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HomeMy WebLinkAbout1992-2690.Toplin.95-07-05 i . . ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMilE /TElECOPIE (416) 326-1396 GSB # 2690/92, 2787/92, 2785/92, 653/93, 1496/93, 1499/93, 1500/93, 1501/93, 1502/93, 1503/93, 45/94, 46/94 OPSEU # 92G744, 92G817, 92G819, 930897, 93F645, 93F648, 93F649, 93F650, 93F651, 93F652, 94A507, 94A508 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Toplin) Grievor - and - The Crown in Right of ontario (Ministry of Correctional services) Employer BEFORE H Waisglass Vice-Chairperson W Rannachan Member M. O'Toole Member FOR THE M Mazzuca GRIEVOR Counsel Koskie & Minsky Barrister & Solicitor FOR THE S_ Patterson & C Nikolich EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING September 20, 1993 April 18, 19, 20, 28, 29, 1994 July 28, 29, 1994 November 22, 30, 1994 December 1, 1994 April 10, 12, 19, 20, 1995 i I I 2 AWARD ThlS panel commenced hearlngs September 20, 1993 On the basls of an agreement between counsel, Mr Mazzuka and Mr Patterson, as set out In Exhlblt 1, we proceeded on the following twelve grtevances of Mr R Topltn GSB hIe numbers 2690/92, 2787/92, 2785/92, 1499/93, 1503/93, 1502/93, 1496/93, 1501/93, 1500/93, 46/94, 45/94, 653/93 The followlng ntne grlevances remaln to be scheduled for hearing at the earllest possible date GSB flle numbers 2690/92-A, 2690/92-B, 2788/92, 2786/92, 1498/93, 1504/93, 1497/93, 47/94 44/94 Exhlblt 1 expresses the agreement of counsel "All of the follow1ng grievances {which are now before us for dec1s1on} arise out of the fact that Mr Topl1n, as agreed between the parties, has a handicap, as defined under the Human Riahts Code As the result of a condit1on known as pseudofollzculztis barbae Mr Toplin has been advlsed by hlS physiclan that he should not shave It is alleged that because of his handtcap the M1nistry entered into a course of harassing and discriminating conduct which is summarized through the grievances set out below " A) Gr1evance dated October 13, 1992 This grievance arises out of an alleged conversat1on w1th Mr Ray Kalmns, a management employee of the Hamilton- Wentworth Detention Centre Mr Kalnins 1S alleged to have threatened Mr Toplln that he would lose hlS Job if he did not shave " D) Gr1evance dated October 13, 1992 ThlS grlevance alleges that the employer had an obligation to accommodate Mr Toplln as an employee wlth a dlsabll1ty The allegatlon tS that the employer should have considered alternative equlpment Wh1Ch could be used by an employee w1th factal hatr " E) Grievance dated October 13, 1992 This gr1evance arlses out of the same lnc1dent descrtbed 1n grievance A, above " 3) Grievance dated September 21, 1993 Thts grievance alleges that as a result of the course of harassment and dtscrimlnat10n set out 1n this letter I that the gr1evor was forced to leave the workplace and go on short term 51Ck beneflts As a result of thlS the grlevor was pald, as set out ln the collectlve agreement, at 75% of his normal salary ! I I .1 I, . ~ . 4 The grievor was the only witness heard Upon completlon of his re-examlnatlon Union counsel declared hlS case closed, whereupon Employer counsel brought a motlon for non-suit, without belng put to electlon We then heard arguments on the question of non-electlon In accordance wlth the procedure of th1s Board set out in Faler, GSB 218/89 (Flsher) we decided to hear arguments on the non-suit motion without requiring the Employer to be put to the elect10n whether or not to call evidence The Employer relied also on cases wh1ch followed Faler Gibson/Patterson GSB 319,320/93 (Barrett), Jensen GSB 2511/90 (Gorsky), Santos GSB 974/92 (Waisglass) b It is our view that non-suit motions wlthout belng put to elect10n should be permitted only in special C1rcumstances Further, we are m1ndful of Ratushney's dectsion in Abarv 9 C H R R 0/4975, at para 38201 "I am of the view that an application in the nature of 'no case to meet'should be permitted before administrative tribunals without requiring the respondent first to elect whether or not to call evidence. The basic principle has been articulated by Mr Justice Lamer in Dubois v The Queen [1985] 2S.C.R. 350 Essentially, it is that an accused should not be required to present evidence unless the proponent has first presented evidence upon which an adverse finding can be based. In other words, the principles of fairness should not require an evidentiary response in the absence of a 'case to meet' In the special circumstances of the instant case, we decided not to requlre electton because we found, in balanclng the interests of costs and expeditlon agalnst the duty of fairness, there tS the poSStblltty that, tf the Employer's argument is correct on tts merits, considerable delay and expense can be avotded without lmpatrtng fatrness If we had dismissed the non-suit motion we would not have given the parti.es our reasons for d01ng so, orally or tn wrltlng, at least not untll the final award is issued upon closure of the case, and then only if requested by one of the parties The Employer claims the Umon falled to establ ish a przma facze case that the grtevor was harassed or discrtmtnated agatnst on the grounds of h1s hand1cap Ca medical condit10n which necessttated h1s beard), and that h1s stress was caused by the alleged harassment or dlsCrtmtnatton And further, there 1S no eVldence of bad fatth ~ 4 ,I 3 I " 4) & 9) Gr\evances dated September 21, 1993 Both of these gr\evances ar\se out of the same inc\dent The gr\evor alleges that his shift was changed on June 7, 1993 and th\s change \s a further example of harassment and d\scr\m\nat\on wh\ch he was undergo\ng " 5) Grievance dated September 21, 1993 " {Th\s grtevance pertatns to the Mtnistry's alleged fatlure "to comply wlth the terms of a Court Order regardtng the maktng of support payments from the employee's wages" It was was withdrawn during the proceedlngs } " 7) Grtevance dated September 21, 1993 This grtevance tS a further example .~, of the harassment and dtscrtm\natlon which the grlevor was subJected to Whlle the grlevor was absent on short term s\ck beneftts Mr Gary Hogarth, a management employee of the Min\stry, contacted Mr Topl\n's physic\on to request certain \nformat\on " 8) Grievance dated September 21, 1993 The grtevor alleges that h1.s reclassiftcatton to the status of Security Officer, effective June 17, 1993 was not a proper accomodation of hlS handicap and ts a further example of harassment and d\scr\mtnation " AA) SB) EE) Gr\evances dated June 3, 1993 In these grievances the grtevor alleges that Mr FaJertag and Mr Thomas, management employees of the I Mi.ni.stry, harassed and d'lscnmi.nated aga'lnst the gnevor The eV'ldence of such I harassment and dtscrtmtnation tS set out in letters dated April 22 and May 11, 1993 and artses from a meettng among the parties on March 31 " ******************************** Union counsel assured the Employer that the Union and grievor would not be seeking the remed\es set out \n the above-noted grievances "Instead. and followina aareement Qy the Minlstrv that the arievor should be returned to ~ Dositton ~ ~ Correcttonal Officer ~ WhlCh does not reauire the wearina of MSA eauloment". the arlevor cla\ms "damaaes for mental dtstress. lost waaes and out of Docket eXDenses". In addltion to Exh\bit 1, cited above, the panel rece\ved in eVldence many documents on consent of the parties They are listed \n Appendix A to th\s Award -- I I I II ... . 6 . I conceive, therefore, that in judging whether there is any case evidence for a jury the judge must weigh the evidence given, must assign what he conceives to be the most favourable meaning which can reasonably be attributed to any ambiguous statements, and determine on the whole what tendency the evidence has to establish the issue. and: From every fact that is proved, legitimate and reasonable inferences may of course be drawn, and all that is fairly deductible from the evidence is as much proved, for the purpose of a prima facie case, as if it had been proved directly I conceive, therefore, that in discussing whether there is any case evidence to go to the jury, what the Court has to consider is this, whether, assuming the evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of reasonable intelligence the jury would be warranted in drawing from it, there is sufficient to support the issue." rOntarlo v. OPSEU (Calhoon), (1990), 37 0 A C 218J We accept also as relevant Mr Mazzuca's reference to the Supreme Court of Canada decislon under the Ontario Human Rights Code, O'Mallev [7 ( H R R 0/3102J which at para 24782 states the plaintlff bears the burden of proof "He who alleges must prove. Therefore under the Etobicoke rule as to burden of proof, the showing of a pn'ma facie case of discrimination, I see no reason why it should not apply in cases of adverse effect discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the grievor's favour in the absence of an answer from the respondent-employer Where adverse effect discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accomodation of the employee's position as are open to him without undue hardship." We accept as relevant also Ms Nikolich's reference to The Law of EVIdence In Civil Cases (1974) by Sopinka and Lederman at pp 521-2, as cited in Re (aleary Coooerative Assn & Caleo Club [McFetrldge24 LAC (4th) at p 316-7 "If such a [non-suit] motion is launched, it is the judge's function to determine whether any facts have been established by the plaintiff from which liability, if it is in issue, may'be inferred. It is the jury's duty to say whether, from those facts when submitted to it, liability ought to be inferred The judge, in performing his function, does not decide whether in fact he believes the evidence. He has to decide whether there is enough evidence, if left uncontradicted to satisfy a reasonable man He must conclude whether a reasonable jury could find in the plaintiff's favour if it believed the evidence given in trial up to that point The judge does not decide whether the jury will accept the evidence, but whether the inference which the plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it The decision of the judge on the sufficiency of evidence is a question of law; he is not ruling on the weight or the believability of the evidence which is a question of fact Because it is a question of . 5 The Employer's counsel, Ms N1kollch, sub/mts that the documentary eV1dence, as well as the gr1evor's own test1mony, shows that the Employer made every reasonable effort to accommodate the gnevor's beard, and that the gnevor regularly responded to those legit1mate efforts w1th aggressive and confrontat1onal actlons WhlCh seriously comprom1sed or underm1ned the Employer's efforts to accommodate him She submits further that there 1S no eV1dence that the Employer denied his hand1cap or refused to accommodate 1t, that, to the contrary, the eV1dence establishes the Employer had accepted as fact the grievor's hand1cap and tried to accommodate it, and that the grievor denled that he had a handlcap and refused to cooperate with management's efforts to accommodate hlS handlcap Both counsel rely on the same cases which establlsh that in order to susta1n a compla1nt of harassment under the Human Rights Code, such as the instant case, 1t 1S necessary to establish the following elements [lJ The respondent engaged in a course of vexat10us comment or conduct, [2J At the relevant tlmes the complainant was an employee and the respondent was the employer or agent of the employer, [3J That the comment or conduct complalned of was known, or ought reasonably have been known to be unwelcome, and [4J That the comment or conduct complained of was for the reason that the complalnant has or 1S bel1eved to have a [handicapJ fBoehm 8 C H R R 0/4121, see also Ghos~ 17 C H R R 0/216, Persaud 14 C H R R 0/23, Cuff 8 C H R R 0/3972J The non-su1t motion rests on the ground that the Union failed to establish a przma facie case In order to succeed, the Employer must show that there 1S not sufficlent eV1dence for a prima facIe case, which means that there 1S no eV1dence of probatlve value for the defendant, the Employer, to answer On the standards for proof, counsel are on common ground, relYlng on the same cases :' In decid1ng a non-suit motion '[ l 1 "the issue is whether there is some evidence to support the claim. If there is some evidence a I I motion for non-suit must be dismissed. It there is none, it must be granted In performing I. this function the judge must lean in favour of the respondent to the motion In Hall et al v I Pemberton (1974), 5 0 R.(2d) 438 (C.A.) at pp438-9, Jessup J A., said for the court "The principle which this Court must apply is stated by Lord Penzance in Parfitt v Lawless 1 I (1872), 41 L.J P & M 68 at pp. 71-2 where he said I I I ! j I I - I . 8 The Employer SUbmlts that the Unton fat led tb provlde any or sufflctent eVIdence to establ1sh the necessary elements of a prima fac1e case of harassment, part1cularly, that the Unton failed to prov1de prIn~ facIe eV1dence to establ1sh that the Employer "engaged 1n a course of vexat10us comment or conduct", or that "the conduct complained of was for the reason that" the grievor has a hand1cap (skIn dIsease) Further, Employer's counsel subtmts that there 1S no eVIdence of a nexus between the alleged harassment and the emotIonal stress WhICh required the grievor to go on sick leave when he was offered a lower-paying job to accommodate his disabilIty /, / The parties agree that Mr Toplln's skin disease, pseudofolliculitzs barbae, IS a handIcap as defIned under the Human Rzghts Code They agree that harassment and dIscrimination on the ground of that handicap is prohIbited by both the collective agreement and the Code They agree also that Section 17(2) of the Code requIres the Employer to accommodate his handicap "wIthout undue hardsh10 .... considerina the cost. outside sources of fundina. 1f anv. and health and safetv reauIrements if anv" Along WIth the above-noted duty to accommodate a hand1cap, the Min1stry and its managers at the Hamilton-Wentworth Detention Centre [HWDC] have the statutory responsibIlIty and duty, under the Occupatzonal Health and Safety Act, to ensure the safety and health of employees Also, the provIsions of Article 18 1 of the Collective Agreement require the Employer to ensure the health and safety of the employees The Ministry's "Respiratory Protection Program" [Exhibit 39J is not In d1spute It is accepted in evidence on consent of the parties Exhibit 39 states that Its purpose IS "to ensure the safety and max1mize the potentIal for the safe evacuat10n of all persons durIng a fire emergency", consIstent WIth 1tS statutory and collective agreement obligations The relevant paragraphs of ExhIb1t 39 indicates [1] that the Ministry has provided MSA Pressure Demand Air Breathing Apparatus at strategic locations 111 each instItution {para. 1} -' . 7 law, the judge's assessment of the probative sufficiency of the plamtlff's evidence, or the defendant's evidence of a counter-claim for that matter, is subject to review by the Court of Appeal" On the question Wh1Ch the cha1rperson put to counsel, "what 1S eV1dence", he refers to the cItation from Mr Justice Howland's dec1s1on in Re Bortolotti et al and MinIstrv of Hous1na et al, 76 DLR (3rd) 408, 15 0 R (2d) 617 (C A ) at 623-4, 1n a decis10n of the Public Serv1ce Gr1evance Board, P-0004/85 Kashuba [Surmons] "As Cross points out in his text on Evidence: "The admissibility of evidence depends first on the concept of relevancy to a sufficiently high degree, .and secondly, on the fact that the evidence tendered does not infringe any of the exclusionary rules that may be applicable to it." Mr Justice Howland continues "In my opinion, any evidence should be admissable before the Commission which is reasonably relevant to the subject matter of the inquiry and the only exclusionary rule which should be applicable is that respecting privilege as required by Section 11 of the public Inquiries Act. The requirement that the evidence be reasonably relevant was applied by this court in R. v Gaich. Having determined that the test of reasonable relevance should be applied, it is necessary to consider the meaning of the word 'reasonably relevant' In concluding what evidence is admissable as reasonably relevant to a Commission of Inquiry, I would adopt the statement in McCormick on Evidence. 'Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value. ' " We adopt thIS same VIew The evidence must be relevant to the questions which must be deCIded if the grievances are to succeed In the instant case, the establIshment of a prima facie case requires evidence which has the mlnimum necessary probat1ve value to require a response from the defendant, the Employer, and wh1ch, in the absence of an acceptable defence, 1S suffiCIent evidence for the grievance to succeed Clearly, the evidence requIred for a prIma face case is not to be weighed on the balance of probabilItIes, but rather the evidence 1S to be assessed to determine if tt has suffICIent probative value to reqUIre an answer from the defence We accept also the follOWIng comment whtch Professor SImmons made on thIS Cl tab on "In our vIew, reasonably relevant cannot be determIned on a blanket bas1s Instead, we w1ll have to rule what constItutes re-asonably relevant If, I I as and when the Issue arIses" Cop cit ] I' I I I I lJ . 10 The remalnder of Para 10 of Exhlblt 39 establlshes procedures for the accommodatlon of an employee ln a deslanated cateaorv who lS reaulred to wear the MSA eaU1Pment. but who is unable to comply wlth the faclal halr POllCV due to a change ln personal circumstances b~yond the employee's control, such as a medical condltion, inJury or a sltuatlon reaUlrlna posslble accommodation under the Human Rzahts Code The policy dlstlnguishes between temporary and permanent "change in personal circumstances" Para 10 7 states the procedures to be followed ln case of a temporary change "When such a circumstance occurs, options such as the following shall be considered: " "a) contact the supplier to assess whether a different size or type of mask or a mask accessory will provide the required fit; or "b) accommodate the employee by means of a reassignment to a non-designated position or to duties not requiring the wearing of the MSA breathing apparatus during an emergency ."espcnse. "While accommodation within the institution may not be possible in every case, it shall be undertaken to the extent that an institution's crisis response capability is not diminished "The ability to accommodate an employee may depend on the nature, size and specific characteristics of the institution, the human resources available and various other factors. Therefore, accommodation decisions will always be made on a case-by-case basis after careful consideration of all relevant factors." Para 10 8 sets out dlfferent procedures to be followed in the case of permanent non-compliance "Where the reasons for non-compliance are health or injury-related and, ,after careful consideration, the options described in procedure 7 above are not practicable, the employee shall be declared medically unfit for duty and placed on Short Term Sickness Plan Benefits. If the prognosis indicates that the non-compliance will be permanent, the employee shall be provided with career counseling and assistance in security alternative employment within the public service." Para 10 concludes wlth thlS note, ln heavy type for emphasls "To ensure fairness and consistency in the provision of personnel services and tracking of ministry accommodation decisions, the Regional Personnel Administrator and Human Resources Management Branch shall be consulted about all decisions involving procedures 10 7, 10 8 and 10 9 above" - , I I I 9 [2] that the Program administrator for HWDC IS the Staff Trainmg Officer who, among other things, is required to "ensure that all employees who may be reauired to wear respirators are provided with a coPY of the written operatina procedures for the proaram." {para 4} [3] that all classified and unclassified correctional officers are amona the cateaones of employees that limay be required to wear the MSA breathina apparatus and that shall receive regular and ongoing training to provide for the safe and proficient use of the equipment during an emergency" {para. 7} (4] that "The CSA standard requires that under no circumstances shall an employee wear a respirator for which a satisfactory facial fit has not been obtained." Three sizes of respirator facepieces are available. Most persons "are able to obtain a satisfactory seal with the medium size" "It is expected, therefore, that purchases of additional facepieces will be necessary only in exceptional circumstances" "{para 8} , [5] that the MSA equipment may not provide a satisfactory face seal with certain physical characteristics such as beards and gross sideburns, resulting in leakage which could result in death or serious injury Consequently, the Policy declares that "no oerson who is desianated to use the MSA breathina apparatus shall have facial hair. includina a beard. moustache or sideburns. which has the potential to prevent the faceoiece from effectina a full facial seal either dur'ina an emeraency or during practice use." {para. 9} {Emphasis 1S ours} Further, Para 10 of Exhibit 39 states "When the Superintendent or a supervisor believes that the facial hair of an employee designated to wear the MSA breathing apparatus may contravene the ministry's facial hair policy, the following procedures apply' "10 1 The safety concern shall be brought verbally to the attention of the employee by the Superintendent/supervisor "10 2 If the employee agrees to trim or, if necessary, remove the excess facial hair in order to comply with the ministry's policy, the employee shall be required to do so immediately In exceptional and compelling circumstances, the Superintendent may extend this time limit "103 If the employee fails to trim or, if necessary, remove the excess facial hair within the period of time established or dispute the need to trim or remove the hair in order to comply with the ministry policy, the employee shall be required to submit to a mask fitness test. " {paras 10 4 and 10 5 set out the requ1rements and procedures for the test} I I "10 6 If the results of the mask fitness test indicate that the employee's facial hair does not I conform to the ministry's facial hair policy, the employee shall be directed in writing to I bring the facial hair into full compliance with the policy immediately In exceptional and I compellmg circumstances, the Superintendent may extend this time limit The I I correspondence shall also inform the employee that failure to comply with the direction I within the prescribed time limit may result in disciplinary proceedings. n I I I I I I i I . 12 i I Toplin test1fied that some t1me between March and June, 1990, he told Len I Hardw1ck, Institut10nal Tra1n1ng Off1cer, that h1S family doctor recommended he wear a beard and arranged an appo1ntment w1th a dermatologlst Hardw1ck showed h1m and explained the policy(stand1ng order) on fac1al ha1r Among other things, Hardw1ck expla1ned that if facial hair 1S necessary 1t must be tr1mmed back 1n such a way as to make it poss1ble to ma1ntain the facial seal w1th the mask on, and why that was 1mportant, because 1f the seal is broken, smoke could get 1n and 1mpair the CO's abillty to respond to a fire dnll There 1S no doubt he was 1nformed by the Employer and he understood that it was among h1S dut1es as a CO to respond to fire calls and to part1c1pate in per1od1c f1re dr1lls, Wh1Ch requ1red h1m to use MSA equ1pment Topl1n testif1ed he received a letter dated July 5, 1990, from G Hogarth, Sen10r Assistant Superintendent, w1th a copy and an explanation of the Ministry's policy on facial hair We do not have this letter in evidence, but 1n the context of Toplin's evidence we infer that it was written in response \ to his Occurrence Reoort [Exhibit 18J, cited above Toplin replied promptly with his memo dated July 9, 1990, [Exhibit 19J "In response to your request I respectfully ask perm1SS1on to grow facial hair in accordance with Ministry Standards relating to MSA equ1pment " In th1S memo he also quest10ned how the policy appl1ed, to him since he had not yet been tra1ned on MSA equipment, and he pointed out that he will need 12 to 14 weeks of fac1al hair growth Wh1Ch he belIeved "w1ll fac1l1tate a more accurate test as prescribed by the Min1stry in compliance with operational character1st1cs/ standards wh1le 1n cOl'm1and of faClal hair" Topl1n's request for more time was granted Hogarth told Toplin he had to SUbm1t h1S beard to the MSA seal test Hardwick adm1n1stered the test on August 9/90 The result was he was permitted to wear the beard and asked to continue seeing his doctor The gr1evor's test1mony ind1cates a fam1liarlty w1th the M1n1stry's resp1ratory protect1on program and 1ts related pol1c1es and procedures We are - -- I I ~ . 11 BACKGROUND Toplln commenced hlS employment wlth the Mlnlstry as a casual CO 1 on April 24, 1989 and became a full-tlme classifled employee Aprll 22, 1990 He had a beard at the time he applled for the casual Job, but he had shaved it off when he started on the Job in April, 1989, because he had been told lt was a Minlstry requlrement for employment as a correctlonal offlcer He remalned beardless for 14 months, until June, 1990 TODlln testlfied he flrst became aware of his severe skin Droblems with , inarown halrs.bleedlna and dlscomfort. when shavlna. commencing a few months before that time, when he took the problem to his family physlclan, Dr Mazur, in February or March/90 Dr Mazur referred him to a dermatologist Dr Murphy H1S testlmony was that he saw Dr Murphy only once, on June 26, 1990 Topl in"s testimony that he hrst became aware of hts serious facial skin condition in February or March/90 is contradicted by hts testimony in his Occurrence ReDort [Exhlbit 18] to Mr R Vtlleneuve, Supertntendent, Hamilton- Wentworth Detentton Centre, and dated 29 Ju~e 1990, in which he said "I have recently been classified CO 1 on April 2, 1990 Prior to working for this Ministry I was growing my beard. I have had a serious facial skin condition datina back to 1978. {Emphasis ours] My shaving of my beard to enter this Ministry was not without conflict. I have had severe rashes during the winter months and even bleeding periods during the more climatic times of the year" Toplin concluded by saying, "It is my intent to follow my specialist's instructions and grow my beard notwithstanding my daily functions as a Correctional Officer 1 " He attached two notes to this Report, both from Dr Murphy, and both dated 27 June 1990, one for a preSCrtptlon for hts facial rashes/bleeding and one stating "Randy has chronic pseudofolliculitis on his neck ThlS is incurable but the problem can be solved by growlng a beard I have recommended this to Randy " The eVldence is that the Employer had been lnformed at the tlme Toplin deltvered his Report to the Superlntendent, with the dermato10gtst's notes attached, that Mr Topltn's skin disease, pseudofollzculztzs barbae, is a chronic and lncurable problem "which can be solved by groWlng a beard" There is nothlng ln eVldence, however, that the Employer ever denled Toplln the rlght to wear a beard, or refused to accomodate hlS medical condttlon . .. 14 The arlevance dated Seotember 21/93 [ldentlfled ln Ex 1 as #81 alleges that the grievor's "reclasslflcation to the status of a Securlty Cfflcer, effectlve June 17, 1993, was not a proper accommodation of hlS handlcap and lS a further example of harassment and discrimlnatlon For reasons set out hereln, we flnd that the Unlon falled in 1tS onus to establlsh a prima facle case, such that would requlre the Employer to refute these allegations Union counsel argues there is no eV1dence that the Employer was willing to accommodate the gr1evor w1th a comparable permanent position, before it had ~, actually done so, pr10r to the f1rst day of hear1ng In support of his argument that there lS a statutory obligatlon upon the Employer to accommodate the gr1evor by placing him promptly in a permanent position that permitted h1m to wear a beard, Un10n counsel rel1es on Re York Count v Hospital & C.N.A. (Watters) 26 LAC (4th), 385, and Re Ontario & O.P.S.E.U.rK1mmel/Leafl (Kaplan) 21 LAC (4th), 129 Kaplan, 1n Kimmel/Leaf. describes the requuementsfor the discharge of the Employer's duty of reasonable accommodat1on at p 159-60, as follows "The duty, once adverse impact is established, is to accommodate to the point of undue hardship. In our view, the employer was required to explore and then offer an accommodation to each of the grievors. Put in another way, the initial obligation to accommodate rests with the employer Had the Employer made a real effort to accommodate to the point of undue hardship, then our disposition of the grievances would almost certainly have been different Once the employer makes its offer of accommodation, again to the point of undue hardship, the employee has an obligation to respond to the offer and to be reasonable in his or her response. In the instant case, the parties never reached that point. The employee's obligation is to respond reasonably and in good faith to a real offer of accommodation. but that, of course, presupposes the preexistence of such an offer We find there was no such offer in the instant case."{Our emphas1s} Union counsel argues that the Employer's offer to accommodate the gnevor with a lower-paid job was not a real or reasonable offer of an accommodation "to the point of undue hardsh1p", and that the grlevor was under no obl1gat1on to respond to that offer Un10n counsel rel1es on the York County HosP1tal & O.N.A. case and the rKlmmel/Leafl case [c1ted above], clalmlng, that they stand for the propos1t1on that reasonable accommodation reqU1res the Employer to offer the grlevor a new pos1t1on w1th comparable respons1billtles and the same pay as he had 1n h1S preV10US pos1t1on --.--- ------- . . 13 satIsfIed that he knew, at all materIal tImes, that In hIS poslt~on as a classIfIed correctIonal offIcer he was an emolovee In a deslanated cateaorv who IS reauired to wear the MSA eauloment. as a condItion of emolovment In that oosltion The Unlon alleges that the Employer's failures to accommodate the grlevor's i I handlcap constltutes "a course of vexatious comment or conduct", involving "a degree of repetltlon", WhlCh harassed the grievor, and which the Employer knew, or ought reasonably have known, to be harassing The UnIon submits that eVIdence of acts comprislng a course of "vexatious comment or conduct" IS / found in Toplln's testImony on the Employer's failure to provIde hIm with reasonable and timely accommodation to his disability, and in his evidence of the Employer's repeated requests for MSA "seal tests" and for medical reports on his skin disease, even after the Employer had been Informed that hIS condItion was chronic *************** DECISION For the reasons given herein, we find the Union has failed to establish a przma faeze case that the Employer had failed to provide the grievor with reasonable and timely accommodation within the limits of undue hardship On II the contrary, the eVldence is that the Employer never refused or failed to so accommodate hIS handIcap The evidence is sufficient to establish also that the Employer's requests for MSA tests and medical reports were, in each Instance, legitimately required by the Employer for the purpose of assessing the grIevor's handIcap and to assist in the process of determining an approprIate accommodatIon, whether on a temporary or permanent baSIS In the absence of any evidence that the Employer's requests for MSA tests and for medIcal reports on hlS skin disease were improper, invalid, or made In bad faIth or for an Improper motive, we fInd that the Unlon has falled to establIsh a prZlna faeze case that the Employer's actIons comprIsed a course of harassIng conduct I I I I ~ , 16 " Mr Toplin's anxiety becomes so disruptive at times that he functions in a self-defeating way He is irntable with his wife, demanding and distraught wIth his doctors and his lawyers, and generally unable to bring a reasoned approach to his complex dealings with others." "Mr Toplin frequently presents himself in an unfortunate way, swinging from being helpless and overwhelmed to being hostile and threatening As a result, he precipitates a variety of intense reactions in other people which frequently serve to only complicate his situation His sense of personal worth and adequacy is very much tied up in his struggle with his employer, and we can only hope he will begin to recover to a degree of autonomous function once the grievance process has run its course. In the interim, I think on the medical side, all we can do is treat him supportively and trust that the on-going stresses will not cause an even further disability" [Exhibit 168J ;, There is no eVldence to support the Union's claim that the accommodation clalmed by the grlevor {a C02 posltion wlth a oermanent exemptlon from the requlrement to wear MSA breathlng 9pparatus} was the only legitimate accommodation which the Code required the Employer to offer, ln the particular Clrcumstances of the tlme when he was offered a permanent security position We have no evidence to support the allegation that the Employer's offer was improper and failed to satisfy the requirements of the Code In the absence of a prIma faCIe case, we can not accept the Union's claim that the onus is on the Employer to prove his offer of accommodation was a real or proper one, and made in good falth The onus of proof i.s wlth the one who alleges Unlon counsel relies on the alternatlve argument that if the Employer 1S able to make the proper accommodation [an equ1valent job with equivalent payJ and refuses to do so, that thlS amounts to harassment He submits, as prima faCIe evidence in support of this argument, the fact that ln the period from December. 1991. to June 7. 1993 Taplin was ln a C02 positlon i.n which he was exempted from the faclal hai.r pOllc1.eS, and that the Employer had agreed to place him {upon his eventual return from slck leave} in a C02 positlon which does not requlre the wearing of MSA equlpment, and thus, permittlng hlm to wear a beard The flaw ln thls argument is the assumptlon, without support1ng eVldence, that the initial offer was not a real offer, made in good faith Furthermor,e, the - 1 15 Our careful cons1derat1on of these cases do not lead to the same conclus1on On the contrary, they support the propos1t1on that what could be a real or reasonable accommodat1on "without undue hardsh1p" depends entlrely on the particular factual circumstances at the time when "the employer was requIred to explore and then offer an accommodation", in respect to each separate and d1st1nct case of handicap Further, a orIma facIe case has not been established on the Un1on's alleaation that the accommodat1on Wh1Ch was ultimately made 1n the 1nstant case was the only real or reasonable accommodat1on "w1thout undue hardsh1D"that could or should have been offered by the Emoloyer in the 1nit1al C1rcumstances. / / There 1S no eV1dence of probatIve value that the Employer's 1nitial offer of accommodation was not a real or proper offer, or that it was made in bad faith We agree w1th Kaplan's Judgment that "the emoloyee's obliaat1on is to i resoond reasonably and in aood faIth to a real offer of accommodat1on." Cop cit ] We have no eVIdence that the grievor responded "reasonably and in good fen th" )' On the contrary, the evidence indicates Taplin failed to respond reasonably H1S 1nappropriate responses to the Employer's proposals were affected at the t1me by the symptoms of his mental disorder, the history of Wh1Ch predates his employment at MWDC [Exhibit 16B] Toplin required and obtained psychiatrIc treatment of the d1sorder when he went on sick leave, upon his reJection of I, the Employer's offer of a oermanent accommodation to the posItion of a securi. ty offlcer His psychiatr1st did not express the opInion that Toplin's I symptoms of stress were due to workplace harassment H1S psychIatrist's letter states " he {TaplIn} attributes his symptoms to harassment at the work place as well as ongoing confl1ct at home and w1th his extended fam1ly " The following excerpts from his letter of December 21, 1993 [Exh1bIt 16BJ, cast serIOUS doubt on the grIevor's evidence that his symptoms were due to harassment at the workplace "He comes from a dysfunctional family, has a background of alcohol and drug abuse, but states he stopped all substance abuse in February of 1992 after a break-Up with his wife. His Wife and her parents are physically handicapped with Mr Toplin perceiving himself as having to cope with a multitude of other problems when he badly needs help himself" -.--- - ~ 18 unt1l January 27, 1992, when "a further med1cal note" 1S requ1red "In order that a reV1ew of your status can be conducted The temporary accommodat1on perm1tted h1m to wear a beard and 1nstructed h1m not to wear MSA equipment Exh1b1t 22(AJ, dated February 7, 1992, conf1rms that on the recelpt of the same medical lnstructions the Employer extended the temporary exemptlon to March 2, 1992, when a further medlcal note lS requlred to reVlew hlS status agaln Exhlblt 42, dated March 9, 1993, extended the exemption for a three- month perlod to June 2, 1992, another medlcal note was requlred to reVlew hlS status agaln Exhlbit 4, dated May 29, 1992, slmllarily extended the accommodation for a four-month period to September 25, 1992, when lt was to be -', reviewed again on medical evidence Contrary to the Unlon's claims, the evidence indlcates the Employer, at all materlal tlmes; made serious and reasonable efforts to accomodate the grievor's handicap The Union has provided no evidence of probative value in support of lts allegatlons that th~ Employer could have offered the grievor, "without undue hardship", a permanent C02 position, one which did not require the use of MSA equipment, at a much earlier date, and that thlS failure constitutes harassment The first incldent of alleged harassment arose in December, 1991, when Toplin was required to take a "seal test" on the MSA equipment His testlmony is that he felt harassed when he was forced to take these tests despite the fact management already knew about hlS skln condltlon Unlon counsel SUbmlts that the Mlnlstry's POllCY on "Respiratory Protectlon Program" [Exhlblt 39J is not 1n 1ssue, rather, the issues are the harassment of the grlevor, and the fallure to accommodate his handicap, including the frequency of tests on MSA gear which the grievor perceived as unnecessary and excessive, and thereby harasslng However, there lS no eVldence of probatlVe value that the tests were not requlred by the "Resplratory Protectlon Program" [Exhlblt 39J, or that the managers dld not have the right to requlre the tests, or that they vlolated the collective agreement or a statute, or that they acted ln bad falth, or for lmproper motlve ....! t' 17 Un1on's argument, that Topl1n had been exempted permanently 1n h1S pr10r pos1t1on, 1S not supported by the facts The pnor exempt10ns were not permanent exemptions Rather, they were temoorary exempt10ns from the MSA requ1rements of h1S pos1tion and Wh1Ch were extended from t1me to t1me 1n the course of treatment for hlS medlcal cond1t1on, unt1l such tlme as the Employer came to conclude "the prognosis lndicates that the non-compliance wlll be permanent" This is conslstent wlth the requirements of the POl1CY [See para 10 8 of Exhibit 39,supra] There is nothing wrong or unfair about an employer glvlng an employee a / . I a falr chance, some reasonoble t1me, to prove hlS medlcal condltlon cannot be ,I " treated and controlled, to the point it no longer dlsables him from performlng I the requirements of his posit10n Such accommodat1ons do not imply or obligate a permanent commltment The evidence that temporary accbmmodatlons were made previously to Toplin's skin disease does not have any probative value on the lssue of what accommodation is poss1ble or necessary, w1thin the llmits of undue hardship, ln the face of a prognosis which indicates a permanent lncaoac1ty to perform an essential duty The fact that the Employer knew at an earlier date that Toplin had a chronic skln alIment, for which he was receiving med1cal treatment, does not establish as fact that the Employer thereby became aware 1nitially that the chron1c skin disease impaired permanently his abil1ty to perform an essential duty The eV1dence shows that the Employer had in fact accommodated the grievor's medical condltion when lt granted the original exempt10n on a temporary bas1s and extended it subsequently for periods of varying durahon December 21. 1991, 15 the date of Topl1n's 1n1t1al temporary exemption from wear1ng the MSA equipment, permitting him to wear fac1al hair due to his med1cal conditlon [Exhlbit 21A] June 7. 1993 was his last day at work ln h1S preV10US C02 pos1tion, before he went on slck leave I I Exh1bit 21CAJ, a memo dated December 24, 1991, confirms that the Employer I accommodated Topl1n's medical cond1tion temporar1ly, on the basis of h1S I "doctor's 1nstructlons that require you to wear a beard for medlcal reasons", I ~ ,. 20 would lose his Job tf he dtdn't shave off htS beard Thts conversatton together wIth other events In the precedtng months, parttcularly the MSA test requIrements and the repeated requests for medtcal notes, made htm feel that "they [managersJ were trytng to get me out of the tnstttutton" "I felt they were trying to get somethtng they could use against me, some reason to get me out of the Instttution " He testified that he came to this concluston because on many occastons he was told by managers, "Hardwick, Boychuk and others, that if I don't comply with the requtrements, my job would be tn Jeopardy" He testified also that he was warned by them often that if he did not comply with the MSA tests and poltctes he could not keep his job in the instttution ,-- Toolin wrote Kalntns on October 1/92 [Exhibit 7J complainIng that he felt threatened by what Kalmns had said to him Kalnins reolted promotlv on October 9/92 [Exhibtt 26J, clartfying what he had told Toplin prevtously, "that your accommodation (excused from wearing M S A equipment for medical reasons) would have to be revtewed in light of new MIntstry policy " In that same memo Kalnins tnformed Toplin " Mr J Boychuk, I.T 0, had been instructed to share with you, in a more specific way, the Ministry's direction in this area, attempt to ascertain whether your facial hair conforms with the policy, and what your intentions were (e.g. to continue or discontinue wearing of facial hair)." "Once Mr Boychuk's report is submitted, your status will be revied in the light of this relatively new Ministry policy This may well require further discussion and consultation. "At any rate, we are still in the information gathering phase and certainly no decision has been made (or can be made) until all pertinent information is gathered. You will be advised accordingly" The memo concludes "In short you were given advance notice of a review-out of professional courtesy There was no Intention to alarm you needlessly Your response to a very brief and informal conversation can only be considered an overreaction and premature given that no decision has yet been made on the issue." [Exhl bi t 26J Toplin testtfted that he as well as others opposed the poltcy because it dlSCrtmtnated agatnst beards He tnststed that he had an uncondlttOnal rtght to wear a beard tn his positton as a correctional officer Therefore, he belIeved, tt was unnecessary for the Employer to exempt htm from tts factal hatr poltcy, or to accommodate his disabiltty Topltn challenged the MSA , 19 The arIevance dated October 13/92, GSB 2787/92-1dentlf1ed 1n Ex 1 as #0 Th1s gr1evance alleges that because 1t 1S oblIgated to accommodate the grlevor's hand1cap, "the employer should have cons1dered alternatwe equ1pment WhICh could be used by an employee wlth facial haIr" The Unlon alleges that the M1nlstry had falled to comply with section 10 7(a), Exh1b1t 39 {op cit }, In that 1t falled "to contact the supplier to assess whether a dlfferent size or type of mask or a mask accessory would provlde the requlred fit" There IS no eV1dence to support thIS allegation The grievor's testimony clearly Indlcates that he had no knowledge whether the Employer did or dld not "contact the suppl1er", wh1ch was one of the optlons descrlbed In the policy ...' / On the contrary, however, his testimony supports the conclusion that the Employer followed one of the alternat1ves provided for by that section, insofar as 1t had implemented an alternatwe offered by option (b) of the procedure, in that It had granted the grievor a serles of temporary exemptions There 15 no evidence to support the allegat10n that the Employer's acts or omisslons in the adm1nistration of its 'fac1al hair policy' were 1nvalid, or improperly motivated, or designed to harass or discrim1nate agalnst the gr1evor ************************** Among the managerial actions which the gr1evor perceived as threatening and harassing were the 1nstructions and information, which managers gave him on certain occasions, pursuant to the M1nistry's "Resp1ratory Protect1on Program" and its "Facial Hair Policy" *************************** I I Two arIevances dated October 13/92 [GSB 2690 & 2785/92J--1dentifled tn I Ex 1 as #A & #E Both grievances arise out of a conversation with Mr Ray Kalntns, a Senior Asststant Super1ntendent at HWDC The grIevance claIms "Mr Kalnins is alleged to have threatened Mr Toplin that he would lose his Job If he dId not shave " Toplln's eV1dence 1n ch1ef [July 26/94J is that some t1me 1n September, 1992, Kaln1ns had approached him and said "your conttnued employment depends on your conformance to the MSA pOltCIes and gUIdelines" He took thIS to mean that he . f 22 At that same t1me, Top11n recelved a copy of Hogarth's memo of the same date addressed to Mr W B Thomas, Reg10nal Personnel Adminlstrator wh1ch stated "As you are aware, [Mr Randy Toplin], cannot, due to medical reasons, conform to current Ministry policy on the use of MSA equipment for Correctional Officers. Mr Toplin has been advised that the use of this equipment is a condition of employment for the current eosltion that he holds. "As a result of his inability to conform, I am formally requesting that Mr Toplin's status within this institution and with the Ministry be reviewed by yourself with a view to an appropriate resolution." ***************************** Three anevances dated June 3/93 --Ident1fied tn Ex 1 as #AA. #BB & #EE / "In these grievances the grievor alleges that Mr Fajertag and and Mr Thomas, management employees of the Ministry, harassed and discriminated against the grievor The evidence of such hara~sment and discrimination is set out in letters dated April 22 and May 11, 1 993, and arises from a meeting among the parties on March 31 " [Exhibit lJ We find no eV1dence of harassment or dIscr1mination in the letters dated April 22 and May 11, 1993 [Exhibits 11 and 12, respectivelyJ Notwithstanding Toplin's testimony that he felt threatened and harassed by these letters, 1n our Judgment no reasonable person would find any probat1ve eV1dence of harassment or dts~rim1nation in those letters, which are c1ted below The letter dated Aoril 22/93 from Thomas to Toplin [ExhibIt 11Jstates "Further to my letter to you of April, 5 1993, and given the potential implications of your current medical condition, I believe it is in your best interest, and that of the employer, that you be referred for a second medical opinion. "Therefore, in accordance with 52.9 of the Collective Agreement, the Ministry recommends that you attend a medical appointment with Dr Shapiro at the Wilson Medical Centre in Hamilton Moreover, via copy of this correspondence, I will be requesting that you meet with Mr M Fajertag, Deputy Superintendent HWDC, in order to facilitate the necessary arrangements. Consequently, the letter which I said would be forthcoming from the Regional Director will be held in abeyance pending the outcome of the above mentioned medical examination. "Your cooperation in this matter will be sincerely appreciated." The memo dated Mav 11/93 from Fajertag to Topltn [Exhibtt 12J states "On April 23, 1993, you received a letter dated April 22, 1993 authored by Regional Personnel Administrator Mr W B. Thomas, recommending your referral for a second medical opinion in accordance with Article 52 9 of the Collective Agreement. Until my call to you yesterday, we had not received any communication from you in this regard Perhaps you were anticipating my approaching you while I was expecting you to take the next step " In any event, it would be appreciated if you could provide me with a suitable time for us to get I . ~ 21 POllCY requlrements WhlCh he percelved as a threat to hlS Job securlty It lS clear Toplin felt threatened by the lnformatlon he recelved from Kalnlns about the POllCY Topl in was famlllar with the pollcy's provlslons to accommodate hlS medlcal condltlon He was aware that the POllCY dlstlngulshed between temporal"Y and permanent accOO111odatlons We belleve lt is reasonable to lnfer from hlS testtmony that hts fears and sense of insecurtty were founded tn hts knowledge that tne Employer's policy did not assure him a permanent exemption from MSA duttes in hts C02 posttton, and ln the light of hts own awareness of hts personal need to wear a beard permanently, in order to live comfortably with his chronic skin condttton In essence, what the grtevor percetved subjectively as threats to his job securtty were, objecttvely, legitimate instructions and valid warntngs glven to htm by managers on hts need to comply wtth the requirements of hts position as a correct tonal officer There tS no dou~t that Toplin felt threatened by the tnformation Kalmns had given him However, it is not denied that Kalnins had the managerial right and duty to gtve Topltti the lnformation beartng upon I his duties as a C02, even if he knew that Toplin would feel dtspleased or I threatened by the pol icy restrtctions on facial hatr There is no evtdence I Kalntns had done anything wrong or improper in gtving him the information, both verbally and tn writtng We can not charactertze his actions as "a course of harassing conduct" There is no suggestion that the information was delivered in bad faith or for an improper purpose Such legitimate managertal actlons are not harassing The Unton has failed to make a prIma facie case that what Kalnins said to Toplin was by itself, or ltnked with other actions, a course of harasstng conduct ***************************** Subsequently, by memo from Hogarth dated February 9/93, Topltn recetved the last of a series of temporary exemptions from hts fire alarm response duttes "As per our conversation of today's date, please be advised that due to your inability to conform to Ministry standards regarding the use of MSA equipment, under no circumstances are you to use this equipment. "As discussed, your current position in the schedule does not require you to respond to fire alarms As such, at least on a temporary basis, you Will remain in your current position on the schedule." [Exhibt t 8J -.. r 24 In h1S response to Topl1n's letter [Exh1b1t 9J, Thomas's letter of Apr1l 5/93 [Exh1b1t 10J states "I w1ll simply re-1terate my d1rect1on to you dur1ng our meet1ng of Monday March 29, 1993 " It cont1nues as follows "The Ministry of Correctional Services' directive #19/92 (Respiratory Protection Program) describes mandatory standards for wearing breathing apparatus and states that "no employee who is designated to wear the MSA breathing apparatus shall have facial hair, including a beard, moustache or sideburns, which has the potential to prevent the facepiece from effecting a full facial seal either during an emergency or during practice use" Consequently, as you have indicated that your wearing of a beard is permanent we can no longer continue to accommodate you in the position of correctional officer This time-limited accommodation was offered in accordance with Dr Vender's medical report of September 23, 1 992. However, as you have a bonafide medical condition that necessitates the wearing of facial hair, the ministry is prepared to attempt to accommodate you in an alternative position other than correctional officer should one exist. "As indicated a letter will be forthcoming to you from the Regional Director" Union counsel submits that the grievor's evidence is that he had perce1ved these communications from the Employer as threats to h1S cont1nued employment and his job status There is no doubt that the grievor felt threatened by them, but equally there are no doubts regarding the legitimacy or validity of these communicat10ns by the Employer, and there is no proof of wrong-do1ng, such as that the Employer's actions violated the collective agreement or a statute, nor 1S there any proof that they were in bad faith or for an improper mot1ve There 1S no evidence of probative value to support the allegations Topl1n's subjective evidence, that he felt "harassed and d1scr1minated aga1nst" 1S not sufficient to establish a prima facie case ******************************** Two arievances dated September 21/93 --ldent1f1ed 1n Ex 1 as #4 & #9 "Both of these grievances arise out of the same inCldent The grievor alleges that h1S shift was changed on June 7, 1993, and th1S change lS a further example of harassment and d1scrim1nation which he was underg01ng" There is no evidence to support th1S allegat10n There 1S noth1ng to suggest that the Employer d1d not make the Sh1ft changes 1n good fa1th Nor 1S there any eV1dence to support the allegation that the changes were made for improper motlves of harass1ng hlm and d1scr1mlnatlng agalnst h1m , i I 23 together to make the necessary arrangements, Including your signing a release of information form authorizing the physician, Dr F Shapiro. to provide a report on his findings to the Ministry Due to the time frames Involved and the nature of your medical condition Impacting on employment an expeditious meeting time is required." Thomas's letter of Apr1l 22/93 refers to h1S earl1er letter of Apr1l 5/93 [Exh1b1t 10J, which responded to Toplin's letter dated March 31/93 [Exh1bit 9J, concerning a meet1ng he had w1th Un10h and Management off1c1als on March 29/93 on the subJect of a permanent accommodation to h1S medical condit10n That meeting was arranged pursuant to the determinat10n that Toplin 1S permanently unable to comply with the requirements of his pos1tion regard1ng the MSA apparatus The purpose was to d1SCUSS an appropr1ate accommodation Toplin's eV1dence is that at that meet1ng he objected to be1ng labeled hand1capped and insisted on the right to continue working permanently in h1S C02 position, with an extended exemption from the MSA requ1rements Tool1n's letter dated March 31/93 (Exhibit 91 states that at the meeting of I I March 29, 1993 i I "Mr Thomas made it perfectly clear to Union that given a letter of notice from the Regional Director by April 30th I will have been notified by then that I have only six months (from that date), as a correctional officer anywhere in Ontario. He said there would be reasonable accommodation under Section 24 of the Collective Agreement. We find this is not aoolicable to me as mv scheduled position is not affected." [Emphasis ours] Toplin's letter quest10ns "by what author1ty has my facial condition been deemed a handicap?" and whether the MSA duties are an essential cond1tion of employment for a CO Also, his letter cr1ticizes the policy, alleges that 1t has been appl1ed at HWDC in an incompetent and discriminatory manner, and claims the r1ght to a permanent exemption 1n his current position of a CO2 It should be noted, however, that his scheduled CO pos1tion, at that t1me, was one 1n which he was temoorar1lv exempted from the MSA requ1rements It was a temporary accommodat10n to what had been regarded previously as a chronic medical condition which might be brought under sufficient control w1th med1cal treatment, w1th1n a reasonable t1me, and to the extent that the gr1evor would be enabled to perform the MSA dut1es of h1S pos1tion I ~ r 26 A qrtevance dated September 21/93 [Identtfted tn Ex 1 as #31 alleges "as as a result of the course of harassment and dtSCrlmlnattOn set out ln thlS letter {Exhiblt 1} the grlevor was forced to leave the workplace and go on short term sick beneflts As a result of thlS the grlevor was pald, as set out ln the collectlve agreement, at 75% of hlS normal salctry " Slnce the Unlon failed to establish a prima faCIe case of harassment or dtscrtmination, tt fat led also to establtsh these allegattons as the cause of the grtevor's medtcal conditions for which he went on stck leave Topltn's testtmony and the documentary evidence of hts psychiatrtst [Exhtbtt 16B, op cit , supra] lndicate that hts emotional dtsorder, untreated at the material ttmes, most likely caused much of his workplace problems We have no doubt that his perceptions of his relattonships at work were affected substanttally by hts psychiatric problems, as descrtbed by hts psychtatrtst During the time frame of the grievances he had stress in his marttal relattons as well as tn other relationshtps, both inside and outside the workplace The Employer's offer of a lower-paid job to accommodate his handicap [beard] brought htm to realtze he could remain no longer in his former C02 posttion, which prectpitated his decision to leave the workplace and seek medical treatment for the symptoms of his psychiatric disorder Although we recogntze a nexus between Toplin's medical symptoms and and his reactions to the Employer's offer to accommodate his beard with a lower-patd job, we find no evidence that the Employer's actions were invalid, in bad faith, or intended to serve an improper purpose In our judgment, the grievor's symptoms can not . serve as the foundation for the monetary remedy clalmed solely on the baS1S that they were precipitated by the legitimate, proper, and valid exerClse of managerial rights CONCLUSION In an tndustrtal relations context, there are many thtngs whtch supertors must say or do relattng to thetr subordtnates, not only in the exerctse of thetr rlghts as managers to advance and protect the legittmate tnterests of the 4 25 To establtsh a orIma facIe case of harassment or dtscrtmtnatlOn on the basts ofa course of comments or conduct of a manaaer whtch tS comortsed of act tons taken tn the leatttmate exerctse of hts/her managertal resoonstbtltttes. the sublecttVe evtdence of the artevor feeltna vexed or harassed bv those acttons. bv ttself. tS not sufftctent. It tS necessary also to establtsh. on a prIma faCIe base. that the alleaed course of conduct was in bad fatth or for an tmprooer moti. ve. **************************** A artevance dated Seotember 21/93 [Identified in Ex 1 as #71 alleges that Hogarth's attempt to obtain personal informatton from hts physictan "is a further example of the harassment and discriminati.on which the grievor was subJected" It is established fact that while the grievor was absent on sick leave for an extended period of time, after two and a half months, Mr Gary Hogarth, Sentor Assistant Superintendent, wrote Dr Mazur, the grtevor's family phystctan His letter of August 30/93 [Exhibit 29J asked for "an I update" on the "medical certificate dated June 17, 1993 indicattng that Mr II Topltn wtll be unable to attend to work for an tndefinite pertod", and requested also "Specifically, within that update could you please indicate the patient's prognosis for a return to work and further indicate whether there could be any alternative duties that could be performed by Mr Toplin pending his full recovery" [Exh1. bi t 29] On September 10/93 Toplin filed a complaint with the Informatton and Privacy COrTInlssioner/Ontano alleging that Hogarth's attempt to obtain personal informatton from his physician was contrary to the Freedom of InformatIon and ProtectIon of PrIvacy Act The Investtgatlon Report of the Asslstant COrTInlsstoner [Exhibit 46J concludes that "this collectton of the complatnant' s personal i.nformati.on was necessary to the proper administratton of the lawfully authortzed acttvtttes of employee management and human resources planntng", and that "the Mtnistry's collectton of the tnformation in questton was tn accordance wtth section 38(2) of the Act" We ftnd no evtdence to support the allegatton made tn thts grtevance ---.-- - . i 28 APPENDIX "A' TO THE AWARD GSB 2690/92 ET AL. OPSEU fTOPLINl & MINISTRY OF CORRECTIONAL SERVICES Exhlblt 2 Artlcle All of the collectlve agreement WhlCh prohlblts discrlmlnatlon by reason of "handlcap", Inter alza Exhlblt 3 Letter from Dr Frank Murphy, June 28/90, to Dr J Mazur Exhlblt 4 Letter from Dr Ron Vender, Dec 2/91, to Dr J Mazur Exhlblt 5 Medical note from Dr Ron Vender, dermatologlst, Oct 13/92 Exhlblt 6 Report, MSA OPERATIONAL DEMONSTRATION, Dec 20/91 & Sept 27/92 Exhi bit 7 Memo R Toplln to R Kalnlns Sr Asst Supt , Oct 1/92 Exhiblt 8 Memo G R Hogarth, Sr Asst Supt , to Toplin, Feb 9/93 Exhlbit 9 Memo Toplin to Hogarth March 31/93 Exhibit 10 Letter W B Thomas, Reg'l Personnel Adm, to Toplln, Apr 5/93 Exhibit 11 " " " " " " " Apr 22/93 Exhlbi t 12 Memo M Fajertag, Deputy Supt to Toplin May 11/93 Exhibit 13 Letter " " " " May 31/93 Exhibit 14 Medical note from Dr Vender, dermatologist, Sept 23/92 Exhibit 15 Minutes of settlement of Oct 10/91 re Toplin's Apr /91 grlevances Exhlbit 16 2 letters from Dr R E Johnston, Chief Psychlatric Services, St Catherines Gen Hosp , to Michael Mazzuca Dec 21 & Dee 23/93 Exhlbit 17 Med note from Dr Mazur, famlly physlcian, Sept 23/92 Exhibit 18 Occurrence Report Toplin to V Villeneuve, Supt ,June 29/90 with two notes attached from Dr. F R Murphy, Dermatologist, June 27/90 Exh 1 bit 19 Memo Toplln to Hogarth, re penmission to grow beard, July 9/90 Exhlbit 20. Med note from Dr Vender, Dec 2/91 Exhlblt 21 Med note from Dr Vender, Jan 8/92 Exhlblt 21(A) Memo Kalnlns to Toplln, Dec 24/91 Exhibit 22 Med note from Dr Vender, Feb 26/92 Exhiblt 22(A) Memo Kalnins to Toplln, Feb 7/91 Exhlblt 23 Med note from Dr Vender, May 27/92 Exhlbit 24 Mlnistry of Lab Report on Toplln's complalnt Oct10 /92 Exhlblt 25 " " " " Dec 4/92 Exhlblt 26 Memo Kalnlns to Toplln, Oct /92, Response to Exhlblt 7 Ii " = ; 27 employer, but also as they may be requlred to say or do by the dutles and responslbllitles of thelr posItIons, partIcularly those thIngs related to dlsclpline, and WhlCh subordlnates may find vexlng and unwelcome, and which may glve rtse to vartous negattve feellngs such as lnsecurlty, anxiety, fear and anger [Such negattve emottonal reactions are usually more Intense, acute and stressful for persons suffering a mental or emotional dIsorder ] In our VIew, however, such lawful and legitImate actions by managers can not properly be regarded as harass1ng, unless 1t can be proven that they are done in bad fa1th or for improper motives Clearlv. what the Union alleaes is not that the manaaers did anvthIna thev were not entitled to do. Rather. it alleaes their act10ns were for an imoroper motIve The grievor claimed that from the time he first started to work at the HWDC he had the feel1ng and he bel1eved that his managers, supervisors, and co-workers were trying to get rid of hIm because of his beard However, there is no evidence to support this claim The Union failed to provide any evidence of probatIve value that the Employer's act10ns were for improper motive In conclusIon, we fInd the UnIon failed to establish a prima facie case on 1tS allegation that the Employer had engaged in a course of vexatious comment or conduct For the reasons given herein, the Employer's non-suit motion succeeds and all of the grIevances which are the subject of this Award are consequently denIed The Registrar 1S requested to arrange for hearings on the remaIning outstandIng grievances at the earliest possible date DATED AT HAMILTON, ONTARIO, THIS 5 TH DAY OF J u 1 y , 1995 ~~ff~~--- H J WAISG(AS V1ce-Chalrperson --J1l-5---Q~;l~~;; -------------- ,{:S O'~ Emp 1 oyer Membe r --~-~-~~-~-------------- W RANNACHAN Umon Member .. ~ " ) 29 Exhlblt 27 Memo Hogarth to Thomas, Feb 9/93 Exhlblt 28/29 Letter Hogarth to Dr Mazur, Aug 30/93 Exhlblt 30 letter Hogarth to Toplln, Sept /14/93 Exhtbtt 31 Topltn's out-of-pocket expenses Exhtbtt 32 Top1tn's addtttona1 notes re his expenses Exht bl t 33 letter Dr E Kent Taylor, dermatologtst to Dr Vendor, May 28/93 Exhlbtt 34 Letter Dr Vender to Michael MAZZUCA, March 11/94 Exhtbtt 34(A) (ltnical Dermatology, Vol 3, on "Pseudofolliculitis Barbae" Exhibi t 35 Med note from Dr Vender, Aprtl 8/94 Exhtbtt 36 Memo, l Hardwick, tratntng offtcer, to Top1tn, Nov 1/90 Exhibit 37 Memo, Top1tn to Kalnins, Nov 26/91 Exhtbtt 38 Mintstry of Correctional Servtces, Institutional Dtrective, on "Factal Hair Policy with respect to MSA Breathing Apparatus", tssued May 14, 1990 Exhibtt 39 Ministry of Correcttonal Services, Instituttonal Directive, on "Respiratory Protection Program", tssued October 19, 1992 Exhibit 40 Memo, Kalnins to Toplin, Oct 9/92 [Same as Ex 26] Exhtbit 41 Memo, Kalnins to Top1tn, May 29/92 Exhtbtt 42 Memo, Kalntns to Toplin, March 9/92 Exhibit 43 Letter, Dr R E Johnston to Toplin, March 10/94 Exhibtt 44 (a) & (b) Extract of informatlon on antidepressants Exhtbtt 45 (a) & (b) Topltn's notes on dates of hlS V1SltS to doctors Exhibi.t 46 Letter, Ann Cavouklan, Assistant Commi.ssi.oner, Information & Privacy Com , to Topltn, Feb 18, 1994 Exhtblt 47 Memo, Toplln to Fajertag, May 28/93