenech amended it the way she wanted it, and the plan was signed off on May 5, 2006. [17] The evidence is that on April 20, 2006, Ms. Tzaferis wrote to Ms. Fenech, reminding her again that the Health Information Form provided to her on March 21, 2006 with a request that she get it completed and returned by her physician by April 4th, had not yet been received. Ms. Fenech followed up with Dr. Tick’s office and a report dated April 19, 2006 was received by the employer. In it, Dr. Tick reviewed her expertise and experience as it relates to RSI injuries, and described the accommodation needed by Ms. Fenech. She concluded her letter with the following: In summary: Ms. Fenech has RSI, which was exacerbated by the extensive mousing. She requires immediate accommodation so that her condition does not deteriorate further. She requires an ergonomically correct workstation and she requires the services of a disability accommodation consultant to develop macros to eliminate mousing. Ms. Fenech testified that she presented this medical report to Ms. Tzaferis and commented “Here is the medical you wanted for my fake injury”, and walked away. Shortly thereafter, she was informed that Alan Cantor would be hired. [18] On April 24, 2006, Mr. Cantor submitted a cost estimate for certain activities he could implement immediately at a cost of $4,250.00 and a further set of activities “to be implemented after assessment” with no estimate of cost. Ms. Fenech testified that Mr. Cantor worked with her at the OWA office starting April 25, 2006. Initially he spent a - 12 - few hours a day, showing her ways to use the computer without mousing, and teaching her some exercises to practise. Mr. Cantor provided her a pace keyboard which he felt suited her. However she “liked her key board to be a little low”. This keyboard was too high and had to be keyed hard. She and Mr. Cantor met with the CMS developers and discussed various methods of reducing mousing. The programmers agreed to make changes to achieve that goal. She testified that Mr. Cantor was unable to do much work on developing macros as anticipated because shortly after this she was away from the workplace because of sickness. She said that in early May 2006 her pain came back after she tried using the pace key board. She requested a Kinesis keyboard, and it was immediately ordered by Ms. Drinkwater. She did not want to go off sick because she was concerned that it would delay her accommodation efforts through Mr. Cantor, which she felt at the time was “finally falling into place”. However, she did not want to risk further aggravating her injury. Therefore, she asked Dr. Tick for two weeks off, and Dr. Tick obliged with a medical note dated May 10, 2006. [19] Ms. Fenech testified that on May 11, 2006, Ms. Drinkwater sent her a job posting for a full-time 4 month PA position in the Toronto OWA office. This vacancy had arisen as a result of the incumbent Ms. Rhonda Charles being off on sick leave. Ms. Fenech was aware that the vacancy was coming up, and had requested that she be given the position without a posting, and was shocked. She asked that a resume she had previously submitted be used as her application. In the meantime Ms. Fenech submitted a doctor’s note dated May 24, 2006, that put her off on sick leave for a further two weeks. [20] The evidence is that Ms. Tzaferis sent to Ms. Fenech by Purolator courier, a letter dated May 31, 2006, requesting that Ms. Fenech provide to her doctor a copy of the PA job description, and have her complete and return within two weeks an enclosed Health Information Form. In addition, Ms. Tzaferis indicated her desire to interview Ms. Fenech for the posted full-time temporary PA position upon Ms. Fenech’s return to work from sick leave, and wrote “Please have your medical practitioner provide any limitations that require accommodation for you to participate fully in this competition.” Ms. Fenech testified that Ms. Tzaferis had previously told her that she would be sending a letter requesting “a medical” to be able to participate in the competition and that she argued - 13 - that it was unnecessary. Ms. Fenech testified that when Purolator attempted to make the delivery she was not home, and a card was left for her to pick up the letter at the Purolator outlet. However, she did not go to pick up because in her experience “there were long line ups and they can never find anything and I don’t go there”. [21] On June 17, 2006, Ms. Fenech submitted the Health Information Form completed by Dr. Tick. Dr. Tick checked “yes” to the question “Are there medical/health conditions that account for absence(s) from the workplace or would affect the employee’s ability to perform her duties”, and described the restrictions as “No repetitive tasks, no touch pad” and also advised acquisition of voice recognition software, and assessment and training by Lois Singer, a speech pathologist. She also wrote, “Interview requires proper ergonomic work station that has been set up before. See letter for details”. [22] Upon receipt of the form, Ms. Tzaferis sent to Dr. Tick the following letter dated June 23, 2006, to which was attached a physical demands analysis and job description for the PA position. We received your completed Request for Employee Health Information Form dated June 16, 2006. After reviewing the information, we find that some of the information required by the ministry to develop an appropriate return-to-work and employment accommodation plan is missing or unclear. It is the ministry’s policy to support employees whose injury, illness or disability is affecting their ability to do their job and meet job-related requirements. Therefore, in order to assist Catherine and address all her employment accommodation needs, we are requesting that you provide further, more detailed medical information regarding Catherine’s restrictions and limitations. In your letter of December 12, 2005 you advised the Ministry that Catherine is capable of working three days per week –Monday, Wednesday and Friday and repetitive work should be limited, specifically mousing. You also noted that the restrictions are temporary, but that the expected duration of her condition is uncertain. As per the aforementioned recommendations, we accommodated Catherine by allowing her to work three days per week on Monday, Wednesday and Friday. In addition we had an ergonomist complete an assessment on Catherine’s workstation. We provided all ergonomic recommendations including readjusting her workstation and providing items such as, but not limited to, a touch pad to limit mousing, a shorter keyboard and a larger monitor. On April 19, 2006 you provided further medical information indicating that Catherine is able to work 5 days per week. You also indicated that Catherine cannot mouse, but is able to keyboard and use a touch pad for limited periods of - 14 - time. Finally, you indicated that Catherine required an ergonomically correct workstation and would benefit greatly from the development of macros to help to limit keyboarding and eliminate mousing. In response to your comments in your letter of April 19, 2006, we enlisted our Case Management System Developers to create “hot keys” that allow for reduced mousing and limited keyboard strokes. Furthermore, Alan Cantor, an external accommodation consultant who specializes in assistive technologies was hired to create macros that will further limit mousing and keyboard. In your most recent letter, dated, June 16, 2006 you indicate that Catherine cannot carry out any repetitive tasks and cannot use a touch pad. However, you refer to the letter of April 19, 2006, which indicated that Catherine could keyboard and use a touch pad. You also recommended that we use voice recognition software, assessment/training by the speech pathologist and a proper ergonomic workstation for the interview. While we appreciate your advice regarding using voice activated software as a possible accommodation tool, in order to accommodate Catherine in an effective manner, we ask that you provide clarity by answering the following questions. 1. Can Catherine keyboard? If so, how often (i.e. 1 hour per day, 10 minutes per day)? Is this restriction permanent or temporary? What is the expected recovery time if the condition is temporary? 2. Can Catherine hand write? If so, how often (i.e. 1 hour per day, 10 minutes per day)? Is this restriction permanent or temporary? What is the expected recovery time if the condition is temporary? 3. Is Catherine able to do any mousing? (i.e. 1 hour per day, 10 minutes per day)? Is this restriction permanent or temporary? What is the expected recovery time if the condition is temporary? 4. Is Catherine able to file? This requires lifting and varying case files to cabinet and then sorting them and filing as appropriate? If so, how often (i.e. 1 hour per day, 10 minutes per day)? Is this restriction temporary or permanent? What is the expected recovery time fi the condition is temporary? 5. Can Catherine answer the phones and make calls, which require dialling and pressing buttons. If so, how often (i.e. 1 hour per day, 10 minutes per day)? Is this restriction temporary or permanent? What is the expected recovery time if the condition is temporary? 6. The program Assistant position that Catherine is currently in requires sitting for most of the day. Are there any medical restrictions that would impact on her current condition? 7. Catherine’s job requires some reaching. For instance, reaching would be necessary to retrieve mail that is delivered or documents that are passed through a slide open window. Are there any medical restrictions that would impact on her current condition? 8. Catherine will be completing a written test for the interview as mentioned in our letter of March 21, 2006. Are there any medical - 15 - limitations that we should be accommodating in order to her to complete the testing? For your information and to provide further detail on the requirements of the Program Assistant position, I have attached Catherine’s job description as well as a Physical Demands Analysis that outlines the physical requirements of the Program Assistant position. I would like to assure you that we are committed to continuing to support Catherine and meet any medical accommodation requirements. Therefore, we are eager to receive the above information as soon as possible in order to assist Catherine’s return to the workplace. We appreciate your assistance in the matter. If you have any questions regarding this request, please provide them to Catherine in writing and she will supply them to me as appropriate. [23] Ms. Fenech testified that Ms. Tzaferis called her at home and told her that the information in the HIF was incomplete and unclear and that she had prepared a letter to Dr. Tick seeking specific information she needed to accommodate her. Since the information was urgently needed, Ms. Tzaferis asked if Ms. Fenech would pick it up and give it to Dr. Tick when she attends her scheduled appointment. When Ms. Fenech informed that she may not have time to do that, Ms. Tzaferis stated that she would personally take the letter to Dr. Tick’s office. Ms. Fenech testified that she felt it was very inappropriate for Ms. Tzaferis to go to her doctor’s office. [24] Dr. Tick’s response to Ms. Tzaferis was dated July 18, 2006. It reads: I apologize for the delay in this letter, but I have been away. I am responding to your letter of June 23, 2006. There have been several different sets of recommendations regarding workplace accommodation for Ms. Fenech. This is as a result of a steadily deteriorating situation that developed as a result of the change to a more mouse driven system. This change took place without accommodation for Ms. Fenech’s limitations and there was a long delay before the accommodation specialist was finally called in to help improve the situation. Unfortunately by this time Ms. Fenech’s injuries had progressed and she needed time off work to recover. The most helpful approach at this time would be to allow Ms. Fenech to work with the accommodation specialist and develop criteria regarding her work capabilities as a part of this process. The accommodation process needs to be integrated into the development of the accommodation plan and these accommodations must be in place before she is to enter the competition for the job she has been doing. Ideally, Ms. Fenech should have a gradual return to work - 16 - with the accommodation specialist in attendance and be secure in her job. The current situation, with the need to compete for the job she has been doing, before she can work with external consultant, is delaying her reintegration into the workplace. [25] The evidence indicates that Ms. Fenech was off sick on Dr. Tick’s orders from May 11 to October 15, 2006. Ms. Fenech testified that during that period Mr. Cantor worked on her accommodation at the workplace. To enable that, Mr. Cantor was given access to her computer and pass word. If he had a question, Mr. Cantor contacted her at home. Ms. Fenech testified that Mr. Cantor wanted her to return to work as soon as possible so he could work with her. Every time Ms. Fenech’s sick leave was extended by Dr. Tick she hoped that would be the last time, because she also wanted to return and work with Ms. Cantor. However, her sick leave was repeatedly extended by Dr. Tick. When Mr. Cantor informed on July 18th that his contract was being extended to the end of October, Ms. Fenech was surprised because at the time she expected to be back “any time”. She added “In hindsight, I think it shows that the employer did not want me to come back to work”. [26] Ms. Fenech received the following letter dated July 20, 2006 from Ms. Tzaferis: As you are aware, the above noted competition was posted on May 11, 2006 and interviews were held on June 7 and 8, 2006. The competition was for a full time program Assistant, for a 4 month temporary assignment with possibility of extension, working in the Toronto, office of the Worker Adviser. While I had hoped to be able to interview you for this position, due to operational requirements, it is necessary for me to move forward in the competition. Therefore, I will be proceeding with my decision based on the candidates that were interviewed. Also, I want to inform you that effective August 8, 2006 you will return to your home position as part time Program Assistant. Your salary will be adjusted accordingly. I look forward to your return to the workplace. If you have any questions, please contact me at (416) 326-6690. Ms. Fenech testified that while her home position was part-time three days a week, at her request and with her Doctor’s approval she had been provided full-time hours. At the - 17 - time she went off sick, she was working full time. As a result of this letter her hours were going back to three days a week effective August 8, 2006. She testified that she could not live on three days pay a week. [27] The evidence is that Ms. Tzaferis was not satisfied with the information provided by Dr. Tick in response to her letter of June 23, 2006, particularly taking the position that Dr. Tick had not answered any of the 8 questions, and that while suggestions for accommodation were made, no information had been provided regarding Ms. Fenech’s medical limitations. Thus, Ms. Tzaferis wrote a further letter dated July 20, 2006, setting out the same 8 questions and stating “I require you to specifically address the following questions that were provided to you in my letter of June 23, 2006”. Ms. Tzaferis also asked for information as to when Ms. Fenech may begin the gradual return to work recommended by Dr. Tick, and what the hours of gradual return should be. Ms. Tzaferis stated that “it is crucial that I receive this information immediately, no later than August 1, 2006”. [28] Ms. Fenech responded with the following letter dated July 26, 2006 to Ms. Tzaferis: I am writing in response to your letters dated July 20, 2006, that I received on July 24, 2006. In the hope of moving forward, I’m asking that you reconsider all of these letters, as they are blatant examples of your ongoing discrimination against me as a result of my disability. In the last two years, you have made it abundantly clear that you don’t want me working in the office because of my disability. Your decision to exclude me from the competition for the job, which I have done successfully for the last two years, for no other reason than I am disabled, just confirms that. It is one of the most blatant examples of discrimination what I have ever seen. This decision is wrong and you know that it is wrong. In light of the OWA’s mandate to help injured workers, it reflects very poorly on this organization, which is already viewed negatively by many in the injured workers’ community. I ask that you reconsider this decision. Should you not change this decision, please be advised that I am grieving it and this letter shall serve as stage one. As for your other letter to me with the letter to Dr. Tick, this is nothing more than a delaying tactic and further evidence that you are not interested in accommodating me or having me return to work. As I have advised you previously, there is no magic number as to how long I can do a task. Ergonomics play an important role in functions. Without the accommodations in place, how can Dr. Tick advise on specific duties? For example, how can she advise on - 18 - keyboarding when we don’t know what type of keyboard I will be using? Dr. Tick has previously advised on how to proceed with accommodation process but you refuse to move forward and question her recommendations. You have demonstrated from the beginning that you know nothing about repetitive strain injuries, disability accommodation and the duty to accommodate. Yet you refuse to listen to both the person requesting accommodation and her treating physician, a well-respected physician with many years’ experience in dealing with these injuries. Instead, you insult her in your letter and then demand that she respond to you by an unrealistic deadline or you threaten to go elsewhere. As for your demand that she respond by August 1, 2006, this is completely unrealistic. I have told you this with past deadlines. Although this time, I received the letter prior to the deadline, it is still unrealistic to expect me to be able to get an appointment and have the doctor respond in writing within the span of a week. Given the time of the year and my doctor’s busy schedule, it makes it all the more unlikely. I ask that you reconsider this letter to Dr. Tick and proceed with the recommendations that she has previously made. Should you not change your mind, please be advised that I am grieving this and this letter shall serve as stage one. Should you wish to proceed with your letter to Dr. Tick, I am requesting that you reimburse me for my mileage (at a rate that reflects current gas prices) and parking to attend her office. In light of your decision to reduce my pay, I cannot afford the mileage or parking costs involved in taking this letter to my doctor. Unless you wish to provide me with a cash advance, I need to be reimbursed no later than 1 week after my appointment. I will also require written confirmation that you will reimburse me as requested, prior to making this appointment. You can mail this to my home. Unfortunately, given my current income level, I cannot afford the trip. Please note that it is 84 kms round trip to her office and $10 to park. If I don’t hear from you, I will instruct the union to file the above-mentioned grievances. [29] Ms. Tzaferis responded on July 28, 2006 as follows: Thank you for your letter of July 26, 2006, which I received on July 27, 2006. In your letter, you express concerns regarding the timeframe indicated for providing us with medical information. I would like to emphasize that the August 1, 2006 date was established because we are aware that you are eager to return to work. We were attempting to expedite this process. However, if your physician requires additional time to provide us with the required medical information, we are willing to consider an extension. Please would you provide us with a date that your physician will be able to respond to our request of July 19, 2006. As you are aware, it is the ministry’s policy to support employees who injury, illness or disability, is affecting their ability to do their job and meet job-related - 19 - requirements. However, in order to facilitate your return to work and address all your employment accommodation needs, we require medical information regarding your restrictions and limitations. We want to develop an appropriate return to work accommodation plan for you. We are asking that you cooperate with this request for clear and sufficient health information about restrictions, limitations and prognosis to support return to work. I would like to remind you that as an employee absent from work due to disability, you play a significant role in your return to work and it is your responsibility to cooperate with requests for health information related to your medical restrictions and limitations. Once we receive the medical information from your treating physician, we would be pleased to work with you on a return to work plan with appropriate accommodations. As always, any charges for providing medical information should be invoiced to my attention. Please note that costs related to parking or travel to your appointment, are not reimbursable. In response to your allegations of discrimination, I would like to confirm that our decision to move forward with the temporary, full time competition for the Program Assistant was based solely on operation requirements. Furthermore, your medical condition did not factor into any considerations used to arrive at our decision and I deny any claim of discrimination. Please be advised that I find the tone of your letter dated July 26, 2006, to be disrespectful and condescending. While I respect your right to take action if you feel that your rights and entitlements are being violated, I would expect that in the future your will raise issues with me in a professional and cooperative manner. Finally, as I have indicated above, I am looking forward to working with you. I am interested in receiving the medical information as soon as possible, which will allow us to work together on an appropriate return to work accommodation plan. I want to make your return to work as comfortable as possible. [30] In the meantime, Ms. Fenech received the WSIB decision dated August 2, 2006, denying her claim for benefits, and concluding that there was no evidence of deterioration below her present NEL level or of a bilateral thumb impairment. The next day grievance No. 3 was filed. Ms. Fenech testified that the WSIB decision was under appeal. [31] Ms. Fenech testified that she gave Ms. Tzaferis’s letter dated July 20, 2006, to Dr. Tick on August 18th. She testified that Dr. Tick was always very slow to act. During September she called Dr. Tick to find out if she had responded to Ms. Tzaferis’s letter. On one occasion, she was told that “her file was not there”. On another, she was asked - 20 - “what letter”. On October 6, 2006, Ms. Fenech met Dr. Tick about a WSIB matter. Dr. Tick asked whether she was back at work. She replied, “no. They are still waiting for your letter with the information they want.” Dr. Tick replied that the information had been sent “a long time ago” and showed her a letter dated August 29th, 2006. The doctor’s secretary told her that she had faxed that letter to the employer. Ms. Fenech asked for a copy of the letter. In the letter, Dr. Tick reviewed in some detail her previous communications with the employer, and provided information in response to each of the seven questions Ms. Tzaferis had posed. She emphasised that her “recommendations are for work with accommodation only” She concluded her letter with the following: In moving forward at this time Ms. Fenech needs to be able to focus on the abilities she has, and work in an environment of support and cooperation. She is highly motivated to work and be productive and I anticipate will be able to improve her level of function over time if she able to work with appropriate accommodation. She is capable of working 5 days a week, with accommodation. If she is working fewer days i.e. 3 days, then she should be allowed to work Monday, Wednesday and Friday to allow rest between her work days and so there is not prolonged period of time off between her work days. The shift to a positively oriented, problem solving approach will help Ms. Fenech to condition herself for her work tasks and rehabilitate her injuries to allow her to increase her duties and productivity. Ms. Fenech can begin working with the accommodation specialist at any time. She should start with 4 hours per day and increase by 1 hour per day every 2 weeks. [32] Along with union representative Mr. Kevin Brown, Ms. Fenech attended a grievance meeting with the employer. At this meeting Ms. Fenech read from Dr. Tick’s letter and inquired when she would be returning to work. The employer stated that it had never received that letter and immediately had copies made. Following a review of Dr. Tick’s letter, Ms. Tzaferis advised Ms. Fenech that she would be returned to work starting the next day. Ms. Fenech took the position that she did not want to return the next day after being off since May 15th, and also pointed out that Mr. Cantor was unlikely to be available to work with her the next day. Ms. Fenech testified that Ms. Tzaferis told her that she “should come to work tomorrow and just sit, read and do some catching up”, because Ms. Fenech had missed a lot by not attending a learning conference. Ms. Fenech still persisted, stating that she needed a proper document stand to place the paper she reads, that she could not read for 4 hours, and that in any event Ms. Tzaferis had not - 21 - asked Dr. Tick in any of the 7 questions whether “it was ok” for her to read. Ultimately, it was agreed that Ms. Fenech would return to work on October 16, 2006. [33] On October 16th, Ms. Fenech returned to work on a schedule in compliance with Dr. Tick’s recommended gradual return. Ms. Fenech testified that when she went off in May she expected to be off only for 3 weeks, but she ended up sitting at home for 5 months. She stated that during the first couple of weeks of her time off she felt better, but then she got worse. She attributed the deterioration of the condition to stress due to her financial situation. She explained that at the time she went off in May she was working full-time. Then, while she was off, she was returned to a schedule of 3 days a week. As a result, she was only receiving sick pay for 3 days a week at 75 percent. Moreover, she had no idea when she would be able to return to work. The employer found every medical Dr. Tick wrote to be “not enough”. Also she was aware that some employees with no seniority were working as part-time PA’s in the Toronto and Mississauga offices of the OWA, and that a casual employee had been appointed as Head Office Assistant in the Toronto office. Since she was sitting at home, it was very upsetting. She testified that she did not see a doctor about her stress because she was certain of the cause. On Ms. Fenech’s first day back October 16th, an accommodation meeting attended by Ms. Fenech, Mr. Brown, Ms. Trower and Ms. Tzaferis took place. Ms. Fenech raised a number of issues. According to her “everyone else” understood why she raised those issues, but not Ms. Tzaferis. Some negotiations ensued and on October 27, 2006 an accommodation plan was signed off. [34] Ms. Fenech testified that during the October 16th accommodation meeting she became very frustrated with Ms. Tzaferis’ failure to appreciate the issues she was raising. She testified that as a result she raised the employer’s Workplace Discrimination and Harassment Policy (WDHP). She testified, “I said I want to be clear I am making a WDHP complaint. I pointed at Mary and said “That woman is discriminating against me and I want her removed from dealing with my accommodation,” and requested that Ms. Trower take over. Ms. Fenech testified that she demanded Ms. Tzaferis’ removal relying on an employer document titled “A Manager’s Guide to Equal Opportunity in the OPS”, (Manager’s Guide) which at 3.1 provides under “Your Responsibilities as a Manager” - 22 - that “your overall responsibilities for workplace discrimination and harassment prevention include: excusing yourself from dealing with a WDHP matter in which you may be implicated or may have (or be perceived to have) a conflict of interest”. On October 2006, Ms. Trower informed Ms. Fenech that she would be taking over for purposes of her accommodation, but that Ms. Tzaferis would remain as her manager for all other purposes. [35] Following her return to work, Ms. Fenech continued to work with Mr. Cantor. She testified about some delays occasioned by Mr. Cantor’s inability to work with her due to his personal commitments. In any event Mr. Cantor prepared a “Return to work Plan” dated November 7, 2006. In that plan he proposed that “Ms. Fenech be provided with three different ways to operate a computer: (1) keyboard only access (2) Speech recognition and (3) Hand-writing recognition”. He made twenty proposals including arranging for a voice evaluation by Ms. Lois Singer, a Speech Language Pathologist, who had been recommended by Dr. Tick, and training for Ms. Fenech on a program called “Naturally Speaking”. In addition, Mr. Cantor recommended that Ms. Fenech’s current workstation be adjusted and that numerous items be purchased to aid in Ms. Fenech’s accommodation. He attached to the plan a cost estimate for the items to be purchased, and estimated that the listed activity would require him to work approximately 84 hours with Ms. Fenech. Ms. Fenech testified that the voice recognition software recommended by Mr. Cantor was installed in her computer on November 22, 2006. However, due to delay in receiving the employer’s approval she did not have her first appointment with the Speech Pathologist, Ms. Singer, until December 28, 2006. [36] Mr. Cantor had recommended that Ms. Fenech be provided a tablet PC called “Emotion”, which is controlled by a pen-like pointer, with built in hand-writing recognition. However, the Ministry IT experts advised that they had concerns with the Emotion model and suggested instead a PC tablet by Fujitsu. Ms. Fenech requested that she be allowed a day to work at home, so that she could research PC tablets. With Ms. Trower’s approval, Ms. Fenech spent December 8th at home on those tasks. On December 13th, Ms. Trower advised that since the IT experts could not specify what their concerns were with the Emotion model, in order not to delay, an order had been placed for an Emotion PC tablet. - 23 - Ms. Fenech told Ms. Trower that she should not have placed the order because she was still researching and was “leaning towards” the Fujitsu model. The Emotion PC tablet arrived on January 17, 2007. Ms. Fenech found the stand “too high and jutted out”, and as a result she had to reach. She stopped using the stand and directly plugged it, in which meant that at the end of each day she had to unplug. She was also concerned that the frequent plugging and unplugging would damage the pins. She testified that she stopped using the emotion stand and a generic brand stand was purchased. However, that did not suit her either, and she was still required to plug in directly. [37] In his return to work plan, Mr. Cantor had pointed to certain issues with Ms. Fenech’s work station. He had recommended that a highly adjustable Viewsonic monitor be purchased for her. It was provided in March 2007. The employer also ordered the keyboard and mouse tray recommended by Mr. Cantor. However, Ms. Fenech testified that when it arrived it was not the one ordered, although the model number was the same. She testified that she still had it, but it “doesn’t work” for her. Mr. Cantor had recommended an adjustable chair for Ms. Fenech. Ms. Fenech testified that with Mr. Cantor, she looked at various chairs at Coopers and at Backs etc. She found a model at Backs etc. which she felt was very well suited for her. However, Mr. Cantor decided that a chair should not be purchased until the adjustments to her work station are completed. As a result she was still using her old chair. The document holder and the speech recognition software recommended by Mr. Cantor were purchased and installed in November 2006. She was also given the opportunity to re-acquaint herself with the CMS as recommended by Mr. Cantor. Mr. Cantor had recommended that Ms. Fenech would benefit from a touch typing tutor program. She told the employer that a program called “Mavis Beacon” was the best. It was provided in March 2007. [38] Ms. Fenech had already been purchased a Kinesis key board as recommended earlier by Mr. Cantor. However, Ms. Fenech testified that it required constant use of her thumbs and she had a medical condition which prevented use of her thumbs. Therefore, in the Return to Work Plan Mr. Cantor had identified a need to re-map the Kinesis keyboard. With Mr. Cantor she researched various key boards, but could not find anything better. Then in March 2007, Kinesis came out with a new model called “Free Style”. It was - 24 - purchased for her. She testified that while a suitable keyboard was acquired, she was still waiting for separate trays for the keyboard and for the tablet PC, which she had requested in March. She testified that she had difficulty with the Kinesis keyboard because the keys were indented. That problem was resolved when she was provided with arm supports. However, then the issue with the use of thumbs arose. [39] Ms. Fenech testified that the RAM in her desk top PC was increased to 2 GB as suggested by Mr. Cantor. However, she still had difficulty opening her Dragon Speech Recognition program even with 2 GB and that issue needed to be addressed. Ms. Fenech testified that while Mr. Cantor had recommended training on NaturallySpeaking for 10 to 12 hours, she had only very limited training because Ms. Singer found that Ms. Fenech had vocal damage. Mr. Cantor had recommended a microphone upgrade for Ms. Fenech’s telephone headset. Ms. Fenech testified that she received a new headset which she liked. However, there was one problem in that it was not switchable between the computer and the telephone. She was not able to put a caller on hold and switch to the computer to obtain needed information. Ms. Fenech had concluded that a tablet PC suited her and Mr. Cantor had recommended that one be purchased. She received a tablet PC on January 17, 2007. [40] Ms. Fenech testified that while Mr. Cantor had envisaged continuing to develop Macros to give her easier access to the CMS, little got done because of the issues she had using the Kinesis Freestyle keyboard, which needed to be keyed with force. As a result the Free Style keyboard was returned. Another keyboard which was recommended at a trade show she attended as having super-soft keys was tried out. However, she found that the force needed to press the keys on that was still too much for her. She was still searching for a super soft touch keyboard, and was presently using the keyboard she received upon her return to work. [41] In his return to work plan Mr. Cantor had undertaken to monitor and make adjustments to Ms. Fenech’s work station. Ms. Fenech testified, however, that Mr. Cantor was not an ergonomist. She had first requested for the services of an ergonomist in October 2006. In any event, in mid-February Mr. Cantor’s hours ran out under the contract and he did - 25 - not return until April 16th, 2007. In the two month gap, Mr. Cantor was therefore not present to monitor or adjust the work station. Therefore, in March 2007, Ms. Fenech again requested for an ergonomist. [42] Ms. Fenech testified that early in November 2006 she had heard that a document management phase would be added to the new CMS, which meant that the cover letter and intent to appeal form which PA’s regularly prepare on injured worker calls would be generated through CMS, instead of by key board. She testified that she, among others, became concerned that it would further increase the mousing. At a Time Limit Training event on November 21, 2006, Mr. Halonen was bragging about the coming change. Ms. Fenech spoke to a Legislative Interpretation Specialist at the OWA, Ms. Teresa Gianfelice who was present at the training about her concerns and Ms. Gianfelice shared those. On November 28th, Ms. Gianfelice wrote to the employer, raising the concerns. The employer promptly responded assuring that the concerns and accommodation needs would be addressed before the roll out of the proposed changes are made. Ms. Fenech testified that as a result, the proposed changes “got dropped”. [43] Speech Pathologist Ms. Lois Singer had wanted a payment of $ 300.00 in advance of Ms. Fenech’s appointment on December 28, 2006. Ms. Fenech informed Ms. Trower of this, but had no confirmation that the payment was made. Ms. Fenech was concerned that she may be asked for the payment at the appointment. Later Ms. Fenech found out that Ms. Tzaferis had approved and paid $ 300.00 and had asked Ms. Singer to inform Ms. Fenech, but Ms. Singer was unable to call her since she had written down Ms. Fenech’s telephone number incorrectly. [44] Since her return to work in October 2006, Ms. Fenech had been working exclusively on her accommodation during her work hours. In January 2007, Mr. Cantor informed her that Ms. Trower had requested that she try performing intake duties (a regular part of PA duties involving taking calls and providing advice and information) using the Dragon voice software. Ms. Fenech testified that she was upset that Ms. Trower communicated through Mr. Cantor instead of speaking to her directly. Ms. Fenech pointed out to Mr. Cantor that her headset did not allow her to switch between the computer and the - 26 - telephone, and told him, “I am not going to do that and risk hanging up on an injured worker calling in a crisis”, and that in any event she was not yet ready to use voice recognition. On January 29, 2007, Ms. Fenech and Mr. Brown met with Ms. Trower. Ms. Trower was asked why she was communicating requests “to do things” through Mr. Cantor. Ms. Trower’s response was “You were not here but Mr. Cantor was” and advised that she had discussed many things with Mr. Cantor. Ms. Fenech told Ms. Trower that as the person needing accommodation, she knew her needs best and that she did not want to hear things second hand. [45] Ms. Fenech testified that in late January 2007, Ms. Trower advised that she was extremely busy with her own job and no longer wished to deal with Ms. Fenech’s accommodation. She suggested bringing back Ms. Tzaferis to manage her accommodation. On February 2, 2007, Mr. Brown (Union Representative) wrote to Ms. Trower formally objecting to Ms. Tzaferis returning to manage Ms. Fenech’s accommodation. It was agreed that pending a decision, Ms. Fenech would meet with Ms. Drinkwater regarding any outstanding accommodation issues, while the WDHP investigation was pending. [46] Ms. Fenech testified that she made her WDHP complaint against Ms. Tzaferis in October 2006. On February 9, 2007, she was advised by Mr. Jorma Halonen, Director of the OWA, that he would be investigating her complaint. Ms. Fenech testified that her understanding was that the employer was required under the WDHP policy to “bring in a third party” to carry out the fact-finding and was, therefore, not sure if Mr. Halonen was the right person. Ms. Fenech and Mr. Brown met with Mr. Halonen on Friday 21st for approximately 2 hours during which Mr. Halonen asked questions and made notes. They were informed by Mr. Halonen that he would also be meeting with Ms. Tzaferis. [47] On March 7, 2007, Mr. Halonen’s 16 page fact finding decision was forwarded to Ms. Fenech by Ms. Trower. It concluded that Ms. Fenech’s complaint was not substantiated. It further recommended as follows: Since I do not find Mary Tzaferis to have discriminated in dealing with Catherine Fenech, I recommend that she no longer needs to declare a conflict of interest and - 27 - should return to direct Catherine’s daily activities including any re-draft of accommodation plans. [48] The evidence indicates that Mr. Cantor prepared a second return to work plan dated February 7, 2007 outlining the work he had done and the work still outstanding. Ms. Fenech testified that in January 2007, Mr. Cantor had told her that his contract was running out and that he had informed about that to Ms. Trower. On January 24th, Ms. Fenech also raised that with Ms. Trower. On February 9th Mr. Cantor’s contract expired. Ms. Fenech testified that on February 9th Mr. Cantor was in working on her accommodation, when Mr. Halonen approached and informed that he was unable to authorize the renewal of Mr. Cantor’s contract because it had exceeded his $25,000.00 approval limit, that it had to be approved by the Chief Administrative Officer, Mr. Len Marino, and that Mr. Marino had in turn referred the matter to the ministry “IT people”, because for Mr. Cantor to continue with his contract he needed to be a vendor of record (VOR). Ms. Fenech was concerned, that the employer would discontinue Mr. Cantor and search for another consultant who was a VOR. She expressed these concerns to Mr. Halonen and warned that if that happens it would result in further delay which would amount to discrimination, and that she would grieve. In fact, on February 22, 2007, Ms. Fenech filed grievance No. 4. Allegation of Retaliation [49] Ms. Fenech testified that in 2000 she had founded an annual event called the “the Toronto RSI Awareness Day” to provide education on prevention of RSI injuries and on resources available. Since then the event had grown to become an international event. Ms. Fenech filed an e-mail dated December 9, 2004 from Mr. Farquhar to her, requesting her to provide her ideas on what should be done for RSI day 2005 to a group that wished to organize an RSI day event at the provincial level. When she met with Mr. Farquhar, she described the nature and her role in the RSI day. According to Ms. Fenech, Mr. Farquhar advised her that there would be no conflict of interest as long as she was carrying out her RSI day activity “under the union”. She testified that at the time she was the OPSEU health and safety representative. Shortly after, she gave an interview about the upcoming 2005 RSI day event to a reporter from the Metro Reporter. That publication ran an article on the RSI day event, including quotations from Ms. Fenech’s interview. That article - 28 - was distributed to all OWA staff as part of the regular weekly clips circulation. Ms. Fenech testified that no one said anything to her about that. As she had done every year since 2000, she participated in the event in 2005. [50] Ms. Fenech testified that on November 4, 2005, Ms. Tzaferis forwarded to all of the offices she managed, a memorandum from the Deputy Minister of the same date on “Rules of Conduct and Conflict of Interest” addressed to “All Ministry Managers”. It set out the links to “Rules of Conduct of Public Service” and “The Conflict of Interest Directive”, and directed that managers should remind staff of “the need for staff to confidentially contact me, in my capacity as the in-service designated official for CO1 matters, whenever they have any question as to whether a situation may be a conflict of interest or potential conflict of interest: The regulation and directive clearly speak to the careful use of our positions as public servants, calling on us to not to use, or be perceived to be using, our positions for personal gain. As well, there is a requirement that we not grant, or be seen to be granting preferential treatment in relation to any official matter to any person, organization, family member or friend or to any organization I which the public servant, family member or friend has an interest. [51] Ms. Fenech testified that since the Memorandum was concerned with using public office for personal gain and preferential treatment, she did not see that it has any application to her role in the RSI day. As usual she participated in the event in 2006 without any issue being raised. The 2007 RSI day event was scheduled for February 28th, Ms. Fenech received the following e-mail dated February 22nd from Ms. Trower: In light of the fact that Jorma is in the midst of his fact finding related to your complaint of discriminating under the WDHP policy, I have been asked to provide you with the attached Conflict of Interest Declaration Form (i.e. rather than Mary or Jorma). I understand that you have been informed in the past about the requirement to declare potential conflicts of interest and should, therefore, have some familiarity with the process. All OPS employees involved in outside activities that may bring them into conflict with their role as public servants are required to declare potential conflicts to the Deputy Minister. Many OWA staff have had to do so. This is being raised again with you now because it was noticed that you will be speaking at the upcoming RSI conference, not as an OWA employee, but in your own capacity. It is important that you get a ruling on any potential conflict before the conference, so you need to send the form in as soon as possible. If you are - 29 - involved in other organizations that may put you in conflict, this should be declared as well. I apologize for the timing of this, but if just came to our attention that you would be on a panel at the RSI conference and it twigged that you need to declare a potential conflict of interest. OWA’s internal protocol is also relevant here (see especially the following sections: “Conflict of interest” and “Consequences of a breach of this protocol). It is attached for your review. Finally, as we know that you are upset and angry about the way in which your return to work and accommodation has evolved at the OWA, there is a concern that you may decide to publically discuss your views about this experience and portray the OWA in a negative light. It is important that you understand that this would be a serious violation of your public servant duties. If you have any questions, feel free to come and talk to me. [52] Attached to Ms. Trower’s e-mail was an OWA Protocol on “Professional Responsibility”. The sections specifically referred to by Ms. Trower are as follows: Conflict of interest OWA staff are in positions where potential conflict of interest will sometimes be of concern. There are extensive Ontario Public Service and Ministry of labour directives and guidelines on conflict of interest, which govern OWA staff. The primary rule is that a public servant must not become involved in activities which place him/her in conflict with the public servant role. This is strictly enforced because it is so important that members of the public, and especially our clients, be able to trust that our overriding duty is to the public service and not to some conflicting personal or private interest. Any potential conflict must be disclosed to the Deputy Minister, prior to undertaking the activity. The Deputy Minister will then determine whether the activity constitutes a conflict and in some cases will permit the activity subject to conditions. It is impossible to describe all the situations where a conflict of interest might arise. However, examples are the following: providing advice or representation to injured workers, in a non-OWA capacity; providing advice or representation in some other poverty law or disability contest similar to the mandate of the OWA; participating in an organization that takes public policy positions on workplace insurance matters; referring clients to individuals or organizations (e.g. health care providers) with which the staff member is not at arm’s length (e.g., referring a client for a medical examination by a relative of the staff member); and soliciting or accepting payment or gifts from clients, or otherwise soliciting or obtaining favours or advantages from clients. Regarding potential conflict of interest, the best approach is to err on the side of disclosing a possible conflict, and seeking a determination by the Deputy. This is - 30 - because there can be serious disciplinary consequences, up to and including dismissal, for being found in conflict of interest. Consequences of a breach of his protocol The guiding philosophy of the OWA is that the primary motivation for the way OWA staff do their jobs will be their personal commitment to excellence and their ethics as professionals and public servants. However, there may be situations where staff members are found to have breached this protocol. Each situation will of course be viewed on its own merits; however, there may be disciplinary consequences up to and including dismissal [53] Ms. Fenech testified that upon reading these sections, she did not see how they had any application to her RSI Day activity. She became suspicious. She had discussed the RSI day event with the Director Mr. Farquhar in 2005. He had assured her that as long as she was acting under a union banner there would be no conflict. The 2007 event was sponsored by OPSEU. Moreover, she had participated in the event in 2005 and 2006, and the employer had not raised any concern. This year, she had filed a WDHP complaint and on February 21st she had the WDHP fact-finding interview with Mr. Halonen, and also had recently filed grievance no. 4. She concluded that this was a threat and retaliation against her for exercising rights under the WDHP policy and the collective agreement. She verbally expressed her feelings to Ms. Trower, and followed by an e- mail the next day as follows: I have read the attached documents and I don’t see how they apply to my situation. Are you saying that it is a conflict of interest to engage in union activity on my own time outside of the office? As you will note from the flyer that you have obviously seen, this event is sponsored in part by OPSEU. As an OPSEU member, I believe I have every right to participate in a union event. I find the timing of your email rather suspicious. The same day, Ms. Trower replied as follows: It is my understanding that you do have an obligation to declare a potential conflict of interest to the Deputy Minister regarding your participation as a speaker at the upcoming RSI conference. I don’t believe the fact that OPSEU is one of the sponsors of the event changes this. No one at OWA has objected to your involvement in the conference. It is important, however, that you know in advance that it would not be appropriate for you to make public comments criticizing the OWA, even though you are attending the event on your own time. As I said in the first e-mail and when we spoke this morning, the timing is related to when we received a notice that you would be speaking at the conference. - 31 - [54] Ms. Fenech testified that the RSI day event had nothing to do with her job at the OWA, and she had never intended to criticize the employer at the event. She participated as an individual on her own time and at her own expense. Therefore, she still did not see how the policy/directive applied. Nevertheless, she filled out the Declaration Form she had received, but did not know what to do with it. By the time she obtained the information it was Monday. She did not work Tuesday and the RSI day was on Wednesday. Therefore, she had no opportunity to submit the form to obtain a ruling. [55] The 2007 RSI day agenda was filed in evidence. Among the speakers were officials from several trade unions, a NDP MPP, and medical professionals. The sponsors listed also included several unions including OPSEU, and the event was held at the Steelworkers hall. Ms. Fenech testified that Mr. Cantor had participated in the RSI day event in the past and in 2007 was listed as a speaker, along with herself, under the topic, “Accommodation: view from the trenches”. Ms. Fenech was listed as “RSI Day Founder”. She testified that both were listed under the same topic because both were focusing on accommodation issues, Mr. Cantor as an expert on accommodation, and she was speaking on “A personal perspective on accommodation”, describing the accommodation process an injured worker has to go through and how fellow-employees can help. [56] Ms. Fenech testified that on the Friday before the Wednesday event, Ms. Trower told her that she had seen the agenda, and expressed a concern about the topic “Accommodation: View from the trenches”. Ms. Fenech pointed out to Ms. Trower that that was the topic of Mr. Cantor’s speech, not hers. Ms. Fenech informed Mr. Cantor about the concern raised by Ms. Trower, because she did not wish Mr. Cantor to have issues with the OWA. He suggested that it was best for Ms. Fenech to distance herself from him. Thus, he suggested that his speech topic be changed, that he and Ms. Fenech should not speak back to back, and that Ms. Fenech should not be the one introducing Mr. Cantor. Ms. Fenech agreed. Mr. Cantor’s topic was changed to “Experiences of Accommodating Workplaces RSI”. After several other speakers, Ms. Fenech spoke on, “An injured worker’s perspective on accommodation”. Ms. Fenech testified that on February 28th, - 32 - she made her presentation as scheduled. She noted that Mr. Halonen was in attendance. She testified that he had never attended the RSI day in any previous or subsequent years. She noticed that he was glaring at her, but did not acknowledge her. When she started her speech, he was taking down notes, which she found to be very intimidating. Subsequently no management person spoke to her about the RSI day. [57] At a meeting on March 14, 2007, attended also by union representative Mr. Kevin Brown, Ms. Tzaferis advised Ms. Fenech that she was resuming the managing of her accommodation as recommended in the WDHP decision. Ms. Fenech was presented with a list of work duties which in Mr. Cantor’s opinion she could perform, and a report dated February 23, 2007 from Ms. Lois Singer, Speech Pathologist. In the report, Ms. Singer had concluded as follows: Ms. Fenech has difficulty regulating her airflow when speaking. Her breathing for voicing is erratic, and the quality is hyper nasal. Therefore she is a poor candidate for the use of voice software. If this is an alternative that it is intended to be followed, then, it is suggested that her exposure to software be minimized as much as possible. Further 10 sessions of voice therapy on weekly basis could be used to train her to use her voice more efficiently, and educate her in the use of software more effectively. According to Ms. Fenech, during the meeting, Ms. Tzaferis called Ms. Singer on speaker phone and “talked down” the 10 therapy sessions. Later that day, Ms. Tzaferis advised that she had approved 10 sessions, six initially followed by a report, and four more if recommended in the report. [58] Ms. Fenech testified that when Ms. Tzaferis presented the list of duties suggested by Mr. Cantor, she expressed concern about taking on any work duties at all until her accommodation was fully completed. In response, Ms. Tzaferis took the position that the employer would need medical evidence that Ms. Fenech could not perform any duties. Subsequently, a letter dated March 30, 2007 addressed to Dr. Tick was presented to Ms. Fenech to be given to Dr. Tick. It included: Since Ms. Fenech’s return to the workplace on October 16, 2006, the Ministry has attempted to address the employment accommodation needs. As of today, Ms. Fenech continues to express concerns about performing - 33 - work related duties until all accommodations are finalized. Therefore, we require updated information related to any medical restrictions that Ms. Fenech may have that need to be accommodated. We have attached a copy of the accommodation plan that was developed for Ms. Fenech including a number of work related tasks. We feel that the following job related duties which require limited use of technology other than the use of the telephone, fall within the medical restrictions outlined to me in your letter dated August 29, 2006.  In consultation with the Ottawa program Assistant, forward Toronto phones to Ottawa at 8:30 a.m.  Retrieve phone messages for the information to the appropriate person  Receive mail and direct to appropriate staff  Provide support to Advisory staff, such as filing paper copies of SA, filing closed files, according to OWA procedures  Comply with OWA confidentiality procedures, such as ensuring all documents are kept secure and confidential, store confidential documents in locked drawers and filing cabinets.  Contribute to non-casework activities such as, participate in maintaining community resources referral list updated  Participate in a teamwork environment Please note that the above job related tasks are not to be deadline driven and work can be performed at Ms. Fenech’s own pace and comfort level. Ms. Fenech will be encouraged to take breaks as needed. I would appreciate it if you could review these duties and identify any that do not fall within Ms. Fenech’s current medical restrictions. [59] Ms. Fenech testified that she took the letter to Dr. Tick, on April 20th, which was the earliest available appointment. Dr. Tick replied on May 14, 2007 as follows: I am responding to your letter dated March 30, 2007 regarding the accommodation plan for Ms. Catherine Fenech. I received the letter from Ms. Fenech on April 20, 2007 due to my limited availability for consultations. I understand that the accommodations are still not fully implemented and that there was prolonged hiatus in the accommodation process due to some administrative reasons on account of the employer. This is most unfortunate since it delays the reintegration process for Ms. Fenech. I will comment on the tasks you have listed: In consultation with the Ottawa program Assistant, forward Toronto phones to Ottawa at 8:30 a.m. Appropriate Retrieve phone messages for the information to the appropriate person - 34 - My understanding is that this requires computer work and should fall into the type of work that can be done or attempted once all accommodations are in place, if it falls within her restrictions. Receive mail and direct to appropriate staff My understanding is that Ms. Fenech occasionally takes the mail to the person in the office who is responsible for logging it. My understanding is that the logging of mail is done on the computer and should fall into the type of work that can be done or attempted once all accommodations are in place, if it falls within her restrictions. Provide support to Advisory staff, such as filing paper copies of SA, filing closed files, according to OWA procedures It is my understanding that it is customary for the person dealing with the SA is the one who usually files it. Comply with OWA confidentiality procedures, such as ensuring all documents are kept secure and confidential, store confidential documents in locked drawers and filing cabinets. appropriate Contribute to non-casework activities such as, participate in maintaining community resources referral list updated My understanding is that the maintaining the resource list is done on the computer and should fall into the type of work that can be done or attempted once all accommodations are in place, if it falls within her restrictions. Participate in a teamwork environment appropriate [60] The evidence indicates that Ms. Tzaferis wrote to Ms. Frauts, the Ministry Ergonomist, who had previously been involved in Ms. Fenech’s accommodation, in part stating as follows: Julie, we need to make changes to our reception area work station because of disability accommodation needs. Julie, we are not sure if you would be able to help us with this work station disability accommodation. Do you have experience with disability accommodation? We would need someone who is available for ongoing consultation and follow up, along with the initial consultation and recommendations. We are making this request on an urgent basis, as this a priority! The same day Ms. Frauts responded, stating in part as follows: - 35 - Also, to address your query regarding disability accommodations, the MOL ergonomists have experience in dealing with the average healthy worker and ensuring that workstations meet with the CSA Guideline for Office Ergonomics, and to a more limited extent injured/susceptible workers. When a case becomes too complex or time consuming, I feel it is better handled by someone who is experienced in the area and has the time to commit to the case. [61] Despite Ms. Frauts’ response, Ms. Tzaferis proceeded to set up an appointment for Ms. Frauts to visit for a consultation on April 18, 2007. In addition, it was arranged for Mr. Vlad Radivojcevic, from the Ministry’s Facilities Dept. to visit on April 13, 2007. Both Ms. Fenech and Mr. Brown wrote to Ms. Tzaferis protesting that Ms. Frauts was being involved when she had confirmed Ms. Fenech’s concern that she did not have the expertise or the time to deal with a complex disability accommodation. Ms. Fenech also questioned why Mr. Radivojcevic was involved. [62] Ms. Tzaferis responded on April 12, 2007, but did not address Ms. Fenech’s concern about Ms. Frauts’ expertise and time constraints, other than requesting that Ms. Frauts and Ms. Kathrine Curkan clarify the confusions about the expertise of MOL ergonomists in dealing with accommodating disabilities, especially RSI. She states that Mr. Radivojcevic would be reviewing the OWA reception area which is not properly set up, and that Ms. Fenech would have an opportunity to share any concerns and suggestions with him during his visit. [63] Ms. Fenech testified that on April 13th, Mr. Radivojcevic, accompanied by Ms. Tzaferis, Mr. Halonen, Ms. Drinkwater and the full-time PA, Ms. Lucille Robitaille, approached her at her desk, and advised that they were there to look at her work station. She asked why Mr. Halonen, Ms. Drinkwater and Ms. Robitaille were there when they had nothing to do with her accommodation. Mr. Halonen responded that they were there because there was a need to re-do the reception area to allow two PA’s to sit. Ms. Fenech responded that presently only she sat at reception and there was not enough room even for her. According to Ms. Fenech, Ms. Halonen got upset and said, “I am not going to listen to that bell ringing all the time”. He said that there were operational needs and that Ms. Fenech was not going to tell him how to run the office. Ms. Fenech testified that she explained that there was an agreement that she would have exclusive use of her work - 36 - station at reception. Mr. Halonen responded that there was a need to have someone at the reception all the time to be able to answer when the front door bell rings. Ms. Fenech responded that she would have been there all the time had the employer not discriminated against her. When Mr. Halonen said “We have done more for you than for anyone else”, Ms. Fenech commented “That doesn’t say much about you”. [64] Ms. Fenech testified, “At this point he got angrier. He yelled, “When are you going to get it into your head that we are not the ones who are responsible for the delays”, and was pointing his finger at my face. I said “You are the director and you are the one responsible”. He was yelling, threatening and intimidating. From the anger in his eyes, it looked to me like he was going to hit me. He sort of lunged forward and pulled himself back, like he had come to his senses”. According to Ms. Fenech, then Mr. Halonen sat down and repeatedly said that her injury was a recurrence. Then he was pounding his fists on the desk and yelling “We didn’t cause your injury”. Ms. Fenech replied that there was a permanent worsening of her injury due to the use of the new CMS. When Mr. Halonen started to talk about Ms. Fenech’s WSIB claim, she took the position that the claim should not be discussed without the presence of a union steward. According to Ms. Fenech at that point, Ms. Greene said something to Mr. Halonen, and that diffused the situation and Mr. Halonen left. Ms. Fenech stated that given where this incident took place “everyone coming in or leaving” would have seen what went on. She stated that since that incident she avoided Mr. Halonen. She testified, “I am afraid of the man. I don’t talk to him and don’t go anywhere near him”. [65] Ms. Fenech testified that as scheduled on April 18th Ms. Frauts came in. In the meantime, Mr. Cantor’s contract had been reinstated effective April 16, 2007. When Ms. Frauts arrived on April 18th, Ms. Fenech, Mr. Brown and Mr. Cantor were present. During Ms. Frauts’ assessment which lasted about one hour, Ms. Fenech showed her the problems with her work station. According to Ms. Fenech throughout the assessment Ms. Frauts kept stating that this was not her area of expertise and that she was doing the assessment only as a courtesy. In the presence of Ms. Tzaferis, there was a discussion about finding an ergonomist with the requisite ability. Both Ms. Frauts and Mr. Cantor agreed to look for one. Following her assessment on April 18, 2007, Ms. Frauts issued a - 37 - report dated April 23, 2007. In it, she wrote that “Ergonomists of the Ministry of Labour are not experts in the area of disability management/worker accommodation…”, but nevertheless made certain recommendations. [66] Mr. Cantor’s previous contract had expired on February 9, 2007 and a new contract was done effective April 16, 2006. The evidence indicates that at a meeting attended by Ms. Fenech, Mr. Brown and Ms. Tzaferis, an updated accommodation plan was signed off. At this time Ms. Fenech still was unable to use voice recognition because Mr. Cantor still had to do significant work developing voice macros. Ms. Fenech testified that Mr. Cantor was not coming in as regularly to work on her accommodation, and even had cancelled some days that had been scheduled, because he was very busy. [67] Ms. Fenech reiterated that she had previously competed unsuccessfully for a temporary position of Finance and Accountability Assistant. She was keen about that position because it did not require the use of CMS at all. Ms. Greene had assured her that the position would likely be posted again, and that if the results of the previous competition are used, Ms. Fenech would get the position, because she had done very well although not the successful candidate. As anticipated, in May 2007 the position had become vacant again. However, Ms. Fenech was very surprised when she read an announcement dated June 12, 2007 that the position had been filled without a competition. The announcement stated that an employee from the MOL Communication and Marketing Branch had been appointed to the position on a secondment for 5½ months, while the employer was taking steps to fill the position on a permanent basis. [68] On May 18th around 11:00 a.m. Ms. Tzaferis called in Mr. Fenech and Mr. Brown into her office and informed that the employer had found a vendor of record company, Chappelle FG, who had two qualified ergonomists and wanted Ms. Fenech and Mr. Brown to agree to one of them by noon, so that arrangements could be made for an assessment on May 28th. Ms. Fenech testified that Ms. Tzaferis had only the first names of the two ergonomists. When Ms. Fenech asked to see their resumes, Ms. Tzaferis stated that they could bring the resumes when they come in, and stated that “they are supposed to be very good”. Ms. Fenech insisted that she needed to review the resumes in - 38 - order to ensure that they were appropriate for her accommodation needs. A few days later, Ms. Tzaferis forwarded to Ms. Fenech a resume for a Ms. Connie Glenn. Ms. Fenech testified that Ms. Glenn’s resume had no indication of any experience in accommodating persons with RSI, or of any area of expertise or interest. While she described herself as an ergonomist, the only educational qualification listed was a BSC in Kinesiology. Ms. Fenech’s on-line research indicated that Ms. Glenn was not listed in the Association of Canadian Ergonomists’ list of certified ergonomists. Therefore, Ms. Fenech rejected Ms. Glenn, and commented to Ms. Tzaferis that “This is a joke”. On May 30, 2007, Ms. Fenech received a resume for the second Chappelle ergonomist Ms. Tzaferis had identified, Mr. Craig Hogben. While his resume was more detailed, it too had no indication of any experience or expertise relating to accommodation of RSI patients. His title was Sales & Operations Director of Chappelle. While he had qualifications in Kinesiology, there was no indication of experience or interest in ergonomics or in designing of work stations. It appeared to Ms. Fenech that Mr. Hogben was splitting his time between ergonomics and administrative functions for Chappelle. Therefore, Ms. Fenech rejected Mr. Hogben also. [69] In the meantime, Ms. Fenech had been conducting her own search for a suitable ergonomist. She came across the name of Ms. Kathy Kawaja. Ms. Fenech’s research established that Ms. Kawaja had been certified as an ergonomist since 2001, had experience in office re-design and accommodation of employees with RSI, and was also a vendor of record, having previously worked in the OPS. On June 4, 2007 Ms. Fenech called Ms. Kawaja and discussed her needs. Ms. Kawaja confirmed her experience in accommodation of employees with RSI and indicated her interest in providing her services to Ms. Fenech. The same day, Ms. Fenech gave Ms. Tzaferis a copy of Ms. Kawaja’s resume, told her that Ms. Kawaja had the required expertise, was a vendor of record, and recommended that she be hired. Ms. Tzaferis said that she would contact Ms. Kawaja and clarify her vendor of record status. On June 8, 2007, Ms. Tzaferis advised Ms. Fenech that Ms. Kawaja had been hired, and that a contract was being prepared. By the end of June the contract was signed. Ms. Kawaja’s earliest availability to start working on the re-design of Ms. Fenech’s work station was July 13, 2007. - 39 - [70] The evidence indicates that the renovation project at the OWA started on September 5, 2007 and lasted till December 7, 2007. On July 11th, Ms. Fenech was provided a copy of the office renovation plan for review. She was advised that another PA would be hired and that the new PA would be in the same work station as her. Ms. Fenech objected, pointing out that she had been assured that she would have exclusive use of her work station, so that the adjustments on her equipment would not be changed by anyone else, that she needed a lot of space for her equipment, and that noise from other PA’s working close by would interfere with her voice recognition use. In response, it was suggested that the work locations of Ms. Fenech and the other two PA’s be switched, to address Ms. Fenech’s concerns. Ms. Fenech argued that such a switch would place her further away from her equipment. She also told the employer that it would result in her sitting facing a wall which was not to her liking. She stated that she also preferred to work with her equipment placed on her right which would not be possible. She was told that there was no way to enlarge the area which Ms. Fenech preferred, and that if the wall is to be moved, new permits would be required. However, the employer agreed to consider what could be done. Later she was advised that the architect would be revisiting the renovation plan to see how her concerns may be addressed. [71] Ms. Fenech testified that Ms. Kawaja spent all day with her and it was very useful. She discussed her injury and what accommodation activity had been undertaken to date. Ms. Kawaja inspected Ms. Fenech’s work station, and Ms. Fenech pointed out the problems with it. Ms. Kawaja requested for copies of all reports from Mr. Cantor and Ms. Frauts, renovation plans, medical documentation etc. Ms. Fenech had only a few documents to provide. Ms. Kawaja told her that she would get them from Ms. Tzaferis. [72] On September 7, 2007, Ms. Kawaja issued “a report for the ergonomic review of the design drawings”. Ms. Fenech had several concerns about recommendations Ms. Kawaja had made. Following a series of emails between Ms. Fenech and the employer, it was decided that everyone involved in Ms. Fenech’s accommodation should meet. Ms. Fenech took the position that the “renovations people” should not participate in a meeting where her health issues could be discussed. At a meeting on September 26, 2007 various options and suggestions were discussed, and changes agreed to. - 40 - [73] Ms. Fenech testified that when she came in for the meeting on September 26th, she found the office very dusty due to the on-going renovations. After two hours she was coughing, had a throat irritation and was feeling miserable. Ms. Fenech informed Ms. Tzaferis about her adverse reaction to dust and told her that she would stay only because Ms. Kawaja was coming in that afternoon. She spent time with Ms. Kawaja till 5:30 pm that day, well past her normal 4:15 p.m. end time. She testified that as usual she ran up the stairs at the Go Station and she was “huffing and puffing”, something she had never experienced before. At home that evening she had a severe headache and sinus pain. The next morning, Ms. Fenech e-mailed Ms. Tzaferis and Ms. Greene, informing them of her adverse reaction to the dust and that she would not be reporting to work. She remained on sick leave. Ms. Tzaferis advised her that the renovations were to be completed by October 9th, and requested that Ms. Fenech contact her to find out whether she could return to work on October 9. In the meantime, Ms. Fenech worked on her accommodation issues from home. Although she felt very sick, Ms. Fenech did not seek medical attention due to several reasons. First she explained that she had no family doctor. She did not want to go to a walk-in clinic because the last time she did the wait time was two hours. Second, she felt there was no point going to a doctor because she was unable to tell the doctor what she has been exposed to at the OWA. Thirdly, she was hoping that the reaction she had was short-term and would go away. [74] Ms. Fenech testified that one of the major disputes was about the wall in front of her desk. Ms. Kawaja was prepared to agree to either a short wall without a window or a long wall with a window. Ms. Fenech disagreed with Ms. Kawaja. After some back and forth, the employer agreed to add a second window. However, Ms. Fenech was still not satisfied because when she sat at the return, she would be “looking at the wall between the two windows” and she did not want to be facing a wall. There was a further issue about electrical cords. Ms. Fenech wanted cords which need not be plugged and unplugged frequently to be on the floor, instead of at desk level, because they tended to get caught in the desk drawers. [75] As a result of issues relating to dust and the air quality in the office, the employer scheduled an air quality testing for October 22nd. Ms. Fenech, who continued to be off - 41 - work, was invited to attend, but she declined, because she was concerned that she may be exposed to dust. The air quality testing was conducted on October 22nd, 2007 by T. Harris Environmental Management Inc. (“T. Harris”) and a report dated November 14, 2007 was issued. On November 19th a copy of the T. Harris report was forwarded to Ms. Fenech by Ms. Greene. In the cover letter, Ms. Greene observed that “The report confirms that our indoor air quality is acceptable, with all particulate matter (PMIO) readings remaining relatively constant and within WHO guidelines. There were no detectable amounts of common indoor air pollutants”. [76] Ms. Fenech testified that when she read the report she was surprised because she understood that the purpose of the testing ordered was to determine what caused her reaction on September 26. Instead what was done was a general air quality testing on October 22nd. Ms. Fenech testified that regardless of the conclusion in the report that the air quality was acceptable, she knew what happened to her on September 26, 2007. Therefore, she did not wish to take a risk, and informed the employer that she would not return to work until all of the renovations and the cleanup were completed. She was off, working at home, from September 26, 2007 to January 8, 2008. Ms. Fenech testified that on December 5, 2007, she walked the short distance from union station to her meetings at 400 University Avenue. When she arrived, she was huffing and puffing because she was still feeling the impact form the exposure to dust on September 26th. [77] At the OWA staff meeting the issue of the office air quality came up. Ms. Maria Rodriguez asked that she be provided an air purifier for use at her work station, and Ms. Tzaferis agreed. Then Ms. Fenech stated that she would also like an air purifier, one with a hepa filter which is quieter. According to Ms. Fenech, Ms. Tzaferis replied, “No. Let’s try one first and see”. However, the next day, Ms. Fenech received a letter from Ms. Tzaferis requesting that she have her doctor complete a Health Information Form to support her request for the air-filter. Ms. Fenech responded with two e-mails, alleging differential treatment. Ms. Tzaferis in turn replied that medicals were required to support both requests for air purifiers “to obtain health information prior to making the purchases because both you and Maria raised concerns about sensitivity to the air quality”. She denied that she had agreed to provide Ms. Rodriquez the air-filter, but had only agreed to - 42 - look into purchasing them. Ms. Fenech responded, this time in her capacity as health and safety representative that despite its conclusion that the air quality was acceptable, the T. Harris Report had identified a number of issues, which she considered to be health and safety hazards. Therefore, she demanded that the employer’s obligation to take reasonable precautions required the provision of the air filters to both herself and Ms. Rodriguez. She took the position that the Ontario Health and Safety Act does not require health information for the employer to fulfill that duty. Ms. Tzaferis approved the purchase of both air filters without a need for supporting medicals. [78] Ms. Fenech testified that on December 17, 2007, Mr. Brown informed her that she was scheduled to return to work on Friday January 4, 2008. She was also advised that the renovations were completed, the air purifier was ordered and that Ms. Fenech’s desk would be put into place. Mr. Brown undertook to meet with Ms. Tzaferis on January 2nd to ensure that everything was ready for her to return on January 4th. Ms. Fenech agreed. However, on January 2nd, Ms. Fenech was advised that while her desk was placed, there was no space to connect the return. Ms. Fenech wrote to the employer and Mr. Brown that without the return she would not be able to use her computer without reaching. Mr. Brown advised that he had discussed the matter with Ms. Tzaferis and requested that Ms. Fenech report to work on January 4th and “see how it goes”. Ms. Fenech testified that when she arrived on January 4th, she observed that her work area surface was covered in dust, and ‘renovation debris’. The sides of her desk and cabinets were dusty, and the cords and cables “in a tangled mess”. There was no return and the keyboard tray was not properly installed. Mr. Brown tried without success to install the keyboard. One of the issues she had complained about was that her workspace was not large enough for all of her equipment. She felt that her workspace was now even smaller than before. She spoke to Ms. Tzaferis about the issues she had and since she could not use her computer anyway, asked to go home. Ms. Tzaferis agreed and stated that she would have the keyboard tray properly fitted and the area cleaned thoroughly over the week-end so that Ms. Fenech could work on Monday. [79] Ms. Fenech testified that when she returned home on January 4th she experienced a headache. When she returned to work on Monday January 7th, she was told that the - 43 - technician was unable to come during the weekend to fit the keyboard tray. Therefore, Ms. Fenech told Ms. Tzaferis that since she was not able to use her computer without a properly installed keyboard tray, she was going home again. However, she stayed in the office until it was time for her to catch the next Go train at 11:00 a.m. to return home. By 11:00 a.m., she had a very bad headache. While waiting for the elevator at the OWA she noticed a very strong smell in the hallway. When she got off the train she had difficulty walking up the stairs and felt very winded. Once she got home she felt very sick for about four hours. [80] Ms. Fenech did not report for her next scheduled work day January 9, 2008. That morning she called in sick and followed with an e-mail detailing dust and smell issues she had observed on January 7th and the health reactions she experienced. Her e-mail included the following: The Occupational Health & Safety Act provides the right to refuse unsafe work. This is an individual right. This means that although others are able to safely work in that environment, I can refuse if due to my sensitivities or limitations, it is unsafe for me. Given the reactions that I have had after brief periods in the office, I can conclude that it is unsafe for me. I will continue to work off site until I can be assured that appropriate steps have been taken to make the workplace safe for me. [81] On January 15th, Ms. Tzaferis replied to Ms. Fenech’s e-mail of January 9th, advising that she was concerned and took very seriously the symptoms Ms. Fenech had described and that on January 10th, the Health and Safety Branch of the MOL was contacted, and that a hygienist from that Branch, Mr. Tom Lee would be doing a site visit very soon and that Ms. Fenech and Mr. Brown would be invited to participate. [82] On January 14th, Ms. Fenech wrote to Ms. Greene, asking what steps were taken by whom and when, to clean the office since January 4th. On January 18th, 2008 Ms. Greene replied listing twelve steps taken since January 4th. She stated that some 60 boxes from storage were temporarily stored in Ms. Fenech’s work area, and suggested that the dust found on January 4th likely resulted from that. Ms. Fenech was advised that over the weekend of January 8th and 9th a thorough cleaning of the reception area including Ms. Fenech’s work area was done, and that the HEPA air filter was in place for her. Ms. - 44 - Fenech was also informed that following an air balancing review conducted by a mechanical engineering firm on November 30, 2008, a report dated December 28th had “confirmed that the air flow in the office met requirements and no corrective action was recommended”. A copy of that report was also attached. [83] The evidence indicates that Mr. Tom Lee, who was qualified as a hygienist, was also an inspector with authority to inspect and issue orders under the Occupational Health and Safety Act. On January 25th, a meeting took place off site, followed by a visit of the OWA office. Mr. Lee, Dr. Lillian Wong, Medical Consultant to the Ministry, Ms. Fenech, Mr. Brown, Ms. Greene and Ms. Tzaferis attended. Ms. Maria Rodriguez also attended on invitation by Ms. Fenech. On January 31, 2008, Mr. Lee issued his report. While he made several suggestions that would improve air quality, he found no violations and issued no orders in that regard. The only two orders he made had to do with the need to create a Joint Health and Safety Committee because the employee complement of the OWA had exceeded twenty. [84] Ms. Fenech testified that between her going off work on December 5, 2007 and her return to work in January 2008, there was no direct contact with speech pathologist, Ms. Kawaja. On January 22nd Ms. Kawaja presented to Ms. Tzaferis a proposal, the preamble of which read: Please find below HFN’s proposed approach for the implementation of an accommodated workstation including furniture, equipment and accessories for the return to work of Ms. Catherine Fenech, Program Assistant at OWA. With the work space details finalized for PA1 and the office renovations complete, HFN is optimistic that this proposed method will allow for a participatory approach and will help to ensure that Ms. Fenech’s accommodation needs are met. Ms. Kawaja set out 5 steps to achieve the accommodation and a goal was set to complete the implementation by the end of 2008. However, she noted that the schedule she had set out would be conditional upon the project being awarded by January 21st, Ms. Fenech’s availability at work to run user trials, and the availability of products and equipment needed for user trials. An estimated fee schedule was also included. - 45 - [85] On February 12, 2008, Ms. Kawaja informed Ms. Fenech that the employer had accepted her proposal, that a prototype work station is scheduled to be set up on Tuesday February 19, at 4:00 p.m. and asking whether Ms. Fenech would be able to attend. Ms. Kawaja also proposed a teleconference with Mr. Steve Watson of Care-Tek, the supplier of products for the user trials, for February 19 or 25, 2008. On February 15th, Ms. Fenech replied, pointing out that she is still working from home “due to ongoing concerns re air quality”, that she can tolerate only periods of less than two hours in the office, that getting down town for 4:00 p.m. may be an issue because she did not believe there was a GO train from Brampton at that time, and asking “Do you really need me there?”. As for the proposed teleconference, Ms. Fenech advised that she was not available on February 19th due to “a prior commitment”, and that due to “a meeting in the City” on February 25th, she could only make herself available after 3:00 p.m. Ms. Kawaja advised Ms. Fenech that it was “not crucial” for her to be present to set up the work station and scheduled the teleconference for 3:00 p.m. on February 25. [86] The evidence is that Ms. Fenech remained off work, citing her concerns about air quality. On February 6th, Ms. Tzaferis requested that Ms. Fenech attend at the office for an accommodation meeting. Ms. Fenech replied, advising that she was seeing an occupation health physician from OHCOW on February 27, and stating, “Given that I have essentially worked from home since the end of September, it doesn’t seem unreasonable to wait 7 more work days until I can see a specialist to get some direction with respect to this issue”. Ms. Tzaferis replied the same day that “I am approving your request to work at home until February 27, 2008, at which time you will be seeing a specialist”, and that the meeting would take place at 11:00 a.m. on March 3, 2008. [87] Ms. Fenech testified that on February 27, 2008, she was seen by Dr. Roland Wong (Occupational Health Physician) and hygienist Mr. Ping Ciu, of OHCOW. Ms. Fenech provided to them all reports she had including the T. Harris Report, the Air Balancing Report and Ministry reports. Dr. Wong issued a two page Clinical Consultation Report dated the same day. In it Dr. Wong reviews the information Ms. Fenech had provided to him about her medical history and the air-quality issues she had experience at her workplace. The report concluded with the following: - 46 - Clinical Impression: This woman had an acute exposure incident in September 2007 resulting in acute symptoms in her throat and chest. There were also apparently 2 other workers with similar symptoms who were not able to return to the workplace and had to work at home. There was likely dust and fumes from the renovations. A further report will be provided once our hygienist has reviewed the hygiene survey from October 2007. In the meantime, Ms. Fenech is advised to avoid exposure to dusts as well as strong smells such as from solvents. She has difficulty breathing when exposed to strong perfumes. I will send her onwards for pulmonary function testing. [88] Ms. Fenech testified that the pulmonary test did not take place, and no report from the hygienist was issued prior to the agreed to evidence cut-off date of June 18, 2008. Ms. Tzaferis expected Ms. Fenech to return to work following Dr. Wong’s report. A meeting was scheduled for March 3rd between Ms. Tzaferis, Ms. Fenech and Mr. Brown. However, it had to be rescheduled for the following week because on the morning of March 3rd Mr. Brown informed that he was not available. A teleconference was scheduled for March 10th, but that did not take place either because Ms. Fenech had a sore throat. Ms. Fenech requested that she be allowed to continue working at home because she still did not have a functional workstation and her air quality concerns had not been addressed. Ms. Tzaferis approved that Ms. Fenech could continue to work at home until she heard from Ms. Kawaja about Ms. Fenech’s work station. [89] The evidence is that Ms. Fenech was advised by Ms. Tzaferis that she was required to attend a staff meeting on April 11, 2008. Ms. Fenech responded questioning why she was being asked to attend in person, when she had been allowed in the past to participate in staff meetings by phone. She wrote “Given the timing of your e-mail, the only explanation I can see is that it must be related to my testimony at the GSB on March 26. I find this incredibly disturbing and I hope this is not the case”. She reasoned that the Ministry hygienist had not stated in his report that the workplace was safe, but had made several recommendations to improve air quality. With regard to Ms. Tzaferis’ comment that she had not provided any medical information to support her health problems related to air quality issues, Ms. Fenech asserted: “This continues to be a health and safety issue. - 47 - I don’t have any restrictions or limitations for the doctor to address. I just need a safe workplace to work and I am hoping that OHCOW will assist with this”. [90] On April 11, 2008, Ms. Tzaferis wrote to Ms. Fenech, stating inter alia, that while the T. Harris report following an air quality testing in October 2007, and an inspection by a Ministry hygienist/inspector had found the air quality in the office to be safe, Ms. Fenech continued to claim that there was a risk to her health due to air-quality, and that despite numerous requests, Ms. Fenech had not provided any medical information to support her complaints related to office air quality. Ms. Tzaferis added, “Therefore, we are expecting that you should be able to return to the workplace, unless you are able to provide medical information that substantiates your inability to attend the workplace as requested. Ms. Fenech was informed that she is expected to attend meetings on Friday April 18, 2008, to review her accommodation plan and her performance objectives. Ms. Fenech testified that she was upset that Ms. Tzaferis had scheduled these meetings without asking whether she and her union representative were available. She was not available on that day because she had scheduled a meeting between the Joint Health and Safety Committee and a hygienist from OHCOW. Ms. Fenech replied to Ms. Tzaferis again arguing that neither report “had stated that our workplace was safe. They definitely did not determine it was safe for me.” She asserted, “I remind you that the right to refuse work is an individual right. If I, due to my personal characteristics, have reactions to something in that workplace, then I have the right to refuse”. [91] Ms. Fenech testified that on April 24, 2008, Mr. Ping Ciu, OHCOW hygienist, visited to meet with the Health and Safety Committee consisting of herself, Mr. Brown, Ms. Greene and Ms. Trower to discuss indoor air quality issues. He emphasized that the key to good indoor air quality is the flow of fresh air. Ms. Greene agreed to make inquiries from the engineers how the airflow system in the office operates and how much fresh air was coming in. As for the cause of the reaction experienced by Ms. Fenech, Mr. Ciu stated that the only way is to identify the trigger through “trial and error” and that the source of Ms. Fenech’s exposure may never be determined. Following the meeting, the group went over to view Ms. Fenech’s work area. Ms. Fenech testified that as they approached she could smell a very strong cologne and “started to feel sick, a headache, - 48 - cough and nauseous.” She went outside for some fresh air. On her return to her work area, the smell of cologne was still there, even though the man who was wearing it was not at his desk. This, testified Ms. Fenech, was the first time she had a problem with scents at the workplace. After Mr. Ciu left, the others met in the Board room. Ms. Fenech advised that she could not come to work as long as “that kind of smell” was present. The next day Ms. Tzaferis sent a memorandum to all staff and management advising that it has been brought to her attention that there are staff members “who are sensitive to perfume/cologne” and seeking their assistance by minimizing use and avoiding application of scented products in the workplace, and understanding when a colleague approaches with a scented product sensitivity issue. [92] Ms. Tzaferis’ memorandum elicited a number of responses. Ms. Fenech, in her capacity of Health and Safety Representative, wrote to all recipients as follows: I am responding to this email as the Health and Safety rep. In addition, to staff with sensitivities, we also have clients who suffer from various sensitivities including Multiple Chemical Sensitivity. Asking people to ‘minimize’ the use of scented products or to avoid applying them in the workplace is not sufficient. It is also not appropriate to put the onus on the person with the sensitivity to approach the source of their irritation. Sensitivity to scented products is a health concern that must be taken seriously. Exposure to these irritants can have a wide range of negative effects on those who are sensitive. As such, all staff should refrain from wearing any scented products in the office. I am also asking management to formally develop a scent free policy for this office in consultation with the Joint Health and Safety Committee. Note this is a recommendation under the Occupational Health and Safety Act. A co-worker responded to Ms. Fenech’s e-mail, advising that she personally finds scent to be an important healing therapy, and that she could not have managed her anxiety levels following a traumatic event she experienced without the daily use of lavender. She therefore urged that both sides of the issue be taken into account in developing a policy. Union representative, Mr. Brown joined the discussion with an e-mail, observing that this was a complex and challenging issue and that “We need to be cognizant of everyone’s needs in developing a solution”. He requested that anyone with specific concerns share them with him or management. Finally, Ms. Greene issued the following e-mail: Further to Catherine’s request that ‘management formally develop a scent free policy for this office in consultation with Joint Health and Safety Committee’ I - 49 - would ask the bargaining unit representatives provide me, as the management lead, with their recommendation for 123 Edward, 13th floor, which I will review with the management team and MOL HR. I will check with building management to see whether they have a specific policy, given the common areas as well as cleaning products we use. Regardless, there are exposures to scents that as tenants in a public/medical building we do not have control over – for example within elevators, strong scents do happen. I agree with Kevin, that we have to find a reasonable approach that respects all individuals’ rights and responsibilities. [93] On May 9, 2008, Ms. Fenech sent a detailed e-mail to Ms. Tzaferis in which she recounted the history of the scent issue including her reaction to cologne on April 24th, and Ms. Tzaferis’ memorandum to staff requesting that use of scented products be minimized. She observed that Ms. Tzaferis’ request had not been heeded by some staff. She concluded her email as follows: Given the above, this is a not a trivial matter that can be ignored any longer. I am also making the request that the office go scent free before I attempt to return to the workplace. I am also requesting that staff refrain from using any chemical cleaning products, incense or any scent producing product in the office. There is no way that I could work in my workspace the way the air was on April 24. I trust that you will take immediate steps to act on this request. [94] Ms. Tzaferis scheduled a meeting off site for May 16th with Ms. Fenech and Mr. Brown to discuss the issue. At that meeting, Ms. Fenech made her case for a scent free policy, and referred to the report by Dr. Wong which stated that “She has difficulty breathing when exposed to strong perfumes”. Following discussion agreement was reached to adapt “an arm’s length” policy, that any perfume worn should not be so strong as to be noticed from beyond arm’s length. Mr. Brown was to draft a policy, which would go out to all staff from the Director. Ms. Fenech testified that she stated at the meeting that if she continues to have reaction even with an arm’s length policy, the issue will have to be revisited. At this meeting on May 16, 2008 Ms. Tzaferis approved Ms. Fenech to continue working at home until May 30th, when the user trials with Ms. Kawaja were scheduled. Mr. Brown drafted an arms-length scent policy. After approval by Ms. Fenech and management, on May 27 the final policy was circulated to all staff. After a review of the toxic chemicals that may be in scented products and the reactions they could trigger for individuals with sensitivities, it states: - 50 - Until the committee has had a chance to develop a long-term solution, I would ask, on behalf of OWA management at 123 Edward Street, that all of you do the following to help ensure that no one suffers an adverse reaction to a strong odour: . Refrain from using any scented cleaning products in the office (e.g., furniture polish, glass cleaner, air fresheners). . Observe the “arm’s length rule” with regard to perfumes, colognes or other fragrances. If you use these products, please make sure that they cannot be smelled more than an arm’s length away from you. These simple steps can do a great deal to assist in making the workplace safer for everyone. We hope that they will be sufficient to address the problems that staff have experienced, but it is impossible to know so in advance. As a result, it may be necessary to revisit this issue [95] The user trial was confirmed for 11:00 a.m. on May 30, 2008. Ms. Tzaferis requested that Ms. Fenech come in at 10:00 a.m. to complete her accommodation plan. However, Ms. Fenech decline for two reasons. First, she felt that there was no point in completing the accommodation plan, when it may have to be changed following the user trials. Second, Ms. Fenech was concerned that she may have a reaction to scent while meeting with Ms. Tzaferis. The evidence is that Ms. Kawaja had requested that different equipment be purchased in order to be able to carry out the user trial on May 30th. These were ordered through Care-Tek. Ms. Fenech had stated that her monitor was too big causing her neck pain and requested a new monitor. Ms. Kawaja researched and recommended two 17 inch monitors and one was ordered. Ms. Fenech’s user trial on May 30th lasted from 11:00 a.m. to 4:00 p.m. [96] Ms. Fenech testified that on May 30th, she notice several boxes with old telephones stored near her work area. Also she could smell a scent in that area. She raised with Ms. Tzaferis her concerns about the scent and about her work area being used for storage, which could be a source of dust. She identified for Ms. Tzaferis the employees who she thought were wearing perfume and stated that while she wanted to continue with the user trial with Ms. Kawaja, if the scent issue remained she would have to limit the time she spends at the workplace. Ms. Tzaferis acknowledged that it was improper to store surplus equipment in Ms. Fenech’s work area and advised that the area had since been cleared. Ms. Tzaferis also advised that she had spoken to staff located near the reception area and reminded them about the arm’s length scent policy. In the same e-mail, Ms. - 51 - Tzaferis suggested that Ms. Fenech should see a doctor if her symptoms got worse and asked whether she had an appointment for the pulmonary testing which was to be done as a result of Dr. Wong’s report. Ms. Fenech testified that it was very inappropriate for Ms. Tzaferis to make those comments, because Ms. Fenech was of the view that if the scent policy was enforced she would not need any testing or medical assistance. [97] June 9, 2008 at 1:00 p.m. was fixed for continuation of the user trial. However, that did not take place because Ms. Fenech missed her GO train because she had difficulty finding parking. When she called the OWA to inform Ms. Kawaja that she could not come in because of the missed train, her call went to voice-mail. Ms. Fenech testified that a call to the general office number is not supposed to go to voice-mail at any time, and as a result Ms. Kawaja had waited for her till past 1:30 p.m. and called her on her cell phone. Ms. Fenech told Ms. Kawaja that due to the GO train schedule it was more convenient for her to travel in the morning, and asked that user trials be not scheduled on afternoons. [98] Ms. Fenech testified in detail about having to go home due to a reaction she had due to smell of perfume when she came in for user trials on June 13th. Ms. Fenech did not report to work on her next scheduled workday, Monday June 16, 2008. That morning she sent the following e-mail to Ms. Tzaferis: I am writing to inform you that I won’t be in the office today. It appears that people still haven’t gotten the message re: wearing scents in the office. I tried to be accommodating by agreeing to an “arm’s length” scent policy but that has not worked. Perhaps, it is too difficult for people to determine what “arm’s length” means. I am now asking for a scent ban. When I went in on Friday, I was one of the first in. The air was stale and not so good as usual but there was no scent of perfumes. As staff started coming in that all changed. Eddy was definitely wearing cologne. The smell lingered in the hall and especially directly outside his office even after he went out for coffee. But Eddy was not the only one. As others walked by the smell mixed with his cologne to create more toxic air. My throat was burning and I was coughing. I also had a tightness in my chest. Someone rushed past my workspace (I didn’t see who it was as I was struggling to lock up my computer to the plywood desk) but a strong scent of perfume came at me. It became too much and feeling similar symptoms to last September, I had to leave the office. The sore throat and tight chest remained into the early evening. The next day it was gone. I did not feel - 52 - these symptoms before going into the office Friday or after they dissipated once I got home. On Wednesday, I also noticed that the chair arms and the rubber wrist pad on my keyboard also have strong nausea inducing odours. This was very noticeable when I plugged the wrong power cord into my tablet cooling fan and it was blowing air at full speed. I fixed that but I started developing a headache just before I left that day but had no burning throat. The symptoms were not as extreme as Friday so I did stay for the full 4 hours as planned. I am eager to resume the user trial. I didn’t get very far as I was still trying to find all my things and get set up. A number of things that were on my desk and even on the wall have disappeared. Unfortunately, there is no point coming in, getting sick and possibly set back my breathing more and then have to go home. I had to wait two hours at Union Station to get a train home while not feeling well. I am now requesting that the office go scent free. Perhaps, Kevin and I can draft a notice like last time; however, I do believe that we need a policy in place. We could draft a policy as well as I have seen various examples online. For this week, I can work at home today and join the staff meeting by phone. I am requesting to take Wednesday off without pay as I have an outside commitment. Thursday, I am in arbitration and I would like to take Friday off for coming in Thursday as I need rest after sitting all day. Another option to keep the user trial going is to temporarily move my desk to Daryl’s old office. I am assuming that it is not being used. I could try out the desk there with the door closed to hopefully keep the smells out. This is if there is good ventilation in the office. This won’t allow me to get a feel for how my workspace works i.e. interaction with the window and front counter but it would allow me to evaluate the keyboard, chair, the two trays and the actual layout of the desk. The scent issue still needs to be addressed as I can’t stay closed up in there. Please let me know. [99] Union counsel invited Ms. Fenech to comment on the period since Ms. Tzaferis resumed managing her accommodation. Ms. Fenech replied, “it was very difficult. I tried to work with her and move things. But the reasons I asked for her removal still continued. She did not understand my side or the technology needed to accommodate me. I felt she was treating me differently because of my disability. She was not forthcoming with information which delayed the process. She was not discreet with information about me and copied e-mails to people who did not need to know my situation. I felt there was no leadership by her to put my accommodation into place. Every little thing became a battle. I felt she delayed some things like the speech therapy with Lois Singer.” When - 53 - asked for the basis of her allegation of differential treatment because of disability, Ms. Fenech referred to the fact that Ms. Tzaferis had offered an air purifier to one employee but refused when she also asked for one. Secondly, Ms. Fenech stated that previously she was offered available extra hours even though hired as a three days a week part-time PA. Since she filed her December 2005 grievance, temporary employees were used to cover extra work. Finally, Ms. Fenech cited the denial of vacant jobs as indicative of differential treatment. [100] Evidence was adduced about a job posting in June-July 2007 for several PA positions, Ms. Fenech applied for, and participated in competitions for full-time PA position in the Downsview OWA office and for part-time unclassified positions in the Scarborough and Toronto offices. Following the competition process, Ms. Tzaferis informed Ms. Fenech on September 24th that she was the successful candidate for the temporary part-time PA position in the Toronto office, where she already held a permanent part-time PA position. Ms. Tzaferis asked Ms. Fenech however, how she was going to do the two positions both of which were three days a week. Ms. Fenech, based on an accommodation recommended by her physician worked Mondays, Wednesdays and Fridays in her permanent position. The posted position Ms. Fenech had applied for was also three days, Mondays, Tuesdays and Wednesdays. On September 30th, Ms. Fenech wrote in part, to Ms. Tzaferis as follows: As you know, my original days of work under my permanent position were Wednesday, Thursday and Friday. This was changed as a result of the problems caused by the new CMS and was confirmed by my doctor. My doctor also indicated that I can work 5 days per week; however, if I only work 3 days, it should be Monday, Wednesday and Friday. With the addition of the new temporary position, the change of days in the permanent position are unnecessary, so I would revert to working Wednesday, Thursday and Friday in the permanent position. I would then also like to request Wednesdays off without pay from my permanent position for the duration of the temporary assignment. I trust this will not be a problem since you have granted previous requests for days off without pay. I would work Monday, Tuesday and Wednesday in the temporary assignment and Thursday and Friday in my permanent position. This would also be in line with the staffing announcement on May 30, 2007 that the Toronto Office would be going to two FT PAs. I trust that this will not be a problem. I am prepared to start at your earliest convenience; however, the issue of air quality due to the renovations needs to be addressed before I enter the office. - 54 - Ms. Tzaferis did not find Ms. Fenech’s proposal workable and withdrew the job offer. In essence, she explained that the temporary posting became necessary only because Ms. Fenech was not performing any PA duties, which created a work load issue. She also pointed out that Dr. Tick had in any event stated that she is not able to perform her job duties until all the accommodations are in place. [101] Ms. Fenech reacted with the following e-mail: There is no need to make up excuses. I understand fully what you are doing. Needless to say, I am grieving this further act of discrimination against me. As for your statement that you are “looking into other options where your restrictions could be fully accommodated”, you again show that you don’t have a clue when it comes to accommodation. I’m not even going to bother wasting my time pointing out the obvious to you. Ms. Tzaferis found the foregoing remarks offensive, and issued a letter of counsel stating in part as follow: Although I can appreciate the difficulties and frustration that you must be experiencing while we are continuing to make every effort to accommodate you, I am compelled to advise you that I am very offended by the tone of your email. I find your comments to be disrespectful and insubordinate. In addition, I find that your negative and non-cooperative response to our attempts to ensure appropriate accommodation is not helpful. Further, your behaviour demonstrates an inappropriate and disrespectful manner, which is unacceptable. As you are aware, this is not the first time that you have addressed me in this manner and I cannot continue to condone this type of behaviour. As a result of your actions, I am issuing this as a letter of counsel. Please be aware that any further incidents of a similar nature will not be condoned and may result in disciplinary action. [102] Ms. Fenech testified that she did not agree with the reason given by Ms. Tzaferis for posting the position because she knew that the position was posted because of an announcement of availability of funds, not her absence from work. Ms. Fenech named several part-time PAs who she claimed were given additional hours in 2007 and 2008, and were therefore doing up to full-time hours, while she was limited to three days a week. She also cited as an instance of discrimination by Ms. Tzaferis, the granting of a lateral transfer to Ms. Robitaille from the Ottawa office, when a full-time vacancy for a PA arose in Toronto. This denied her the opportunity to compete for the full-time position. - 55 - [103] When union counsel asked if she had anything to add about differential treatment by Ms. Tzaferis, Ms. Fenech replied, “She wanted me to report to her every time I had to leave the office during work hours. She didn’t ask anyone else to do that. Also she hung around my area around the time I finish work, although she never said anything to me except to say “have a good evening or week end”. Once she was at the photo-copier when I went to the washroom. When I returned, she was at the end of the hallway staring at me. She didn’t say anything but I found it very intimidating”. She testified that PAs were short staffed. PAs often worked while eating lunch or miss lunch. When that happens, they go home early. When asked “Were you ever given an indication that it was inappropriate when you went home early?”, Ms. Fenech replied “no”, but added that on July 13th Ms. Fenech asked her if she had left early and on August 10th she asked her what time she left work. [104] Ms. Fenech agreed that following the launching of the new CMS her first day at work was on November 16, 2005, that the very next day she requested a touch pad and that it was approved within 3 hours. She also agreed that on November 29th she requested that her schedule be changed from Wednesday, Thursday, Friday to Monday-Wednesday- Friday to allow a day of rest between work days, and that Ms. Tzaferis approved that also effective December 5th, and that a health information form supporting such a change was provided only after the fact. She agreed that the only restrictions Dr. Tick had set out in the form were “Should work Monday – Wednesday – Friday due to RSI” and “limit repetition, specially mousing”. [105] Reviewing documentary evidence, employer counsel had Ms. Fenech agree that as of February 15, 2006, she had worked a total of 17 shifts with the new CMS. That day, she wrote to Mr. Cantor explaining about her concerns about mousing and inquiring whether he had the ability to assist. In that correspondence with Mr. Cantor, Ms. Fenech had made comments about Ms. Tzaferis to the effect that she was “not technically savvy”, “a techno phobe”, “very tight with funds” and “tight fisted”. Asked to explain why she made those comments about Ms. Tzaferis’ personal attributes, Ms. Fenech replied that it was her opinion and a “general consensus” that Ms. Tzaferis was not technically savvy. Ms. Fenech said, “I know she is not one who wants to spend money on me.” Counsel - 56 - pointed out how she concluded that when Ms. Tzaferis had at that point promptly approved the purchase of all items she had requested. Ms. Fenech replied that Ms. Tzaferis “constantly says we have to save” and that in 2004 she had verbally asked for an ergonomist but was not provided one. [106] Ms. Fenech testified that she could not manage on three days’ pay per week and that she wanted to do additional hours that became available when Ms. Charles went off sick. The week of March 6th, she worked 4 days. On March 8th she met with Ms. Tzaferis and undertook to work 5 days a week even though the only medical information the employer had at the time stated that she should work Monday – Wednesday – Friday to allow a day of rest between work days. She agreed that it was her choice to work 5 days and that effective March 13th she worked 5 days a week. [107] Ms. Fenech agreed under cross-examination that by March 8th she was aware that Ms. Sharpe and Ms. Greene had met with the programmers at the MOL Economic and Business Cluster and that the programmers had advised that they had a workable solution to the mousing issue – the development of a macro F12 key, that on March 15th she informed Ms. Tzaferis that she preferred that Mr. Cantor work with the programmers, and that on March 20th she provided Ms. Tzaferis with Mr. Cantor’s article and took the position that anything less than hiring Mr. Cantor would be a breach of the duty to accommodate. She further agreed that on March 23rd, Ms. Greene informed her that she agreed with the approach in Mr. Cantor’s article and that she would be arranging for Mr. Cantor to come for a consultation. Counsel asked why she filed a grievance on March 24, when the employer had agreed with Mr. Cantor’s approach and had agreed to bring him in for a consultation, Ms. Fenech replied “The grievance was filed to speed up things. I had asked for accommodation in November, although only verbally.” [108] Ms. Fenech confirmed that on April 18, 2006 a meeting was held to update her accommodation plan. Counsel referred to an e-mail dated April 20 Ms. Fenech sent to Ms. Tzaferis wherein she requested that she be purchased a booklet on “short cuts to windows” and a special large pen “since you don’t want to bring in Allan”. Counsel asked why she said that when on March 7th she was informed that the employer had - 57 - retained Mr. Cantor. Ms. Fenech replied, “It said they had chosen him. Not that he was retained”. When asked whether Ms. Tzaferis provided the booklet and pen despite her “harsh” e-mail, Ms. Fenech replied that she did. [109] Ms. Fenech agreed that on April 26, 2006, she took the position that she would no longer use the CMS. She agreed that for all intents and purposes, from that date she did no PA duties, but spent her work hours working with Mr. Cantor on her accommodation. In this period, the programmers discussed with her and Mr. Cantor methods they had developed for using various key strokes as hot keys. In turn, Mr. Cantor was teaching her macros for using the key board to use CMS, showing shortcuts, and giving her exercises to practise. She agreed that the employer approved the purchase of a list of items Mr. Cantor had requested. Ms. Fenech agreed that while she had undertaken to work 5 days a week until June 2, 2006, but was not even doing her regular 3 days a week, and that this created a need for a PA 5 days a week. [110] On May 24th, 2006 Ms. Fenech informed that she wanted to compete for the posting, which was for a Full-time PA for 4 months with a possibility of extension and asked that her resume on file be used. Ms. Fenech agreed that she was aware that the posted position involved the use of the CMS, and that at that time the only medicals she had provided to support her absence from work were the two prescription pad notes from Dr. Tick, putting her off work two weeks at a time. She agreed that on May 31st, Ms. Tzaferis called her at home and informed that she would like to interview her for the posted position and that the process would consist of an oral interview and a word processing exercise. Counsel put to Ms. Fenech, “You told her she should just give you the job and that you will grieve if she didn’t?” Ms. Fenech replied, “No. I said that given the circumstances, it was unfair that they were having a competition. I will grieve that”. When asked whether she told Ms. Tzaferis that she was a poor manager and was treating her poorly, she replied, “What I told her was that she was discriminating against me”. [111] Ms. Fenech testified that the day Purolator attempted delivery she was off sick, but was attending “Injured Workers Day” at Queen’s Park. When asked why she did not pick up the package from Purolator as requested in the card that was left, she replied, “I’ve had - 58 - lots of problems at Purolator. They can never find something. So I called and asked them to re-send it,” but it was not re-sent and she did not pick it up either. [112] Ms. Fenech saw Dr. Tick on Friday June 16th and faxed a Health Information Form completed by Dr. Tick. Ms. Fenech confirmed that in it Dr. Tick had imposed a restriction to the effect “No repetitive tasks – permanent” and had mentioned voice recognition and Speech Pathologist, Ms. Lois Singer. It also indicated that Ms. Fenech would be reassessed on June 26th. Ms. Fenech agreed that at this time Ms. Tzaferis would have been aware that she had an appointment with Dr. Tick on June 26th and also that she did not prefer delivery through courier. When counsel pointed out that Ms. Tzaferis wanted to hand deliver the Health information Form because when she sent the last form by courier, Ms. Fenech had not picked it up, Ms. Fenech replied that she did not pick it up because Ms. Tzaferis had not offered to pay mileage. Counsel pointed out that the reason for not picking up she gave in chief was her experience at Purolator, that they could not find anything. She replied, “Yes. But if I drive it costs me”. When counsel pointed out that Ms. Tzaferis wanted to hand-deliver the document to the doctor’s office because it was an important document and because the doctor’s office was located very close to the OWA, Ms. Fenech replied, “I don’t want her hand-delivering anything to the doctor’s office.” Counsel put to Ms. Fenech that when Ms. Tzaferis handed the envelope, Ms. Fenech said “You are just trying to save postage”. Ms. Fenech replied, “What I told her was that she was doing that to intimidate me. I said nothing about postage”. [113] Employer counsel referred to an e-mail dated July 29, 2006 sent by Ms. Fenech to Ms. Tzaferis which included statements to the effect that “over the last two years” Ms. Tzaferis had made it absolutely clear that she did not want to employ her because of her disability, that the OWA is viewed negatively by many in the injured worker community and that Ms. Tzaferis’ treatment of her would further tarnish the OWA’s reputation. Counsel pointed out that the “last two years’ from July 2006, took her back to the time period when Ms. Tzaferis offered her some work at the OWA during a conversation at an outside event and subsequently appointed her as a part-time PA, and asked whether Ms. Fenech was of the view that from that period on Ms. Tzaferis was making it clear that she did not want to employ her because of her disability. Ms. Fenech replied in the - 59 - affirmative. Under questioning, Ms. Fenech agreed that in her e-mail she made it clear that Ms. Tzaferis will not get Dr. Tick’s response by August 1st. Asked whether she contacted Dr. Tick’s office to check with her before she said that, Ms. Fenech stated that she was “not sure’. Counsel pointed to her statement in the e-mail that it is “unlikely” that she would be able to get an appointment before August 1st, and suggested that it shows that she had not even tried to get an appointment. Ms. Fenech agreed, and added that she did not contact Dr. Tick because she was hoping that Ms. Tzaferis would withdraw the letter. [114] Ms. Fenech had testified that she saw Dr. Tick on August 18, 2006 and handed her Ms. Tzaferis’ letter dated July 20th. When counsel asked whether she followed up to see if Dr. Tick had responded, Ms. Fenech replied that in September she called the doctor’s office a couple of times. On one occasion she was asked “what letter?”, and on another occasion they could not even find the file. Ms. Fenech explained that she did not call Ms. Tzaferis in September to find out why she was still not back at work because she expected that Ms. Tzaferis would contact her when the doctor’s report is received and assumed therefore that Dr. Tick had not yet responded. Ms. Fenech testified that during an appointment with Dr. Tick on October 6, 2006 she saw an unsigned copy of a report dated August 29, 2006. She assumed that a signed copy would have been received by the employer and was upset that the employer had not yet called her back to work. Her first instinct, she said, was to go to the OWA and ask why, but she did not do that. [115] Ms. Fenech agreed that from the employer’s reaction at the grievance meeting on October 10th, it was apparent that the employer had not previously seen Dr. Tick’s report dated August 29, 2006. When asked why she declined the employer’s offer to return to work the next day, she explained that she was not prepared to start the next day because “I had been off for some time and I also had some things to do before going back to work”. The evidence is that the employer agreed that Ms. Fenech could return to work on October 16th and informed Ms. Fenech that the employer would arrange for Mr. Cantor to attend on October 18th. Counsel suggested that Ms. Fenech stated that she would not attend work on October 18th because she had to attend an injured workers event. Ms. Fenech - 60 - replied that she did not refuse to attend, but indicated that she would like to take October 18th off to attend the event, and that Ms. Tzaferis agreed to that also. [116] In cross-examination, Ms. Fenech agreed that on her first day back October 16th, a meeting was held with Mr. Brown, Ms. Trower, Ms. Tzaferis and herself to discuss her return to work. She also agreed that at this meeting an accommodation plan, which had incorporated the restrictions included in Dr. Tick’s August 29, 2006 report, was reviewed and discussed. Counsel put to Ms. Fenech that after the review of the plan, “You said in an angry tone “I want this woman removed from my accommodation in accordance with the policy” and pointed at Ms. Tzaferis”. Ms. Fenech replied “I said “I am making a WDHP complaint and I want this woman removed from my accommodations in accordance with the policy”, and I pointed at Mary to show who the woman was”. Ms. Fenech agreed that on her next day at work October 20th, Ms. Trower advised her that she would be taking over her accommodation as she had wanted. Ms. Fenech agreed that on October 25th, she met with Ms. Trower and an accommodation plan was signed off, and that the plan approved the purchase of all of the devices Mr. Cantor had recommended and stated that anything else he recommends would be approved. [117] Ms. Fenech agreed that the Kinesis keyboard acquired as a result of a recommendation by Mr. Cantor, became a problem despite the fact that Mr. Cantor had created some macros and re-mapped some keys to suit her. Ms. Fenech testified that her problems arose because of over use of the thumb. Therefore, she and Mr. Cantor researched for another keyboard. Mr. Cantor identified a new free-style model of the Kinesis keyboard, but it was still not available in the market. Ms. Fenech agreed that in the October accommodation plan the employer had agreed to bear all costs, including any time off, resulting from employer requests for medical reports and that in early November, Ms. Tzaferis approved three days of discretionary paid leave for her to attend other medical appointments. [118] Ms. Fenech testified that in early November 2006, she went to Backs etc. together with Mr. Cantor and identified an ergonomic arm rest and a chair. The arm rest was purchased for her. She stated that she really liked that ergonomic chair, but Mr. Cantor did not want - 61 - to purchase it at that time because changes to her work station had not yet been completed. Ms. Fenech agreed that “a whole bag of stuff” including holder and a vertical mouse were purchased for her from Backs etc. [119] Ms. Fenech was cross-examined on the 5.5 month temporary assignment that became available in the position of Full-time Financial Accountability Assistant, as a result of the incumbent taking a secondment. Ms. Fenech agreed that when Ms. Tzaferis suggested that she apply for the posting she felt offended and wanted Ms. Tzaferis to accommodate her in the position to work only Mondays, Wednesdays and Fridays. Ms. Fenech testified that she participated in the competition but was unsuccessful. She testified about the debrief she had with Ms. Greene subsequently. The gist of the debrief was that while Ms. Fenech had done very well in the Excel spread sheet test, she had lost a lot of marks because she had no experience in government finance systems. As a result she ended up relatively equal with a more senior applicant, who was awarded the position. Ms. Fenech testified that she respected the priority accorded to seniority and therefore did not grieve the competition. However, her position was that she should not have been required to compete in the first place. As she put it, “I asked to be accommodated. I was told to go apply”. [120] Ms. Fenech agreed that on March 12, 2007, she received the initial assessment report by Speech Pathologist, Ms. Lois Singer, and agreed that the report made the following findings: that Ms. Fenech was a poor candidate for voice recognition software; that use of the software could cause voice damage; that exposure to voice recognition software should be minimized as much as possible; and that there is no guarantee that the software will work for her. She also acknowledged that Ms. Singer had indicated that while she was willing to provide speech therapy for Ms. Fenech, if she sees no improvement after 3 or 4 sessions she would discontinue. Ms. Fenech agreed that on March 14, 2007, during a meeting at which Ms. Singer’s report was reviewed, Ms. Tzaferis called Ms. Singer on speaker-phone and that following a discussion with Ms. Singer, Ms. Tzaferis approved a maximum of 10 speech therapy sessions, 6 to start with followed by a report. Ms. Fenech was to schedule one session per week and the one hour sessions were to be during paid work time. Ms. Singer’s fee was $ 150.00 per session. Ms. Fenech agreed that she had - 62 - the initial 6 sessions and that she was paid her wages for the time spent on the sessions including travel time, and for travel expenses. Ms. Fenech testified that the speech therapy sessions were held at Yonge Street/York Mills, and that on her return to the OWA after the first session she asked Ms. Tzaferis to reimburse her for the subway token she bought to return to the office. Counsel put to Ms. Fenech that she told Ms. Tzaferis that she was in financial difficulties and that Ms. Tzaferis had caused it. Ms. Fenech replied “Not in those words”. She agreed, however, that Ms. Tzaferis asked her to claim her expenses for travel to therapy sessions as an expense claim. When counsel suggested that Ms. Tzaferis also offered to lend her $25 of her own money, Ms. Fenech replied, “I thought she offered $20 and I didn’t know where the money came from”. [121] Ms. Fenech confirmed that following 6 sessions, and issued a report in which Ms. Singer concluded that Ms. Fenech had made improvement as a result of the therapy and recommended 6 more sessions. The report was received by the employer on August 30, 2007. Ms. Fenech agreed that she became aware on September 7, 2007 that Ms. Tzaferis had approved the 6 additional sessions of therapy. Ms. Fenech agreed that she was responsible for scheduling appointments with Ms. Singer. She was asked why she had not scheduled any sessions in the month of September despite Ms. Tzaferis’ approval of 6 more sessions. Ms. Fenech testified that she wanted to wait until the ragweed allergy season ended and was hoping that by the end of October she could start sessions again. [122] Ms. Fenech was questioned about an accommodation meeting held on May 14, 2007. She agreed that since her return in October 2006, she had solely worked on her accommodation and had not performed any PA duties. Specifically it had been agreed that she would not use the CMS. Counsel pointed out that Dr. Tick had indicated in her report that Ms. Fenech could do two 30 minute sessions of hand-writing, one in the morning and one in the afternoon. Ms. Fenech agreed that at the meeting the employer asked her to perform a number of duties without using the CMS. One was to retrieve messages left, hand-write them to the best of her ability and pass on to the relevant person. Counsel suggested that she refused. Ms. Fenech disagreed. She stated that she told Ms. Tzaferis that it was not very practical to do that duty without using the CMS to identify who was leaving the message. When counsel stated that Ms. Tzaferis had - 63 - specifically directed her to do it to her best ability without using CMS and suggested that as manager she was entitled to give that direction. Ms. Fenech agreed, but added that Ms. Tzaferis made no issue of it once she explained why she did not want to do that duty without accessing CMS. Similarly, employer counsel put to Ms. Fenech that Ms. Tzaferis asked her to deliver mail to appropriate individuals and that she refused. Ms. Fenech replied that she refused because the usual procedure was to log into CMS. When counsel pointed out that Ms. Tzaferis did not direct her to log into CMS and had specifically said “don’t worry about logging in”. Ms. Fenech replied “She had no issue after I explained”. [123] Employer counsel continued to cross-examine Ms. Fenech to the effect that during that meeting Ms. Fenech had refused to perform several filing duties not involving the use of CMS, including filing material from working files to closed files, filing paper copies of summary advice, locking up confidential documents and updating of the community referral list. Ms. Fenech testified that at that meeting there was “a global discussion” of duties she may be able to do within her restrictions. She could not recall specific duties being discussed. She testified that in any event, her position at the meeting was that she would not take on any duties until her full accommodation was in place as per Dr. Tick’s report, and that “Mary was fine with that”. [124] Employer counsel reviewed with Ms. Fenech a letter provided to her by Ms. Tzaferis to be taken to Dr. Tick. It listed a number of duties which in the employer’s opinion were within Ms. Fenech’s restrictions. It also noted that this work will not be deadline driven and that Ms. Fenech could do this work at her own pace and take breaks as needed. Dr. Tick was asked for her opinion. Dr. Tick responded on May 28, 2007, indicating her agreement that several of the listed duties were appropriate. Other duties, she indicated, were not appropriate because she understood that those involved the use of CMS. On cross-examination, Ms. Fenech agreed that she had told Dr. Tick that those would require the use of CMS because of her view that, despite Ms. Tzaferis’ direction that she could do those duties to be best ability without using CMS, Ms. Fenech believed that it was not practical to do so. For example, on cross-examination, Ms. Fenech stated that one duty Ms. Tzaferis wanted her to do was “customarily done” by the Worker Advisor, and - 64 - therefore, there would be nothing for her to do. She felt that it made no sense for her to do that small duty. In relation to a duty involving making of telephone calls, she agreed that there was no restriction which prevented her from making the calls, but she would have to use the CMS to find the number to call. When reminded that she was told to do all of these duties to the best of her ability without using the CMS, and that she could have looked up the numbers in the telephone directory, Ms. Fenech replied, “possibly. If we had one”. [125] Ms. Fenech confirmed that when the employer wanted to bring in Ministry Ergonomist, Ms. Julie Frauts, she expressed her concern that Ms. Frauts may not have the expertise or the time for a complex case like hers. She wrote to a certified ergonomist she knew, Mr. Paul White, requesting that he recommend an ergonomist. She informed Mr. White that she had input into the selection of the ergonomist and would fight for the person she wanted, that she had filed numerous grievances, and that she wanted someone who is a “strong worker advocate”. On May 26th, Mr. White replied, suggesting that she try re- designing her work station along with voice recognition. For ergonomists, Mr. White recommended Ms. Anne Duffy, the Provincial Ergonomist, and if Ms. Duffy cannot do it, ergonomist Ms. Kathy Kawaja. Ms. Fenech agreed that the employer had requested her to inform if she was aware of a suitable ergonomist. The employer had provided her names of two ergonomists from an OPS service provider who the employer suggested were highly recommended, but were rejected by Ms. Fenech. Ms. Fenech replied that she rejected them because she had never heard of those two ergonomists. She agreed that she had also written to an ergonomist in British Columbia, Mr. Jeff Wright, asking for recommendations, and that Mr. Wright had highly recommended an ergonomist Mr. Michael Lapenny as having extensive experience in RSI. She explained that despite Mr. Lapenny’s vast experience she had concerns because he was not on the list of certified ergonomists and because he worked through the company owned by Mr. Wright who had recommended him. She testified that she was convinced that Ms. Kawaja was “the right person”. Ms. Fenech agreed that at a meeting on June 8, 2007, she was advised by Ms. Tzaferis that Ms. Kawaja would be hired and that as of June 19, a consulting contract to bring in Ms. Kawaja had been prepared. - 65 - [126] Counsel put to Ms. Fenech that on Friday April 13, 2007, when Mr. Halonen, and others arrived to review the re-designing of the reception area, she accused Ms. Tzaferis of discriminating and impoverishing her. She stated that she did not specifically address Ms. Tzaferis, but in conversing with Mr. Halonen stated that she had been discriminated against. When counsel suggested that Mr. Halonen attempted to defend Ms. Tzaferis stating that he would not tolerate a manager being treated in such disrespectful way, Ms. Fenech disagreed and said “he was attacking me”. She testified that she had her eyes glued to Mr. Halonen because “I thought he was going to physically hurt me”. She insisted that Mr. Halonen yelled and pounded his fists on the table. Counsel referred to Ms. Fenech’s testimony in chief that when she went to work on Monday she was scared and shaking, and suggested that the records show that she did not even work on Monday because she had switched days, she replied that whenever it was, when she went back to work she was scared and shaking. When counsel put to her, “You did not grieve or file a WDHP complaint about Mr. Halonen’s conduct”. Ms. Fenech replied, “No. After what happened with my last WDHP, why would I?” [127] Ms. Fenech agreed that when Ms. Kawaja requested a copy of the renovation drawings, Ms. Greene made efforts to comply as soon as possible. She further agreed that in this period three specialist consultants, Mr. Cantor, Ms. Singer and Ms. Kawaja, were working on her accommodation. She agreed that in carrying out the office renovation the employer had to consider a number of competing interests in addition to her own accommodation, including the needs of clients of the OWA, the accommodation needs of other OWA employees and the OWA’s operational needs. Ms. Fenech agreed she informed that she would not return to work until all renovation work is completed, all cleaning done and the air is clear. Ms. Fenech, while not at work was in constant contact with Ms. Kawaja, and expressed her preferences and concerns to her. She agreed that Ms. Kawaja attended meetings with the employer as her representative and communicated her preferences and concerns relating to the renovations and her work station. On October 19, 2007, Ms. Kawaja advised her that she had reviewed the final drawing and agreed with it and was ready to sign-off. Ms. Kawaja sought Ms. Fenech’s input and signed off once that was received. Ms. Fenech agreed that up to October 19th, - 66 - she was at home and getting paid, but had not seen a doctor about her continuing sickness due to exposure to fumes at the OWA on September 26th. [128] Under cross-examination, Ms. Fenech agreed that on November 21st she informed the employer that regardless of the findings in the T. Harris report, she would not be returning to the OWA office until she is assured that certain conditions are met. These included, all construction work must be completed and cleaning must be done to remove any trace of dust including the ventilation system. Ms. Fenech agreed that in the months of November and December she had still not seen a doctor, but commented that she was “working from home on my accommodation”. She agreed that she did not respond to an e-mail dated November 06, 2007 from Ms. Tzaferis inquiring whether she had seen a doctor since September 26th. [129] Ms. Fenech agreed that on December 02, 2007, Mr. Cantor informed her that the renovation appeared to be complete and stated that she should come in to the office for a few hours to test some voice commands he had developed, and that her union representative had also e-mailed her the same day to the same effect. Counsel asked Ms. Fenech why she still refused to return despite the urging of her employer, her trusted accommodation specialist and her union representative. Ms. Fenech replied that she refused because she knew that “they were still finishing up the hallways, some painting and other work was still being done. If there is any chance I’ll get sick, I wasn’t going in”. She agreed that Ms. Tzaferis did not force her to return and agreed that she could continue to remain at home. Upon being presented with documentary evidence, Ms. Fenech agreed that on December 17, 2007, Ms. Tzaferis and her union representative Mr. Brown had agreed that all renovations were complete, and agreed on January 4th, 2008 as the target for her return. [130] Ms. Fenech testified that she reported to work on Friday January 4th and then on Monday January 7th. She reiterated that on Friday she experienced headaches, sneezes etc. and had difficulty breathing walking up the stairs at the GO station. She attributed it to the dust which she said was “all over”. She stated that when she returned to work on Monday January 7th, it was much cleaner, but still some dust was there. Therefore, she - 67 - told her manager that she was going home, but stayed until it was time for her GO train to return home. During that period she developed a severe headache. Employer counsel asked whether Ms. Fenech was engaging in a work refusal. She replied that she was. When asked whether she saw a doctor about her health difficulties, she replied that a worker is entitled to refuse to work until assured that the workplace is safe and that medicals are not required to exercise that right. She agreed that Ms. Tzaferis provided her with a Health Information Form to be filled by a doctor, but stated that she decided to make an appointment with an Occupational Health Physician. She agreed that at the time she had seen an e-mail from Ms. Greene which listed all of the cleaning that had been completed following the renovation, but pointed out that Ms. Greene had not indicated that her request for “cleaning of the ventilation system including the ceilings” was done, and that Ms. Greene had only listed the window vents. Ms. Fenech agreed that in response to her refusal to attend at the OWA, the employer contacted the health and Safety Branch and arranged for an inspector who was an occupational hygienist, Mr. Tom Lee to investigate. Counsel suggested that despite the T. Harris Report and despite Mr. Lee’s report not finding any air quality issues, she still claimed that the workplace was unsafe and refused to return. Counsel pointed out that her union representative had signed Mr. Lee’s report and that Ms. Fenech had not challenged that report. Ms. Fenech’s response was “His report didn’t say that it was safe. He just described what management had done”, and commented that Ms. Tzaferis had in any event approved her to continue to stay at home until her appointment on February 27th with Dr. Roland Wong at OHCOW. [131] Ms. Fenech agreed that early in February 2008, Ms. Kawaja sent to her a digital picture of her work station she had designed in the newly renovated workplace and requested that she return to work to do the user trials and that she responded to the effect that she would only come for 2 hours, because the workplace was still not safe. She testified that while being careful about her health, she was trying to keep her “accommodation going”. Counsel referred to e-mails, which indicate that Ms. Kawaja asked Ms. Fenech to come in on February 19th for some testing, and Ms. Fenech replied asking “do I really have to be there”. Ms. Fenech replied that she responded in that manner because “that was a Tuesday and I don’t normally work Tuesdays and also I had another matter that day.” - 68 - When employer counsel suggested that she refused to perform the duty of making calls from home during work time for which she was paid, because she did not wish to tie up her home phone line, Ms. Fenech agreed and added “If the employer gave me a separate phone line at home I’d have gladly done it”. [132] Counsel referred to evidence that following Ms. Fenech’s appointment with Dr. Wong on February 27th, Ms. Tzaferis had scheduled a meeting by telephone with Ms. Fenech and Mr. Brown for March 3rd, which was then rescheduled for March 10th. Ms. Fenech agreed that the March 10th meeting was cancelled because she indicated that she would rather not have that meeting because her “throat was bothering her”. Employer counsel pointed out that on March 16, 2008 Ms. Tzaferis again requested for a medical and asked Ms. Fenech whether she agreed that as of March 16th she had still not provided a medical to support her absence from work. Ms. Fenech replied, “Yes. But she had my word”. [133] Counsel referred to a notice sent by Ms. Tzaferis to Ms. Fenech on March 28,, 2008, directing that she attend a staff meeting scheduled for April 11th or provide a medical if she could not attend. Ms. Fenech agreed that she responded by accusing Ms. Tzaferis that she was retaliating against her by requiring her to attend the staff meeting. Counsel pointed to Ms. Fenech’s e-mail in which she claimed that Ms. Tzaferis had not previously requested a medical. Counsel pointed to correspondence in evidence which lists all of the requests for medicals Ms. Tzaferis had made. Ms. Fenech replied that she must not have remembered that correspondence at the time, but added that the requests were not in the same formal language as the ones she normally received. She further pointed out that while Ms. Tzaferis had requested medicals she had not stated “who pays for the medicals”. Ms. Fenech again stated that the employer was in any event not entitled to a medical because her absence from work was not due to a medical restriction, but because the workplace was unsafe. She agreed however, that she asserted that she had not been requested for a medical, not that she did not have to. She agreed that as of April 9th, she had not provided any medical to substantiate a sickness. She agreed that one reason she refused to attend the staff meeting had to do with the timing of the staff meeting. She explained that due to the GO train schedule it was a problem for her to travel at that time. Ms. Fenech agreed that on May 16, 2008 she took the position that on her visit to the - 69 - OWA on April 24 she had noticed the smell of perfume and cologne and that she would not return to work until she is assured that the workplace is “scent free”. She explained that the scent concern was part of her issue with the safety of the quality of air, and took the position that the employer was not entitled to a medical to support her right to a scent free workplace either. Testimony of Ms. Tzaferis [134] Ms. Tzaferis testified that while Ms. Fenech was on contract as a part-time PA working Wednesdays, Thursdays and Fridays, significant additional hours became available due to the illness of Ms. Charles the full time PA. Ms. Fenech was offered these additional hours and she always accepted. She recalled a conversation where she reminded Ms. Fenech that while she was pleased to offer the additional hours to her, she was not a full- time employee and that she had no full-time position available. Ms. Tzaferis testified that Ms. Fenech got very angry and upset, and stated that Ms. Tzaferis was driving her to poverty, that she would have to return some dresses she had bought, and abruptly left the office. [135] Ms. Tzaferis testified that she received approval for a part-time permanent PA position effective October 2005. In September she informed Ms. Fenech that she would be posting this position to work Wednesday, Thursday and Friday and since her contract was expiring, suggested that she should apply. According to Ms. Tzaferis, Ms. Fenech became very angry and stated that there was no need to post, that she should “just give her the position”. Ms. Tzaferis testified that the work days for the posted position were deliberately specified as Wednesday, Thursday and Friday to allow the full-time PA to focus on her other duties on those days without telephone duties. She testified that following the posting, only Ms. Fenech was interviewed. She stated that Ms. Fenech interviewed very poorly. During the interview, she was visibly very angry about having to go through an interview. Following the interview the three panel members discussed whether to re-post, but finally Ms. Tzaferis decided to offer the position to Ms. Fenech hoping that she could develop a good working relationship. She called Ms. Fenech and made the offer and stated that she would back date the start date so that there would not - 70 - be a break in her continuous service date and ensure that Ms. Fenech would not lose any money. [136] Ms. Tzaferis testified that at a staff meeting in October 2005 she informed employees that November 16th would be the new CMS go-live date. Then Ms. Charles who was a user trial tester of the new CMS provided some information about the new CMS. She testified that Ms. Fenech expressed a concern that the new CMS “may require a lot more mousing”, and that she responded that she did not know, and suggested that Ms. Fenech talk to Ms. Charles. She answered “no”, when employer counsel asked whether Ms. Fenech made any request for accommodation in relation to the CMS, and added that she did not hear again from Ms. Fenech prior to November 16th. Ms. Tzaferis testified that when Ms. Fenech requested to change her work days to Monday, Wednesday, Friday, she approved it without waiting for a medical, because she wanted to accommodate Ms. Fenech. She testified that the full-time PA was very upset when she learned about the change in Ms. Fenech’s schedule because it impacted on her. [137] Ms. Tzaferis testified that until she left Mr. Cantor’s case study for her in February 2006, Ms. Fenech said nothing about her ability to do her work. When she saw Mr. Cantor’s study, she called Ms. Fenech, who informed her that Mr. Cantor may be able to help her with the new CMS. Ms. Tzaferis told Ms. Fenech that she would get back after talking to Mr. Halonen. Following consultations with Mr. Halonen, on Ms. Fenech’s next work day, Ms. Tzaferis advised Ms. Fenech to speak to Ms. Elizabeth Sharp, Coordinator of IT Management, because she had worked with Mr. Halonen on the new CMS. [138] Ms. Tzaferis explained that in the WSIB claim Ms. Fenech had requested for an ergonomist. She testified that she had used MOL ergonomists for accommodation purposes in the past and found them very helpful. She spoke to Ms. Monica Harding, HR Health & Wellness Consultant, and they agreed that a MOL ergonomist should be brought in before considering an outside ergonomist. [139] In early March 2006, Ms. Fenech requested for more hours. Ms. Tzaferis expressed concern because the medical documentation stated that she was to work Mondays, - 71 - Wednesdays and Fridays and needed a day of rest between work days. At a meeting on March 8th, however, Ms. Tzaferis agreed that starting the following week Ms. Fenech would work 4 days and then increase to 5 days a week effective march 13th. Ms. Tzaferis, however, made it clear that she still needed a medical that Ms. Fenech could increase her hours. Ms. Tzaferis testified that she had Ms. Christine Fulton attend an accommodation meeting on March 21, 2006 with Ms. Fenech and Mr. Brown, so she could explain to them the tendering process required to hire Mr. Cantor. When Ms. Fenech arrived, Ms. Fulton was in the room. According to Ms. Tzaferis, as soon as she saw Ms. Fulton, Ms. Fenech “pointed at her and asked “who is she, why is she here, who invited her, why wasn’t I told someone from HR will be here”. She was very angry”. Ms. Fulton introduced herself and said that she was there to go through the tendering process required to hire Mr. Cantor. She explained that since Mr. Cantor was not a Vendor of Record, the employer had to get three quotations. She also explained that in order to hire him, the employer also needed a medical to indicate that this accommodation was required. She noted that the only medical on file was about the need to work Mondays, Wednesdays and Fridays, and pointed out that Ms. Fenech was now working five days a week contrary to that medical. Ms. Tzaferis testified that on March 31st she reminded Ms. Fenech that she had still not provided a medical that she could work five days a week. [140] Ms. Tzaferis testified that commencing May 11, 2006, Ms. Fenech was off sick on the basis of Dr. Tick’s two-week “prescription pad medical notes”. At this time a decision was made to post a 4 month full-time PA position because of Ms. Charles’ absence. Ms. Fenech indicated her interest in the position and asked that the resume on file be considered as her application. Ms. Tzaferis testified that on May 31st, she called Ms. Fenech at home and explained the interview process. She described Ms. Fenech’s response as follows. “She was very angry. Accused me of discrimination. Said I was causing her stress. She said I was not being fair, that I should just give her the job. That if I don’t do that she would be filing a grievance. She accused me of injuring her. That I ruined her. She cannot sleep at night, cannot afford her treatment. I should just give her the job. She accused me of being a poor manager. She said she wants this to go to arbitration and have an arbitrator decide how the OWA treats an injured worker”. The - 72 - same day she sent to Ms. Fenech by Purolator for overnight delivery a letter dated May 31, 2006. On May 31st she had informed Ms. Fenech that she would be sending by courier a letter to be taken to Dr. Tick. On June 1st, Ms. Tzaferis attended “Injured Workers Day” at Queen’s Park. Ms. Fenech was also there. She mentioned that she sent the letter “yesterday” by Purolator, that it would have been delivered that morning. Ms. Fenech told Ms. Tzaferis that she should have known that she would not be home to sign for it and should not have sent it by courier. On June 7th, Ms. Tzaferis received a facsimile from Ms. Fenech advising that she had “not yet received” the Purolator letter and requesting that it be re-sent by regular mail or by courier without the signature option. Ms. Tzaferis re-sent it as requested. [141] Ms. Tzaferis testified that because the information in the form was unsatisfactory on June 23rd she prepared a letter to Dr. Tick setting out 8 specific questions for her to answer. Ms. Tzaferis was aware that Ms. Fenech had an appointment with Dr. Tick on Monday June 26th. Thus on Friday June 23, she called Ms. Fenech and told her that she had prepared a detailed letter for her to take to Dr. Tick on Monday and suggested that she meet Ms. Fenech at University and Queen and hand it over. Ms. Fenech responded “that’s ok”. On Monday Ms. Tzaferis stood at the agreed upon corner of University and Queen. She observed that Ms. Fenech was “upset and angry” as she walked up to her. According to Ms. Tzaferis, Ms. Fenech told her that she was just trying to save postage and that in future she should just mail anything she wanted to send. Ms. Tzaferis testified that she offered to hand deliver because she wanted to expedite and ensure that Ms. Fenech would be able to take the letter to Dr. Tick that day and thought she was being helpful. [142] When Ms. Tzaferis had not received a response, on July 13th she called Dr. Tick’s office to remind. On July 18th the report was received. Ms. Tzaferis testified that Dr. Tick’s report did not address the 8 specific questions. Dr. Tick had stated what accommodations are required for Ms. Fenech, but did not specify what her restrictions were. She testified that as of July 18th, she had put the competition for the full-time PA position on hold in order to allow Ms. Fenech to participate. Ms. Tzaferis prepared a further letter to Dr. Tick including 7 of the 8 questions she had posed earlier and requesting a response no - 73 - later than August 1, 2006. Ms. Tzaferis also decided that the competition for the PA position could not be further postponed because she had been using temporary employees for a long time hoping that Ms. Fenech would be ready to participate in the competition. Since Dr. Tick had directed that Ms. Fenech could not participate until all accommodations were in place, she decided to proceed with it. Therefore, she wrote to Ms. Fenech informing her of her decision in that regard and also informing that effective August 8, 2006, she would be returning to her home position as a permanent 3 days a week part-time PA. Ms. Tzaferis testified that this was a result of the hiring of a full-time PA for 4 months pursuant to the posting. [143] On October 10, 2006, there was a stage 2 grievance meeting. Ms. Tzaferis testified that at this time she had not received a response form Dr. Tick to her July letter. Mr. Brown presented her a letter at this meeting and asked whether she had seen it. She was shocked to see it was a letter from Dr. Tick dated August 29, 2006. The employer representatives caucused and reviewed it, returned to the meeting and informed Mr. Brown and Ms. Fenech that the employer had never seen it before. She informed Mr. Brown that this was the information on Ms. Fenech’s restrictions she had been waiting for so long, and suggested that Ms. Fenech could return to work the next day October 11th. Ms. Fenech responded that she needed some time before returning and stated that she could start on October 16th. Ms. Tzaferis agreed. [144] On Ms. Fenech’s first day back October 16, 2006, a meeting was held to discuss Ms. Fenech’s gradual return. Ms. Tzaferis, Ms. Trower, Mr. Brown and Ms. Fenech attended. According to Ms. Tzaferis shortly after the discussion on the proposed plan began, Ms. Fenech angrily stated that any hours she was not working have to go as sick time. Then “she looked at me, pointed her finger at me and said I want that woman removed as my manager”. Ms. Tzaferis testified that Ms. Fenech went on accusing her of discrimination. Mr. Brown attempted to bring the discussion back to the gradual return plan, but Ms. Fenech was hostile and very uncooperative. [145] Ms. Tzaferis testified that the advice she received from Human Resources was to the effect that despite Ms. Fenech’s position, there was no obligation for her to remove - 74 - herself as Ms. Fenech’s manager. However, following discussions with Ms. Trower, Ms. Tzaferis decided that in order to facilitate Ms. Fenech’s accommodation moving forward, it would be appropriate to remove herself from managing Ms. Fenech’s accommodation except for approvals, while remaining as manager for other purposes. She briefed the Director on this matter and obtained Ms. Trower’s agreement to deal with Ms. Fenech’s accommodation. [146] Ms. Tzaferis testified that during an accommodation meeting on March 07, 2007, she referred to the fact that Ms. Singer had concluded that Ms. Fenech was not a good candidate for voice recognition software and that it could damage her voice. However, Ms. Fenech continued to be interested in it. Therefore, during the meeting Ms. Singer was brought in on a conference call. According to Ms. Tzaferis when Ms. Singer reiterated that Ms. Fenech was not a good candidate for voice recognition software, Ms. Fenech explained that voice recognition was not going to be her primary method, and would be one of three modes she would be using. On that basis, Ms. Singer stated that she would need 10 sessions, that she would do 6 sessions and issue a report with recommendations about further sessions. Ms. Tzaferis testified that she approved that immediately. Ms. Tzaferis testified that at this meeting a draft return to work plan prepared by union representative Mr. Brown was reviewed. It included a list of PA duties which could be done by Ms. Fenech without using CMS. One duty involved hand- writing voice-messages left overnight to be delivered to the intended recipients. Ms. Fenech said that she “did not want to do that”. Then she was told that when the mail arrives, she could separate them into three groups, (the OWA Toronto unit, Ms. Trower’s unit and the director’s office) to be delivered to the respective areas. According to Ms. Tzaferis, Ms. Fenech stated that “she did not think she could do that”. Ms. Tzaferis testified that when she proceeded to the next duty on the list, Ms. Fenech “advised that she will not do any tasks until her accommodation was fully in place, that until then she just wants to work on her accommodation”. [147] Ms. Tzaferis testified that when Ms. Fenech returned to the office after her very first session with Ms. Singer, she wanted to be paid for the two subway tokens she had to buy to go to Ms. Singer’s office. When Ms. Tzaferis replied that she could put in an expense - 75 - claim Ms. Fenech said that she could not afford to wait for reimbursement and wanted it paid from petty cash. Ms. Tzaferis replied that there was no petty cash in the office, and asked how much she needed, that she could make a personal loan. Ms. Fenech said $25.00, and when Ms. Tzaferis gave her $25.00, Ms. Fenech commented that Ms. Tzaferis had put her in a position where she could not even afford public transit. [148] Ms. Tzaferis testified that Mr. Halonen had directed that both PAs should be at the front reception. With the present set up, there was no room for a second PA at the front because of all of Ms. Fenech’s equipment. Moreover, Ms. Fenech did not want anyone sitting at her work station even when she was not at work. Therefore, there was a need to re-do the reception area as part of the overall renovations to allow for two PA work stations. In order to decide if and how that could be done, on April 13, 2007, Ms. Tzaferis, Mr. Halonen, Ms. Drinkwater, Ms. Robitaille (the other PA) and Mr. Vlad Radivojcevic, went to view the reception area. Ms. Fenech was at her work station. Ms. Tzaferis testified, “Catherine was very upset. She felt that it was not appropriate for all those people to attend, that we should be discussing only her accommodation and needs, that this is another delaying tactic. She accused the OWA, and myself specifically, of not accommodating her. Mr. Halonen turned around and responded that that was inappropriate. He asked “How could you say that after everything the OWA and Mary has been trying to do? Don’t you get in to your head that we are trying to do this from the heart.” When asked how Mr. Halonen’s voice and demeanor were, Ms. Tzaferis replied “I think he was surprised and shocked by Catherine’s comments. He was upset”. [149] Ms. Tzaferis testified that once Ms. Fenech went off work claiming exposure to unsafe indoor air, at every meeting she asked for a medical to substantiate her absence. She stated that Mr. Brown was present when she made those requests. As of December 5, 2007, no such medical was provided, nor any restrictions indicated about sensitivity to dust. According to Ms. Tzaferis it was Mr. Brown who emailed her, observing that since all construction was complete, he and Ms. Fenech had agreed that Ms. Fenech should return to work on January 4, 2008. Ms. Tzaferis stated that on January 4th, a desk which had been removed from the reception area due to renovations had been placed back. She agreed that there was “a little bit of dust” in the area. She testified that Ms. Fenech - 76 - reported to work and did “emails” and made no complaint about the desk. Later she sent a letter stating that there was dust and setting out what specific cleaning she wanted done in her work area. Ms. Tzaferis testified that the same day she discussed the issue with building maintenance, and directed them to perform the cleaning Ms. Fenech had wanted. That night the cleaning was carried out. [150] Ms. Fenech attended work on January 7th. On January 9th, however, she left a message for Ms. Tzaferis to the effect that on January 7th she got headaches etc. and that she would not be coming in to work until she was satisfied that it is safe for her to do so. Ms. Tzaferis discussed with Mr. Halonen and the HR department whether this was a work refusal. It was decided that an inspector from the Ministry should be called in. Ms. Tzaferis testified that on January 4th the whole area was thoroughly cleaned and there was no dust on January 7th, and all other staff were working. The inspector/occupational hygienist from MOL, Mr. Tom Lee agreed to come on January 18th. However, when Ms. Fenech was contacted, she advised that she preferred to be home that day because some repairs to her home were to be done. Therefore, the inspection was scheduled for Mr. Lee’s next available date, January 25th. Ms. Tzaferis testified that on January 25, at the end of his testing she specifically asked Mr. Lee in the presence of Mr. Brown whether there was any contravention with regard to air quality and that he said “no”. Nor were any orders issued in that regard. [151] Ms. Tzaferis testified that Ms. Fenech had indicated that she had an appointment with the OHCOW specialist, Dr. Roland Wong on February 27, 2008, and that she would have the Health Information Form Ms. Tzaferis had provided in December filled by Dr. Wong at that time. In early February Ms. Fenech sent an e-mail, again accusing Ms. Tzaferis of discrimination, and at the same time requesting that she be allowed to work at home until her appointment on February 27th. Ms. Tzaferis testified that she approved the request despite the accusations contained in the e-mail. But Ms. Fenech did not return to work following her appointment. She requested that she be allowed to continue working at home, taking the position that her concerns about air quality had not been fully addressed and that she had no proper desk. Ms. Tzaferis agreed that Ms. Fenech may continue working at home until Ms. Kawaja reports on the status of the new work station. Ms. - 77 - Tzaferis pointed out to Ms. Fenech, that now it was March 17th and that the Health Information Form provided to her in December had not yet been returned, and requested that Dr. Roland Wong be asked to submit an interim report as soon as possible providing the information sought in that form. According to Ms. Tzaferis, Ms. Fenech responded that that would not happen because OHCOW had a huge patient load and a staff shortage, and that in any event Dr. Wong would not have anything to report until he does a site visit. [152] A notice was issued to all staff on March 28, 2008, of a planning meeting. Ms. Tzaferis informed Ms. Fenech that since there still was no medical to support her absence, she had to attend the planning meeting in person or provide a medical. Ms. Fenech responded alleging that this was retaliation because Ms. Fenech had testified at the GSB hearing. Ms. Fenech also asserted that she had no restrictions for Dr. Wong to address, that she was absent from work only because the workplace was unsafe, and that she will not attend the meeting. Ms. Tzaferis pointed out that in the same e-mail Ms. Fenech had stated that given the time of day when the staff meeting had been scheduled, it was inconvenient for her to travel due to the GO train schedule. Referring to attendance records, Ms. Tzaferis testified that although Ms. Fenech had cancelled scheduled meetings claiming sickness and had refused to attend the staff meeting, she did not dock her pay for any of that. Her attendance for March 2008 was recorded as “full attendance”. [153] Ms. Tzaferis testified that as of April the air quality in the OWA was good and none of the reports to date had indicated otherwise. However, since Ms. Fenech was still concerned, in order to accommodate her, Ms. Greene had the office thoroughly cleaned again on April 23, 2008. According to Ms. Tzaferis, at an accommodation meeting on May 16, 2008 Ms. Fenech provided a report from Dr. Roland Wong. She testified that after repeated cleaning of the office had been carried out to address Ms. Fenech’s dust issues following the completion of renovations, on May 9th Ms. Fenech raised her concern about the smell of perfume in the workplace. Dr. Wong’s report recommended that Ms. Fenech should avoid exposure to dust and strong smells, and specifically mentioned perfume. Ms. Tzaferis’ testimony about the steps taken to address the scent - 78 - issue was substantially consistent with that of Ms. Fenech. Ms. Fenech had initially stated that the strong smell of perfume she felt was coming from a male employee. However, when Ms. Fenech came to the OWA on May 30 for an accommodation meeting, she left at 3:00 p.m. claiming that her throat was irritating because of a smell of scent. As a result the accommodation meeting did not take place. On this occasion Ms. Fenech identified two female employees as the source of the smell of scent. Ms. Tzaferis testified that she spoke to those employees and they denied that they were wearing perfume. Ms. Tzaferis was advised by Ms. Sharpe that she could not detect any odour of scent in the vicinity. Ms. Tzaferis testified that Ms. Fenech mentioned symptoms resulting from the alleged exposure to scents, but did not see a doctor or provide any medical. [154] The employer filed in evidence a summary sheet setting out expenditures it incurred in relation to Ms. Fenech’s accommodation from 2006 to June 2008. The total expenditure was $117,146.44. Ms. Tzaferis testified that this total included consultant fees, equipment purchases for Ms. Fenech and wages paid to temporary employees who came in three days a week due to Ms. Fenech’s absence, but did not include the wages paid to Ms. Fenech while at home for significant periods working solely on her accommodation. [155] In cross-examination, Ms. Tzaferis conceded that at the staff meeting in October 2005, Ms. Fenech raised a concern that the new CMS may involve a lot more mousing, and that she did not subsequently follow up with Ms. Fenech. She explained that as soon as she made a request for a touch pad and document holder, and then to alter her schedule, those were promptly approved, and saw no need to do anything more since all accommodation requests Ms. Fenech had made were approved promptly without medical substantiation. [156] Ms. Tzaferis testified that she informed Ms. Fenech of the posting for the FAA position, and as she did with all employees, encouraged her to apply. She agreed that the FAA position required less mousing than the PA position, but pointed out that at this time there was a medical restriction in place that Ms. Fenech needs to rest in between work days and the FAA position was full-time. It was also a position with a higher classification and wage rate than PA. When asked why she did not call in an ergonomist at this time, Ms. - 79 - Tzaferis replied that she saw no need since the only accommodation requests Ms. Fenech had made had been promptly provided. [157] Union counsel pointed out that Ms. Frauts, the MOL ergonomist had in her report made three recommendations, a foot pedal, a shorter key board, and rotation from task to task, and suggested that the rotation was not offered to Ms. Fenech. Ms. Tzaferis replied that Ms. Fenech’s job by its very nature involved many tasks and that it was not necessary to specifically offer it. When counsel suggested that she had done nothing about the mousing concern Ms. Fenech had raised, Ms. Tzaferis replied that Dr. Tick had only recommended “reduce mousing” temporarily and that the solution Dr. Tick suggested was to allow a day of rest in between work days. This had already been done. She testified that there was no medical provided that Ms. Fenech was to eliminate all mousing, and that Ms. Fenech continued to do some mousing accordingly until April 27, 2006 when she informed that she would not use the CMS any longer, and that at that time everyone agreed that Ms. Fenech would discontinue using the CMS altogether. Ms. Tzaferis testified that she needed Dr. Tick’s response to the eight specific questions, particularly what she meant by “reduce mousing”, whether it meant an hour a day or only a few minutes at a time. The questions were asked on June 23rd, and Dr. Tick’s response was received by the employer only in October 2006, when the doctor’s response dated August 29th was provided at a grievance meeting. Asked why she did not call Ms. Fenech to find out why Dr. Tick’s response is delayed, Ms. Tzaferis replied that Ms. Fenech had told her that she did not want her called at home, that it is discrimination to do so. Testimony of Mr. Halonen [158] Mr. Halonen, the OWA Director, testified that his recollection of Ms. Fenech’s first mention of a concern about the new CMS occurred in the fall of 2005 in a bar at the CAW Training Centre in Port Elgin. He said, “We were talking informally and she mentioned some concern about mousing. I’d had a few beers. I didn’t pay much attention to her concerns. I thought she was concerned about us introducing the new system. That we should keep the old system. And she may have said that she had a disability, that typing and mousing can be difficult for her. I said I have two - 80 - accommodated employees who are able to type at least with voice recognition software. I may have told her to see if you can get that.” Mr. Halonen could not recall Ms. Fenech’s exact words, but his understanding was that Ms. Fenech wanted him to keep the old CMS system. [159] According to Mr. Cantor, he had little involvement with Mr. Cantor, except for signing his contracts. When Mr. Cantor approached him about making certain changes he wanted to the CMS, he directed him to the IT programmers. Later Mr. Cantor had advised him that the programmers were very helpful and were able to do most of what he wanted. They could not, however, build macros to allow navigation from field to field using voice recognition. Mr. Halonen presented a rationale he presented to the OWA chief administrative office seeking an exemption from the “three bid rule”. He testified that he was impressed with Mr. Cantor’s work and was confident that his work would benefit not only Ms. Fenech, but other accommodated employees, those with various disabilities and even bad typists. The Chief Administrative Officer suggested that the rule could be circumvented if Mr. Cantor could work as an agent of a vendor of record, and that was done. [160] Mr. Halonen testified that as part of the office renovations, it was decided that the reception area had to be configured. He stated that the status quo did not work. The desk was a T shape. As Ms. Fenech acquired equipment there was no room for two PAs to sit there. As a result Ms. Tzaferis had relocated the other PA to the back of the office, and files, computers, monitors and other equipment had to be carried back and forth. Because he had a construction background, he got involved in the renovation initiative. He invited two staff from facilities to join him and other managers to look at the reception area and figure out how it could be set up to allow both PAs to sit there. At the time he had commenced fact-finding in relation to Ms. Fenech’s WDHP complaint against Ms. Tzaferis. Mr. Halonen stated that Ms. Fenech was seated at reception and described what occurred as follows: “I was talking to Vlad when she (Ms. Fenech) started to tell me that she was suspicious, that Mary had impoverished her and discriminated against her and that she had not been accommodated I raised my voice and said we had done everything we can and pushed it along. I was very frustrated, I said I can’t believe you are saying - 81 - this. Then Daphne Greene came out and said “Hey guys just relax”. I walked away and Daphne stayed with Vlad and Ms. Fenech”. Asked why he raised his voice, Mr. Halonen replied that he was very frustrated. He said “I felt we had tried very hard and all I get is an attack on her manager and how we are not doing enough”. [161] Mr. Halonen testified that when Ms. Fenech’s WDHP complaint came to his attention he reviewed the WDHP policy. As per policy, he removed Ms. Tzaferis from dealing with Ms. Fenech’s accommodation and replaced her with Ms. Trower. The policy also stated that an external investigator should be engaged, if it cannot be done internally. When he consulted the Human Resources Dept. and asked whether “I am the right person to do it, they said yes you are the Director. It’s your job”. [162] Under cross-examination, Mr. Halonen agreed that the management team of the OWA Toronto Office comprised of himself, Ms. Tzaferis, Ms. Greene and Ms. Trower, that the team members worked closely and had management meetings bi-monthly. He confirmed that Ms. Tzaferis reported to her and regularly consulted him on an informal basis. [163] Counsel suggested to Mr. Halonen that because at the CAW training centre Ms. Fenech raised her concern only informally, he choose to ignore it. Mr. Halonen replied, “the trouble was, she thought we should stop the CMS process and start over again. We already had an implementation date set. So I told her that we had spent at least $ 300,000 already and that if problems arise, we will fix them as we go along. The gist of what she told me was she wanted to stop the implementation”. Asked whether he asked Ms. Fenech to follow up with him or anyone else in a more formal way, Mr. Halonen replied that he did not recall, and stated that Ms. Fenech would have been aware of a process set up to bring up any concerns staff had about the new CMS. Through that process staff had raised 100’s of bug reports and that this conversation at the CAW occurred just “moments before implementation”. He said that he saw it as just a conversation where she expressed her opinion that “the whole thing should be stopped”. He did not see it as a request for her personal accommodation. - 82 - [164] Counsel referred to the WDHP policy which sets a 30 day standard for commencing an investigation into a complaint and asked Mr. Halonen to explain why his fact-finding was delayed until February 2007, when Ms. Fenech had made a verbal WDHP in October 2006. Mr. Halonen conceded that there was a “lapse” and stated that he did not know whose fault it was. He stated that he acted as soon as it became his responsibility. He agreed that under the policy a WDHP complaint need not be in writing and that a verbal complaint is acceptable. He conceded that he had no expertise on WDHP issues and had not done an investigation previously. He testified that the Human Resources Dept. was encouraging managers to undertake WDHP investigations themselves whenever possible in order to develop experience. The advice he received was that if he was not “directly involved” he could do it. He agreed that Ms. Tzaferis had consulted with him throughout relating to Ms. Fenech’s accommodation, but mostly about how to expeditiously acquire equipment needed. He felt that he was only peripherally involved with the dealings between Ms. Tzaferis and Ms. Fenech on accommodation issues and that, therefore, felt it was not inappropriate for him to undertake the fact-finding. He agreed that he did not ask Ms. Fenech or the union whether they had any objection. [165] Mr. Halonen testified that he was under the assumption at the time that Ms. Tzaferis was doing the accommodation right. He agreed that even if he was only peripherally involved, he had the discretion to hire an external investigator, but chose to do it himself. He agreed that the policy states that an individual should not undertake an investigation if there could be a perceived conflict of interest. When counsel pointed out that he was a member of the management team with Ms. Tzaferis, and had some involvement in Ms. Fenech’s accommodation issues, and asked whether he still did not think he should have excused himself, Mr. Halonen replied, “In retrospect I should have. But I just wanted to make a fair finding and find a resolution. And no concern was raised by Ms. Fenech, the union or HR”. Confronted with e-mails, he agreed that even while he was doing the investigation, Ms. Trower and Ms. Greene were communicating with him about issues relating to Ms. Fenech’s accommodation like equipment needed. He agreed that he “probably shouldn’t have” done that, but added that the issues he discussed had nothing to do with the issues raised in the WDHP complaint. Counsel referred to a recommendation in Mr. Halonen’s investigation report and suggested that Mr. Halonen - 83 - was in effect saying that Ms. Fenech should find another job. Mr. Halonen replied that he was trying to be helpful, to see that Ms. Fenech could be employed within her restrictions, because in his view “it is almost impossible to be a PA and get away from mousing and some of the other duties she couldn’t do”. [166] Mr. Halonen was asked to confirm that it was his idea that Ms. Fenech should declare a conflict of interest about her participation in the RSI day event on February 28, 2007. His response was “It is Ministry policy”. He stated that he was not aware at the time that Ms. Fenech had founded the event in 2000 or that she had participated in the event in prior years without being asked to declare a conflict. Mr. Halonen agreed that he was present for about half of the 2008 RSI day event, and sat in front and took notes, including while Ms. Fenech was speaking. He agreed that on February 21st, 2008 he had interviewed Ms. Fenech as part of his WDHP fact finding, that the RSI day was on February 28th and that his investigating report was issued on March 7th. Mr. Halonen further agreed that he had never attended a RSI day event previously, but had attended the event twice since. Counsel suggested that in the middle of his WDHP investigation, he attended this event “to intimidate Ms. Fenech and make sure she did not say anything about the OWA”. Mr. Halonen disagreed and stated that he attended as Director pursuant to a poster received by the OWA that invited people to attend. When counsel asked whether he did not see any problem with his attending and taking notes in the middle of his WDHP investigation, he replied that he did not, because this was a public event on injured worker issues, and had nothing to do with the OWA or Ms. Tzaferis. Counsel suggested to Mr. Halonen that the conflict policy is only concerned about using OPS employment for personal gain or to do favours. He disagreed, and stated that under the policy it is inappropriate for a public servant to comment on legislation, or to criticize a ministry or a minister at a public function. When counsel pointed out that Ms. Fenech had testified that she had no intention of doing any of that, Mr. Halonen replied that if there is any chance that it can happen, a declaration must be made. He agreed that he did not inquire from Ms. Fenech whether she was planning to criticize the OWA before requiring her to declare a conflict. - 84 - [167] Referring to the incident at the reception area on April 13, 2007, counsel suggested that he was yelling. Mr. Halonen replied, “absolutely not”. He stated that he could not recall pointing his finger at Ms. Fenech and that that was not his style. He “absolutely” denied that he pounded his fists on the table and added “I think I patted on my own chest because my chest was tightening up”. Asked why he did not pull Ms. Fenech aside, and speak to her if he felt she was acting inappropriately, Mr. Halonen replied that Ms. Fenech was still accusing Ms. Tzaferis of discriminating and impoverishing her in front of everyone, when they were there only to look at the space and when he had concluded in his report to the contrary. He agreed with counsel that Ms. Fenech could have perceived his raised voice and demeanor intimidating and threatening but added that he was a passionate person, and that it certainly was not his intention to intimidate or threaten Ms. Fenech. He testified that he did not recall apologizing to Ms. Fenech for his conduct. Testimony of Ms. Trower [168] Ms. Cindy Trower testified that Ms. Fenech and Mr. Brown approached her and wanted her to be involved in Ms. Fenech’s accommodation because she was having some issues with Ms. Tzaferis. Ms. Trower was not interested because she had her own job to do. However, when they met her a second time they informed that Ms. Fenech felt harassed by Ms. Tzaferis and requested that she take over the accommodation. When Mr. Halonen was consulted about this request, he disagreed. However, after further discussion it was decided that Ms. Trower would take over her accommodation, but Ms. Tzaferis would still be her manager. Ms. Trower testified that at the time her understanding was that at the time Ms. Fenech felt Ms. Tzaferis was harassing and discriminating against her, but had not filed a WDHP complaint formally yet, and would not be going that route if Ms. Trower took over the accommodation. [169] Ms. Trower testified that Ms. Fenech’s accommodation required an unusually high number of meetings because “so many people” were involved. She said that after meeting with Ms. Fenech and/or Mr. Brown she had to follow up with whoever she needed to, including Mr. Halonen and Ms. Tzaferis. If she needed approval for purchases - 85 - or anything else she had to go to Ms. Tzaferis. She testified that Ms. Tzaferis’ position always was, “Just move it along, I’ll approve whatever I can”. [170] Ms. Trower testified that at most meetings she had with Ms. Fenech, she was accompanied by Mr. Brown. She testified that meetings with Ms. Fenech were very tense. She recalled a meeting on November 15, 2006, when Ms. Fenech was particularly angry and upset and alleged that the OWA had impoverished her so much that she could not even afford to buy TTC tokens. This caused Ms. Trower to buy some TTC tokens for Ms. Fenech out of her own money. She did that in order to move things along rather than let that become an issue. [171] Ms. Trower testified that the idea of transitioning of Ms. Fenech’s accommodation back to Ms. Tzaferis was initiated by her. She realized that since she got involved in October 2006, she had spent a significant amount of her work time on that. Yet her role as a middle person did not help to expedite Ms. Fenech’s return to work. Ms. Fenech was not helping to move things along, and kept raising “small things”. She concluded that Ms. Fenech would not be satisfied no matter who or how many people were involved. Therefore she advised that she did not want to continue indefinitely. Referring to documentary evidence dated December 20, 2008, Ms. Trower testified that she advised Ms. Fenech that her perception that the OWA was discriminating and impoverishing her did not accord with the reality, which was that everyone was trying to accommodate her as best and as quickly as possible. She acknowledged Ms. Fenech’s anger and feelings, but suggested that she seek help for her emotional state. [172] Ms. Trower was asked why a letter was sent to Ms. Fenech requiring her to make a declaration of conflict in relation to the RSI day. She replied, “It came to our attention that she was speaking on a panel. It occurred to us that she was very upset with the OWA and may make negative comments about the OWA. Some felt this should go out. She was not there on behalf of the OWA. So to let her know that it will put her in conflict. I believe by now formal WDHP complaint had come in and Jorma was fact-finding”. Ms. Trower testified that under the policy, public servants cannot put themselves in conflict, and if not sure, they can make a declaration and get a ruling. Ms. Trower said that she - 86 - was aware that Ms. Fenech had participated in the RSI day event in previous years, but was not aware whether she had been asked to make a declaration on those occasions. [173] In cross-examination, Ms. Trower testified that from October 2006 to March 2007, she was involved in Ms. Fenech’s accommodation, while Ms. Tzaferis was still responsible for approval of accommodation expenses. When union counsel suggested that Ms. Tzaferis was more involved than merely signing for expenses, she replied “she was involved for sure, but I was doing the return to work and moving this along by getting various people to do what was needed. Mary did the approvals and might have asked Ms. Drinkwater for documents such as medical documents and doing what was needed. I did not become Ms. Fenech’s manager. It was only for accommodation purposes”. She explained by way of example that if following a return to work meeting, there was a need for Ms. Fenech to be paid for medical appointments or she had wanted to work from home, approval from Ms. Tzaferis was required. When asked to comment on her testimony in chief, Ms. Trower testified that while her broad goal in accommodating Ms. Fenech was to figure out how best to bring her back to work within her limitations, Ms. Fenech “was lost in trying to find small things that would make the accommodation not work”. She agreed that she addressed these “small things”, but explained that she did that only in order to move forward with the accommodation because the small things seemed important to Ms. Fenech. [174] Union counsel, suggested that on October 16, 2006 Ms. Fenech stated that she was filing a complaint under the WDHP. Ms. Trower agreed that a complaint could be verbal, but testified that she understood that Ms. Fenech was stating that a formal WDHP complaint would be filed if her accommodation is not moved along. She pointed to the e-mail on February 02, 2007 from union representative Mr. Brown making a written complaint, in which he states that on October 16th, a complaint was “not pursued”, as consistent with her own understanding. [175] About the RSI Day 2007, Ms. Trower confirmed that at the time she was aware that Ms. Fenech had founded that event, that she had attended the event in past years, and that she did that as an OPSEU member and not on behalf of the OWA. Asked whether she made - 87 - inquiry, before the letter requiring Ms. Fenech to declare a conflict was sent, whether she had been so required in past years, she replied that she did not. She testified that whether Ms. Fenech was required to make a declaration in the past was irrelevant because in 2007 there were reasons for doing so. Counsel pointed out that the conflict form Ms. Fenech was asked to complete included a number of questions including using government resources, personal gain etc., but absolutely nothing about making negative comments about the employer. Ms. Trower agreed, but added “But we saw it as a conflict”. She also stated that there was also a policy “Guidelines for Professional Conduct”, but did not know whether it addressed the issue of public servants making negative comments about the employer. Testimony of Ms. Greene [176] Ms. Daphne Greene, at the relevant time Manager of Planning, Finance & Electronic Service Delivery with the OWA, testified that she first met Ms. Fenech when she sat on the interview panel for the part-time PA position as the OWA Toronto office, along with Ms. Christine Fulton from Human Resources and Ms. Tzaferis in the spring of 2006. At that interview, according to Ms. Greene, Ms. Fenech displayed “a clear antagonism” towards Ms. Tzaferis. Although she could not recall the exact words Ms. Fenech used, she testified that when questions were asked by Ms. Harding or herself, Ms. Fenech responded in a clear and articulate manner. However, Ms. Fenech avoided looking at Ms. Tzaferis when she was posing her questions. Instead of responding to Ms. Tzaferis’ questions, Ms. Fenech responded with comments like, “Mary, you know I know that, why are you asking me that”. She testified that when the panel met following the interviews all three panel members expressed concern about the antagonism Ms. Fenech had displayed towards Ms. Tzaferis. However, they agreed that Ms. Fenech may have been frustrated as a result of being on contract waiting for a vacancy, that she had the skills required, and that the “benefit of the doubt” should be given to her. Ms. Greene suggested that Ms. Tzaferis “extend an olive branch” to Ms. Fenech by recording the period of break in employment as an unpaid leave of absence, which would ensure that there would not be an interruption in Ms. Fenech’s continuous service. She believed that Ms. Tzaferis did that. - 88 - [177] Testifying about the FAA competition, Ms. Greene stated that Ms. Fenech’s written assignment was very good. But her interview disclosed that she lacked the required knowledge on “OPS Finance”. The successful applicant had that knowledge, had worked at the OWA previously, was working in payroll at the Ministry of Government Services and had some 25-26 years seniority. Ms. Greene testified that the competition for FAA consisted of an interview, an exercise involving the preparation of a response to a contentious issue and a role play designed to assess the applicants’ ability to understand the issue in context. Ms. Greene testified that during the interview Ms. Fenech displayed the same “annoyance” as at the part-time PA interview, making comments such as “why are you asking that” and “I have already answered that”. She did very poorly in the role play, failing to differentiate between the different perceptions of the director, the agency and the complainant. Ms. Greene added that, she discovered that Ms. Fenech had not provided for reference any person with whom she had a direct working relationship. She was asked to provide one, but she did not. [178] Turning to the Head Office Assistant position, Ms. Greene testified that it was a critical position because while it reported to her, the incumbent also supported the director. When the vacancy arose there was an urgent need to fill it immediately. Therefore she went to a previous competition and offered a five month secondment to a very skilled applicant. When it became vacant again it was posted in January 2007 as a permanent full-time position. Union counsel put to Ms. Greene that Ms. Fenech had testified that at the time, she was doing a job similar to the FAA job. Ms. Greene disagreed. She explained that both Ms. Fenech’s position and the posted position took calls, but the similarity ended there. The FAA also did Human Resources, and WIN and as Ms. Greene’s “right hand person”, did all the organizing for her. She testified that the position required significant use of discretion and judgement, and that much of the correspondence coming in to the OWA is received by her. [179] Ms. Greene was asked what she recalled about the incident at reception in April 2007. She stated that while in her office she heard raised voices and went to check. She observed Ms. Tzaferis, Mr. Halonen, Ms. Fenech and two facilities staff. She said that there was an “argument” between Ms. Fenech and Mr. Halonen. She could not recall - 89 - their exact words, but she called the gist of what Ms. Fenech was saying was to the effect “How can you bring in facilities to inspect my work area when my accommodation was not being done”. She testified that Mr. Halonen “was usually very calm and reluctant to get involved in staff issues. So it was very unusual for him to say what he said. Again I don’t recall the exact words, but he was very adamant. In a loud voice he said “We are doing everything we can, we are addressing your accommodation” or something to that effect. He was very clear that he would not tolerate disrespect to himself or the manager. [180] Ms. Greene testified that the whole renovation process lasted from June to mid-December 2007. Initial consultations took place in June, the preliminary drawing were done in July and the construction itself occurred September to mid-December. Ms. Greene testified that from June 2007 on, Ms. Fenech’s accommodation was part of the consideration in developing the renovation plans. She kept Ms. Fenech updated on the renovations, and Ms. Fenech provided feedback at meetings of the joint health and safety committee of which she and Ms. Fenech were members. According to Ms. Greene through the phases of the renovations the issue of where to locate Ms. Fenech’s PA work station resurfaced. Several scenarios were proposed to Ms. Kawaja, and Mr. Cantor was also consulted. She said that she had to revisit and redesign with the architect at least three times before Ms. Kawaja finally signed off. [181] Ms. Greene reviewed in some detail the cleaning that took place during the renovation period. That will not be reviewed because it does not add to evidence previously reviewed in this decision. However, she did testify that the T. Harris report concluded that even during the construction phase, the indoor air quality was within acceptable standards, but it also observed that individuals with particular sensitivities may still have issues. Ms. Greene testified that at the time, Ms. Fenech was working at home. She found out from Ms. Tzaferis that Ms. Fenech had a concern that the T. Harris report was a “management report” and not “a bargaining unit” report, and had taken the position that minimally acceptable standards were not good enough for individuals who have particular sensitivity issues. Ms. Greene made inquiry whether Ms. Fenech had provided any medical that she had particular sensitivities or allergies, and was advised that there was none. - 90 - [182] Ms. Greene testified that despite the T. Harris report and all the cleaning done, Ms. Fenech continued to express concern about exposure to unsafe air and “took work refusal action”. An offsite meeting was held with MOL health and safety inspector, Mr. Tom Lee at which Ms. Fenech and Mr. Brown expressed their concern and Ms. Greene provided background information. This was followed by a site visit to the OWA office. Ms. Greene testified that the T. Harris inspection involved the testing of air quality at intervals using sophisticated equipment. In contrast, Mr. Lee had basic instrumentation and did a general review. In the report that followed, Mr. Lee did not make any finding that the air quality was inadequate, but observed that employees with particular sensitivities may still find the air irritating. The only orders issued by the inspector related to the requirement for Ms. Greene, as employer representative on the joint health and safety committee, to be certified. Ms. Greene testified that as members of the joint health and safety committee, she and Ms. Fenech sent a joint invitation to OHCOW, to do a site visit to the OWA. The OHCOW personnel subsequently came for the OWA site visit. They met with Ms. Greene and Ms. Fenech first. Ms. Greene recalled that they talked about difficulties workers with sensitivities and allergies could face when working in “sealed buildings”. Ms. Greene stated that OHCOW did a visual inspection. While they may have taken air samples, she could not recall seeing technical instrumentation. [183] According to Ms. Greene, as soon as Ms. Fenech raised concerns about scented products, Ms. Tzaferis took action by way of advising staff to be aware that there may be staff sensitive to scented products and to be considerate, and subsequently issuing an arms- length policy. She recalled that at least five employees complained that it was their right to decide what perfume to wear or what cleaner to wash their clothes with. Ms. Greene explained to them that they were not being asked to make lifestyle changes, but only to avoid wearing strong smelling perfumes to work. Ms. Greene testified that, Ms. Fenech on the other hand was not content with an arm’s length rule. She was demanding an outright ban, and this became a very contentious issue at the joint health and safety committee. Ms. Greene testified that apart from the issue of the rights of other employees, there were other reasons why an outright ban was not practical. She explained that the OWA shared the building and floor with other tenants. The lobby, - 91 - reception areas and elevators were common. Therefore, the OWA was not in a position to declare a prohibition of all perfumes or to give directions to building management on what products to use for cleaning. Nor did the OWA have control over members of the public who routinely visit. [184] Employer counsel asked Ms. Greene to comment on how she found dealing with Ms. Fenech. She replied: “By working with her on her accommodation, and in the health and safety committee, I felt that no matter what we did it was never enough. She was either unwilling or unable to work with us. It culminated with her making accusations against me because I had consulted with managers when I revised the joint letter. That e-mail told me that there was no point getting into a battle with her. She just didn’t trust or respect me. So I went to Mr. Halonen and told him that I did not want to continue on the health and safety committee. He told me to stay on the committee until my retirement. In 34 years in the OPS I had never encountered so much difficulty and spent so much time and energy. I was consistently met with distrust and disrespect”. Ms. Greene referred to correspondence from Ms. Fenech and testified that Ms. Fenech stated that she was incompetent and that her consulting with management in revising the joint letter was a set up for a confrontation or an ambush. [185] A large portion of Ms. Greene’s cross-examination related to job competitions Ms. Fenech took part in without success. Counsel suggested through lengthy questioning in effect that Ms. Fenech should have been appointed. It was suggested that appropriate weight was not given to her experience, that there was inconsistency in the questioning, and that components of the process, such as role play, were inappropriate for assessing ability and knowledge. Except to the extent that qualifications are relevant to the issue of accommodation, I shall not review the evidence in detail, because the Board is here seized with an accommodation dispute. If she so wished, it was open for Ms. Fenech to grieve the job competitions. In this proceeding the inquiry would, therefore, be limited to the union’s position that rather than posting the vacancies, Ms. Fenech ought to have been assigned to those vacancies as an accommodation. - 92 - [186] In cross-examination, Ms. Greene agreed that the PA position requires clerical, secretarial and organizational skills, ability to multi-task and to deal with telephone inquiries and interact with irate injured workers, and that it includes an administration component. She insisted that the FAA position required a good knowledge of the OPS finance system, and that while Ms. Fenech had some accounting and finance experience outside the OPS, that did not meet the required qualifications. She said that while CMS was not a primary function of the FAA position, there were several windows based macro systems the FAA had to work with which required mousing. She further explained that the OPS had its own finance rules which could be complicated. There was also a need to fill that position with someone, who could step in and do the job without the need for training. She likened the OPS finance system to a new language, which one needs to know. When asked whether she considered accommodating Ms. Fenech in the FAA position, she replied that she did not. She explained that there was a need for continuity in that position and that the individuals appointed on temporary assignment and pursuant to the posting were able to walk in and do the job. Ms. Fenech lacked knowledge of the OPS financial systems. She testified, however, that sometime later she had discussions with Ms. Tzaferis and HR as to whether there were other potential accommodation opportunities for Ms. Fenech at the head office finance section. [187] Counsel asked Ms. Greene why Ms. Fenech’s skills did not qualify her for the Head Office Assistant position. Ms. Greene replied that the two positions were very different. The Head Office Assistant was like an executive assistant to an Assistant Deputy Minister and required exercise of judgement and discretion at a very high level. A PA was like a secretary to a manager. While a PA may have to deal with irate injured workers, it is done at a one-on-one level. The PA would show empathy to the worker and explain his/her rights. On the other hand, the injured workers a Head Office Assistant has to deal with would already have escalated their issues to the level of the director or higher. Therefore a high level of use of discretion and judgement, issue and content management and administrative skill would be required. Ms. Greene agreed that the Head Office Assistant position did not use CMS as much as a PA. Ms. Greene was also questioned why Ms. Fenech was not accommodated in a PA position that became available at the Toronto Office in 2008. Ms. Greene explained that it was not a PA - 93 - position. The management team was doing a project and a need arose for temporary dedicated support. To fill this need, different temporary workers were brought in through an agency. [188] While Ms. Greene was questioned on the development of the new CMS, on the engagement of the various professionals and the efforts to accommodate Ms. Fenech by reducing mousing, she was not in a position to provide any new information. She testified that while she was involved in some aspects, particularly in obtaining approval for the hiring of Mr. Cantor and Ms. Kawaja, the primary responsibility was with Ms. Tzaferis, with the assistance of Ms. Drinkwater. Ms. Greene’s role was essentially confined to the financial aspects of the accommodation. [189] Counsel referred to Ms. Greene’s testimony to the effect that the design of the new PA station for Ms. Fenech had to be revisited at least three times, and suggested that it was not due to Ms. Fenech’s fault. Ms. Greene replied, “I respectfully disagree. It is not a question of fault. But when we resolve one issue, another issue would be raised. So it may not be Ms. Fenech’s or anyone else’s fault. But we are all trying to arrange the dominos. But when we set one piece the rest shakes. We were looking for a solution that works for everyone.” [190] Union counsel suggested that prior to the commencement of the renovations on September 25, 2007, Ms. Fenech raised concerns about air quality with Ms. Greene. Ms. Greene replied that Ms. Fenech did not raise any concern she personally had, but as employee representative on the health and safety committee she did raise concerns other staff had. She explained that those concerns related to dust as a result of the library books being packed. Ms. Greene agreed that neither Ms. Halonen nor Ms. Tzaferis were members of the health and safety committee. Counsel asked why, given that answer, Ms. Greene copied her responses to issues raised by Ms. Fenech at the committee, to Mr. Halonen and Ms. Tzaferis. She replied that in addition to being an employer representative on the health and safety committee, she was also the renovations lead for the OWA. In that capacity she was responsible to keep the management team updated on any issues relating to the renovations. Counsel suggested that she could have advised the - 94 - managers in a separate e-mail rather than “cc” then on the e-mail to Ms. Fenech. She agreed, but added that she “cc'd only to save time. Ms. Greene agreed under questioning that the common areas she spoke of, the hallways, the washrooms, elevators etc. are separated from the OWA’s main entrance door, and that Ms. Fenech was asking for a scent free policy only for the OWA office and not the whole building. She further agreed that while some staff complained that the arms length policy was harassment, none filed a formal complaint. Ms. Greene agreed that the invitation letter to OHCOW was a joint invitation extended by the health and safety committee. She agreed that in revising Ms. Fenech’s draft letter, she consulted with Mr. Halonen to make sure that she was aware of the management’s concerns and perspective. [191] Finally, union counsel referred to Ms. Greene’s testimony about the difficulties she had in dealing with Ms. Fenech and asked whether Ms. Fenech “ever actually refused to try any accommodation offered”. Ms. Greene replied “She did not refuse. But always had an issue with any accommodation offered. As I said, I don’t fault her. But the fact, is there was no way for us to resolve her accommodation. Enough was never enough”. She added that on many occasions Ms. Fenech was not available to respond to issues because she was not in the office. Submissions [192] Both parties made reference to the following excerpt from the judgement of the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at para 43-44: 43 The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley. At page 555, McIntyre J. stated: Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment. To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the - 95 - duty of accommodation has been fulfilled the conduct of the complainant must be considered. 44 This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged [193] Considering the complexity and length of the hearing submissions from both counsel were extremely brief and concise. Union counsel argued that Ms. Fenech raised her concern about the mousing that may be involved with the new CMS on November 5, 2005, during a conversation with Mr. Halonen at Port Elgin. Submitting that a request for accommodation need not be in writing of formal, counsel stated that Mr. Halonen did nothing in response, except suggest that Ms. Fenech try voice recognition. Counsel pointed out that the employer was aware that Ms. Fenech had been diagnosed with RSI since 1994 and in the circumstances should have taken steps to accommodate Ms. Fenech. In November 2005, the employer changed her schedule and provided some small devices. However, nothing was done about eliminating mousing. In mid-February 2006, Ms. Fenech brought the article by Mr. Cantor to the employer’s attention. Yet by March 24th no action had been taken to eliminate mousing, causing Ms. Fenech to file her first grievance. Counsel argued that it was open to the employer to request for any medicals, but none was requested until March 21, 2006. [194] Union counsel argued that it took until end of April for Mr. Cantor to be hired. This delay resulted from the employer’s attempt to have ministry IT staff find a resolution to the concern about excessive mousing. Even after Mr. Cantor was retained many road blocks were encountered, none of which were due to Ms. Fenech’s fault. Counsel argued that delay resulted as a result of the employer continuing to ask for more medicals, due to - 96 - the processes involved in renewing Mr. Cantor’s contract and obtaining approval for his costs exceeding certain limits, various IT issues that required consultation with other branches of the ministry, and the need to obtain approval for purchase of needed items. She submitted that it is no answer for OWA managers to say that they are required to follow certain processes and that it takes time to get things done. Whether the delay was due to government processes, delay on the part of other ministry staff or outside consultants retained, the employer is responsible for the delay, because it is the employer’s legal obligation to accommodate in a timely fashion. [195] Union counsel argued that once issues relating to Mr. Cantor’s contract were resolved, other delays occurred. Ms. Fenech requested speech therapy in December 2006. Speech therapy had been recommended by Dr. Tick in June 2006. The sessions with speech pathologist Ms. Kawaja were approved only in March 2007. Then, Ms. Tzaferis required Ms. Kawaja to issue a report following six sessions and there was a significant delay in Ms. Kawaja issuing her report. As a result, despite Ms. Kawaja’s finding that the sessions had been helpful, as of the evidence cut-off date of June 18, 2008, Ms. Fenech had not done any more therapy sessions although six additional sessions had been approved. [196] Counsel submitted that when Ms. Fenech requested for assistive devices, “often” there was delay in her receiving them or in having the devices installed to her satisfaction. Similar delays occurred in completing an ergonomic assessment and finalizing the work station design. The renovations caused further delay. Counsel argued that these delays occurred because there was a lack of knowledge on how to handle the accommodation and because there were so many people involved in the accommodation without any central person to coordinate everything. At times it failed to involve Ms. Fenech and the union in the accommodation efforts and Ms. Fenech received information second hand. Counsel urged the Board to give special attention to “the big picture”, in deciding whether the employer acted in timely fashion. In support of the allegation of unreasonable delay, the union relied upon Re Prairie North Health Region [2009] 182 L.A.C.(4th) 327 (Hood); Re City of Toronto [2001] O.L.A.A. no. 668 and Re Alviani, 2007-3700 (Dissanayake). - 97 - [197] The union’s allegation of a “pattern of discrimination” is based on a contention that the employer failed to accommodate Ms. Fenech in alternate employment opportunities. Counsel relied on authorities to the effect that discrimination contrary to the Human Rights Code can occur where the impact is discriminatory even in the absence of proof of intent to discriminate. Counsel pointed to the evidence that work opportunities, including posted vacancies, arose. Some of them involved less use of the CMS than Ms. Fenech’s home position of part-time PA. In some cases, Ms. Fenech applied and did quite well in the competition. Yet the employer did not award the positions to her, as the successful applicant or by way of accommodation. [198] The union submitted that Ms. Fenech’s absence from work from May 11, 2006 to October 16, 2006 is directly attributable to the employer’s failure to grant her an interview for the full-time permanent PA position. Counsel submitted that by not returning Ms. Fenech to work until October 2006, the employer unnecessarily delayed her return by over four months. Counsel argued that when the FAA position became vacant temporarily, it was filled without a competition, thus denying Ms. Fenech the opportunity to apply. She submitted that “this was a violation of the posting provisions of the collective agreement”. She pointed to Ms. Greene’s evidence that no consideration was given to accommodating Ms. Fenech in the FAA position. She argued that Ms. Fenech had performed very well and placed third in the competition, and should have been accommodated in that position. She submitted that although Ms. Fenech lacked knowledge of the specific OPS financial systems, she had significant experience in finance outside the OPS. [199] With regard to the Head Office Assistant competition in February 2007, counsel pointed out that this position required less CMS than a PA position. Even if not all, through her employment as a PA, Ms. Fenech had acquired “a good number of skills” required in the Head Office Assistant position. She finished in the top three of this competition as well, but was not awarded, nor was she accommodated in it. Counsel submitted that the employer has an obligation to proactively search for alternate work, incrementally broadening the scope of the search. The employer did not do that. Reference was made - 98 - to Re Clarke Institute of Psychiatry, [2001] 95 L.A.C. (4th) 154 (Knoff) and Re Di Caro, 2003-3162 (Dissanayake). [200] Turning to the WDHP complaint issue, counsel urged me to accept Ms. Fenech’s testimony that on October 16, 2006, when she requested Ms. Tzaferis’ removal, she explicitly stated that she was filing a complaint under the WDHP. The investigation did not commence until February 21, 2007. Reference was made to provisions of the employer’s policy to support her position that the policy obliges the employer to act expeditiously. In addition to alleging unreasonable delay, the union also argued that Ms. Halonen ought not to have undertaken the WDHP investigation because he was biased or would reasonably be perceived to be biased. Counsel pointed out that during his testimony Mr. Halonen acknowledged that in retrospect it would have been wise for him to have not done the investigation. It was submitted that by unreasonably delaying the investigation and by assigning a biased individual as investigator, the employer failed to deal with Ms. Fenech’s WDHP complaint in compliance with its own policy. [201] In support of Ms. Fenech’s reprisal grievance reliance was placed on S. 8 of the Ontario Human Rights Code, which provides: 8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. Counsel submitted that Ms. Fenech had founded the RSI Day event and had participated in it in past years with no requirement to declare a conflict of interest and the employer had not raised any concern. She was participating as an activist for injured workers and it had nothing whatsoever to do with her employment at the OWA. Then suddenly in 2007 she was required to declare a conflict after she had filed her grievances and a WDHP complaint against her manager. Counsel argued that it could not be seen as mere coincidence. [202] The union contended that its allegation of retaliation is further supported by the evidence that Mr. Halonen, who had never attended the event in previous years, did so in 2007. He - 99 - not only attended, but as Ms. Fenech testified, was staring at her and taking notes while she was speaking. Ms. Fenech testified that she felt threatened seeing Mr. Halonen, who at the time was conducting fact finding into her WDHP complaint, sitting in front taking notes, and felt that it was retaliation against her for pursuing her rights under the Human Rights Code and the collective agreement. [203] The union submitted in addition that the employer retaliated against Ms. Fenech also by engaging in a pattern of intimidation and mistreatment. Reference was made to the evidence relating to the incident in the reception area on April 13, 2007. Counsel argued that whether Mr. Halonen yelled (as Ms. Fenech testified) or used a loud voice (as Mr. Halonen admitted), and whether he pounded his fists on the table (as Ms. Fenech testified) or hit his own chest (as Mr. Halonen testified) such conduct is intimidation. Mr. Halonen agreed that Ms. Fenech could have found his conduct intimidating, yet did not apologize to her at any time. Counsel argued that Mr. Halonen’s conduct on April 13, 2007 on the heels of his conduct in February 2007 relating to the Ms. Fenech’s participation in the RSI Day event, clearly support a finding that the employer was engaging in a pattern of intimidation and mistreatment in retaliation for Ms. Fenech’s pursuit of allegations of discrimination against the employer. [204] The union’s final submissions related to the alleged health and safety violations. Counsel argued that following exposure to unsafe indoor air, Ms. Fenech fell ill and was off sick. Despite assurances from the employer that the air quality was safe, Ms. Fenech continued to have air quality issues, particularly with dust. The employer failed to address her concerns and as a result she had to take many “sick days”. [205] Counsel argued further that when Ms. Fenech raised health and safety issues, relating to scents and perfumes in the workplace. When the employer’s response of an arm’s length policy did not work, Ms. Fenech requested that the OWA adopt a scent free policy. As of the evidence cut-off date, it did not happen. Counsel argued that the reasons offered by the employer as to why such a policy is not feasible do not stand up to scrutiny. Thus the Board was urged to conclude that the OWA did not make reasonable efforts to protect Ms. Fenech’s health and safety. - 100 - [206] It was submitted that the delay from Ms. Fenech’s initial request for accommodation in November 2005 to the agreed upon evidence cut-off date of June 18, 2008 – a period of over 2½ years was excessive, particularly considering that the employer is large and sophisticated. The Board was urged to allow each of the grievances and declare that in each case the employer had contravened the collective agreement and/or legislation as alleged. The parties agreed that, if liability is found in relation to any of the grievances, the Board should remit the matter back to the parties in relation to remedy, and remain seized. [207] Counsel for the employer submitted that the employer acted more than reasonably in attempting to implement an accommodation which was extremely complicated by its very nature, and made even more difficult by Ms. Fenech’s failure to cooperate. The employer dedicated the services of a number of senior managers, spent significant time and financial resources, and acted with creativity to get around obstacles that kept arising. On the other hand, Ms. Fenech refused to recognize the need for medical information, was hostile at every turn, was rude and had an overwhelming sense of entitlement. Any and every action the employer took was challenged. She seized every opportunity to criticize, resisted every offer made by the employer to address concerns, and new issues were raised on a continuing basis. Ms. Fenech was looking for perfection in every way and this impeded the progress of the accommodation. It was submitted that thereby Ms. Fenech failed to meet her legal obligation to facilitate accommodation. [208] Counsel submitted that the employer readily acknowledged Ms. Fenech’s difficulties with mousing due to her disability. Ms. Fenech’s only request for accommodation in November 2005 was to be provided a touch pad and a document holder. The employer provided these promptly even in the absence of any medical support for their need. Then Ms. Fenech requested a change in her days of work. Again, even before any medical was provided, the requested change was implemented. Similarly, when Ms. Fenech requested the services of consultant Mr. Cantor, the only medical restrictions in place were the need for a day of rest between work days and to avoid excessive mousing temporarily. Yet the employer took steps to bring in Mr. Cantor for a consultation. - 101 - [209] The employer consulted with the IT programmers, who assured that they had the capability to develop hot keys in order to avoid mousing. Yet Ms. Fenech, simply dismissed them as unqualified to do that. Ms. Fenech took the position that only her preferred consultant, Mr. Cantor was acceptable to her. Once the employer was able to review Mr. Cantor’s qualifications and experience, it agreed to hire Mr. Cantor. While Mr. Cantor worked with Ms. Fenech, she took issue with some of his recommendations. For example, she rejected the chair he had chosen as suitable for her. Counsel pointed to the evidence that when the expenses for a consultant exceeds $25,000.00, the policy mandated that three tenders be called for. There is no dispute that Mr. Cantor’s fees did exceed that amount. As soon as the need for a tender process came up, Ms. Fenech made accusations that this was a delaying tactic orchestrated by the managers. The managers for their part acted creatively to get around the policy by having Mr. Cantor attach himself to a vendor of record. Counsel referred to the evidence that any equipment Mr. Cantor wanted in assisting with the accommodation was promptly approved and purchased. [210] Counsel for the employer submitted that as soon as Mr. Cantor brought it to its attention that voice recognition would be helpful, he was authorized to consult a speech pathologist he had identified, Ms. Lois Singer. In her initial assessment Ms. Singer concluded that Ms. Fenech was a poor candidate to benefit from voice therapy. Yet, the employer was willing to incur the expenses and approved 10 sessions. When the report following 6 sessions indicated that the therapy was in fact beneficial, 6 more sessions were approved. Ms. Fenech was unable to do these additional sessions, only because Ms. Fenech was suffering from a throat ailment. [211] Counsel pointed out that at the time Ms. Fenech requested a new work station designed by an ergonomist, there was no medical information to support such a request. Yet, the employer did not resist. It acted immediately to bring in the Ministry of Labour ergonomist, Ms. Julie Frauts. When it became apparent that Ms. Frauts did not have the required qualifications and experience, steps were taken to retain the services of an ergonomist identified by Ms. Fenech, Ms. Kawaja. Even at this point, there was no - 102 - supporting medical documentation. Ms. Kawaja was first contacted on June 4, 2007 and was on contract effective June 25, 2007. [212] Counsel submitted that Ms. Fenech had the opportunity to provide input to Ms. Kawaja, even though it was made more difficult because Ms. Fenech was not available to attend at the workplace due to illness. Counsel pointed out that Ms. Fenech did not facilitate her own accommodation at times. Reference was made to the evidence, that when Ms. Kawaja requested her to come in and participate in the testing, she asked Ms. Kawaja whether she really needed to be there, because she had some personal matter. She did not want to come in on other occasions at times scheduled by Ms. Kawaja because it was inconvenient for her to travel due to the GO train schedule. Counsel argued that this does not meet Ms. Fenech’s obligation to facilitate her own obligation. [213] Counsel argued that the employer attempted to coordinate Ms. Fenech’s accommodation and the building of her new ergonomic work station with the overall renovations of the OWA office. Ms. Fenech took every opportunity to obstruct and criticize every plan the employer put forward. She was looking for perfection in every little thing and did so when her demands had nothing to do with the substantiated medical restrictions. Counsel referred to the following: Ms. Fenech stated that she does not want to sit facing a wall; that she does not work well with angles; that she likes her equipment on the right; that the other PA was loud; and that she prefers vertical blinds and not horizontal blinds. Counsel also pointed out that Ms. Fenech repeatedly threatened to file grievances if she did not get her way. [214] On the issue of indoor air quality, counsel for the employer reviewed the evidence of all of the cleaning the employer had carried out. The air quality was tested by outside experts T. Harris. OCHOW was called in at Ms. Fenech’s initiative, and when Ms. Fenech engaged in a work refusal, a Ministry of Labour inspector was called in. In addition, upon Ms. Fenech’s request a hepa air filter was purchased for her. The reports by each of the experts who tested the indoor air quality indicated that the air quality in the OWA office was acceptable. At most, there was an observation that employees with particular sensitivity problems may still experience irritation. Ms. Fenech rejected all of - 103 - the reports and unilaterally took the position that the air quality was unsafe that the air quality was unsafe for her. Yet she did not even see a doctor, leave alone provide the employer with medical restrictions that she had particular sensitivity to dust. [215] On the issue of scents and perfumes in the office, counsel pointed out that when Ms. Fenech first raised her concern on May 9, 2008, she had not provided any medical support to indicate that she had any sensitivity to scents and perfumes. Yet, the employer acted on it. It developed and circulated to staff a policy on perfume in the workplace. The policy was developed in consultation with, and on agreement with the union and Ms. Fenech. Yet Ms. Fenech demanded a complete prohibition. Counsel reviewed the evidence of the employer witnesses as to why such prohibition was not practical. Counsel specifically pointed out that Ms. Fenech’s PA position was a front line job, which involves dealing with workers coming into the office, and that any policy would not be enforceable to members of the public who come in the OWA. [216] Employer counsel pointed out that since Ms. Fenech went off sick on May 11, 2006, throughout the summer of 2006 Ms. Tzaferis repeatedly provided letters to Ms. Fenech’s physician seeking clarification on Ms. Fenech’s restrictions, stating explicitly that such clarification was required to return Ms. Fenech to work within her restrictions. Ms. Fenech’s response was that it was a delaying tactic by the employer. On her part Ms. Fenech did not see a doctor over long periods. Her excuse was that she had no family doctor, and did not go to a walk-in clinic because she did not like the long wait times. [217] Counsel pointed out that Ms. Fenech had refused to perform any work duties and was allowed to stay at home to work solely on her accommodation on paid time. Yet when Ms. Singer was available to work with her Ms. Fenech refused claiming that she had a bad throat. No medical was provided until May 2008, despite requests from Ms. Tzaferis from December 2007. Counsel pointed out that at arbitration, the union and Ms. Fenech had denied that the employer had requested medicals when there was ample documentary evidence which clearly proves otherwise. Counsel argued that Ms. Fenech failed in her duty to facilitate by her reluctance to fully participate in accommodation meetings scheduled by the employer. While the employer was willing to find the time, Ms. Fenech - 104 - was not. Thus, pointed out counsel, Ms. Fenech wanted a limit of one meeting per day. On another occasion, she took the position that there was no point in meeting because of the possibility that any decisions made may have to be revisited following the report by OCHOW. [218] Counsel also pointed to the evidence that the employer made numerous offers of duties related to her PA position, which Ms. Fenech rejected giving various excuses, before finally taking the position that she would not perform any duties until her accommodation was fully in place. Counsel gave as examples, the duties of writing out telephone messages left overnight by callers, sorting mail into bundles for distribution to various sections of the OWA and updating the frequently called contact list, which Ms. Fenech could have performed within her restrictions and without any need for mousing. Despite the unreasonableness of Ms. Fenech’s refusal, Ms. Tzaferis gave in. [219] Addressing the allegation of reprisal and pattern of intimidation, employer counsel submitted that it was Ms. Fenech who was intent on humiliating and intimidating her managers, particularly Ms. Tzaferis. She repeatedly accused Ms. Tzaferis of driving her to poverty, when the evidence is that for long periods Ms. Tzaferis offered additional hours despite the fact that she had been hired only on the basis of three days a week. At her request, Ms. Fenech was allowed to work five days a week even though her medical restrictions were to the effect that she needed to have a day of rest between work days. When Ms. Tzaferis requested medical clearance to continue working five days a week, she was accused of discrimination and of causing financial hardship. She called Ms. Tzaferis a hypocrite and threatened to go public with her view of how the OWA treats injured workers. When the temporary PA position was posted, Ms. Fenech warned Ms. Tzaferis that she would be grieving if she is not awarded the position. Ms. Fenech wrote to an outside consultant Mr. Cantor making numerous derogatory statements about Ms. Tzaferis, including statements that Ms. Tzaferis was technophobe, that she is tight fisted and that she has no clue about accommodation. [220] Counsel submitted that even in the face of rudeness and humiliating accusations, the managers acted with courtesy and professionalism. For example, during the interview for - 105 - the part-time PA position, Ms. Fenech was rude and insulting towards Ms. Tzaferis. Yet Ms. Tzaferis and Ms. Greene did not retaliate. Instead, they gave Ms. Fenech the benefit of the doubt, hoping that a good relationship could be established. They not only awarded the position to Ms. Fenech, they took steps to ensure that her continuous service date is not interrupted by recording the gap in her employment as a period of leave without pay. Counsel submitted that Ms. Fenech’s allegation of intimidation, harassment and discrimination is very serious. While arbitrators have acknowledged that such allegations are hard to prove, they have nevertheless held consistently that a grievor’s belief however genuinely held, is not sufficient. There has to be some objective evidence to support the allegations. Counsel submitted that in the instant case such objective evidence is totally lacking. [221] On the allegation that Mr. Halonen engaged in intimidating and threatening conduct on April 13, 2007 in the reception area, counsel urged the Board to conclude that what occurred was a heated argument on both sides. The group which included several managers and other staff were there to view the reception area and to obtain Ms. Fenech’s input into the renovation of the area as part of the overall renovation of the OWA office. Completely unrelated to the subject, Ms. Fenech went on making accusations that Ms. Tzaferis had impoverished her. Mr. Halonen acted out of frustration. Even though Ms. Fenech may have felt intimidated and threatened, Mr. Halonen did not intend that. [222] Counsel submitted that in order to substantiate her allegation that the requirement for her to declare a conflict of interest related to her speaking at the RSI day event was an act of reprisal, the union must establish a link between that requirement and the WDHP complaint and/or the grievances Ms. Fenech had filed. She submitted that the evidence fails to establish such a link. She pointed out that the employer’s policy on conflict of interest addresses OPS employees’ participation in public events. The employer became aware that Ms. Fenech was a speaker at the RSI day event. Therefore, the OWA management was simply applying the policy in the circumstances. It had nothing to do with the grievances or the WDHP complaint Ms. Fenech had filed. Counsel pointed out that the OWA had close ties with the injured worker community. Therefore, as its director, Mr. Halonen was entitled to attend the event and take notes as he did. She - 106 - argued that a reprisal necessarily must involve intention and that it was absurd to suggest that by attending the RSI day, Mr. Halonen intended to intimidate or retaliate against Ms. Fenech because she had filed grievances and a WDHP complaint. [223] Counsel for the employer submitted that the evidence does not support the allegation that Ms. Fenech was discriminated against on the basis of her disability in relation to any of the job opportunities. She referred to the testimony of Ms. Greene in arguing that both the FAA and Head Office Assistant positions were awarded to applicants with significantly more seniority than Ms. Fenech and that the collective agreement accords priority to more senior applicants as long as they are relatively equal in qualifications and ability. [224] Counsel submitted that it was not correct to say that Ms. Tzaferis refused to interview Ms. Fenech for the full-time PA position. While she was not interviewed, it was not due to a lack of trying by Ms. Tzaferis. Even though Ms. Fenech was not at work, Ms. Tzaferis wrote to her stating that she wanted to interview her. Moreover, she postponed the interviews in order to allow Ms. Fenech to participate. However, Ms. Fenech’s physician had imposed a restriction that the accommodation must be in place before Ms. Fenech could participate in an interview. Therefore, Ms. Tzaferis sought medical clearance for Ms. Fenech to participate, and when it was not forthcoming finally decided to proceed with the interviews because the filling of the position could not be delayed any further. [225] Counsel for the employer submitted that the union’s allegation that the employer unreasonably delayed the investigation into Ms. Fenech’s WDHP complaint against Ms. Tzaferis is unsubstantiated. The allegation of delay is based on the premise that the WDHP complaint was filed in October 2006, which is not supported by the evidence. She referred to the testimony of both Ms. Tzaferis and Ms. Trower that when Ms. Fenech at the meeting on October 2006 wanted Ms. Tzaferis removed from managing her accommodation, and the employer agreed to replace Ms. Tzaferis with Ms. Trower, they did not understand that there was a WDHP complaint to be investigated. Counsel relied on an e-mail from the union representative Mr. Brown at the time a formal WDHP - 107 - complaint was filed in February 2007. He explicitly states in that e-mail that a WDHP complaint was “not pursued” in October 2006 in light of the employer’s agreement to replace Ms. Tzaferis. Thus, submitted counsel, Mr. Brown was of the same understanding as Ms. Tzaferis and Ms. Trower. A WDHP complaint was filed only in February 2007, when the employer decided to discontinue the arrangement agreed to in October 2006 and bring Ms. Tzaferis back to manage Ms. Fenech’s accommodation. Once the complaint was filed, steps were promptly taken to investigate it, and Mr. Halonen’s report was issued well within the time limits set out in the WDHP policy. [226] The employer cited the following authorities: Dunlop v. Alter Moneta Corp. [2010] O.H.R.T.D. No. 631 (Sheehan); Scarlett v. Hamilton Health Sciences Corp. [2010] O.H.R.T.D. No. 4(Liang); Re Canpar [2000] 93 L.A.C. (4th) 208 (Picher); Re Alviani G.S.B. 2007-3700 (Dissanayake); Re Damani G.S.B. 1581/95 (Gray); Jones v. Amway of Canada [2001] 39 CHRR 480, OHRC Board of Inquiry (De Guire); Re Ivaco Rolling Mills [2010] 199 L.A.C. (4th ) 419 (Picher); Central Okanagan School District no. 23 v. Renaud [1992] 2 S.C.R. 970 (S.C.C.). [227] Besides addressing the authorities relied upon by the employer, union counsel in reply submitted that the alternate work duties offered, do not make up a complete job to fill a work day. It was, therefore, not a reasonable offer and Ms. Fenech was entitled to reject it. While Ms. Fenech wanted to work solely on her accommodation, that was not because she did not want to perform her job duties. She was attempting to facilitate her accommodation so she could return to her position and work within her restrictions. Counsel submitted that Ms. Fenech’s willingness to work is demonstrated by the evidence that she applied for several job postings that came up, which she felt she could perform within her restrictions. [228] Responding to the employer’s evidence that Ms. Kawaja expressed frustration about Ms. Fenech’s unavailability to participate in user trials, counsel submitted that Ms. Fenech is not to be blamed for her unavailability, because she was prevented from attending at the office because of illness related to air quality. That is not indicative of unwillingness to participate as contended by the employer. - 108 - [229] As for the evidence that on many occasions the employer took steps to accommodate without demanding medical substantiation, union counsel submitted that the law is that it is up to the employer to request medical documentation if it deems it necessary. It was the union’s contention that Ms. Fenech did not fail to provide medical information that had been requested. If there were delays it was not Ms. Fenech’s fault. Counsel submitted that in any event, even when accommodating without medical substantiation, the employer must act in a timely manner. The union’s contention was that it failed to do so. [230] Union counsel submitted that it is no answer to the grievance to say that the FAA position was awarded to the more senior applicant in accordance with the collective agreement. The employer was obligated to consider accommodating Ms. Fenech in that position rather than posting it under the collective agreement. Counsel conceded that over-riding seniority in order to accommodate is required only as a “last resort”. However, the employer did not even approach the union to inquire whether it would have an objection. [231] Counsel argued that the employer’s position that no WDHP complaint was filed until February 2007 is not supported by the evidence. Ms. Fenech testified that at the meeting in October 2006 she explicitly stated that she was filing a WDHP complaint. Moreover, both Mr. Halonen and Ms. Tzaferis had agreed during testimony that at the October 2006 meeting Ms. Fenech made a verbal complaint that Ms. Tzaferis had discriminated against her. Therefore, the employer was required by its policy to expeditiously investigate that complaint. [232] Union counsel disagreed that Ms. Fenech was seeking a perfect accommodation. She was concerned about what would help her and what would hurt her, and was persistent in pursuing an accommodation that was suitable. Her critical comments about employer proposals should be viewed as feedback, and not as lack of cooperation. Counsel submitted that the relationship between Ms. Fenech and the managers broke down because Ms. Fenech was frustrated by the delay in her accommodation and the mistreatment by the employer. Her criticism of the OWA, her managers and the - 109 - consultants resulted from that frustration. She was, submitted counsel, entitled to pursue her rights under the employer’s policies and the Human Rights Code as aggressively as she wished. DECISION [233] In Re Alviani, 2007-3700 (Dissanayake), in dealing with an allegation of unreasonable delay in accommodation, the Board stated as follows at paragraphs 33-35: [33] A good starting point is the recognition that as a general principle the duty to accommodate in a unionized environment is a duty shared by the employer, the disabled employee and his/her union. Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 (S.C.C.). In Re Toronto Board of Education, [2000] O.L.A.A. No. 326 (Davie at para. 115, the law is well summarized as follows: 115 In my view Renaud does not stand only for the proposition that the employee’s obligation is to respond reasonably to offers of accommodation initiated by the employer. The employee’s obligation to facilitate the accommodation extends to both the “search for accommodation” and the “implementation of the … proposal”. The employee may not have the initial duty to originate a solution, but must “facilitate the search” for that solution. In my view, that obligation to facilitate necessarily includes an obligation on the part of the employee to identify his/her restrictions, and the need to accommodate, and must include keeping the employer apprised of one’s status and ability to perform work, or modified work. It is difficult to see how the employer can meet its duty to accommodate, or determine if the employee can be accommodated without undue hardship through, for example, giving the employee a different assignment, or by changes to the nature and design of the workplace, if the employer is not aware of the needs of the employee which must be accommodated. [34] The union presented a number of arbitration awards where it had been held that the employer was in breach by failing to accommodate the grievor in a timely fashion. Union counsel referred to the length of delay in those cases which led to the finding of breach. However, whether the time period taken to accommodate an employee is unreasonable must necessarily depend on the particular facts of each case. In this regard, the nature of the employee’s disability, the duties and responsibilities of the position held by the employee, the nature and the timing of the medical information as to the restrictions resulting from the disability provided to the employer, whether suitable accommodation is readily available having regard to the nature of the employer’s operation, the level of cooperation and participation on the part of the employee and his or her trade union in the accommodation effort, - 110 - and the sophistication and experience of the employer in accommodation issues, are all relevant considerations. [35] It is not suggested by the union, and the evidence does not indicate, that the employer at any time questioned the fact that the grievor needed accommodation, or that it resisted the grievor’s request for accommodation. The union’s contention is that the employer did not treat the grievor’s need for accommodation seriously and that as a result the accommodation took an unreasonable length of time to be achieved. [234] The reference in Re Toronto Board of Education (supra) to the employee’s obligation to “identify his/her restrictions” as part of the obligation to facilitate accommodation is not necessarily satisfied by the employee simply asserting that she has a restriction as Ms. Fenech appeared to believe. Thus, when confronted by employer counsel during cross- examination about her failure to provide medical substantiation, Ms. Fenech agreed that she had not provided medical support for that particular request, but added that the employer had her word. The law, however, is clear that the employee has an initial obligation to provide medical information supporting a request for accommodation, although an employer may at its discretion waive that requirement and act in the absence of medical information. Thus in Re Sobeys Inc. [2008], 92 C.L.A.S. 270 (Reilly) at p. 2, the arbitrator wrote: Irrespective of the submissions made by the Grievor regarding the confusion surrounding his WSIB claim and the extent of his physical limitations, it is clear that he failed in his obligation to provide the Employer with clear and concise medical information with respect to the extent of his medical restrictions and physical limitations. It is not enough for an employee to state that he or she is in need of accommodation and expect the Employer to know exactly what work is within his or her ability. An employer, in most cases, need not accommodate an employee to modified employment unless the extent of the accommodation required is properly documented and confirmed. It makes abundant sense that an Employer is made aware of the extent of an employee’s physical limitations and then considers and applies same when assigning duties; to do otherwise would only invite re-injury. I therefore find no merit to the grievance as argued and it is therefore dismissed. Similarly in Re Dashwood Industries (2007) 161 L.A.C. (4th ) 124 (Barrett) at p. 128, the arbitrator wrote: Where accommodation is sought, the employee is required to provide a minimum of sufficient information to explain the employee’s restrictions, and the nature of accommodation sought. If the employee fails to meet this initial obligation, the - 111 - allegation of discrimination, and of violation of the collective agreement, cannot succeed. [235] A request for accommodation need not be formal nor is it required to be in writing. However, based on the evidence I do not consider it reasonable to treat the conversation Ms. Fenech had with Mr. Halonen in November 2005, as a request for accommodation on her part. The conversation occurred in circumstances totally unrelated to Ms. Fenech’s employment at the OWA. “Mr. Halonen testified that at the time he had consumed a few beers”. In any event the evidence, I conclude, indicates that Ms. Fenech did not seek accommodation for herself. She did not identify any personal medical restrictions. Rather she expressed a general concern about the fact that the new CMS, which was on the verge of being rolled out, would require more mousing and in effect sought its implementation stopped. Particularly considering that Ms. Fenech was the employee health and safety representative, it was not unreasonable for Mr. Halonen to have limited his response to a general suggestion that voice recognition may be a way of reducing the amount of mousing, and that given the substantial expenditure already incurred, there was no possibility of aborting the launch of the new CMS at that late stage. [236] Ms. Fenech did subsequently make a request for accommodation, but it was limited to two assistive devices, a document holder and a touch pad. The uncontradicted evidence is that the employer promptly provided the accommodation requested, even though restrictions that necessitated those devices were not supported at the time by any medical information. I find that the employer was not obligated to go beyond what it did in the circumstances. The next accommodation request was in late November 2005, when Ms. Fenech requested, again in the absence of any medical substantiation, that the days of work for which she had been hired, namely Wednesday, Thursday, Friday be changed to allow a day of rest between work days. The employer promptly implemented the requested accommodation pending medical information that the accommodation requested was required. [237] The first time Ms. Fenech provided some medical support for a need for accommodation came from Dr. Tick dated December 12, 2005. That identified two needs. The first was the change in the work days which had already been implemented. The second was to - 112 - temporarily “limit repetitive work specifically mousing”. I find that this was the first medical substantiation of a restriction in relation to mousing and the restriction was stated to be temporary. I conclude that the employer did not ignore the restriction on mousing indicated by Dr. Tick. It promptly contacted the CMS programmers to inquire about what could be done to reduce mousing. When they indicated that it was possible to develop hot keys to avoid mousing the employer pursued that. When Ms. Fenech rejected that option and brought to the attention of the employer the availability of an outside consultant with particular expertise, Ms. Cantor, and provided a study he had done, the employer agreed that his services should be obtained in order to eliminate mousing. In order to facilitate that, the employer took the initiative to obtain the recommendation from the MOL ergonomist, Ms. Frauts that a software specialist should be retained to work on Ms. Fenech’s accommodation. In addition, arrangements were made to forward telephone calls to the Ottawa office and to hire temporary help to ease Ms. Fenech’s work load. [238] The uncontradicted evidence is that at this time Ms. Tzaferis took a number of steps to assist Ms. Fenech. It is notable that at this time a medical restriction had been imposed by Ms. Fenech’s physician that Ms. Fenech needed a day of rest between work days. Yet, Ms. Fenech who had herself taken that position, demanded that she be allowed to work 5 days a week because she needed the income. Ms. Tzaferis complied. When this came to the attention of the Human Resources Consultant, Ms. Fulton, she took the position that if Ms. Fenech was to continue working 5 days a week, medical authorization had to be provided. This is not surprising, because the decision by Ms. Tzaferis to assign Ms. Fenech to work 5 days a week was clearly in violation of the medical restriction on file. An employee’s financial needs cannot have any impact on medical restrictions that employee has. The state of the law in this regard is reviewed by arbitrator Burkett in Re Inco, (1988) 35 L.A.C (3d) 108 at p. 111 as follows: We start by acknowledge that an employer is under a positive obligation to satisfy itself as to the fitness of an employee to return to work following illness or accident. Apart altogether from the requirement upon an employer under s. 14(2)(g) of the Occupation Health and Safety Act to “take every precaution reasonable in the circumstances for the protection of a worker`, it has long been accepted in the jurisprudence (see cases referred to by the company) that an employer is required to ensure itself of the fitness of its employees to perform the - 113 - tasks that may be assigned to them. The jurisprudence is best summarized in Re: Trialmobile Canada Ltd. and U.A.W. Loc. 397 as follows: It is well established that the employer has both the entitlement and the obligation to ensure the fitness of tis employees to carry out the tasks that they will be assigned at work. It is also well established that the company can require a medical certificate to satisfy itself that the employee is fit to return to work. If the initial certificate is unsatisfactory, the company can reasonably require a further certificate or direct a medical examination … [239] Ms. Fenech’s testimony with regard to Ms. Fulton’s position that medical approval was required if she was to continue working full time is typical of her attitude throughout the accommodation efforts. That is, to lash out and make accusations anytime anyone takes a position she disagrees with. Thus, in testimony she described that Ms. Fulton was “nasty and confrontational”. Ms. Fenech interpreted Ms. Fulton’s position as an accusation that she was “faking the whole thing”. To the contrary, the Board finds that Ms. Fulton was correct legally, and as a Human Resources Consultant had a duty to take that position in order to protect the employer against potential liability for assigning work in violation of medical restrictions on file. [240] The evidence relating to the process the employer undertook to accommodate Ms. Fenech is reviewed in detail in this decision. It establishes that the employer readily accepted that Ms. Fenech had a disability which engaged its duty to accommodate her. The evidence also is that it treated its obligation seriously. Thus several senior managers contributed significant time towards Ms. Fenech’s accommodation. The expertise of other staff including an ergonomist, facilities employees, architects, CMS programmers was sought. It never balked at taking a step because of the expense involved. The uncontradicted evidence is that every device, equipment, furniture etc. recommended was approved promptly. [241] In addition to internal resources, three outside specialists – a software expert, an ergonomist with specific experience in RSI accommodations, and a speech pathologist – were hired to assist with Ms. Fenech’s accommodation. Each of these experts was identified by either Ms. Fenech herself or her medical professionals. In addition to incurring direct expenses totalling over $117,146.44, at her insistence Ms. Fenech was - 114 - paid her regular wages while she devoted all of her work time to work on her accommodation, and performed no job duties. [242] I agree with union counsel’s submission that regardless of the significant efforts and expenditures, an accommodation is not reasonable if it is not done in a timely manner. Ms. Fenech herself had repeatedly asserted to the effect that the employer, particularly Ms. Tzaferis, deliberately employed tactics to delay the accommodation. For example, she expressed her view that the employer’s raising of the policy requirement that for reasons of transparency three tenders must be obtained for renewal of Mr. Cantor’s contract which had by then exceeded $25,000.00; that beyond a certain maximum, approval for renewal must be obtained from the Assistant Deputy Minister; and even requests for clarification of or for additional medical information, all were seen by Ms. Fenech as delaying tactics on the part of the employer. Union counsel, however, did not make an assertion that the employer intentionally delayed the accommodation. Rather, her submission was that the delay primarily resulted from the fact that so many individuals were involved in various aspects of the accommodation without a central person to coordinate all of the activity. Submitting that Ms. Tzaferis inability to understand the technical aspects also contributed to the delay, union counsel submitted that it is the result, not intention, that leads to a finding of discrimination. [243] As recognized in Re Alviani, supra, reasonableness of the time taken to accommodate cannot be judged solely by the length of time. It depends on the facts of each particular case, including the facts relating to the nature of the disability, the duties and responsibilities of the position held by the disabled employee, the nature and timing of the medical information as to the employee’s restrictions and whether suitable accommodation was readily available. The union did not refer to any specific evidence that supports its assertion that lack of knowledge or lack of central coordination resulted in any delay. The Board finds that assertion to be unsubstantiated. On the contrary the accommodation to be achieved, elimination of mousing in a system by its very nature designed for access by mousing, was extremely complex. The managers recognized this complexity, as evidence by their conduct. They first consulted with Ministry experts for the services needed, as it was required by policy. The Board finds, that it is not an - 115 - unreasonable policy, for a public employer particularly, to first satisfy itself that the required services are not available internally before incurring significant expenses to retain outside consultants. When it was apparent that the needs could not be met internally, the employer did not hesitate in taking steps to retain outside consultants. Its willingness and desire to achieve the accommodation is amply demonstrated by its approval of speech therapy sessions, despite the fact that following the initial assessment the conclusion of the expert was that Ms. Fenech was not a good candidate for that treatment. [244] The Board does not find that the employer’s position that it was required to follow a process to retain services and to purchase items required for accommodation purposes by itself was inappropriate. For certain, it is not an acceptable defence for the employer to point to a policy, if such policy prevents or unreasonably delays an accommodation. The duty to accommodate, in those circumstances may require the employer to depart from the “usual practice” short of undue hardship. In other words, the policy of transparency and accountability must be balanced with the legal duty to accommodate. However, on the evidence before the Board, I do not find that the resort to policy as a starting point was unreasonable. While it did cause some delay, considering that the OWA is only a small part of a large employer with system wide policies, the delay cannot be viewed as unreasonable. In this regard, the Board notes that the employer took steps to get around policy or at least minimize the delay resulting from policy. For example, the employer got the Ministry ergonomist to recommend the need for a software expert to expedite the retention of Mr. Cantor. It suggested that Mr. Cantor attach himself to an established Vendor of Record to get around the obstacle that Mr. Cantor was not a vendor of record. To expedite the tendering process, it attached itself to a tender process already in progress at the sister agency, the Office of the Employer Advisor. [245] Union counsel submitted that Ms. Fenech was not to be blamed for any of the delay that took place. The employer disagreed and took the position that Ms. Fenech failed to comply with the duty she had to facilitate her own accommodation. Whether blameworthy or not, he Board finds that Ms. Fenech was responsible for a significant part of the delay. When challenged Ms. Fenech provided explanations for her action or - 116 - inaction. It is not necessary for the Board to decide whether those explanations are reasonable or not. The fact is that they did result in delay. Ms. Fenech contributed to the delay in two primary ways. The first is the failure or delay in providing medical information. As the evidence set out indicates, for long periods she did not see a doctor, but was claiming to be sick or was seeking accommodation. Her explanations included that she had no family physician and that she did not want to go to a walk-in clinic because of her past experience with delays at walk-in clinics. When Ms., Tzaferis wanted to hand deliver a health information form in order to ensure that she would be able to take the documents to her doctor’s appointment, Ms. Fenech did not want that and accused Ms. Tzaferis of intimidation and of trying to save the stamp cost. On another occasion, she was told that medical documents would be sent by Purolator courier service to her home to be taken to her physician. When she missed the delivery, Ms. Fenech did not pick up the delivery, claiming that in her experience whenever she went to pick up Purolator “could not find anything”. The foregoing examples demonstrate that, whether or not it amounts to a breach of the legal duty to facilitate accommodation, Ms. Fenech did not exhibit the same desire for expediting her accommodation that she expected from the employer. In this regard, contrary to the union’s position, the Board concludes that the employer made numerous requests for medical information. The employer’s evidence was that many of these requests were made in the presence of union representative, Mr. Brown. Mr. Brown did not testify to contradict that evidence. [246] The second area of delay attributable to Ms. Fenech is her unavailability at the workplace to participate in accommodation initiatives. As the evidence set out in detail in this decision demonstrates, Ms. Fenech was off work on doctor’s orders for lengthy periods. While the consultants hired to assist with her accommodation were ready and available to work with her, they were restricted to communicating with her through emails or by telephone. In addition to her RSI related disability, other issues such as allergy, throat irritations, exposure to dust, sensitivity to scents and perfumes prevented her from fully participating in her accommodation because she could not attend at the workplace. Moreover, even while working on her accommodation from home, Ms. Fenech showed no flexibility or urgency in relation to her accommodation initiatives. She was not prepared to sacrifice any personal entitlement or right in order to expedite and facilitate - 117 - her accommodation. For example, she did not want to use her home telephone line, she did not want to do more than one telephone meeting per day, she did not want to travel to the OWA unless scheduled meetings with the consultant suited her GO train schedule, and she did not want her manager calling her at home. Whether or not she had the right to do what she did need not be determined for the present purposes. The Board, however, is satisfied that her unavailability at the workplace contributed in a substantial way to the time it took to resolve the many issues that arose in accomplishing a very complex accommodation. [247] The Board finds that the employer could have at times acted more expeditiously. For example, while it was reasonable for it to initially explore the possibility of using the services of a MOL ergonomist for purposes of the accommodation, it soon became evident that the MOL ergonomist was not an option. The ergonomist herself clearly stated that she did not have the expertise or the time required to undertake an accommodation as complex as Ms. Fenech’s. Yet, the employer continued to pursue that possibility, rather than focussing on obtaining the necessary services from an alternate source. [248] The Board finds no merit whatsoever, in the union’s contention that Ms. Fenech’s accommodation was unnecessarily delayed because of the employer’s failure to involve and communicate with her and/or her union, in the accommodation initiatives. No doubt, as union counsel pointed out, the employer did have some discussions with consultants and ministry experts without the involvement of Ms. Fenech or the union, and not every e-mail was copied to them. However, there is no evidence to support the allegation that it resulted in delay. The Board is satisfied that Ms. Fenech was given the opportunity to provide input into any decision that impacted on the accommodation. Indeed, Ms. Fenech was driving the accommodation, on many occasions rejecting proposals by the employer, and even proposals by her own preferred consultants. Indeed, there is merit in the employer’s submission that throughout the process, Ms. Fenech’s attitude was “my way or the highway”, and in many occasions Ms. Fenech did have her way. - 118 - [249] The law does not expect employers to be perfect in accommodating employees. The requirement is one of reasonableness. Considering the complexity of the accommodation, the difficulties that arose in finding resolutions to the numerous obstacles that arose along the way, the Board concludes that the employer did not discriminate against Ms. Fenech by unreasonably delaying her accommodation. The overall time period taken, although regrettable, was not unreasonable in all of the circumstances the employer was faced with. [250] The Board next turns to the union’s allegation, which permeates several of the grievances filed, to the effect that Ms. Fenech was subjected to a pattern of discrimination due to her disability, by denying her work opportunities. In dealing with this allegation, I deal with three areas of concern raised by the union, failure to accommodate in vacant positions, reduction of work hours and failure to return her to work within her medical restrictions. [251] It should be noted that Ms. Fenech’s home position was as a temporary part-time PA. Following the launch of the new CMS, she had taken the position that she could not perform any duties of her PA position that would entail the use of the CMS, and therefore mousing. When the employer offered an assortment of duties that did not require mousing, Ms. Fenech took the position that she would not perform any duties at all until her full accommodation was in place and opted to stay at home and work solely on her accommodation. Despite the absence of any medical to support that Ms. Fenech was unable to perform those duties, the employer allowed her request. It is in this context that the allegation that she was not accommodated in vacant positions must be viewed. [252] It is trite to say that if an employee who is unable to perform duties in her own position is to be accommodated in a different position, the latter position must not require the same or similar duties that put the employee’s own position beyond her medical restrictions. It simply does not make sense to accommodate an employee who is unable or unwilling to perform any PA duties three days a week, in a position that requires her to perform those same duties five days a week. The evidence is that the employer, Ms. Fenech and the union were all focussed on accomplishing a method of enabling Ms. Fenech to use the CMS without mousing. With this objective several senior managers had dedicated - 119 - significant time and effort. The employer had retained a software specialist, an ergonomist and a speech pathologist, who had worked and were continuing to work on Ms. Fenech’s accommodation. If the employer was to consider accommodating Ms. Fenech in the FAA or Head Office Assistant positions, was Ms. Fenech’s expectation that the accommodation initiatives undertaken to enable her to perform her own position would be aborted? There is no evidence that she had expressed such. The evidence is that she wanted Ms. Tzaferis to “just give” the full-time PA position. She made no such request with regard to these two positions. Rather she expected to win the competition on merit. She testified that when she did not, she did not grieve because she respected the priority given to seniority by the collective agreement. [253] It is also to be noted that while Ms. Fenech’s home position was a three days a week part- time position, the FAA and Head Office Assistant positions were full-time positions. Moreover, they were higher ranked and higher classified positions, with greater remuneration. Union counsel acknowledged that appointment to either of these positions would have constituted a significant promotion for Ms. Fenech. Moreover, the evidence is that Ms. Fenech lacked some of the experience and knowledge required in the positions. The evidence is that these positions involved less CMS and mousing than the PA position, but still required some mousing. Ms. Fenech had a no mousing restriction. Thus Ms. Fenech would still have required accommodation. There is no evidence whether the duties of either position could have been modified to avoid mousing, short of undue hardship. Even if that was possible, Ms. Fenech was not performing any duties at all at this time, opting instead to spend all of her work time on accommodation efforts that would allow her to return to her own job. Considering all of these factors, and particularly that all parties at the time were continuing to focus on returning Ms. Fenech to her own job by eliminating the need to use the mouse, the Board concludes that the employer did not breach its duty to accommodate by failing to offer either of the positions. [254] The Board further concludes that the employer did not discriminate against Ms. Fenech on the bias of her disability by returning her work hours to three days a week, after a period of time when she was assigned full-time hours. Ms. Fenech was hired for a part- - 120 - time position to work Mondays, Wednesdays and Fridays. Ms. Tzaferis testified that these specific days of the week were selected deliberately having regard to operational needs. The only medical information the employer had was to the effect that Ms. Fenech needed a day of rest in between work days. Therefore, it is not surprising that Ms. Harding, the HR consultant was of the view that in light of the medical restrictions imposed by Ms. Fenech’s physician, Ms. Fenech should not be assigned hours in contravention of those restrictions. Her view is consistent with the law, that an employer has the right and the obligation to satisfy itself that any work assigned is within the restrictions of an employee. By reversing her decision, which at law would have exposed the employer to liability, Ms. Tzaferis did not discriminate against Ms. Fenech. Ms. Fenech’s personal financial circumstances and her desire to work full-time are understandable. However, that has no bearing on the employer’s legal rights and obligations. [255] The Board next turns to consider the evidence and submissions relating to Ms. Fenech’s WDHP complaint against Ms. Tzaferis and its investigation by Mr. Halonen. The Board has already concluded that there was no unreasonable delay on the part of the employer in responding to the complaint. However, while there was no delay, the Board has no hesitation concluding that the process was flawed from beginning to end. Mr. Halonen was not only part of the management team of the OWA, he was privy to the interaction between Ms. Tzaferis and Ms. Fenech and her union in relation to the accommodation. He was kept informed of events and was consulted by Ms. Tzaferis and other managers on numerous occasions. The evidence establishes that he had formed the clear view that Ms. Tzaferis and the OWA had done better than merely meet its legal obligations in accommodating Ms. Fenech, and that Ms. Fenech was being very unreasonable. Therefore, he could not be objectively seen as a person who could have acted impartially. His decision to undertake the investigation was ill-conceived and was contrary to the employer’s own WDHP policy in a number of ways. To his credit, during testimony Mr. Halonen conceded that in hindsight it was not a wise decision. [256] While the Board has concluded that Mr. Halonen’s investigation process was flawed and in contravention of the WDHP policy, it agrees with the ultimate conclusion that Ms. - 121 - Fenech’s WDHP complaint against Ms. Tzaferis was unfounded. During the whole process, and even during testimony, Ms. Fenech depicted Ms. Tzaferis as a manager intent on discriminating against her because of her disability, and harming her financially. Ms. Fenech had asserted that from the outset Ms. Tzaferis did not want to employ her because of her disability. The Board is compelled to observe, based on the evidence before it, that nothing can be further from the truth. The evidence establishes that Ms. Tzaferis treated Ms. Fenech at all times with compassion and understanding, and worked as best as she could to assist Ms. Fenech return to work within her restrictions. In the face of rudeness, belittling and derogatory comments by Ms. Fenech bordering on insubordination, she exhibited extra-ordinary patience and tolerance, and did not respond in kind. The Board has no hesitation concluding that the allegations of discrimination against her are completely unfounded. She did not intend to discriminate. Nor did she engage in conduct which resulted in discrimination on the basis of Ms. Fenech’s disability. [257] The union relied on the incident on April 13, 2006 in the reception area to argue that Mr. Halonen had subjected Ms. Fenech to a pattern of intimidation and threats. Based on the evidence, I find that Mr. Halonen’s yelling, and aggressive behaviour was very inappropriate, considering his status as a senior manager and considering that his behaviour occurred in the presence of a number of other managers and OWA staff members. If he found Ms. Fenech’s derogatory comments about her manager inappropriate and intolerable, he had the authority to respond in the exercise of his management rights. Losing his temper, and responding aggressively was not a proper exercise of that right. [258] Having so concluded, however, the Board does not agree that Mr. Halonen’s conduct on this occasion represents a pattern. The evidence is that Mr. Halonen attended at the reception area where Ms. Fenech worked with a group of individuals in order to view and make decisions on how the area could be reconfigured in a manner that would accommodate Ms. Fenech’s needs and also meet the operational requirements of the OWA. It was entirely out of place in the circumstances for Ms. Fenech to take the opportunity to verbally attack and belittle her manager. Apart from that being the wrong - 122 - place and time, if Ms. Fenech was of the view that Ms. Tzaferis had denied her any right or entitlement or had violated any provision of the collective agreement or other law, she had the right to pursue her rights in a legal manner. She was aware of her rights because she had filed grievances and a WDHP complaint. The fact that she did not agree with the outcome of the WDHP complaint did not entitle her to verbally attack her manager. Therefore, the Board finds that Ms. Fenech’s behaviour was extremely provocative. While Mr. Halonen, as the OWA Director, despite the provocation, should not have responded in the manner as he did, the Board is convinced that this was an isolated incident of Mr. Halonen losing control of his temper in the face of provocation. It does not support a finding that there was a pattern of intimidation and threats. [259] One of the grievances before the Board alleges that the employer failed to make reasonable provisions for Ms. Fenech’s health and safety. This allegation has two aspects, Ms. Fenech’s concerns about health and safety risks related to the air quality in the OWA office following renovations and her concerns relating to the smell of scents and perfumes in the workplace. The evidence indicates that Ms. Fenech raised a number of issues relating to the air quality following the renovation of the OWA office. Her primary concern was about dust. While she mentioned the smell of paint, smell emanating from new carpeting and leather chairs, the evidence was focussed on the issue of dust. The evidence indicates that on September 12, 2007, Ms. Fenech went off work claiming that she experienced headaches and breathing difficulties as a result of exposure to dust at work. The evidence is that the employer had carried out extensive cleaning following the renovation. However, Ms. Fenech was not satisfied. The evidence relating to additional cleaning done as a result of Ms. Fenech’s complaints is set out in this decision. When Ms. Fenech was still not satisfied, an external firm, T. Harris, was commissioned to perform air quality testing. Additionally Ms. Fenech took the initiative to arrange a visit by the OCHOW hygienist and other professionals. Finally when Ms. Fenech engaged in a work refusal claiming that the indoor air at the OWA exposed her to a health risk, an inspector from the Ministry of Labour was called in. The inspector, who was also a qualified hygienist, carried out an investigation which included testing of the OWA indoor air. None of the three reports that followed, that is T. Harris, OHCOW, and MOL inspector, found the air quality to be below acceptable standards. However, Ms. - 123 - Fenech continued her work refusal and did not report to work. During testimony she said that she rejected the reports as unsatisfactory because they tested the acceptability of the indoor air for healthy employees, and not employees with particular sensitivity to dust. She noted that the OCHOW report acknowledged that while the air quality met minimum acceptable standards, employees with particular sensitivities may still experience irritation. She took the position that indoor air acceptable to healthy workers would not be acceptable to individuals like herself with particular sensitivity to dust and smells. However, while claiming to be ill due to the exposure and that as an individual with particular sensitivity she did not want to risk her health by returning to work, she did not visit a doctor, and despite requests from the employer for a medical substantiating her absence from work, she refused to do so. When questioned during cross-examination, she asserted that she was not seeking special accommodation with regard to the office air quality. Rather, she was refusing unsafe work. It was her position that a worker does not have to provide medicals in order to refuse unsafe work. [260] The Board disagrees. As noted, all of the test reports concluded that the air quality in the OWA was within the acceptable standards. Ms. Fenech rejected those reports and refused to report to work on the basis that while the air may be acceptable to healthy people, it posed a health risk to her because she had particular sensitivity to dust. That was the justification for her refusal to report to work. Since the basis of her work refusal was a health condition, namely sensitivity or allergy to dust and/or anything else in the air, which was not a health hazard to healthy people, she was obligated to substantiate her illness causing her to remain off work. The employer does not have to accept her word in these circumstances any more than in any other situation where an employee is off work for health reasons. The fact that she was purporting to exercise her right to refuse work did not exempt her from the obligation to substantiate the medical condition she was claiming. The same reasoning applies to her claim about exposure to scents. She did not see a doctor nor did she provide any medical note until much later. When the medical was ultimately provided it was a one liner and very general, to the effect that she should avoid strong smells and scents. The doctor did not testify as to the basis upon which she imposed that restriction. - 124 - [261] In any event, the evidence is clear that the employer did not force Ms. Fenech to attend at the workplace or threaten to discipline her for being absent from work without medical substantiation. Nor did the employer refuse to accommodate on the grounds that medical restrictions had not been substantiated. On the contrary, as soon as Ms. Fenech raised her concern additional cleaning was carried out solely in response to her complaints. Accommodation meetings were conducted either by telephone or in an off-site location. She was exempted from physically attending at the workplace for staff meetings. As requested by Ms. Fenech, funds were approved for the purchase of an air purifier with hepa filter, even before any medical to support the need for one was provided. While Ms. Fenech testified that she found dust in various specific areas, no other witness corroborated that. Employer witnesses testified that they did not observe similar conditions. Regardless of all of that, the clear evidence is that the employer carried out the vast majority of cleaning demanded by Ms. Fenech. Even though Ms. Fenech was still not satisfied, the Board concludes that the employer acted more than reasonably in the circumstances. [262] Similarly, even in the absence of any medical evidence to substantiate Ms. Fenech’s claim that she had particular sensitivity to the smell of scents and perfumes, the employer did not ignore her concerns. It promptly engaged in consultations with Ms. Fenech and her union representative. It is significant to note that an agreement was reached to implement an “arm’s length” policy with regard to wearing of scents and perfumes in the workplace. The policy in fact was drafted by the union representative with input from Ms. Fenech. The policy was issued with a plea from management that employees be considerate of others who may have sensitivities to strong scents and perfumes. [263] Ms. Fenech testified that the “arm’s length” policy did not work. She identified individuals who she believed were wearing strong scents. Again the employer did not ignore her concerns. Ms. Tzaferis talked to the individuals identified by Ms. Fenech, and they denied that they were wearing any scents. The basis of the union’s allegation that the employer failed to take reasonable precautions to protect Ms. Fenech’s health and safety is that it failed to impose a complete prohibition against wearing scents and perfumes as requested by Ms. Fenech. The evidence as noted, is that the employer was - 125 - faced with a situation where Ms. Fenech was claiming that specific individuals were not complying with the agreed upon arm’s length policy, but the individuals identified by Ms. Fenech as the violators were denying that they wore any scents at all. Apart from the other explanation given by the employer that a total ban on scents was difficult to enforce because the OWA shared several areas like hallways, elevators, and washrooms, the employer also had to contend with several employees who took the position that a total ban on wearing scents would be an infringement of their right to decide on a personal lifestyle. The employer also explained that Ms. Fenech’s PA position is very much a front line position that routinely interacts with members of the public who visit the OWA. Therefore even if Ms. Fenech is insulated from scents within the office there was no way of monitoring and enforcing a ban on scents on members of the public. In any event, as of the evidence cut-off date, there is no evidence that the employer had made a decision that it would not make further efforts to address Ms. Fenech’s concerns. It was struggling with a dilemma. Ms. Fenech was demanding a complete prohibition on wearing scents and perfumes in the workplace. Several employees were opposing such a policy. It had doubts that such a policy would be effective because of the shared building facilities and the front line nature of Ms. Fenech’s position. In the circumstances, there is no basis to conclude that by not adopting the total ban policy demanded by Ms. Fenech the employer contravened its obligation to take reasonable precautions to protect Ms. Fenech’s health and safety. [264] Finally, the Board turns to the allegation of reprisal relating to the RSI day event. Employer counsel argued that for an allegation of reprisal to be upheld, there has to be proof of intention. A link, therefore, must be established between Ms. Fenech’s filing of grievances and the WDHP complaint, and the employer’s conduct relied upon. [265] No individual is likely to make it known that he/she is taking certain action against an employee as a reprisal. Whether an employer’s conduct is or is not an act of reprisal must necessarily be inferred from the facts of each case. On the basis of the totality of the evidence, The Board is driven to the conclusion that the employer in this instance did act in retaliation against Ms. Fenech because she had filed grievances and a WDHP complaint. - 126 - [266] The requirement that a public service employee declare a conflict of interest is based on the employer’s conflict of interest policy. The employer witnesses testified that the reason that caused them to require that Ms. Fenech make a declaration was their concern that she may make critical comments about the OWA and its managers. Firstly, the employer made the assumption that Ms. Fenech may be acting in that manner without any basis. The employer was aware that Ms. Fenech had founded the RSI day event and had actively participated in the event annually since. It was an event unrelated to Ms. Fenech’s employment with the OWA. There had been no concern about her participation in the past and she had never been required to make a conflict declaration. Yet, without any basis, and without any inquiry from Ms. Fenech whether she intended to criticize the OWA or its mangers, the employer assumed that Ms. Fenech may be critical of the OWA and its management. There was no reasonable basis for the employer to conclude that was even a possibility. Moreover, the conflict policy sets out a number of circumstances in which a public servant is required to declare a conflict. The possibility of making critical comments of the employer is not one of the situations. [267] Turning to Mr. Halonen’s conduct, he conceded that he had not attended the RSI day event in any previous year. He had no explanation as to why he chose to attend this particular year, other than that he had seen a flyer inviting the public to attend, and that the OWA was generally supportive of injured worker events. The uncontradicted evidence that the director of the OWA who had never before attended the RSI day, not only chose to attend this year, but also sat in front and took notes while Ms. Fenech was speaking, leads the Board to conclude that the difference this particular year was the conflicts Ms. Fenech had with management of the OWA which led to her filing grievances and a WDHP complaint. Such conduct was intimidating and threatening. The Board concludes that it constitutes a reprisal for Ms. Fenech’s exercise of rights under the Human Rights Code. Conclusion [268] Based on all of the foregoing the Board concludes that the employer did not contravene the collective agreement or the Ontario Human Rights Code, by discriminating against - 127 - Ms. Fenech on the basis of her disability, by failing to accommodate her or failing to accommodate her in timely fashion. While the employer’s handling of Ms. Fenech’s WDHP was flawed in a number of ways and did not comply with its own policy, that did not lead to a violation of the collective agreement or the Code in that the Board agrees with the conclusion in Mr. Halonen’s report that the complaint was unfounded. The Board, further finds that the employer did not fail to make reasonable provision for Ms. Fenech’s health and safety as required by the collective agreement and legislation. However, the Board does conclude that the employer contravened the Human Rights Code by requiring Ms. Fenech to declare of conflict of interest with regard to her participation in the RSI Day event and by Mr. Halonen’s attendance at the event. Such conduct constituted a reprisal or a threat of reprisal within the meaning of s. 8 of the code. [269] Therefore, the Board orders as follows: (1) Grievances numbered as 1, 2, 3, and 4 at paragraph 1 of this decision are hereby dismissed. (2) Grievance number 5 set out at paragraph 1 of this decision is upheld. As agreed upon by the parties, I remit the matter back to the parties to attempt to agree upon any remedy that flows from the finding of liability on the part of the employer with regard to grievance number 5 beyond the declaration made in para. 268. The Board remains seized in the event the parties are not able to resolve the remedial issues. Dated at Toronto this 17th day of July 2012 Nimal Dissanayake, Vice-Chair