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HomeMy WebLinkAbout1993-1898.Goossen.98-11-12 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARlO . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB # 1898/93 OPSEU # 93H067 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SElTLEMENT BOARD BElWEEN Ontano Pubhc ServIce Emplovees Umon (Goossen) Grievor - and - The Crown 111 Right of Ontano (Mimsm of CommunIn. and SOCial ServIces) Employer BEFORE R. Jack Roberts Vice Charr Stan Urbam Umon Nonllnee Fred Colhct Emplover Nommee FOR THE Maureen Dovle GRIEVOR Counsel Ryder Wnght, Blair & Dovle Barnsters & SohcItors FOR THE Stephen Mason EMPLOYER Counsel Legal ServIces BraIICh Mimsm of Commumn. and SOCial ServIces HEARING Juh 8 1994 September 7 1994 November 14 15 24 1994 Februan 24 1995 Januan 30 1996 F ebruan 7 1996 March 5 1996 Juh 3 9 10 1996 November 26 1996 December 5 11 13 1996 Februan 3 18 19 1997 March 3 1997 April17 18 1997 October 29 1997 Januan 9 1998 Februan 5 1998 Aprill 1998 AWARD I. Introduction. The gnevance leading to tlns arbItranon gave nse to a lengthy and somenmes arduous heanng, spanrung a penod of four years, At the heanng, the umon submItted on behalf of the gnevor Mrs, Margaret Goossen, that she was forced mto early renrement m 1993 by the employeros untoward resIstance to makmg adequate accommodatIOn for her disabihty whIch denved from the relanvely rapId progressIOn of osteoarthnns, The resIstance of the employer the umon submItted, amounted to a breach of ItS obhganon under the Ontano Human RIghts Code to accommodate to the pomt of undue hardshIp persons wIth disabihnes, As to rehef, the umon claImed that the gnevor should be awarded damages under the Human RIghts Code and rem statement to employment WIth full compensatIOn and proper accommodanon, The employer submItted that the gnevoros early retIrement was a voluntary act that was planned and executed over a consIderable penod of tIme It was not forced, Moreover It was submItted, the employer made substantIal effort to accommodate the gnevoros disabihty dunng her employment and was m the process of consIdenng makmg further accommodanon when the gnevor gave nonce that she mtended to renre There was no breach of the Ontano Human RIghts Code F or reasons whIch follow It IS concluded that the gnevance must be dismIssed, While the efforts of the employer to accommodate the gnevor mIght not have met all of the expectaTIons of the Employment EqUIty Program beIng Implemented In the Ontano Pubhc ServIce In 1992-93 they dId not contravene the OPS pohcy on accommodaTIon estabhshed In the govemmentos directIve and guIdehne for accommodaTIon of persons With disabihtIes, nor did they amount to a breach of the Human RIghts Code We also agree wIth the employer that, In the cIrcumstances, the gnevor-s early retIrement must be found to have been voluntary II. Factual Background. On June 26 1961 the gnevor commenced employment as a Welfare Field Worker With the Mimstry ofCommumty and SocIal ServIces, the employer In 1976 she became a VocatIOnal RehabihtaTIon ServIces (VRS) Counsellor In the employer-s Oakville office, Her office moved to BurlIngton In 1986-87 The gnevor-s VRS SupervIsor was based In the employer-s MissIssauga office and vIsIted the Burhngton office about one day per week The Job specIfIcaTIon for VRS Counsellors Indicated that employees In thIS pOSITIOn had consIderable expertIse In the assessment and accommodatIOn of persons WIth dIsabIhtIes, It read, In pertInent part, as follows CharactenstIc DutIes Employees m these pOSITIOnS conduct comprehensIve psychO-SOCIal, funcTIonal and vocaTIonal assessments, refemng to medIcal specIalIsts and other professIOnals for expert opmIOns m theIr field, as necessary They provIde a large vanety of purchased servIces to assIst m chents- rehabIhtaTIon, such as funding for educaTIonal and vocatIOnal trammg, work assessments, pre-vocaTIonal assessments, modificaTIon of vehIcles and the phYSICal envIronment, the purchase of aSSISTIVe devIces, attendant care, transportatIOn and travel expenses, books and supphes, tools and eqUIpment Employees m tlns class also engage m a vanety of commumty development aCTIVITIeS as members of mter-agency groups to develop needed servIces m the commumty They advocate for persons WIth dIsabihTIes m a vanety of settmgs and make presentaTIons to mterest groups and referral sources, They also act as consultants m a vanety of contexts, such as to the Medical AdvIsory Board of the lll1mstry regarding ehgibihty for disabihty penSIOns by assessmg chents and makmg recommendaTIons regarding the Impact of disabihTIes on earnmg potenTIal, to msurance compames by prepanng summary reports regarding funcTIonal loss, current and future needs and projected costs, to the courts by provIding vocaTIonal mformatIOn and aCTIng as expert wItness when requested, Knowledge The performance of thIS work reqUIres broad knowledge of SOCIal work and rehabihtaTIon pnncIples, theones and techmques, such as learnmg, personahty and behavIOural theones, counsellmg and mteraCTIve models, SOCIal pohcy and commumty development theory acqUIred through a masters degree m SOCIal work or eqUIvalent quahficatIOn, comprehensIve knowledge of a broad spectrum of educaTIonal programs, commumty resources, the busmess and mdustnal commumty and voluntary orgamzaTIons comprehensIve knowledge of va no us phYSICal and emoTIonal dIsabihTIes, prognoses, the extent and Impact of func1:1onalloss, theIr vocatIOnal ImphcaTIons, ImphcaTIons for home modificaTIon, knowledge of diagnosTIc and treatment procedures used by related discIplmes, abihty to research disabIhTIes, treatment, eqUIpment, mcluding hIgh technology eqUIpment and structural modificaTIons and to keep abreast of new developments m theIr commumty m labour market trends, m Job content and m the vocaTIonal rehabihtaTIon field, Judgment: Work IS carned out mdependently guIded by the vocaTIonal rehabihtatIOn servIces legIslatIOn, related pohcIes and guIdehnes and by performance expectaTIons and work plans, Employees consult theIr supervIsors and colleagues for adVIce m resolvmg difficult problems, Work IS assessed through reVIew m the funding approval process and penodIc case reVIew According to the job specIfIcanon, the bulk of the day-to-day responsibilInes of VRS Counsellors mvolved assessmg disabilInes and provIding the assIstance or accommodanon necessary to rehabilItate disabled clIents and eqUIp them for employment m sUItable vocanons, VRS Counsellors were reqUIred to have a lngh degree of expertIse m the field, to the pomt ofbemg qualIfied to act as consultants and expert wItnesses regarding, inter alia, functIOnal loss due to disabilIty and vocanonal needs, By the late 1980's, the gnevor had become disabled due to progressIve degeneratIOn from osteoarthntIs The gnevor-s family physIcIan for the past fifteen years, Dr James W Faught, tesnfied that the gnevor had suffered from osteoarthnns smce he first met her He explamed that osteoarthntIs was a degeneranve process of the jomts, The first mamfestanon was pam, followed by loss of range of monon m the affected jomt The latter symptom was accompamed by swellIng, Immobihty and snffuess, According to Dr Faught, several of the gnevor-s jomts, pnmarily m the major weIght-beanng areas of the hIpS and knees, were affected by osteoarthntIs to a severe degree Over the ten years between 1985 and 1995 the gnevor had gone from fairly mobile to qUIte llnmobile, With tremendous pam. The gnevor tesnfied that her osteoarthntIs reached ItS most cntIcal pomt m 1990 the same year that her husband died, She found that she had great difficulty m standing and walkmg, Her knees were badly affected, Nevertheless, she hung on at work until Apnl, 1991 when she was forced to take sIck leave for rehabIhtanon and surgery In October 1991 the gnevor-s left hIp was replaced, She was advIsed that her nght hIp and nght knee would have to be replaced m the future In all, the gnevor was off work for a httle over a year She dId not return to work until May 4 1992, Dr Faught said that the only non-surgIcal treatment for osteoarthntIs was actIvIty and rest ActIVIty prevented the onset of stIffness, Rest helped to prevent acceleratIon of the degeneratIve process and ItS resultant damage The end result, however was surgery to replace the affected J omt, based upon the degree of pam and ImmobIhty bemg expenenced by the patIent Replacmg the Jomt gave less pam to the patIent and often Improved mobihty Several weeks before her return to work, the gnevor became aware of a new Employment EqUIty Program that the Ontano government was ImplementIng m the Ontano Pubhc ServIce (OPS) The Idea behInd the program was to make employment m the pubhc servIce more open to under represented groups, mcluding the disabled, As part of the program, an Employment AccommodatIon Fund was set aSIde to finance, inter alia, the accommodatIons necessary to permIt disabled employees to produce the same .work product. as others m theIr posItIon, The gnevor deCIded that she would request the employer to proVIde suffiCIent accommodatIon for her dIsabihty to permIt her to return to work On March 30 1992, after consultmg WIth Dr Faught, she wrote the followmg letter to her ImmedIate supervIsor Ms, Marhe Cholette Dear Marhe RE Intenm Employment Accommodanon and Return to Work Tills IS to advIse you of my mtent to return to work on Monday May 4 1992, With the consent and approval of my physIcIan and surgeon, My mobihty IS still hmIted, I ambulate With two canes for short distances and With a four wheeled walker for longer dIstances, however tills should not pose a problem If some accommodanons are made, I am requesnng the folloWing accommodanons, resources and strategIes to enable my return to work to be more productIve, to conserve my energy reduce fangue and wear and tear on my Jomts and manage chromc pam m preparanon for nght knee surgery at an unspecIfied future date To facihtate my return to work, I will reqUIre 1 ProvIsIon of a comfortable, adjustable arm chair on casters, I am aware that the Employment Accommodanon Fund IS available to cover thIS Please send me the appropnate apphcanon form for complenon, 2 The use of a modIfied work approach over the first 12 months folloWing my return, willch would allow me to re-familianze myself With the caseload over the first month, phase m of mtake dunng the ensumg months, beanng m mmd that July August and September are the busIest months for the VRS caseload due to students returnmg to school m September 3 Flexible hours, as I have worked m the past 4 I request the opportumty to work at home for up to 40% of the work week for c1encal and phone calls, 5 An adjusted workload With a caseload based m the Burhngton area wIth appropnate casework and VISItS as much as admmIstranvely possible 6 If not possible to have a Burhngton based caseload, then I would reqUIre a cellular phone mstalled m my car for my safety as I am vulnerable and at nsk on the road due to my hmIted mobihty Tills Item, too, would likely be funded from the Employment Accommodanon Fund, 7 Offload of commumty actIvlnes, It IS my understanding that all requests for accommodanon under Employment EqUIty must be submItted m wnnng, so thIS letter to you serves as my request I aWaIt your wntten response to my accommodatIOn request and confirmatIon that you expect my return to work on Monday May 4 1992, I shall be unavailable from April 6th to 19th mcluslve Yours smcerely (SIgned) M, Y Goossen Bhnd copIes oftlns request were sent to, inter alia, Dr Faught and Ms, Joan OoCallaghan, the Human Resources Manager for the Misslssauga office of the employer Ms Cholette 1 tesnfied that after recelvmg the above request, she consulted WIth Ms, OoCallaghan about the accommodanon Issues that It raIsed, She then asked the gnevor for permISSIOn to reVIew these Issues With Dr Faught The gnevor agreed, Ms, Cholette spoke wIth the doctor by telephone about two weeks later Ms Cholette saId that m the course of thIS telephone call, she discussed the gnevor-s J ob speclficanon WIth Dr Faught and revIewed With hIm all of the gnevor-s dutIes, They then compared the 1 Subsequent to the events leading to tlns arbItratIOn, Ms, Cholette mamed and took on the surname of Knapp For the sake of conSIstency however we Will refer to her as Ms, Cholette throughout the Award, dutIes wIth the accommodatIOns that the gnevor had requested, Dr Faught seemed pleasantly surpnsed at how much accommodaTIon could take place and expressed hIS pleasure to Ms, Cholette After tlns discussIOn, Ms, Cholette said, she formulated a response to the gnevor-s request that reflected the consensus that she and Dr Faught had reached, On April 30 1992, she called the gnevor and advIsed her of the details of tills response A wntten copy of the response was sent to the gnevor on even date It read as follows Mrs Marg Goossen Dear Marg: As a response to your letter of March 30 I asked If! could contact your doctor to dISCUSS necessary arrangements to enable you to return to work With your approval, I dIscussed With Dr Faught the reqUIrements that you stated In your letter I also asked illm to comment on other possible accommodaTIons that would be beneficIal to you gIven the faTIgue, pain and ongOIng recovery of your illp Tills letter serves as the formal response of the same InformaTIon that I shared WIth you In our telephone conversaTIon, For ease of presentaTIon, I Will follow the requests as you have them noted In your letter 1 ProvIsIon of a comfortable adjustable arm chair ThIs IS understood to be a necessIty When you and I spoke today you explained that you had been gIven some dIrectIOn by the OccupatIOnal TherapIst and you will check the different types of chairs, I have asked Human Resources about the use of the Employment EqUIty Fund and will share tlns InformaTIon when I have receIved It 2 Modified work approach over the first 12 months With discussIOn of the Job dunes, changes m the type of caseload to be assIgned to you and gradual assIgnment of new cases, Dr Faught felt that you could return to 2/3 of a caseload and build It to full-nme by SIX months, 3 Flexible hours I explamed to Dr Faught that all employees are enntled to request flexible work hours, He did not Idennfy further changes m the workmg hours that would be reqUIred due to your lImItanons, 4 Workmg at home up to 40% of the work week: Dr Faught carefully revIewed the consIderanons of a sUItable chair the reduced caseload, flexible hours and a caseload pnmarily m the Burlmgton area (see #5) He felt that With these accommodanons, there would be no medIcal need for you to work at home, I explamed that there are excepnonal nmes when counsellors may work at home, With pnor approval of the supervIsor 5 Caseload based m BurlIngton, Dr Faught agreed that thIS would be benefiCIal as tlns will reduce the need for you to travel to and from the office, All efforts will be made for you to have a caseload that IS pnmarily from the BurlIngton area or With clIents that are able to come to the office to meet With you, 6 Hopefully you will be m lIttle nsk on the road If the caseload IS m the BurlIngton area, Thus, the cellular phone will not be necessary 7 Off loading of commumty dunes, Again, due to mobilIty problems, Dr Faught felt It best If you are not reqUIred to engage m extra commumty actIvInes, I will certamly be pleased to discuss any quesnons that you may have about my discuSSIOn WIth Dr Faught I am lookIng forward to your return to work on May 4 1992 Smcerely (SIgned) MarlIe Cholette, SupervISor VocatIOnal RehabilItanon ServIces MissIssauga Area Office A copy oftms response was sent to Dr Faught In ms tesTImony Dr Faught could not recall whether the above response was an accurate record of the discussIOn he had WIth Ms, Cholette He doubted that he expressed to Ms Cholette pleasant surpnse at the extent of accommodatIOn that could be offered to the gnevor He said that followmg ms discussIOn With Ms, Cholette he felt that she was not bemg tremendously cooperaTIve m easmg the gnevor back mto the workplace He detected a sense of resIstance on her part, Each of the Issues raised m the gnevoros request seemed, he said, to be met as a challenge Upon cross- exammaTIon, however he agreed that It was possible that he mIght have mIsmterpreted Ms, Choletteos need for specIficIty as reSIstance When Dr Faught was asked whether he concurred With the rephes to the gnevoros Issues that Ms Cholette set out m her response, he expressed reservatIOns as to Issue 2, the 2/3 caseload for SIX mstead of twelve months Issue 3 unspecIfied flexible work hours to be gIven to the gnevor and, Issue 4 no medIcal need to work at home for up to 40% of the work week As to Issue 2, he said that he probably expressed a - hope- that a 2/3 caseload for SIX months would suffice to bnng the gnevor up to a full caseload, however because recovery tIme differed from paTIent to paTIent there was no certamty that thIs would be sufficIent m the case of the gnevor As to Issue 3 Dr Faught could not recall what flexible hours he said were reasonable for the gnevor A start tIme of 10'30-11 00 a,m" however seemed to mm to be reasonable because It was consIstent With the flexible hours that the gnevor told mm she-d been workmg before she went off work for her hIp operanon, As to Issue 4 Ms Cholette.s assernon that he agreed there was no medIcal need to work at home up to 40% of the work week In hght of the other accommodanons agreed to by the employer Dr Faught said that he doubted that he ever would have been so defimte His ImpreSSIOn was that even before her lnp surgery the gnevor was dOIng a fair bIt of her work out of her home DespIte expreSSIng these reservanons at the heanng, Dr Faught agreed upon cross-examInanon that he receIved a copy ofMs Cholette-s response to the gnevor-s accommodanon request, and that If It had contaIned any mls-statemtents about what he had said dunng lns discussIOn WIth Ms, Cholette he probably would have corrected the mIs-statements In some way He dId not. In fact, he was not back In touch WIth the employer on behalf of the gnevor until February 18 1993 shortly before the gnevor first gave nonce of her Intent to take early renrement. The gnevor testIfied that when she returned to work on Apnl4 1992, Ms, Cholette advIsed her that she would have to observe a start nme of 9:30 a,m. Tlns met the defimnon of flexible hours because It was one hour later than the usual start nme for the rest of the staff, The gnevor rephed that because of the therapeunc exerCIses that she had to do In the mornIng, It would likely be Impossible for her to observe a start tIme earher than 10'30 a,m, She agreed, however to try to meet the 9.30 a,m, hmlt estabhshed by Ms, Cholette Tills proved to be futile, At the heanng, the gnevor explamed that mommg was the most difficult TIme of the day for her She usually woke up feehng very STIff Only after performmg her therapeuTIc exerCIses for about an hour and a half did she feel hmber enough to bathe and begm gettIng dressed for work Even tills was fatIgumg to her because the chromc pam assocIated With her COndITIOn reqUIred her to use up consIderable energy m performmg roUTIne physIcal tasks, The same was true for the act of gettIng mto her car and travelhng to the office As a result, the gnevor seldom made It mto the office before 10 00 a,m. and usually amved between 10'30 and 11 00 a,m, To compensate for her late start, she made a practIce of remammg m the office for about two hours after the other staff had left, For a consIderable penod of TIme, the gnevor-s faIlure to meet the 9'30 a,m. start TIme set by Ms Cholette was not raIsed as an Issue between them. Apparently because Ms, Cholette only VISIted the Burhngton office once a week, she was unaware of the gnevor-s actual practIce, In her tesTImony at the heanng, Ms, Cholette mdIcated that If she had known, It would have become an Issue In fact, after the gnevor made her aware of It m January 1993 she raIsed It With the gnevor as a concern. Her VIew was that because the VRS office was a servIce to the commumty VRS Counsellors should be available to chents at the office dunng core busmess hours, willch commenced by at least 9 30 a,m, Moreover she was concerned about the safety of the gnevor If she remamed alone m the office after hours, In any event, even when the gnevor followed her practIce of amvmg at the office at 10:30 a,m. and staymg late, she found It difficult to handle the 2/3 caseload that Ms, Cholette aSSIgned to her According to the gnevor there were several reasons for thIS, Most of them had to do WIth bemg reqUIred to perform her rounne admlmstranve tasks at the office, These mcluded report wnnng, makmg and recelvmg telephone calls, and the clencal aspects of the Job The gnevor saId that when she felt her Jomts snffen up as she sat at her desk performmg these tasks, It was VIrtually Impossible for her to get up and exerCIse m the office envIronment The overloaded office telephone system frustrated and fangued her Frequent mtenupnons by others m the office caused more frustranon and fangue, The aIr qUalIty m the office had long played havoc With the gnevor-s allergIes, further fangumg her It was exhausnng for her to travel the consIderable dIstance that was necessary to get to the only operable handIcapped washroom m the office building. For several months, the gnevor suffered m silence, She tned to make do WIth the accommodanon that had been proVIded to her Her only protest related to certam other actIOns on the part ofMs Cholette that the gnevor mterpreted as mIstrustful and hostile The gnevor testIfied that her ImpreSSIOn that Ms, Cholettte was mIstrustful and hosnle toward her began to take shape while she was away on sIck leave from April, 1991 to May 3 1992 It seems that at about the same tIme as the gnevor wrote Ms, Cholette requestmg sufficIent accommodatIOn to permIt her to return to work, she also made an apphcatIOn to become a VRS chent for purposes of obtalmng modlficanons to her home The apphcanon was sent to the Hamilton VRS office to aVOId any potennal COnflIct of mterest at the Burhngton or Misslssauga offices, At one pomt, the gnevor went mto the Burhngton office toward the end of the day to use the photocopIer to make some copIes of documents for her apphcanon, Ms Cholette admomshed her saymg that she was disturbmg the office while away on sIck leave and should not be usmg office eqUIpment for personal busmess, Thereafter Ms, Cholette requested the gnevor to return her key to the office, ostensibly because the gnevor-s replacement needed It. Then, when the gnevor returned to work on May 4 1992, Ms, Cholette took away her sIgmng authonty All VRS Counsellors have sIgmng authonty up to certam pre-determmed hmIts to authonze the purchase of assessment, restoranon and Job placement servIces for theIr chents, The gnevor waited for her sIgmng authonty to be restored until August 27 1992, when she finally wrote a letter to Ms, Cholette demanding that the authonty eIther be restored or Ms, Cholette-s grounds for rescmdmg It be provIded to her Shortly after receIvmg thIS letter Ms, Cholette restored the gnevor-s sIgmng authonty Ms Cholette demed that she was mIstrustful or hostile toward the gnevor She said that she never mtended the photocopIer mCIdent nor the request for the return of the gnevor-s key to the office to be mterpreted m that way As to takmg away the gnevor-s sIgmng authonty upon her return to work, Ms Cholette said that tlns was not an unusual tlnng to do With a VRS Counsellor who had been away from her dunes for a lengthy penod, BesIdes, a reVIew of the gnevor-s files while she was away mdicated that she mIght have had some deficIencIes, mcluding authonzmg an mappropnate expenditure for one of her clIents, These deficIencIes were brought to the gnevor-s attennon upon her return to work. Ms Cholette agreed that after three months, the gnevor-s sIgmng authonty should have been automatIcally restored, It was an overSIght on her part that It was not and the gnevor was nght to remmd her of tlns oversIght m August. As It was, Ms Cholette said, she did not start the gnevor out wIth a 2/3 caseload when she returned to work In May She gave the gnevor a half-caseload of 22 cases, It was her hope that over the succeeding SIX months, the gnevor would gradually work up to handhng a full caseload, After SIX months, however the gnevor had only worked up to handlIng a 2/3 caseload, Ms, Cholette then scheduled a file reVIew With the gnevor The file reVIew took place on November 5 1992, In the course of the reVIew the gnevor advIsed Ms Cholette that havIng to perform her admIllistranve dunes In the office envIronment was adversely affecnng her producnvIty She renewed her request to perform these dutIes at home for up to 40% of the work week ThIS amounted to a request to work at home for two days out of a five-day work week It appears from the eVIdence that the grounds that the gnevor CIted to Ms, Cholette to support the renewal of tills request related only Indirectly to her osteoarthnns, The gnevor complained that the air qUalIty In the office adversely affected her allergIes and the overloaded telephone system frustrated her efforts to deal wIth her files, These condinons, the gnevor said, draIned the scarce resources of energy that were left to her by her osteoarthntIs and made It difficult to cope WIth her caseload, Apparently Ms, Cholette responded that If the gnevor was requesnng further accommodanon for her disabihty In the form of work at home for two days a week, the gnevor should obtain Informanon from her doctor statmg that she had a medical need to work at home The gnevor replIed that she was not sure of what Ms, Cholette wanted, She remmded Ms, Cholette that she still had her pelllllSSIOn to speak WIth Dr Faught about the gnevoros osteoarthntIs and suggested that Ms, Cholette should call the doctor mstead, As It turned out, neIther the gnevor nor Ms, Cholette called Dr Faught, although Ms, Cholette seemed to have retamed an ImpreSSIOn that the gnevor was gomg to contact hIm for further mformanon, As an mtenm accommodatIOn, Ms, Cholette contmued beyond the sIx-month deadlIne the 2/3 caseload and the other accommodanons that she had prevIOusly granted, The gnevor connnued to attempt to cope With the ongInal arrangements, Ms Cholette said that she had several reasons for hesItanng to grant the gnevoros request The office condInons that the gnevor complamed about were easily rectIfiable A number of nmes before the gnevor became dIsabled wIth osteoarthntIs, she complamed about the effect upon her allergIes of the air qUalIty m the office, It had been tested and found to be wIthm appropnate lImIts, Ms, Cholette deCIded that she would have It tested agam, As to the telephone system, It was already m the process ofbemg updated and expanded, The fiustranon and fangue that the gnevor attributed to copmg WIth It would soon be elImmated, Moreover there was a general office polIcy agamst work at home The VRS office was conSIdered to be a dIrect source of assIstance to the publIc, There was a mImmum reqUIrement for clIent contact. AccordIng to Ms, Cholette, the employer wanted the VRS Counsellors to be there for the chents, As a result, she had to be certam that the gnevoros request to work at home was for a genUIne medIcal need and not a mere personal preference Ms Cholette added that she had reason to suspect that the gnevoros request to work at home was a personal preference In January 1991 before the gnevor went offwork for her operanon, she had expenenced tIme management problems WIth her caseload and began performIng some of her work at home When Ms, Cholette found out, she told the gnevor that she had secunty concerns about clIent files leavIng the office and Instructed the gnevor that work was not to be performed at home Without pnor discussIOn With her Finally soon after the November 9 1998 file reVIew Ms, Cholette discussed the gnevor-s renewal of her request to work at home With Ms, Joan O-callaghan, the Human Resources Manager at the MissIssauga office Ms, O-callaghan agreed that a test of the air qUalIty of the office and the expanSIOn of the telephone system would appear to resolve the problems that the gnevor raised, Meanwlnle, the gnevor found that her medical condinon was worsemng, The effort that It took to handle even a 2/3 case load seemed to be acceleratIng the degeneranve process accompanYIng her osteoarthnns, On January 28 1993 the gnevor met wIth Ms, Cholette and requested to be assIgned one new file for the month Instead of the usual four Ms, Cholette Indicated that she was concerned that the gnevor had not been able to work up to handhng a full caseload but granted the request. In February 1993 the gnevor requested to be allowed to work at home on two days, February 9 and 17 to catch up on clencal matters such as closmg files m preparaTIon for the end of the fiscal year Tills request was also granted, On February 17 1998 Ms Cholette sent the gnevor the followmg emaII message regarding her approval of the two days of work at home To Marg Goossen Subject: workmg at home Marg: I have approved 2 days for you to work at home as you asked to have that tIme to do closures, wnTIng of mITIal memos and servIce requests that were urgent You provIded a lengthy hst of memos and servIce requests that must be completed, To complete all of tills work exceeds the -occaSIOnal- request to work at home Therefore, I expect that the remaImng work will be completed m the Burhngton office as IS expected of all counsellors, In November when you first approached me about workmg at home, I asked that you obtaIn medIcal mformaTIon to address workplace accommodaTIons, I know that you are aWaITIng that mformaTIon from the doctor When that mformaTIon IS available further dIscussIon about accommodaTIons wIll be able to take place, Marhe Ms Cholette apparently was anXIOUS for the gnevor to understand that her agreement to permIt two days of work at home dId not conSTItute a de facto accommodaTIon ansmg out of the gnevor-s renewal of her request to work at home on November 5 1992 That accommodatIOn, Ms, Cholette mdIcated, would have to aWaIt her reVIew of further mformaTIon that she understood was forthcommg from the gnevor.s doctor When Ms Cholette stated that she was aWaItmg further mformanon from the gnevor-s doctor she probably was refemng to a lengthy letter that the gnevor sent to Dr Faught on February 3 1993 The gnevor sent a copy of thIS letter to, inter alia, Ms Cholette, The letter read, m pertInent part: Dear Dr Faught: Smce my return to work, commencmg September 1992, I have been prescribed exerCIse and laser therapy by Dr Bowler and connnue wIth weekly massage therapy ExerCIse take apprmamately 1 1/2 hours a day laser therapy · hour three nmes a week, and massage therapy one hour a week Trus represents an average of 9 hours a week, not counnng other medIcal appomtments wrucll, mcluding travel nme, averages another hour a week for a total of apprmamately 10 hours a week Often on weekends, I have to spend much of Saturday and Sunday m bed to recoup my energy to cany on for the followmg week Trus does not leave me much nme to or energy to do my regular actIvInes of daily hvmg, laundry shoppmg, etc, Ms Cholette plans a performance and caseload reVIew m March, as I will have been back to work for 9 months, I had requested 12 months of modIfied work The areas With wruch I am havmg difficulty meenng expectanons are as follows, - SIze of caseload, Caseload expectatIOns are 45 By the end of February I anncIpate 36 Although thIs may be fewer If! close more files than I open, Weare supposed to open and close four cases a month, - Time use - Demands of ongomg treatment Dunng an average work week, I have to spend an average of 11 + hours on acnve treatment [including medical appomtments] All of thIs IS qUIte exhausnng, - Flexible hours, I have not been able to get to work much before 10.30 or 11'00 a,m, because of the treatment schedule If I were allowed to manage my nme differently I could be more productIve as I would do my phone work and report wntmg at home whIch would save me some energy as I would not have to dress for work, could rest when I needed to and could change my pOSITIOn by elevaTIng my legs, After sIttmg for a while m the office, I expenence such pam m my legs, neck, shoulders and arms, My knees sTIffen and become pamfuL - Work until I crash vs plannmg for stamma, Under the present arrangement, because the supervIsor IS reluctant to permIt me to manage my TIme differently I complete my exerCIses, go to the office, work WIthout much break until I complete my daily reqUIrements then eIther go for massage therapy or any other appomtments, whereas If! could see chents at the office and do the c1encal at home, It would be less TInng, - A new accommodaTIon Issue discussed WIth you over the years on many occaSIOns and an ongomg concern at the office IS the poor aIr quahty and poor ventilatIOn, ThIS poses a stamma and health problem for me personally I have frequent headaches, cough, bunnng eyes, often I cannot keep my eyes open, ThIs results m faTIgue, loss of stamma and I am less producTIve m tlns office enVIronment - Adjusted caseload, The typIcal VRS counsellor has 45 chents at any gIven TIme, Because of my treatment regImen and the current reqUIrement that I work only at the office, I am able to handle approxImately 2/3rds of the expected caseload, My supervIsor does not currently acknowledge the Impact of the ongomg treatment on my workload, - Winter weather affects my phYSICal COndITIOn - paIn, sTIffuess, difficulty gettIng around, The current lack of recogmtIOn of my accommodatIOn needs and the Impact of the ongomg treatment create problems, for whIch the soluTIons I have offered have been rejected, I need your aSSIstance to reVIew these problems and develop alternatIves, You know It IS my deSIre to remam employed, Thank you for your aSSIstance m thIS matter Smcerely Margaret Y Goossen cc Marhe Cholette Bcc Kathy Macpherson Heather GaVIn Samson Zuzka Sladek FolloWIng Dr Faughtos receIpt oftms letter he apparently called the gnevor In to ms office for a consultatIOn. Thereafter on February 18 1993 he sent the folloWIng medical report to Ms. Cholette Dear Ms. Cholette Re Margaret Goossen At her request, I am forwardIng tms medIcal report on behalf of Mrs. Margaret Goossen. Mrs Goossen has raIsed several Issues of concern In her letter to me of February 3 1993 whIch was also copIed to you. Also we have dIscussed your letter to her of February 16 1993 SInce my last letter of April 30 1992, Mrs. Goossenos medical problems have certaInly worsened, wmch IS not altogether unexpected. She reqUIres therapy and exerCIses wmch are best carned out In the mornIng. These often take 2 to 3 hours, therefore I would request that If we could have Mrs. Goossen start her work day at 11 a.m., tills would be very helpful. Mrs Goossen IS requesnng a stable workload of 32 to 36 cases for the tIme beIng. SImilarly Mrs. Goossen feels, and I agree, that carryIng out her dunes at home for 2 days per week would be extremely helpful and would likely Increase producTIvIty As you certaInly are aware, the office envIronment conditIOns are less than Ideal and have been a source of respIratory problems and headaches for Mrs. Goossen for several years. The suggesnons above will make tills sItuanon more tolerable SeeIng chents In the office but alloWIng much of the telephone and c1encal work to be done at home would make thIngs more manageable and productIve for Mrs. Goossen. Thank you for your kmd attennon to tills matter Yours very truly J W Faught, M.D C C.F.P Essennally Dr Faught recommended that the gnevor be allowed to work at home for two days per week, report to the office at 11'00 a.m. on the other days of the week, and retaIn a 2/3 caseload for the nme bemg. Ms Cholette discussed the medical report and the gnevor-s letter to Dr Faught of February 3 1993 wIth Ms Joan O-callaghan, the Human Resources Manager She testIfied that because of the reduced hours and caseload that Dr Faught recommended, she thought that he mIght have been suggesnng part-nme employment for the gnevor On March 9 1993 after her dIScussIon wIth Ms. O-callaghan, she called Dr Faught for c1anficanon ofms recommendatIOns. She revIewed each of the Items In hIS medIcal report and asked whether he was recommending that the gnevor work part-nme Dr Faught responded that It would be best If Ms. Cholette put her concerns In wnnng. Ms Cholette then wrote the folloWIng letter to Dr Faught: Dear Dr Faught: Re Margaret Goossen Today we bnefly discussed your letter of February 18 1993 In wmch you recommend workmg condinons that mIght benefit Mrs. Margaret Goossen. You have suggested that: 1 Mrs Goossen commence her workIng day at 11'00 a.m. 2 A caseload of 32 - 36 cases be maIntaIned rather than a full caseload of 45 - 50 3 Mrs Goossen work at home two days per week. (Mrs. Goossen ongInally requested two days per month. Please clanfy ) In our conversanon, I asked for clanficanon of how each of these suggesnons related to her medIcal condinon. With tills Informanon, we will be better able to determIne what workplace accommodatIOns are able to be consIdered. I am looking forward to your letter If you reqUIre further Informanon, please do not hesItate to call me Thank you for your assIstance SIncerely Marhe Cholette SupervIsor VocatIOnal Rehabihtanon ServIces MissIssauga cc Mrs M. Y Goossen On March 31 1993 Dr Faught sent the folloWIng reply to Ms. Cholette Dear Ms. Cholette In response to your letter of March 9 1993 I am forwarding thIS medIcal report. Mrs Goossen contInues to carry a case load of 32 - 36 cases Her work day commences at 11 00 a.m. I recommend that consIderanon be gIven to havIng Mrs. Goossen work at home for up to 2 days per week. I am asking for these consIderatIOns because, as Mrs. Goossen closes In on the end of a long career In tills field, her medical disabihnes, especIally osteoarthnns, have worsened. There IS the possibihty of upcomIng surgery but the nmetable IS Indefimte Mrs Goossen has not made the gaIns anncIpated With her preVIOUS surgery The phYSICal and mental stress of her medical condinon has contributed to a substantIal Increase In her fatIgue She reqUIres the use of a walker and canes to a greater degree than last year as well. Mrs Goossen, as you know IS a parTIcularly dedicated worker She reqUIres early mormng exerCIse to encourage mobihty and tills necessItates a later startIng TIme. I feel her present case load IS adequate These accommodatIOns would allow Mrs. Goossen to conTInue working until her chosen retIrement date I feel that putTIng Mrs. Goossen on a stnct TIme schedule and full case load would be detnmental to her health, and would undoubtedly lead to more TIme off Mrs Goossen recently saw Dr I. McIntyre His recommendaTIon IS no further surgery at tills TIme, and further rest be InsTItuted. Therefore, I am adVISIng Mrs. Goossen to be off work for at least 2 to 3 weeks, commenCIng April 9 1993 In order to help acilleve full TIme producTIvIty for her return to work WIth the consIderaTIons menTIoned prevIously Very truly yours, J W Faught, M.D C C.F.P Dr Faught advIsed Ms. Cholette that the gnevor-s dISabIhTIes had worsened. He then essenTIally confirmed ills preVIOUS recommendaTIons and nOTIfied Ms. Cholette that the gnevor would be off work on a medIcally-prescribed rest for two to three weeks commenCIng April 9 1993 When Ms Cholette receIved tills letter she took It to Ms. O-callaghan and discussed It WIth her AccordIng to Ms. O-callaghan, Ms. Cholette had questIOns about the need for work at home for two days per week and wondered how long It would go on. In hght of the worsemng of the gnevor"S disabihTIes, Ms. Cholette decIded that pending further discussIOns With the gnevor regarding accommodaTIon, she would not make any effort to Increase the gnevor"S caseload, nor would she InSISt upon the 9'30 a.m. start tIme She then scheduled a meeTIng With the gnevor to reVIew With her what further accommodaTIon would be necessary Because Dr Faught IndIcated that the gnevor would be off work on a medIcally-prescribed rest for most of Apnl, the meeTIng was scheduled for April 30 1993 After the gnevor left for her medIcally-prescribed rest, Ms Cholette conTInued her dIScussIons With Ms. O-callaghan about what else should be done to accommodate the gnevor In preparatIOn for her return to work. They looked at alternatIve ways In willch to restructure the gnevor-s working day UlTImately they came up With a proposal that Ms. Cholette was prepared to present to the gnevor In theIr April 30 meeTIng. When the meetIng took place, however Ms. Cholette never had an opportumty to present tills proposal AccordIng to Ms Cholette, the gnevor started the meeTIng offby saYIng, -What would you tillnk If! took sIck leave until I reTIred?- Ms Cholette saId that thIS really surpnsed her She asked the gnevor If she thought It would be best for her The gnevor rephed that she thought so The meeTIng, Ms. Cholette saId, was qUIte emoTIonal The gnevor was teary but never saId that she felt forced to reTIre by the posItIOn on accommodatIOn that Ms. Cholette had taken. The gnevor mentIOned the end of October 1993 as a possible retIrement date The gnevor tesTIfied that by the TIme of tills meeTIng, she dId not have the energy left to keep on pushIng for accommodaTIon. AccordIng to the gnevor-s understanding of the govemment-s Employment EqUIty Program, the employer was supposed to cooperate With her In tryIng to meet her accommodatIOn needs but It placed obstacles In her way Instead. She decIded to take early reTIrement because she dId not see how she could carry on wIthout some cooperaTIon from the employer She agreed that, nevertheless, she dId not express any of these VIews to Ms Cholette In theIr meeTIng of Apnl30 The eVIdence Indicated that the gnevor had been consIdenng the opTIon of early reTIrement for some TIme. She first became Interested In taking early retIrement before 1990 when her husband was still ahve; however after he died she decIded that to secure her financIal future she would have to keep on working until reTIrement at age 65 Later on, the advent of a Voluntary EXIt OpTIon (VEO) under the Factor 90 program, whIch Included an unreduced penSIOn, severance and an early reTIrement enhancement payment, rekindled the gnevor-s Interest In taking early reTIrement. In August, 1992, the gnevor called Ms O-callaghan about her ehgibihty for the VEO Ms. 0 -Callaghan had known the gnevor SInce the mId-1980's and they had a good relatIOnsillp In November 1992, Ms 0 -Callaghan vIsIted the gnevor at her home to discuss early retIrement under Factor 90 The meetIng was very pleasant and lasted for about three hours. According to Ms O-callaghan, the gnevor wanted to know inter alia, about the Impact upon her penSIOn of taking a CPP disabIhty penSIOn, as well as the TIme when It would be most advantageous for her to retIre Ms O-callaghan SaId that, accordIng to her calculaTIons, the gnevor became ehgible for the VEO under Factor 90 on August 24 1993 From that pOInt, she had two months to decIde to go and two months to go before the VEO Window closed. The gnevor-s decIsIOn to take Factor 90 as of October 29 1993 allowed her to use up all of her attendance credIts before retIrement. Upon reTIrement, the gnevor became ehgible to receIve an unreduced penSIOn based upon her years of servIce, about $16 000 In severance pay and $31 000 as an early retIrement enhancement payment. In all, Mrs. O-callaghan stated, she and the gnevor had between SIX and eIght discussIOns about early reTIrement between August, 1992, and October 1993 The gnevor never mentIOned problems WIth her accommodaTIon In the workplace or Ms. Cholette In any of these dIscussIOns. As far as Ms. O-callaghan could see, the gnevor"S retIrement was an eXIt from the workplace that was very well planned over a long penod of tIme. She was astomshed when the gnevor filed the gnevance leadIng to the present proceeding. Ms. Anne Paquette, the Human Resources AssIstant for pay and benefits In the MissIssauga office also tesTIfied about the gnevor-s Interest In the VEO She saId that between August, 1992 and October 1993 she dIscussed the VEO over the telephone wIth the gnevor about once a month. Dunng one of these conversaTIons, the gnevor suggested that after reTIrement, she would like to engage In a pnvate counselhng pracTIce and wanted to know the Impact upon her penSIOn of dOIng so Ms Paquette also arranged for the gnevor to attend at the employer-s expense pnvate financIal counselhng sessIOns to help her plan for her retIrement. On August 26 1993 the gnevor enclosed a letter wIth her expense statements for these seSSIOns wmch read, In perTInent part: Dear Ann. Please find enclosed my expense statement re FinancIal Counselhng and the receIpt for the fee I paId. Thank you for advIsmg me of tills opportumty I found the consultatIOn very helpful. Without It I could not have made an mformed decIsIon to retIre Smcerely Margaret Goossen The gnevor"S contacts wIth Ms. Paquette and her letter mdicated that her decIsIOn to reTIre was an mformed one, made after consIderable discussIOn and consultaTIon. Ms Kathy MacPherson, the Employment EqUIty Manager at the Mimstry of Commumty and SocIal ServIces2 also gave eVIdence beanng upon the gnevor"S mtenTIon to retIre. She saId that m April, 1993 the gnevor contacted her to confirm that work at home and flexible hours would be consIdered to be employment accommodatIOn. Accordmg to Ms. MacPherson, she got the ImpreSSIOn dunng the telephone conversatIOn that the gnevor very much wanted her to say that the gnevor-s manager should allow her to work at home and start work at 11 00 a.m. on the days when she went m to the office Instead, Ms. MacPherson 2 Ms MacPherson was one of the persons to whom the gnevor sent a blmd copy of her letter to Dr Faught of February 3 1993 rephed that work at home and flexible hours were legITImate accommodaTIon soluTIons but whether they were nght for the gnevor depended upon IndivIdual consIderaTIons such as her Job reqUIrements, funcTIonal hmItaTIOnS In the workplace, and so on. She also advIsed the gnevor that, at the gnevor"S request, the Employment EqUIty Office would eIther advocate on her behalf or medIate between her and Ms Cholette The gnevor rephed that she was senously contemplaTIng retIrement and It was very likely that she would reTIre Because of tills, she saId, It was perhaps not worth purSUIng. Later on In the heanng, a letter became available that appeared to corroborate the essence of Ms MacPherson-s eVIdence The letter was sent to Ms. MacPherson by the gnevor on April 30 1993 It reads as follows Dear Ms. MacPherson. Tills letter IS further to our phone conversatIOn on Apnl 14th regarding my requests for accommodaTIon for (a) chaIr through the Employment EqUIty Fund, (b) modIfied work and working at home. The chaIr was provIded, but I never dId receIve a form to complete for the Employment EqUIty Fund, so presumably the MissIssauga Area Office paId for It. As you can see from the rest of the correspondence, I was requesTIng permIssIOn to work from home for part of the work week, as much of the clencal work can be done from home, alloWing me to conserve my energy and stamIna and thus be more productIve SInce talking to you, I have consulted WIth a PhysIatnst. It appears that I may be off on sIck leave Indefimtely and then retIre after September 1 1993 when I Will have the 90 factor There would be no further need to accommodate me as requested. ThIS IS conTIngent on my doctor-s medical assessment and opImon. As discussed, I am forwardIng tills InformaTIon for your perusal, however any actIOn on your part may now be unnecessary because of my possible ImpendIng reTIrement. I have been, and am still off work on sIck leave SInce April 9 1993 Please contact me for further discussIOn once you have revIewed the enclosed mformaTIon. Yours truly M. Y Goossen As of April 14 1993 the gnevor gave nOTIce to Ms. MacPherson that further actIOn to secure accommodatIOn for her may be unnecessary because of her possible ImpendIng reTIrement. The gnevor tesTIfied that she remaIned on sIck leave for a penod of about seven months, from April 9 1993 unTIl she retIred on October 29 1993 She saId that she felt as If she was In a -Catch 22" sItuaTIOn. If she could not get the accommodaTIon that she needed at work, the only tmng left was to take the VEO WIth ItS unreduced penSIOn and early reTIrement enhancement payment. To do tills, however she had to make a formal declaratIOn of her IntentIOn to retIre before her Factor 90 WIndow closed. She understood that thIS was some TIme In late August. The gnevor formally declared her IntenTIon to reTIre on August 26 1993 She sent Ms. Cholette the folloWing letter Dear Marhe Tills letter IS to advIse you of my Intent to reTIre from the Ontano Pubhc ServIce as of October 30 1993 My last day of employment will hkely be October 29 1993 based on my vacatIOn and sIck leave credits willch, according to the InformaTIon I have been gIven, wIll be depleted on October 29 1993 Any changes to thIS date would be bvased on changes In InformaTIon from Human Resources. I hope tills mformaTIon will be helpful to you In making your staffing plans for the future. I shall be comIng Into the BurlIngton office over the next few weeks, when I am able, to clear out my personal effects from my office I have tills day also wntten to Joan O-callaghan to advIse her of my decIsIon to reTIre I hope that In these uncertaIn TImes that all will go well for you and that there will contInue to be many and great opportumTIes for you to contribute your talents. The gnevor never menTIoned In the letter that she beheved that she was beIng forced to retIre by Ms. Cholette-s unWIlhngness properly to accommodate her In fact, throughout the enTIre seven months of the gnevor-s sIck leave, she never menTIoned to Ms Cholette that she only decIded to reTIre because of her Inabihty to obtaIn from her proper accommodaTIon. In cross-eXamInatIOn, the gnevor agreed that she was always cordial In her dealIngs With Ms. Cholette. The gnevor also agreed that she never sought to make her dIssaTIsfacTIon known to Ms Cholette"S manager nor to Ms. O-callaghan. She saId that It would have been agaInst her pnncIples to go over Ms Cholette-s head. Moreover she saId, her understanding of her responsibihty under the govemment"S Employment EqUIty Program was sImply to disclose her dIsabihty and make a request for accommodaTIon. From that pOInt on, the ball was In the employer"S court. The first TIme that Ms. Cholette became aware of the gnevor-s posItIOn that she was beIng forced to reTIre was October 29 1993 On that day the gnevor came In to the office to sIgn her eXit papers and deal wIth a few other matters. Just before she sIgned her eXIt papers, the gnevor handed Ms Cholette the gnevance leading to thIS arbItraTIOn. She told Ms. Cholette that the gnevance was not personal agaInst her but was agaInst the enTIre Mimstry She saId that she hoped that the outcome of the gnevance would benefit numbers of dIsabled women by bnngIng to theIr attenTIon the eXistence of the Employment EqUIty Fund and the mechamsms that were available WItilln the Mimstry to utilize the fund for the benefit of dIsabled employees. ill. The OPS Employment Equity Program. The umon called an expert Witness, Ms. Dolores Radchffe, to explaIn the Employment EqUIty Program for the disabled that the government was ImplemenTIng In 1992-93 At the tIme that she testIfied, whIch was July 3 & 9 1996 Ms. Radchffe was a Staff Development and TraImng SpecIahst With the Mimstry of Labour Her sole chent was the Employment EqUIty Office She was responsible for employment eqUIty traImng for managers and the dehvery oftraImng courses In government-Wide workplace dIscnmInaTIon and harassment prevenTIon. From July 1991 to December 1993 Ms Radchffe was the ProJect Coordinator for EqUIty Works, In the Centre for DIsabihty and Work at the Mimstry of Labour In tills capacIty she was responsible for provIdIng traInIng courses to teach disabled employees how to go about obtaInIng employment accommodatIOn. Under her guIdance, the Centre produced a workshop called -EqUIty Works- that the gnevor attended on March 30 1992, several weeks before her return to work. In the course of the workshop the partIcIpants were made aware, inter alia, of an OPS pohcy addressIng the accommodaTIon of persons With disabihTIes. The pohcy was estabhshed In a DIreCTIVe and GUIdelIne produced In March, 1992, by the Employment EqUIty DIvIsIOn of Management Board Secretanat. The DIrectIve estabhshed, inter alia, certaIn pnncIples and mandatory reqUIrements for accommodaTIon In employment for persons With disabihTIes. They Included the folloWing: PRINCIPLES - AccommodaTIon Includes and Integrates persons With disabihTIes In all employment acTIVITIes. - IndivIduals are accommodated In ways that respect theIr dIgmty and worth. - AccommodaTIon IS made only for the known employment needs of the mdiVIdual. - AccommodaTIon addresses only the current employment hmItaTIOnS except when future hmItaTIOnS are known and can be effectIvely accommodated. - AccommodaTIon needs are addressed In a way that IS consIstent WIth responsible financIal management while observIng the other pnncIples. MANDA TORY REQUIREMENTS - AccommodatIOn must be provIded In accordance WIth the Ontano Human Rights Code, unless dOIng so would cause undue hardshIp [Code, s. 11 17] - AccommodaTIon must Include, but IS not hlll1ted to the folloWing: - techmcal aIds and devIces, - workstaTIon modificaTIons, -building modificaTIons; -Job redesIgn, -employment pohcy and pracTIce modificaTIons. - AccommodaTIon must be made -IndivIdually to meet the specIfic needs ofIndlVldual employees and apphcants; [Code, s 17] -systemIcally to make the government as a whole accessible to people wIth disabihtIes [Code, s. 11], and to achIeve the numencal and bamers ehmInatIOn goals of the OPS Employment EqUIty Program. - A phYSICal demands analysIs of each J ob In the OPS must be made available upon request. - Persons With disabihTIes must be consulted IndivIdually In decIding what accommodaTIon, If any IS most appropnate - Apphcants and employees must be Informed of theIr nghts under thIS direcTIve and of the mechanIsms available to them through the Workplace DIscnmInaTIon and Harassment PrevenTIon DIrecTIve, the Ontano Human Rights CommIssIon and the CollecTIve Agreement for purSUIng remedies. PERSONS WITH DISABILITIES Persons WIth disabihTIes are responsible for making known the needs and accommodaTIon reqUIrements ofwmch they are aware. According to the DIrectIve, the purpose of ItS mandatory reqUIrements was to saTIsfy ss 11 and 17 of the Human Rights Code and achIeve the numencal and bamers ehmInaTIon goals of the OPS Employment EqUIty Program. Persons With disabihTIes were responsible for making known theIr needs and accommodaTIon reqUIrements. Generally only current employment hmItaTIOnS were to be addressed. AccommodatIOn was to be provIded In a way that was consIstent WIth responsible financIal management. A phYSICal demands analysIs (PDA) of each Job had to be made aVaIlable upon request. The GUIdelIne provIded categones and examples of employment accommodaTIon. It also IndIcated, inter alia, that the provIsIon by the government of a centralIzed Employment AccommodaTIon Fund to finance accommodatIOn In the OPS made It unlikely that the expense of accommodaTIng an IndivIdual employee ever would create undue hardsmp WItilln the meamng of the Human Rights Code They saId. UNDUE HARDSHIP The Ontano Human Rights Code reqUIres employers to accommodate persons With disabihTIes unless dOIng so would cause undue hardshIp The Code desIgnates three determInants of undue hardshIp cost, outsIde sources of funding and health or safety nsk. COST Undue financIal hardsmp occurs when the cost of provIdIng accommodaTIon IS so substanTIal It affects the dehvery of servIces or programs. GIven, however that a central fund for mImstnes eXists, It IS unlikely that undue hardsmp would occur as a result of accommodaTIng an IndivIdual employee. The eXistence of the fund was seen as making unlikely a successful plea of financIal hardsmp Ms Radchffe tesTIfied that beyond the pohcy estabhshed In the DIrecTIve and GUIdehne, the accommodatIOn process envIsIOned by the Employment EqUIty Program was pro-acTIve In nature It commenced as soon as an employee dIsclosed ms or her dIsabihty to the employer At that pOInt, the employer was supposed to take over and IdenTIfy the demands of the work. Once that had been accomphshed, the employer was supposed to collaborate wIth the employee In an Intense process aImed at determInIng how to accommodate the work demands. The Idea was that the dIsabled employee still had to -dehver the goods- by produCIng the same -work product- as the other employees. The accommodatIOn process was supposed to Involve a funcTIonal demands analysIs, as opposed to a PDA, to IdenTIfy the -embedded demands- of the Job such as thInkIng skills or keyboarding, and thereafter a determInatIOn of how these demands mIght be met by the dIsabled employee, properly accommodated. In the course of making tills determInaTIon, the employer and employee were expected to cooperate With each other In looking at alternaTIve means of accommodatIOn and a range of solutIOns. If assIstance was reqUIred, Ms. Radchffe saId, Employment EqUIty Program officers were on hand In each Mimstry to help the employer determIne what altemaTIves mIght be aVaIlable TraIners from the Employment EqUIty Office also were available to assIst In tills task. Moreover the employer could seek assIstance from consultants on the roster of the Mimstryos Employment AccommodaTIon ServIces - DIsabled (BAS-D) The employer could also contact the Mimstry-s QUIck Response Team (QRT), wmch mIght be available to discuss accommodaTIon soluTIons. Ms Radchffe also testIfied that she did not beheve that a family doctor was competent to say what accommodaTIon would be necessary to allow an employee to perform a parTIcular Job The family doctor she saId, would not be famIhar WIth the embedded demands of the J ob She dId not see obtaImng a medical confirmaTIon of the eXistence of hlll1taTIons due to disabihty as a manager-s first lme of InqUIry She saId that the manager should trust what the employee saId were ms or her hmItaTIOns. She did not thInk that the employee would nsk getTIng fired for lYIng. In her direct tesTImony Ms. Radchffe candidly acknowledged that she had been a fnend of the gnevor for over fifteen years. She saId that the gnevor told her that she was dissaTIsfied With Ms. Cholette-s response to her requests for accommodatIOn and she suggested that the gnevor should contact the Mimstryos Employment EqUIty Office for help She also suggested that the gnevor contact the Mimstryos QRT Ms Radchffe saId that, In addITIon, she urged the gnevor to file a Workplace DIscnmInaTIon and Harassment PreventIOn (WDHP) complaInt but the gnevor refused to do so Ms Radchffe agreed that, as a VRS Counsellor the gnevor would probably be one of the most knowledgeable people In government regardIng dIsabihty and the accommodaTIon of disabihty The gnevor-s maIn problem, she saId, was conservaTIon of stamIna. The umon also called a subpoenaed wItness, Ms. CIndy Nowena, to tesTIfy about the Employment EqUIty Program. At the tIme she tesTIfied, July 9 and November 26 1996 Ms. Nowena was a Semor Pohcy Analyst In Employment EqUIty at Management Board Secretanat. She specIahzed In accommodatIOn Issues. AccordIng to Ms. Nowena, she had In the past been called In to help lIne managers and disabled employees IdentIfy bamers and soluTIons. She saId that the process began by determImng what performance reqUIrement or outcome IS expected and then determInIng how to accommodate to amve at that outcome In dealIng WIth the accommodaTIon of a disabled employee, Ms. Nowena saId, the recommended strategy would always be for the employer to be pro-actIve, however In 1992-93 when managers were Just learmng about employment eqUIty It was re-acTIve. She saId that her office Instructs lIne managers to be pro-aCTIve, to create an envIronment In wmch employees will feel comfortable discloSIng theIr disabihTIes. As to the need for a diagnosIs provIded by the disabled employeeos doctor Ms Nowena saId that It had notillng to do With the quesTIon of accommodaTIon. It should not matter why an employee IS bhnd, she saId, what matters IS that the employee reqUIres alternatIve strategIes for reading and wnTIng. The employee must IdenTIfy the need and the lme manager must engage In commumcaTIon With the employee to help discover those strategIes. At the same TIme, Ms. Nowena saId, It was acceptable for a supervIsor to contact a disabled employee-s doctor If he or she were not clear about the condiTIons In the workplace that were tnggenng problems such as faTIgue In the disabled employee With respect to obtaInIng medIcal confirmaTIon of an employee-s dIsabled status, Ms Nowena conceded that perhaps It would be WIse for the employer to get a medical confirmaTIon of the employee-s restncTIons. ThIS, she saId, was a very controversIal area, but even In the OPS consIderatIOn was beIng gIven to requInng venficaTIon of disabled status. When asked upon cross-examInaTIon whether It would be appropnate for a manager to seek JustIficatIOn from a disabled employee-s doctor If In doubt that work at home was necessary to accommodate the employee-s COndITIOn, Ms. Nowena rephed that It would not be Inappropnate to seek addItIOnal InformaTIon from the doctor In accommodaTIng an employee who IdenTIfies mobihty and faTIgue as ms or her disabihty Ms. Nowena saId, the accommodatIOn obJectIve would be to mImmIze faTIgue In the performance of the Job The accommodaTIon strategy would vary according to what caused the fatIgue. There would be a whole vanety of ways In whIch to get the Job done. The employee mIght have an Idea of how to accomphsh thIS, she saId. It would be up to the manager however to do the research necessary to permIt the making of an Informed decIsIon. AccordIng to Ms. Nowena, work at home was a common accommodaTIon optIOn In the OPS dependIng upon whether the employee could STIll meet ms or her performance obJecTIves. Secure files could be maIntaIned by electromc transmISSIon through a secure modem. The onus was upon the employer to consIder all opTIons before decIding that secunty could not be met through work at home. PendIng the selectIOn and ImplementaTIon of the permanent accommodaTIon strategy wmch mIght take some tIme, Ms. Nowena went on, It would be up to the manager to develop an appropnate Intenm strategy Intenm and permanent accommodaTIon would reqUIre on-gOIng momtonng by the employer The Job reqUIrements or the CIrcumstances of the dIsabled employee mIght change. It IS, she saId, an on-gOIng process. Upon cross-eXamInatIOn, Ms. Nowena was asked whether VRS Counsellors, as a class, would be among the most knowledgeable groups In the OPS about disabihTIes and accommodaTIng dIsabihtIes In the workplace Ms. Nowena rephed that they would be among the most knowledgeable classes. They would have an unusually mgh level of knowledge of how to accommodate disabihTIes m the workplace, however from her InteractIOn WIth VRS Counsellors, she found a range of experTIse depending upon theIr expenence With vanous types of disabIhTIes. In January 1992, Ms Nowena saId, she went from Management Board Secretanat to the Mimstry herem. She stayed With the Mimstry until August, 1992. Toward the end of August, she produced a report called -Making Rights a RealIty- The purpose of the report was to determIne how to create a comprehensIve approach to accommodaTIon. Part of the report Included the IdenTIficaTIon of steps to be followed In an accommodaTIon planmng process. Ms Nowena was shown a three-paged document produced by the Mimstry after she returned to Management Board Secretanat. The document was entItled, -Process for Employment AccommodaTIon of Employees With DIsabihTIes- After revIeWing It, she saId that It looked like It was pulhng pIeces out of - Making Rights a RealIty- The document produced by the Mimstry essenTIally set forth seven steps to be followed In accommodaTIng employees With disabihTIes. The seven steps reflected the pro-acTIve process that she and Ms. Radchffe had described In theIr eVIdence The Witnesses for the employer regarding the Employment EqUIty Program Included Ms. Kathy MacPherson, the Employment EqUIty Manager for the Mimstry and Ms. Joan O-callaghan, the Human Resources Manager for the MissIssauga office Ms. MacPherson saId that many managers found the Issues of work at home and flexible hours InTImIdaTIng because of unsureness about theIr legITImacy These strategIes, however were legITImate accommodaTIon soluTIons and she expected that the MissIssauga VRS office was aware of that. It had a decent employment eqUIty reputaTIon and she had some confidence In the office At the tIme that the gnevor was seeking accommodaTIon, Ms. MacPherson saId, the QRT and EAS-D resources that Ms Radchffe saId would have been available to Ms. Cholette did not have any estabhshed presence In the Mimstry The QRT was still a pilot proJect, WIth specIfic funding to provIde computer-related accommodaTIon to twelve vIsuallY-ImpaIred employees. The EAS-D group did not commence operaTIons unTIl well after the Spnng of 1993 and mobihty disabihTIes did not begIn to get assessed by EAS-D untIl 1994 some tIme after the gnevor retIred. Moreover Ms. MacPherson saId, she expected that the gnevor as a VRS Counsellor and Ms. Cholette, as a VRS SupervIsor probably had as much experTIse In the accommodaTIon of dIsabihTIes as those In the QRT and EAS-D umts. Ms MacPherson also saId that the three-paged document from the Mimstry enTItled, -Process for Employment AccommodaTIon of Employees With DIsabihTIes, - that was put to Ms Nowena was prepared to describe what the Mimstry-s Employment EqUIty Office saw as the Ideal process of accommodaTIon. It was part of a tentatIve effort to use the Mimstry-s VRS Counsellors to do the necessary assessments. The document was never distributed as a Mimstry pohcy or guIdehne. Ms O-callaghan testIfied that In 1992-93 she was well aware that work at home was a legITImate accommodatIOn soluTIon for a dIsabled employee. In 1991 she saId, she receIved consIderable employment eqUIty traImng. She knew from tills that In the accommodatIOn process, It was necessary to separate out the -work product- from the means of produCIng It, and then desIgn another way In wmch the dIsabled employee, properly accommodated, could produce the same -work product- She also was aware that someTImes, Intenm accommodaTIon was appropnate As for other resources that mIght have been available to assIst Ms. Cholette and the gnevor In produCIng a sUItable accommodaTIon plan, Ms. O-callaghan saId that she was aware that the Mimstryos own Employment EqUIty Office and Management Board Secretanatos EqUIty DIVISIon were available to help In tms task. These resources, she added, really came Into beIng In 1993 She was not aware of the Mimstry of Labour-s Centre for DIsabIhty and Work. AccordIng to Ms. O-callaghan, It was not necessary to consult these resources. In accordance With the DIrect1ve, a PhYSICal Demands AnalysIs (PDA) had been prepared for the gnevoros Job There was an adequate process already In place to address the gnevoros Issues, InvolVIng the gnevor Ms Cholette and Dr Faught. The process was STIll on-goIng on April 30 1993 when the gnevor told Ms Cholette that she-d decIded to reTIre She had no reason to suspect that the gnevor felt that the on- gOIng process created an Impediment to reacmng a proper accommodaTIon solutIOn for her disabihty III. The Issues Raised by the Parties Upon the compleTIon of the eVIdence, counsel for the partIes made submIssIons raIsmg the folloWing Issues (1) Whether the response of the employer to the gnevoros request for accommodatIOn consTItuted a breach of the Ontano Human Rights code, and, (2) Whether the gnevoros early reTIrement was mvoluntary because It was forced by the employeros resIstance to granTIng her request for mter alIa, accommodaTIon m the form of work at home for up to two days per week? We will address these Issues seriatim herembelow IV Analysis of the Issues (1) The Alleged Breach of the Ontario Human Rights Code: In a thorough and ImpreSSIve submISSIon, counsel for the umon, Ms. Doyle, argued that a reVIew of the eVIdence showed that the response of Ms. Cholette to the gnevoros request for accommodatIOn fell far short of the response that was supposed to be made m the OPS as described by Ms. Radchffe and Ms Nowena The eVIdence, she submItted, showed that Ms. Cholette dId not take a pro-actIve approach to accommodatmg the gnevor From the outset, she only reacted to accommodatIOns suggested by the gnevor Ms. Cholette did not perform any funcTIonal demands analysIs to separate out the -tasks- from the -work product- of the gnevoros Job even though It was described by Ms. Radchffe and Ms Nowena as a key step There was no arTIculatIOn of specIfic accommodatIOn obJecTIves for the gnevor such as reducmg faTIgue. All that Ms. Cholette wanted to know was whether the accommodaTIon was a medIcal need. Ms. Cholette had a negaTIve attItude toward the gnevor and took a mIserly and grudgmg approach to provIdmg accommodaTIon. Her attItude was - how httle can we get away With- rather than -how can we help the gnevor produce her -work product-With digmty?- Moreover Ms. Doyle submItted, there was a lack of commumcaTIon between Ms. Cholette, the gnevor and other resource persons to determIne how best to accommodate the gnevor No momtonng was performed to make an on-gOIng determInaTIon of the adequacy of the accommodaTIon that was ImTIally provIded. In November 1992, when the gnevor renewed her request, inter alia, to work at home, Ms. Cholette engaged In foot-draggIng. Although work at home was a common accommodatIOn optIOn In the OPS, the gnevor was subJected to delay after delay Even after the gnevor wrote her letter to Dr Faught of February 3 1993 whIch was essenTIally a call for help Ms. Cholette did not schedule a meetIng to discuss further accommodatIOn until Apnl30 1993 about three months later In the end, Ms. Doyle saId, the gnevor became exhausted and felt unable to conTInue. The above mImmal response of the employer to the gnevor-s request for accommodatIOn, Ms Doyle submItted, consTItuted a breach of the Ontano Human Rights Code In support of thIS propoSITIOn, she pnmarily rehed upon Re Pharma Plus Drug Mart Ltd and United Food and Commercial Workers- Union (1993),33 L.AC (4th) 1 (M.G Mitchmck) In that case, the employer termInated an InJured employee for Innocent absenteeIsm even though she harboured a hope to be able to return to her Job WIth proper accommodatIOn. The employer never offered any accommodaTIon to her Finding that under the Code, the employer had a legal obhgaTIon to accommodate a handicap, the board concluded that the employer -faIled to dIscharge the onus upon It to demonstrate that at the TIme It acted to termInate the gnevor-s employment relaTIonsmp It was unable to accommodate the gnevoros phYSICal handIcap Without "Undue hardsmp- - Id at 14 The gnevor-s employment relaTIonsmp was restored to the pOSITIOn It was In before termInaTIon -to permIt the employer to explore dIrectly WIth the gnevor In conJuncTIon With the umon, the apphcaTIon of the employer"S -duty to accommodate- to the phYSICal disabihty currently eXISTIng for the gnevor - Id at 15 Reference was also made to Board of School Trustees School District No 23 (Central Okanagan) v Renaud (1992),95 D.L.R. (4th) 577 (S C C), In whIch the Supreme Court of Canada reJected a submIssIon that a de minimus test of undue hardshIp should be apphed In cases under the Human Rights Code and concluded that - [m ] ore than mere neghgible effort IS reqUIred to to saTIsfy the duty to accommodate - Id at 585 In addItIOn, Ms. Doyle referred to Re Ontario Human Rights Commission and Simpsons-Sears Ltd (1985),23 D.L.R. (4th) 321 (S C C), In whIch the Supreme Court concluded that Intent to discnmInate was -not a necessary element of the discnmInaTIon generally forbIdden In Canadian human nghts legIslaTIon. - Id at 329 In an admIrable submIssIOn, Mr Mason argued on behalf of the employer that the standards by whIch to measure the employer-s response to the gnevor-s accommodaTIon request were not the lofty standards artIculated by Ms. Radchffe and Ms Nowena These standards, he submItted, never became part of government pohcy and certaInly were not the standards to be apphed In determImng whether the employer made a mere de minimus response WItilln the meamng of the Ontano Human Rights Code. At the TIme, the only government pohcy regarding accommodaTIon of employees With disabihTIes was contaIned In the DIrectIve and GUIdehne Issued by Management Board of CabInet In March, 1992. Ms. Cholette-s response, he submItted, saTIsfied the standards estabhshed In tms pohcy and, more Importantly those reqUIred under the Ontano Human Rights Code. Moreover Mr Mason submItted, Ms Choletteos response to the gnevoros request for accommodaTIon was not nearly as mImmal as Ms. Doyle would have It. In April, 1992, Just before the gnevor returned to work, Ms. Cholette granted five out of the gnevoros seven accommodatIOn requests. The gnevor returned to work under these COndITIOnS and did not seek further accommodatIOn, inter alia, to work at home for two days per week, until SIX months later In November 1992 At that TIme, the gnevor declIned to obtaIn InformaTIon from her doctor staTIng that there was a medIcal need for her to be accommodated In thIS way She was, however aCTIvely purSUIng InformaTIon about early retIrement under Factor 90 Meanwhile, Mr Mason submItted, Ms Cholette did not hesItate to consult other resources, nor dId she drag her feet. All of her responses to the gnevor were made after confemng With Ms. O-callaghan, the Human Resources Manager for the MissIssauga office As Intenm accommodaTIon, Ms Cholette conTInued the gnevor-s 2/3 caseload beyond the ongInal sIx-month hmIt. When the gnevor finally wrote her doctor on February 3 1993 and sent a copy of thIS letter to Ms. Cholette, she was allowed a further extensIOn of her 2/3 caseload and no attempt was made to deter her from reporTIng to work at 10 30 -11 00 a.m. AccordIng to Mr Mason, Ms Cholette was WIthIn her nghts as a supervIsor to make a wntten request to Dr Faught on March 9 1993 seeking clanficaTIon of hIS ongInal response to the gnevor-s letter of February 18 1993 Dr Faught dId not send a letter contaImng tills clanficaTIon until March 31 1993 In the same letter Dr Faught announced that, as of April 9 1993 the gnevor would be leavIng for two to three weeks on a medIcally-prescribed rest. It was solely for thIS reason, Mr Mason submItted, that Ms. Cholette delayed until April 30 1993 her meetIng WIth the gnevor to dISCUSS further accommodaTIon. The antIcIpated dIscuSSIOn never took place because the gnevor took tms opportumty to announce her IntentIOn to retIre After revIeWing the DIrect1ve and GUIdehne Issued by Management Board Secretanat In March, 1992, we conclude that the pohcy estabhshed thereIn was not contravened by Ms Cholette and, In any event, apphed only Indirectly to the Issue before us. The thrust of tills pohcy ran more toward We note that Ms Cholette certaInly adhered to the pnncIples of the DIrect1ve reqUITIng her to make accommodaTIon only for the known employment needs of the IndivIdual, and to address accommodaTIon needs In a way that IS consIstent With sound financIal management. The accommodatIOns that she provIded respected the gnevoros digmty and worth, In that they were not demeamng In any respect. As to the GUIdehne, while Ms. Cholette was scepTIcal about the medical need of the gnevor to work at home, she never offended the guIdehnes on undue hardsmp and cost by suggeSTIng that the modIficaTIons necessary to allow the gnevor to work at home would cause undue financIal hardshIp to the employer We also note that her attempts to accommodate the gnevor were still estabhshIng pnncIples, responsibihty and scope of accommodaTIon than It did to process. The real Issue here IS about process The umon essenTIally claIms that the accommodaTIon process followed by Ms Cholette fell far below the standards reqUIred by the Ontano Human Rights Code and wore the gnevor down to the pOInt where she did not have enough energy left to conTInue her fight for accommodaTIon. The legal quesTIon before us IS whether the standards for the process of accommodaTIon artIculated by Ms. Radchffe and Ms. Nowena are the standards that must be met under the Ontano Human Rights Code If so, there would seem to be httle doubt that the process followed by Ms. Cholette breached the Code Many of the standards artIculated by Ms. Radchffe and Ms Nowena were breached by Ms. Cholette For example, when the gnevor dIsclosed her disabihty and requested accommodaTIon, Ms. Cholette took a re-actIve, rather than pro-actIve, approach to the matter She dId not perform a funcTIonal demands analysIs of the gnevor"S Job to IdentIfy the embedded demands so that she could -work backwards- to determIne how the same -work product- could be produced by the gnevor properly accommodated. She dId not take the ImtIaTIVe to consIder a range of accommodaTIon soluTIons but, for the most part, Just consIdered those suggested by the gnevor She did not momtor the gnevor to determIne whether further accommodaTIon would be reqUIred to permIt the gnevor to produce the same -work product- as her colleagues. Instead, she left It up to the gnevor to raIse the matter With her and reqUIred her to document a medIcal need for the further accommodatIOn that she on-gOIng when the gnevor announced her IntenTIon to reTIre. requested. All of these aCTIons were contrary to the standards artIculated by Ms. Radchffe and Ms. Nowena. We cannot find, however that the process employed by Ms Cholette breached the apphcable standards under the Ontano Human Rights Code In Pharma Plus supra, reference was made to certaIn guIdehnes and standards estabhshed by the Ontano Human Rights CommIssIon and the Supreme Court of Canada beanng upon the process of accommodatIOn. The reference was as follows The employer submIts that It IS the responsibihty of the employee to tngger the obhgaTIon [to accommodate] by provIding the employer In detail With InformaTIon as to Just what the dISabIhTIes and restnCTIons are that the employer IS beIng asked to accommodate In support of that the employer pOInts to the recent decIsIOn of the Supreme Court of Canada In Central Okanagan School District No 23 v Renaud and the Ontano Human Rights CommIssIon-s own -guIdehnes- pubhshed to assIst In the InterpretaTIon of the Code With respect to -accommodatIOn- The guIdelInes, we note, have not been gIven the force of law and are of no -bInding- effect on the courts or adJudicators. In terms of any persuaSIve value they may have as beIng reasonable, however the -guIdehnes- do themselves provIde, In lIne With the employer"S argument, that 8 A person who requests accommodaTIon has a responsibIhty to commumcate ms or her needs In sufficIent detaIl and to co-operate In consultatIOns to enable the person responsible for accommodaTIon to respond to the request. At the same TIme, however they do go on to provIde on the same page that: A The person who IS responsible for making the accommodatIOn IS reqUIred to prove that the accommodaTIon causes undue hardsmp wItilln the meamng of the standards set out In the [Code] It IS not up to the person WIth the disabIhty to prove that the requested accommodatIOn can be accomphshed WIthout undue hardshI p As for the Supreme Courtos Renaud case, It does, In fact, state, as the employer notes, at pp 592-3 Duty of complainant The search for accommodatIOn IS a mulTI-party mqUIry Along With the employer and the umon, there IS also a duty on the complaInant to assIst In secunng an appropnate accommodatIon. To facIhtate the search for an accommodaTIon, the complaInant must do ms or her part as well Thus, In determImng whether the duty of accommodatIOn has been fulfilled, the conduct of the complaInant must be consIdered. As IS apparent from a full reading of the case, that statement In ItS context and on the facts before the court IS an admomtIOn to complaInants that they must not only be forthcomIng With respect to relevant InformaTIon they may have In theIr possessIOn, but also, With respect to any accommodatIOn that IS beIng consIdered, demonstrate a wilhngness to be as co-operaTIve as they can. As the court conTInued however [at p 593] 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 hoYf, the complainant can be accommodated Yf, ithout undue intelference in the operation of the employer-s business. When an employer has ImTIated a proposal that IS reasonable, the complaInant has a duty to facihtate the ImplementaTIon of the proposal The other aspect of tms duty IS the obhgaTIon to accept reasonable accommodatIOn. The complaInant cannot expect a perfect solutIOn. If a proposal that would be reasonable In all the CIrcumstances IS turned down, the employeros duty IS discharged. Id at 10-12 (EmphasIs In ongInal.) It would seem from tms reference that, In the eyes of the Ontano Human Rights CommIssIOn and the Supreme Court of Canada, the accommodatIOn process under the Ontano Human Rights Code reqUIres less from the employer and more from the employee than the process artIculated by Ms. Radchffe and Ms. Nowena. The folloWing cntena appear to emerge (I) The Employer" The employer must accommodate In good faIth to the pOInt of undue hardsmp however In the accommodatIOn process (1) The employer IS permItted to be re-acTIve, In the sense of reqUITIng the employee to commumcate ms or her needs In sufficIent detail to permIt the employer to respond to the request for accommodaTIon, (2) NothIng reqUIres the employer to perform a functIOnal demands analysIs of the employee-s Job to facihtate ItS search for an appropnate accommodaTIon soluTIon, (3) The employer IS not reqUIred to momtor the success of the accommodatIOn provIded to the employee, once It IS In place, and, (4) The employer IS the party ulTImately responsible for choOSIng the accommodatIOn soluTIon that IS provIded, It IS not reqUIred to provIde the accommodaTIon soluTIon that the employee prefers. (ii) The Employee: The employee has an obhgaTIon to assIst In secunng a proper accommodaTIon soluTIon by' (1) BnngIng ms or her accommodaTIon needs to attenTIon of the employer In sufficIent detaIl to permIt the employer to respond to the request for accommodaTIon, (2) Co-operatIng In consultaTIons wIth the employer dIrected towards responding to the request for accommodatIOn; (3) FacihtaTIng the ImplementaTIon of the employer-s proposal for accommodatIOn, and, (4) AcceptIng a reasonable accommodatIOn soluTIon even though It IS not the one that the employee prefers. When these cntena are apphed to the case at hand, It does not seem that Ms. Cholette breached the standards reqUIred by the Ontano Human Rights Code when she dealt WIth the gnevor-s requests for accommodatIOn. First, she admInIstered the gnevor"S requests In good faIth. At the heanng, we did not understand counsel for the umon to be assertIng otherWIse While Ms. Doyle contended that Ms Cholette had a negatIve attItude toward the gnevor she never submItted that tms alleged attItude caused Ms Cholette to act In bad faIth. Moreover our own reVIew of the eVIdence Indicates that the IncIdents from wmch the gnevor Inferred tills negaTIve atTItude probably did not stem from dIStrust or dislike, but from a certaIn degree of ngIdity that Ms. Cholette generally tended to display In applYIng office pohcIes and procedures. Virtually all of the IncIdents that the gnevor referred to In her eVIdence had tms In common, e g., the pohcy agaInst USIng the photocopIer and other office eqUIpment for personal busIness, the procedure alloWing the temporary removal of sIgmng authonty from counsellors who had been away from the office for a long TIme; the pohcy agaInst USIng compassIOnate leave as a SubstItute for bereavement leave, and, the pohcy reqUITIng VRS Counsellors to be available In the office for chents. Ms. Cholette demed that she had any mIstrust or ammosIty toward the gnevor Our own observaTIons of the InteraCTIon between the gnevor and Ms. Cholette throughout the course of the heanng tended to confirm tills. Second, It was appropnate under the Code for Ms. Cholette to seek to have Dr Faught provIde more detail regarding the gnevor"S hmItaTIOns. The gnevor had a duty to bnng her accommodaTIon needs to the attenTIon of the employer In sufficIent detail to permIt Ms. Cholette to respond to her request for accommodatIOn. Ms Cholette had the nght to seek from the gnevor-s doctor InformaTIon beanng upon the quesTIon whether the gnevor-s medical hmItaTIOnS reqUIred all seven of the accommodatIOns that the gnevor requested In her letter of March 30 1992. As It turned out, she understood Dr Faught to agree that If five of the seven accommodaTIons were granted, the gnevor would be sufficIently accommodated to permIt her to return to work. She wrote the gnevor a letter to tms effect and sent a copy to Dr Faught. He never wrote or telephoned Ms. Cholette dIsagreeIng With tills understanding. The gnevor voluntarily returned to work pursuant to the grant of these accommodaTIons. Tmrd, when these accommodatIOns proved WItmn a short TIme to be Inadequate to permIt the gnevor to functIOn as a VRS Counsellor the Code made It the responsibihty of the gnevor to bnng tills Inadequacy to the attenTIon of Ms. Cholette. It was not the responsibihty of Ms. Cholette to momtor the progress, or lack of progress, of the gnevor Nor It appears from the eVIdence, could she Ms. Cholette was only In the Burhngton office once a week. She dIdn-t even know that the gnevor was mISSIng her 9.30 a.m. start tIme and amVIng at work around 10'30 -11 00 a.m. VRS Counsellors were left to work largely on theIr own. Instead of making her predicament known to Ms. Cholette, the gnevor remaIned silent for the better part of SIX months, until a file reVIew meeTIng With her on November 5 1992 That was when the gnevor renewed her request, inter alia, to work at home for up to two days per week. Once agaIn, Ms Cholette was WIthIn her nghts under the Code to request the gnevor to provIde InformaTIon from her doctor shoWing that there was a medical need for thIS accommodatIOn. Under the Code, It was the gnevor-s duty to co-operate wIth Ms. Cholette and provIde the InformaTIon. Instead, she refused and threw out a challenge to Ms. Cholette to call Dr Faught herself. Of course, Ms. Cholette was not In a pOSITIOn to -stand In the gnevor-s shoes- With Dr Faught. He would have had to examIne the gnevor and hear her describe the symptoms she was expenenCIng before rendenng an opImon whether her medIcal restnCTIons had Increased and she needed more accommodaTIon. Ms. Cholette cannot be faulted under the Code on the ground that the gnevor delayed taking thIS step unTIl February 3 1993 GIven what we have already saId, It perhaps goes WIthout saYIng that we do not find any breach of the Code In the aCTIons of Ms. Cholette after she receIved her copy of the gnevor"S letter of to Dr Faught of February 3 1993 and Dr Faught-s response of February 18 1993 Once agaIn, Ms. Cholette was wItilln her nghts to seek clanficaTIon from Dr Faught. Tills was not forthcommg until March 31 1993 GIven that the gnevor was gOIng to be away on a medIcal rest for two to three weeks from April 9 1993 there was notillng untoward In scheduhng for April 30 1993 a meeTIng With the gnevor to dISCUSS further accommodatIOn. Our conclusIOn must be that Ms. Cholette never breached the apphcable standards Ontano Human Rights Code at any pOInt In the process that she employed to deal With the gnevor-s accommodaTIon requests. (2) Voluntary or Involuntary Early Retirement: Mr Mason began hIS submIssIons upon tills Issue by observIng that under longstanding arbItral Junsprudence, a wntten resIgnaTIOn or reTIrement was stnctly construed as bInding unless the gnevor demonstrated. (1) lack of medIcal capacIty. (2) resIgnaTIOn In the heat of the moment; or (3) resIgnatIOn under duress from the employer He cIted Re Murray and Ministry of Revenue (1977), G S.B No 34/76 (Beatty), to show that the eXIstence of a wnTIng IS regarded as supportIng both the subJecTIve and obJecTIve elements of the gnevor-s act. The wnTIng funcTIons as an obJecTIve confirmaTIon of the subJecTIve IntenTIon to resIgn or retIre. See id at 17 Unless the resIgnaTIOn resulted from -anger or frustratIOn- id at 13 or -coerCIOn, pressure, duress, or Influence [by the employer]- id at 18 the wntten resIgnaTIOn has been usually allowed to stand. ThIS stnct approach to the construCTIon of letters of resIgnaTIOn was apphed by the Gnevance Settlement Board, he submItted, In Re MGyt,ani and Ministry of Government Services (1990) G S.B No 1772/87 (Venty), and Re Rao andMinistlY of Community and Social Services (1988), G S.B No 1542/85 (Fisher) to uphold resIgnatIOns despIte the gnevors- subsequent changes of mInd. Even the pressure of CIrcumstances not nSIng to the level of duress, Mr Mason argued, has been held to be InSUfficIent to VITIate an otherwIse voluntary resIgnaTIOn. In support of tills proposItIOn, he referred to Re Motor)1,ays Direct and Teamsters Union, Local 880 (1988) 35 L.AC (3d) 11 (M. G PIcher) The closest case to the one at hand, Mr Mason submItted, was Re Kolman and MinistlY of the Solicitor General and Correctional Services (1997), G S.B No 1372/92 (Mikus) There, the gnevor claImed that the employer"S harassment and discnlll1naTIon agaInst her, In the form of delaYIng the Issuance to her of maternIty wear and a post-accIdent refusal to return her to her regular dUTIes Without a medIcal opIrnon about her fitness, left her no altemaTIve but to wnte out a letter of resIgnaTIOn and submIt It to the employer When the employer sent her a letter accepTIng her resIgnaTIOn Without making any InqUIry Into her reasons for dOIng so, she did not take any steps to repudIate It. She reInforced her IntenTIon to resIgn by returmng the IndICa of her employment. The Board saId. It mIght well have been that the gnevor beheved that resIgmng was her only recourse In the CIrcumstances but that does not detract from the fact that she wrote out, In her own hand, a letter of resIgnaTIOn to take effect two weeks Into the future. If her only Intent was to force the employer to InvesTIgate her allegatIOns, one would have expected her to repudIate her resIgnatIOn as soon as she reahzed that the employer had accepted her resIgnaTIOn Without quesTIon. Her act10ns at the TIme of and folloWing her resIgnaTIOn confirm her subJectIve and obJecTIve IntentIOn to resIgn. Id at 13 Tills showed, Mr Mason submItted, that even If the gnevor hereIn beheved that her only recourse was to resIgn and take Factor 90 she STIll would be held to have voluntarily reTIred. TurnIng to the case at hand, Mr Mason noted that the Board probably did not have to go as far as the Board In Re Kolman to dIsmIss the gnevance. Unlike Ms. Kolman, the gnevor knew that she had other opTIons than reTInng. As a long-tIme urnon OffiCIal and ex-presIdent of the local urn on, he saId, she knew her nghts. She did not have to retIre. She could have stayed on as an employee and gneved that the employer was In breach of the Ontano Human Rights Code. She could have remaIned on sIck leave and when that ran out, taken L TIP until she was fit to return to accommodated work. There was no questIOn that she knew what her L TIP benefits would be She had been advIsed of them In the past by ConfederaTIon LIfe, the employer-s Insurance carner She did not reTIre In the heat of the moment. There was no eVIdence that the employer was tryIng to force her to retIre or squeeze her out. The gnevor was under no pressure, threat or Inducement to leave In sum, Mr Mason saId, the gnevor was not forced to choose between conTInUIng to work In paIn and reTIrement. There were other ways to fight her alleged battle for accommodaTIon. Her decIsIon to retIre under Factor 90 was a well-planned eXit from her employment that she never repudIated after she announced It to Ms. Cholette on April 30 1993 and confirmed In wntIng on August 26 1993 Now he submItted, she had to hve WIth that decIsIOn. Counsel for the urnon, Ms. Doyle, submItted that the gnevor did not Intend to reTIre She argued that the gnevor-s prudence In InveSTIgaTIng the feasibihty of reTIrement should not be held agaInst her It was legITImate and Intelhgent to make such InqUITIes. The gnevor was InvesTIgaTIng a number of different scenanos Not everyone who looked Into reTIrement under Factor 90 actually dId so Moreover she submItted, In the gnevor"S letter to Dr Faught of February 23 1993 the gnevor concluded by saYIng, - You know that It IS my desIre to remaIn employed.- In the meetIng of Apnl 30 1993 Ms. Doyle conTInued, when the gnevor asked Ms. Cholette, - What would you tillnk If I took sIck leave until I retIred, - the gnevor was not excIted. She was teary It was ObVIOUS, Ms. Doyle submItted, that sometillng was gOIng on. Ms. Cholette was faced With a teary- eyed employee who had not been accommodated. Tills encounter could not form the basIs for a conclUSIOn by the employer that the gnevor Intended voluntarily to reTIre. Moreover Ms. Doyle noted, the eVIdence showed that on Apnl 2, 1993 the gnevor sent a memo to Ms. Jackie Watts, the IMO supervIsor expreSSIng concern about the new washroom for the disabled. She wanted certaIn problems rect1fied. If the gnevor had a firmly formed IntenTIon to leave, Ms. Doyle submItted, she would not have wntten tills memo ThIS, she argued, was further eVIdence of the gnevor"S IntenTIon to try to conTInue at the workplace. Finally Ms. Doyle submItted, It could not be Ignored that when the gnevor gave formal nOTIce of her Intent to reTIre on August 26 1993 she had been tryIng for over one year to get proper accommodatIOn and was not much farther ahead than when she submItted her first request for accommodaTIon on March 30 1992 She was worn down and felt that she did not have the energy to conTInue The only alternaTIve that she felt was available was to take early retIrement. Our reVIew of the eVIdence and submIssIons of the partIes has convInced us that the gnevor-s early reTIrement under Factor 90 had the reqUIsIte subJectIve and obJectIve elements of a voluntary eXit from employment, and hence, was apt to be regarded under the case law cIted by Mr Mason as Incapable of beIng repudiated under the gnevance leading to tills arbItratIOn. Pnor to the submIssIon of the gnevor"S wntten declaratIOn of her Intent to retIre on August 26 1993 the gnevor made representaTIons that she Intended to do so Both counsel focused upon the representaTIon the gnevor made to Ms Cholette In theIr meetIng of Apnl 30 1993 but the record Indicates there also were others. On or about Apnl 14 1993 the gnevor advIsed Ms. Kathy MacPherson, the Employment EqUIty Manager at the Mirnstry that It perhaps was not worth havIng Ms. MacPherson"S office advocate on her behalf or mediate wIth Ms. Cholette regardIng accommodaTIon because she was senously contemplatIng reTIrement and very likely would reTIre. On April 30 1993 the same day that she spoke to Ms Cholette, the gnevor sent a letter to Ms. MacPherson confirmIng that -any aCTIon on your part may now be unnecessary because of my possible ImpendIng reTIrement.- Perhaps even more persuaSIve of the gnevor-s subJect1ve IntenTIon to retIre was her officIal silence after she announced her Intent to Ms. Cholette and Ms MacPherson on Apnl30 1993 The gnevor remaIned offwork for almost four months between Apnl30 and August 26 1993 when she made her wntten declaraTIon of her Intent to retIre In tills penod, she never took any aCTIon to resile from her pnor statements that she Intended to take early retIrement when her sIck leave ran out. On the contrary she engaged In IntensIve discussIOns With Ms. O-callaghan and Ms. Paquette, the former"S Human Resources AssIstant for pay and benefits, In an attempt to determIne, inter alia, precIsely when It would be best to make her formal declaraTIon of her Intent to retIre under Factor 90 so as to maXImIze her benefits and provIde a smooth tranSITIOn from reCeIVIng her monthly pay cheques to reCeIVIng her penSIOn cheques. Ms. Paquette even arranged for the gnevor to take financIal counselhng at the employer"S expense On August 26 1993 the same day that the gnevor submItted her wntten declaraTIon of her Intent to reTIre, the gnevor sent Ms. Paquette a letter thankIng her for making available tills opporturnty and saYIng that Without It, she could not have made an Informed decIsIon to reTIre. Under the arbItral Junsprudence cIted to us by Mr Mason, the gnevor"S wntten declaratIOn of August 26 1993 was ItSelf, a sIgmficant mamfestaTIon of the gnevor"S obJ ectIve IntentIOn to reTIre, as was her letter to Ms. Paquette of even date. The wntten declaratIOn, whIch was sent to Ms. Cholette, saId that the gnevor"S probable retIrement date would be October 29 1993 some two months later At no tIme WItilln those two months dId the gnevor take any steps to repudiate her declaraTIon. Rather Just like the gnevor In Re Kolman, supra, she reInforced her Intent voluntarily to reTIre by remOVIng her personal effects from her office and, to the knowledge of Ms. Cholette, plannIng her own reTIrement party It seems to us that the the gnevor did not even Intend to repudIate her voluntanly reTIrement when, Just before sIgmng her eXit papers, she submItted the gnevance leading to tills arbItraTIOn. First of all, she went ahead and sIgned her eXit papers. If she were senous about repUdIaTIng her reTIrement, she would not have sIgned them. Second, she saId to Ms. Cholette that her gnevance was not personal but had the broader goal of benefiTIng disabled women by bnngIng to theIr attenTIon the Employment EqUIty Fund and the mecharnsms for acceSSIng It. Tillrd, at the heanng, the gnevor agreed that she more or less vIewed the fihng of the gnevance as a -partIng shot. - She saId that she did not -exactly- Intend to return to work. And finally the gnevor actually held her reTIrement party Ms. Cholette even attended. Everyth1ng that the gnevor did confirmed that she was voluntarily reTInng. We do not, however necessarily agree WIth Mr Mason"S asserTIon that Re Kolman, supra, stands for the propoSITIOn that an employee whose reTIrement or resIgnaTIOn meets the subJectIve and obJecTIve cntena ofvoluntanness has no remedy even Ifhe or she has formed a well founded behefthat there was no alternaTIve It seems to us that employees who have a well founded behef that they had no alternaTIve but to reTIre or resIgn are In a different pOSITIOn from those who, after voluntarily sevenng theIr employment, regret theIr deCISIOn and seek reInstatement. TheIr resIgnaTIOnS may Indeed, appear to meet the subJecTIve and obJectIve tests of vol un tan ness, but that would only be because of the apparent lack of any alternaTIve In any event, thIS matter need not be decIded In the present case Before the gnevor retIred, she knew that she had several vIable alternatIves to early reTIrement under Factor 90 As Mr Mason suggested In ills submIssIOns, as a long-TIme urnon officer and ex-presIdent of the local urnon, the gnevor was famihar WIth her contractual nghts and could have filed a gnevance complaIrnng that the accommodaTIon process employed by Ms. Cholette breached the provIsIons of the collectIve agreement. She also could have filed a complaInt WIth the Ontano Human Rights CommIssIOn. As Ms. Radchffe saId In her tesTImony the gnevor could have filed a WDHP complaInt. In fact, Ms. Radchffe urged her to do so but the gnevor refused. The gnevor also could have accepted Ms. MacPherson"S offer to have the Employment EqUIty Office advocate for her or medIate between her and Ms. Cholette We agree With Mr Mason that none of these alternatIves would have forced the gnevor to choose to work In pam. She could have remaIned on sIck leave or L TIP while purSUIng one or more of these alternaTIves. In our VIew the pressure that the gnevor felt to take early reTIrement under Factor 90 did not denve from her lack of energy to keep on pusillng for accommodatIOn. It denved from the opernng and cloSIng of her ehgibihty Window for taking the VEO under Factor 90 With ItS unreduced penSIOn, severance, and lucraTIve early retIrement enhancement payment. The gnevor had to act WItilln certaIn TIme hmIts or lose her chance to take the VEO Her purSUIt of thIS alternatIve, and her comphance With Its TIme hlll1ts, had notillng to do With the alleged lack of aVaIlabIhty of other alternaTIves. There were plenty of them. The gnevor was not forced to take early reTIrement. She must now hve wIth her chOIce. Tills Issue IS decIded In favour of the employer V Conclusion. The gnevance must be dismIssed. There IS, however one further matter to address At the commencement of the heanng, counsel for the urnon nOTIfied the Board that because of the pOSITIOn that the gnevor had taken In tills gnevance, the employer Withheld payment to her of a cheque for her early reTIrement enhancement payment, amountIng to $31 817 94 The urnon IrnTIally wanted tills cheque to be paId over to the gnevor subJect to repayment by her should she be successful on her claIm for reInstatement; however the parTIes thereafter agreed that the cheque would be placed by the employer In an Interest-beanng account, and the accrued amount would be paId over to the gnevor In the event that her reTIrement were found to have been vahd. That eventuahty has now happened, and we direct that the accrued amount be paId over to the gnevor Without undue delay We will remaIn seIzed of tills aspect of the case pending compleTIon of the transfer of funds. The Board would also hke to take thIS opporturnty to wIsh the gnevor well In her reTIrement and her future endeavours. BeIng together for such a long TIme struck up a camaradene of sorts among the partIcIpants In the heanng, and we will long retaIn our cordial feelIngs and respect for the gnevor Unfortunately for the gnevor the accommodatIOn standards that she thought would apply under the Ontano Human Rights Code never emerged to become enshnned In the law and as a result, her gnevance could not be sustaIned. Dated at Toronto, Ontano, thIS 12th day of November 1998 R. Jack Roberts, Vice ChaIr "I concur" (Addendum attached) Stan UrbaIn, Urnon NomInee "I concur" Fred Colhct, Employer NomInee Addendum Re: 1898 OPSEU (Margaret Goossen) and the Crown in Right of Ontario (Ministry of Community and Social Services) Although I concur wIth the Board's decIsIOn m thIS matter I thmk some addItIonal comments are m order regardmg the employer's acconullodatIon of the gnevor In the letter from the gnevor to her supervIsor dated March 30 1992 entItled RE Interim Emplovment and Return to Work, the gnevor requests, as part of a lIst of seven "flexible hours as I have worked m the past" and "the opportumh to work at home for up to 40% of the work week for clencal and phone calls" After consultmg the gnevor's doctor the supervIsor responded to the gnevor's requests on April 30 1992 outluung what steps the employer was prepared to take On the subject of flexible hours, Ms. Cholette wrote, "I explamed to Dr Faught that all employees are entItled to request flexible work hours. He dId not Identlt\ further changes m the workmg hours that would be reqmred due to your lImItatIons. " On the request to work at home Ms. Cholette quoted Dr Faught as savmg, m effect, that wIth all the other acconullodatIons bemg Implemented, "There would be no medIcal need for YOU to work at home" Ms. Cholette then wrote, "I explamed that there are exceptIonal tUlles when counsellors may work at home wIth pnor approval of the supervIsor " B, Januan 1993 It was eVIdent that the gnevor was dIssatIsfied wIth the accommodatIon that the employer had agreed to The gnevor dIscussed tlus wIth Ms. Cholette on Januan 28 1993 and followed tlus up wIth a letter to Dr Faught dated Februan 3 1993 outluung tlus dIscussIOn. The letter concluded, "The current lack of recogmtIon of m, accommodatIon needs and the Impact of the ongomg treatInent create problems for whIch the solutIOn I have offered have been-rejected. I need your assIstance to reVIew these problems and develop alternatIves. You know It IS m, desIre to remam employed. " ThIs letter was copIed to Ms. Cholette and to others Ms. Cholette responded wIth a letter to the gnevor dated Februan 16 1993 and copIed to Dr Faught. On the subject of flexible hours, Ms. Cholette wrote "It was agreed that YOU could have flexible workmg hours to allow YOU to start at 9.30 a.m. rather than the estabhshed startmg tImes of 8 15 or 8.30 " On the subject of worklllg at home Ms Cholette wrote that If thIS was due to physIcal hmItatIons, YOU obtam mfonnatIon from your doctor that would clearly Identlt\ the need and Ius reconullendatIons. We could then detennme what or If further changes to your dutIes mIght be estabhshed. " On February 18, 1993 Dr Faught wrote to Ms Cholette regardlllg the gnevor Dr Faught notes that "Slllce my last letter of April 30 1992, Mrs. Goossen's medIcal problems have certalllly worsened whIch IS not altogether unexpected. " Dr F aught then goes on to request that Mrs Goossen start her work at 11'00 a.m. have a stable workload of 32 to 36 cases, and be allowed to work at home for two days per week. He concludes by wntmg, "Seemg chents m the otlice but allowmg much of the telephone and clencal work to be done at home would make thmgs more manageable and productIve for Mrs. Goossen. " In response Ms Cholette wrote to Dr Faught on March 9 1993 outluung the three acconullodatIon requests that Dr Faught had made on behalf of the gnevor On the subject of worklllg at home, Ms. Cholette wrote "Mrs Goossen work at home two days per week. (Mrs. Goossen ongmalh requested two days per month. Please clant\ )" In summan Ms Cholette wrote, "In our conversatIOn, I asked for clanficatIOn on how each of these suggestIons related to her medIcal condItIon. With tlus mfonllatIon, we will be better able to detenmne what work place acconullodatIOns are able to be consIdered. I am lookmg forward to your letter" On March 31 1993 Dr Faught submIts a medIcal report regardmg Margaret Goossen to Ms. Cholette as requested. In thIS report, Dr Faught reIterates the three accommodatIon requests prevIOush made and provIdes a medIcal ratIOnale for those requests. He also advIses Mr Cholette that the gnevor will be off work for at least 2 to 3 weeks" m order to help achIeve full-tIme productIvlh for her return to work wIth the consIderatIons mentIOned prevIOush " As these documents mdIcate, from the yen begmmng, the employer was not mclmed to accommodate the gnevor b, allowmg her to work at home for up to 40% of her work week. Yet semor managers testIfied that thIS was an optIon. Had the gnevor been accommodated m thIS manner would It have made a dIfference m the gnevor's work perfonllance and eventual return to full-tulle prodUCtIVIh? Unfortmlateh we will never know the answer to that questIOn. If the employer had granted thIS accommodatIon request on a trial basIs, particularly after the Januan 28 1993 meetmg between Ms. Cholette and Mrs. Goossen, we mIght be m a better posItIon to -answer that questIon. With all due respect, m the opmIOn of thIS Member that IS precIseh what the employer should have done Instead, Mrs. Goossen chose to accept a faITh lucratIve earh retIrement package GIven the dIfficult CIrcumstances that confronted Mrs. Goossen, It was an appropnate decIsIOn. Dated at Toronto, Ontario, this 12' day of November 1998. Stan Urbain, Union Nominee