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HomeMy WebLinkAbout1995-0131.Latimer.01-05-24 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0131/95 0132/95 2132/95 UNION# 95A500 95A501 96C063 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees UnIon (LatImer) Grievor -and- The Crown III RIght of Ontano (MinIstry of CorrectIOnal ServIces) Employer BEFORE Susan D Kaufman Vice-Chair FOR THE GRIEVOR Nelson J Roland BarrIster and SOlICItor FOR THE EMPLOYER AJ amu BoardI Staff RelatIOns Officer Gnevance Admm. NegotIatIOn MinIstry of SOlICItor General HEARING July 29 1997 September 29 and 30 1997 October 28 1997 January 7 1998 February 4 1998 March 5 1998 May 25 and 26 1998 June 14 and 15 and 24 and 25 1999 September 16 and 17 1999 October 6 1999 November 17 and 18 1999 January 17 and 18 and 19 2000 March 13 and 14 and 15 and 26 2000 Apnl 26 and 26 2000 July 24 and 25 and 26 2000 September 27 and 28 2000 2 DecIsion Segment 1 Background and events from March 1 to October 1995 Between May 7 1995 and March 30 1999 Noe1la LatImer a CorrectIOns Officer (C 0) employed at the Sudbury JaIl, submItted 14 gnevances, 11 of whIch were receIved by the Gnevance Settlement Board and are to be determIned by me Some of the gnevances allege an ongOIng course of conduct of the employer whIch was alleged to have been dISCnmInatory and harassIng, based on sex as well as on vIOlatIOns of ArtIcles A, 3 1 18 21 1 and 52 10 It was alleged that the course of conduct contInued from 1995 to 1999 and subsequently EVIdence was heard wIth regard to numerous events, although no gnevances were filed pertaInIng to some of those events The heanng took place between July 29 1997 and Sept. 28 2000 Its purpose IS to determIne what took place and why and what, If any breaches of the collectIve agreement occurred, and, If so the appropnate remedy AccordIngly the gnevances before me wIll be consIdered as contInuIng gnevances, and all the eVIdence wIll be consIdered In determInIng the facts and the appropnate outcome As the partIes were unable to agree on many facts and Issues, It wIll be necessary to reVIew the eVIdence In some detaIl I propose to do so In segments whIch wIll, as much as possIble, pertaIn to certaIn pen ods of tIme desIgnated at the begInnIng of each segment. There may be some overlaps regardIng events from one segment to another Background. The gnevor commenced her employment wIth the Mimstry at the Sudbury JaIl In about Apnl, 1982 as a casual C 0 She said that she had been hIred as a casual to work only A area, the sectIOn of the JaIl whIch houses women Inmates, and that she had been told that she would work there exclusIvely except on nIght ShIftS, when she was expected 3 to make "clock rounds" In all areas of the JaIl She said that she had worked exclusIvely In A area "for about a year or two" as a casual employee She said that between 1983 and 1986 as a casual, she had worked all areas of the JaIl, and had not complaIned about havIng done so The JaIl houses between 120 and 200 Inmates, the maJonty of whIch are men. The women Inmates are housed In an area of one cOrrIdor of the JaIl, apart from the men. The JaIl's polIcy IS that from 0700 to 2300 A area IS staffed exclusIvely by one female CO except for washroom breaks and other bnef relIef pen ods IncludIng lunch penod, dunng whIch It may be staffed temporanly by a male CO (ThIS IS pursuant to a local agreement between management and UnIon, whIch was not reduced to wntIng.) From 2300 to 0700 whIle the Inmates are expected to be asleep A area IS mOnItored by the ShIft SupervIsor and the C 0 s scheduled for that ShIft, both men and women, who do penodIc clock rounds of all the areas of the JaIl, IncludIng A area. The JaIl, at all relevant tImes, utIlIzed (and utIlIzes) weekly CO Schedules whIch, for the purposes of thIS gnevance, contaIn a separate schedule for about 42 CO s for the staffing of the area of the JaIl In whIch male Inmates are housed (referred to as "the male schedule" or "the men's schedule" or "the male sIde"), and another schedule for about 5 C 0 s for the staffing of the area In whIch women Inmates are housed (referred to as "the female schedule" or "the female sIde" or "A area") The schedulIng of staff and the pnncIples governIng It emerged from the eVIdence as follows Mr Pedron said that as far back as 1983 there had been two separate schedules, one for the sectIOn hOUSIng male Inmates, and one for the sectIOn hOUSIng female Inmates He said that he had been a SchedulIng Officer for five years after 1989 In 1994 he may have begun to rotate between the functIOns of Secunty Manager and SchedulIng Officer At some pOInt he became a part-tIme ShIft SupervIsor and was In the posItIOn of ShIft SupervIsor on March 1 1995 He became ActIng Deputy Supenntendent of OperatIOns In Apnl, 1996 4 Mr Pedron said that "the practIce" regardIng "fillIng vacanCIes In A area" (i e schedulIng replacements for absent female CO s scheduled to work A area) had not changed SInce 1983 As long as the staffing level was under complement, he said, he would hIre a female CO to do the Job He said that If he was over complement, he would look at the schedule to see If a female CO had been scheduled to work that penod of tIme on the male sIde, and that If the staffing level was at complement, and If he could re-assIgn a female C 0 to A area, he would do so At another pOInt In hIS eVIdence, speakIng of two male officers who had been scheduled to work at 1900 on March 1 1995 he said that that may have occurred In order to fulfill "certaIn agreements, e g we average out the hours of unclassIfied C 0 s" I Inferred from hIS remarks that there was a practIce of equalIzIng hours of casual C 0 s to ensure that they each receIved approxImately the same number of hours of work each week or every two weeks In re-eXamInatIOn, Mr Pedron said that the SchedulIng Officer pnnts the dally Duty Rosters about one week before the dates to whIch they apply and determInes the ShIftS at whIch the staff level wIll be under complement. Where casuals are reqUIred to bnng the staff level up to complement on vanous ShIftS for the entIre week, the SchedulIng Officer pencIls In the names of casual C 0 s on the Roster Once the casual has been contacted and the hours confirmed, the SchedulIng Officer wntes the casual's name on the Roster In pen. Where extra staff was reqUIred on short notIce, e g. when full-tIme C 0 s are assIgned hospItal duty (and as thIS decreases the stafflevel wIthIn the JaIl), the ShIft SupervIsor had the responsIbIlIty In addItIOn to the SchedulIng officer to contact the casuals and request them to work, and If they accepted, to wnte theIr name on the Roster In pen. The ShIft SupervIsor or SchedulIng Officer has the authonty to cancel a casual CO' s prevIOusly scheduled hours to aVOId the casual C 0 workIng In excess of 40 hours a week. Mr Pedron said that female casual Officers were not avaIlable for schedulIng If they had worked 40 hours or had been scheduled to work 40 hours, unless the SchedulIng Officer or ShIft SupervIsor changed theIr schedule He said that once female casuals worked 40 hours, any further hours would be paid at overtIme rates The process then was to call full-tIme C 0 s and offer them the addItIOnal hours, and after they had been so 5 contacted, If the staff level remaIned under complement, unclassIfied staff could be offered such work. Mr Pedron said that AdmIttIng and DIscharge (A & D) and Control posItIOns are the only posts to whIch C 0 s are assIgned on nIghtshIfts, and that the assIgnments of Officers to other posts IS up to the ShIft SupervIsor Mr St. Jean Said that In schedulIng casuals to work, "the bIggest thIng was to make sure they all had an equal amount of hours In the week, or as close as possible for fair dIstnbutIOn of ShIftS" over a two-week penod. He said that casuals are offered hours at overtIme rates only If all full-tIme staff had been offered and had refused overtIme hours, and they are offered hours at overtIme rates If emergencIes anse The gnevor said that she became a full-tIme COIn 1985 or 1986 as a result of a competItIOn and that she understood that the posItIOn was "on the maIn duty roster of the male schedule" 1 e that she would be assIgned to posts In the sectIOn of the JaIl whIch houses only male Inmates In cross-eXamInatIOn, she said that she understood that the postIng for whIch she applIed was for the new WIng then beIng bUIlt (in 1986) known currently as "E area" She said that when she became a full-tIme CO she worked In all areas of the JaIl, not exclusIvely In E area. At another pOInt In her eVIdence she said that after she became a full-tIme C 0 she "worked on the female sIde" She said that between 1986 and 1990 when a female C 0 who had been scheduled to work A area was sIck or on vacatIOn or absent for vanous reasons, thIS created "a vacancy" In A area. She said that management was "not properly schedulIng" and "not properly covenng A area." She said that a petItIOn had been produced to management (whIch was not produced In eVIdence, but whIch was referred to In Minutes of an E.R. C meetIng (Ex. 100) ) She said that at a meetIng In 1990 at the UnIon Hall, management agreed to hIre SIX female casual C 0 s "to replace the absentees In A area." She said that the reason for management havIng so agreed was "so that the females on the men's schedule would not be treated unfairly" The gnevor said that SIX female casual C 0 s were hIred In 1990 "to cover the female sectIOn." She acknowledged that there had been no guarantee that she would 6 never work A area agaIn. She said that there was a guarantee "that there was a problem here" and that SIX female casuals had been hIred "so we wouldn't be sent over there" The gnevor acknowledged that the women casuals who were hIred In 1990 worked In all areas of the JaIl In her VIew "that's where the problem started." She said that the women casual C 0 s were scheduled and assIgned to posts In the male sectIOn of the JaIl for up to 40 hours a week, as a result of whIch, she said, they were not avaIlable to cover A area. She said that because the women casuals were not avaIlable to work A area, management asked female full-tIme CO s to work A area. She dId not dIspute that between 1990 and March 1 1995 she had been asked to work A area on about four occaSIOns In these CIrcumstances She was unable to confirm whether on each such occaSIOn, she had been asked to work A area for a four-hour penod. No wntten agreement or memorandum of agreement eXIsts that records what UnIon and management had agreed to In 1990 regardIng re-assIgnIng of full-tIme female CO s ongInally scheduled to work on the male sIde of the JaIl, to A area. The only wntten record whIch refers to thIS matter IS the mInutes of an E.R.C meetIng that took place on August 24 1990 (Ex. 100) They IndIcate that BIll Roy AlvIn Hooson, Carl Marcotte Ken Ryan and Enzo Pedron, attended the meetIng on behalf of management and that Larry McGregor Peter Slee, GIlles TessIer Ken McCausland and Joan Hoekstra attended on behalf of the UnIon. EVIdence re the August 24, 1990 E.R.C. meetIng. Mr Pedron gave hIS eVIdence on January 18 2000 He said that he recalled havIng attended the August 24 1990 E.R.C meetIng and said that he was a SchedulIng Officer and InstItutIOnal TraInIng Officer at the tIme He acknowledged that a petItIOn had been part of the dIscussIOn and that It "addressed" female C 0 s beIng assIgned from the male schedule to the female schedule He said that that had been one of the maIn Issues raised at the meetIng. He also said that female C 0 s wanted the opportUnIty to work throughout the InstItutIOn, IncludIng A & D yard and runner posItIOns 7 Mr Pedron said that the Issue raised by the petItIOn was resolved In that management said that It would hIre more unclassIfied female CO S who would be called In to fill long and short-term vacanCIes In A area. He then said that the OperatIOns Managers would hIre the next group of unclassIfied CO S "If we went below the desIgnated complement of the shIft." He also said that the next group of C 0 S were to work both the male and female UnIts He said that the hmng of more female unclassIfied/casual C 0 S "should've mInImIZed the assIgnment to A area" offemale CO S scheduled to work on the male sIde, but that It would not elImInate such re- assIgnments If the staff level was over complement. He said that hmng more female CO S would reduce the assIgnment of full-tIme female CO S to A area, and that "female officers hIred to work A area" would be gIven "more opportUnItIes to work In other areas of the InstItutIOn." Mr Pedron dId not dIspute the correctness of a passage In the E.R.C mInutes (Ex. 100) whIch IndIcated that at the meetIng he had said that the petItIOn IndIcated the VIew that the female officers were beIng dIscnmInated agaInst. He also said that he recalled Mr Slee havIng said "The females on the male sIde were gettIng asked to replace In A area far to (SIC) often than they felt was fair The females are not opposed to workIng A area as long as It IS not abused and ItS (SIC) a fair rotatIOn" Mr Pedron said that he understood that Mr Slee wanted to ensure that the assIgnment of female officers to work A area was eqUItable, that no one female C 0 was re-assIgned to A area more often than any others who worked the male schedule He said that he understood the phrase In the mInutes "as long as It IS not abused and ItS (SIC) a fair rotatIOn" to mean that Mr Slee wanted assurances that If female C 0 S were re-assIgned to A area, the assIgnment was dIstnbuted properly no one female officer would always be re-assIgned. He was not sure If that had been the case then said that he was pretty well confident that It had been. Mr Pedron was referred to the statement attributed to Mr Slee In Ex. 100 at p 151 "Is It also agreeable that management wIll recognIze the need for more female casuals to cover the female sectIOn" Asked to explaIn hIS understandIng of what Mr Slee meant, he said "that we were gOIng to hIre more female correctIOnal staff to replace officers workIng that area, for vanous reasons" He said that thIS was to cover female 8 absences from the schedule, "when we were under complement" He then said "and gIve opportUnItIes to staff workIng the female sIde to work other areas" He said that Mr TeSSIer was the SchedulIng CommIttee Chairman for the UnIon He said that at the tIme of the meetIng, the JaIl was on a compressed work week schedule, other Issues had been affectIng the male schedule, e g. the length of tIme CO s would work In control and A & D areas, as well as the lIvIng UnIts, and that It was agreed that CO s assIgned to lIvIng UnIt areas would be reassIgned to other areas after 8 hours In cross-eXamInatIOn, Mr Pedron agreed that the folloWIng statement attnbuted to Mr McGregor at p 2 of the August 24 1990 E.R.C MeetIng Minutes (Ex. 100) was a fair reproductIOn of what he said Well, we lIstened to your arguements (SIC) now It'S our turn for a rebuttle (SIC) FIrst of all, and I have explaIned It before to both MR. HOOSON and MR. PEDRON that the petItIOn dIdn't mean that all the female officers felt dIscnmInated agaInst. It sImply meant that the female officers workIng the male sIde of the schedule felt dIscnmInated agaInst when they were pulled from theIr assIgned dutIes on the male sIde and havIng to go replace a female officer absent from the female sectIOn. Mr Pedron also agreed that the statement attnbuted to hIm, 1 e Well we currently have a system that we agreed upon and that IS the use of the cards, so we have to use It was correct. He said that the respondIng statement attnbuted to Mr Slee I have reason to belIeve that by hmng more female casuals you could solve thIS problem had been made In reference to overtIme He acknowledged that there was no reference to overtIme In that portIOn of the mInutes He said that by the words "thIS problem" Mr Slee was referrIng to "backfillIng vacanCIes In the female sectIOn" When the folloWIng exchange from the mInutes (Ex. 100) was put to hIm MR. SLEE Is It also agreeable that management wIll recognIze the need for more female casuals to cover the female sectIOn. MR. ROY We can budget for 5 on a part-tIme basIs and you can have 8 unclassIfied staff hIred but only 5 casual correctIOnal officers 9 Mr Pedron agreed that the dIscussIOn had been about hmng more casuals so that the InstItutIOn dId not have to use full-tIme C 0 s to do overtIme He agreed that from the Minutes, the Idea under dIscussIOn was that before dIrectIng a female C 0 workIng the male sIde to cover A area, the casuals would be used. He agreed that the Minutes dId not IndIcate an IntentIOn to use the casuals to fill a vacancy only when the InstItutIOn was below complement. He said that that was "a practIce" and that there had been no agreement wIth the UnIon to hIre casuals when the InstItutIOn was over complement. He agreed that the Minutes (Ex. 100) were the only record In wntIng on the subJect. He agreed that addItIOnal female casuals had been hIred as a result of what had been agreed to In the Minutes, and that that "resolved the problem" In re-eXamInatIOn, he agreed that the Minutes dId not say that management Intended to use casuals where the staff level was at or over complement. Background EVIdence of Former Supt. Chevner: Former Supt. LIOnel Chevner retIred from the CorrectIOnal ServIce In 1997 havIng served wIth It sInce July 1965 Dunng hIS career he held posItIOns reflectIng IncreaSIng authonty He had been Deputy Supenntendent of the Sudbury JaIl from August 1985 to February 1988 and had been Supenntendent of the Sudbury JaIl from October 1994 to August, 1995 He testIfied on March 14 2000 He said that he was unable to remember whether he had been consulted regardIng matters whIch came up at an August 24 1990 E.R.C meetIng, and unable to recall whether he had ever revIewed the Minutes of that meetIng. Mr Chevner recalled that In the mId-1980's fourteen full-tIme classIfied CO posItIOns were created when the new sectIOn (for male Inmates) was added to the Sudbury JaIl He said that he could recall no agreements wIth the umon as to where any of the new CO s would be placed/statIOned at the JaIl He later said that there was an agreement wIth the UnIon that only female staff would be posted to the female sectIOn. Mr Chevner recalled that the gnevor had been an unclassIfied/casual C 0 when he arrIved at the JaIl as Deputy Supenntendent In August, 1985 and belIeved that he sat 10 on the board whIch hIred her as a full-tIme classIfied CO He denIed there havIng been any agreement wIth the gnevor or the UnIon as to the areas In whIch she would be workIng after she became a classIfied C 0 He confirmed that as a casual, she had worked all areas of the JaIl, and said that after she became a classIfied CO she worked "mostly the male sectIOn." Mr Chevner dId not dIspute that the gnevor became a classIfied COIn 1986 He said that he could not remember whether there had been any hmngs dunng hIS tenure as Supenntendent to expand the coverage of the women's sectIOn of the JaIl He agreed that when the gnevor was hIred as a full-tIme CO she and the others hIred wIth her had been placed on the male sIde He said that the vacanCIes had occurred on the male sIde In re-eXamInatIOn, he said that the newly hIred CO s rotated through all areas of the JaIl, 1 e were not assIgned to posts solely In the new sectIOn (E area) and that that gave all staff an opportUnIty to work In the new sectIOn. The Gnevor's eVIdence regardIng March 1, 1995. The gnevor was scheduled to work 1900 to 0700 hours wIthIn the male schedule, and therefore wIthIn the sectIOn of the JaIl hOUSIng male Inmates, for March 1 1995 She was not assIgned to a post (a specIfic area In the JaIl) at the tIme the C 0 Schedule (Ex. 1 Ob) was pnnted. Another female C 0 Ms Froze!, had been scheduled to work the same ShIft as the gnevor In A area, wIthIn the female schedule In Ex. 10b and was deSIgnated In pnnt as assIgned to A area on the March 1 1995 Duty Roster (Ex. 11 b) but was gIven a banked statutory holIday for that ShIft, after the schedule was pnnted. The gnevor was, as a result, the only female CO scheduled to work 1900 to 0700 Just before 1900 that day Mr Enzo Pedron was the ShIft I/C or LIeutenant for the 1900 to 0700 shIft. A female C 0 Ms Martel, had been scheduled to work In the female sectIOn from 0700 to 1900 but was also deSIgnated In pnnt on the C 0 Schedule as beIng on leave of absence Another female C 0 Ms J Webb was scheduled to work In the female sectIOn from 0700 to 1500 Her hours were changed to 0700 to 1900 after the 11 Schedule (Ex. 1 Ob) was pnnted, and accordIng to the March 1 1995 Duty Roster she was assIgned to A area from 1100 to 1900 and a casual, Ms MOrrIson, had been scheduled to work from 0700 to 1100 and was assIgned to A area for that penod of tIme The gnevor said that Ms Date and Ms Moyle (casual C 0 s) had been called In to work that day They are lIsted as workIng 1500 to 1900 (Ex. 11 b) She said that she dId not understand why a female casual had not been scheduled to work A area from 1900 to 0700 that day as she concluded that the employer had had 30 days' notIce that Ms Frozel would not be workIng that shIft. The gnevor said that she arrIved at work that evenIng In a good mood, and presented herself at the ShIft I/C' s office, where Mr Parent, the dayshIft I/C was seated, as was Mr Pedron She had not seen the March 1 1995 Duty Roster untIl she went Into the office and asked Mr Pedron where she would be workIng, and he told her she would be workIng A area. She said that she was "really surpnsed" because there was an understandIng and a promIse from management at a meetIng In 1990 that thIS would not happen. The gnevor said that she asked Mr Pedron "Why?" and that he said "because you're the only babe on and that's where you're gOIng." She said that on heanng thIS, she was "really upset," and that she felt "very degraded." She said that she was really upset whIle speakIng about thIS In eVIdence, and said "You're not the same You don't count. You can't be treated lIke the rest." The gnevor said that she left the I/C's office and was "confused, upset" and "very hurt." She went to the lunchroom and tned to catch her breath. She was nauseated and very nervous She said that she returned and told Mr Pedron that she was gOIng home, that she was too sIck, too upset to stay She recalled that Mr Pedron asked her to take the post In A area untIl he could get someone to replace her and that she told hIm that she was too sIck and upset, and had to leave, and that she could not work anywhere then. She had sIgned the Attendance RegIster at 630 p.m when she came In to the JaIl When she left, Instead of sIgnIng out and wntIng the tIme on the RegIster she wrote "sIck of harassment." She said that she had felt "very upset, Insulted" when she made 12 that entry She said that Mr Pedron had had no nght to speak to her lIke that, and that she felt dIscnmInated agaInst. She said that If she had been a man, she could have worked her ShIft (on the male sIde) but that she had been told where to go (A area) She later agreed that Mr Pedron had never said anythIng of that nature to her before or SInce She said that Mr Pedron and Mr Parent "planned thIS ahead of tIme, knowIng full well how It affected her that Mr Pedron had Mr Parent stay behInd to wItness hIS assIgnment of her to A area, knowIng that what he (Mr Pedron) was dOIng was not nght." She said she was questIOnIng management havIng hIred two male casuals to work at 1900 when they knew they needed a female to work A area, "unless there's some kInd of blatant harassment that they are tryIng to pull here" She later said that by "harassment" she meant, "the plannIng that went Into thIS" and "the set-up" She said that It was "the harassment, plannIng and contnvIng" to get her to work In A area and beIng called "a babe" whIch got her SICk. She said that she arranged an appoIntment wIth her famIly physIcIan, Dr Y ankowsky the day after March 1 1995 and was unable to remember whether she returned to work on March 2, 1995 Her eVIdence was to the effect that she provIded neIther a wntten nor a verbal report to management as to what had occurred on March 1 1995 apparently because she was of the VIew that she was entItled to see Mr Pedron's Occurrence Report before submIttIng one herself, and because she had not been permItted to see It. She submItted two gnevances, each dated March 7 1995 One alleged that she had been "wrongfully dIrected to work In A area because of [her] sex" whIch she alleged was a vIOlatIOn of Art. A. The other alleged that the employer had vIOlated Art. 27 10 1 "engagIng In a coarse or vexatIOus comment that IS known to be unwelcome" EVIdence of Enzo Pedron re March 1, 1995. Mr Pedron was of the VIew that he had been placed In the posItIOn of haVIng to ask Ms LatImer to work A area because "the computer had put Ms Frozel's name In for" 1900 to 2300 and he "realIzed she would not be In." I gather that when he came on shIft that he saw that someone had wntten "stat" besIde Ms Frozel's name on the Duty Roster (Ex. 11 b) and no female casual C 0 had been scheduled to work at 1900 He agreed that 13 the vacancy In A area arose only from 1900 to 2300 He said that a replacement was not reqUIred for Ms Frozel for the last 8 hours of the ShIft (2300 to 0700) I gather that he meant that A area would be adequately mOnItored by clock rounds from 2300 to 0700 Mr Pedron's InItIal recall of hIS exchange(s) wIth the gnevor on March 1 1995 dIffered In some ways from her recall In dIrect, he said that the gnevor reported to the ShIft SupervIsor's office for duty at or shortly after 1830 he told her that he was assIgnIng her to A area, and that she left the office and returned about five mInutes later and asked hIm why he had assIgned her to A area. He said "It was at that tIme I made the remark" and apologIzed. He said that the gnevor "came back a mInute later reportIng that she was sIck and gOIng home" In cross, he dIsputed havIng apologIzed for hIS remark when she returned to hIS office and InsIsted that he had apologIzed ImmedIately after havIng made It. Mr Pedron acknowledged that he had said that she was "the only babe on duty" He said that he dId not know why he had used "that remark" and said "It was a stupId remark to make and It was uncalled for" He acknowledged havIng omItted any mentIOn of hIS statement that she was "the only babe on duty" and of hIS apology and of the gnevor's upset In hIS Occurrence Report (Ex. 101) He agreed that someone readIng the words "sIck of harassment" In the Attendance RegIster (Ex. 12 p 33) would, on the basIs of hIS Occurrence Report, know only of hIS havIng asked her to work A area. Mr Pedron said that he asked the gnevor to stay untIl he could get a replacement and that she said that she could not stay and that she left. He said he asked the Officer then In A area to remaIn but that she was unable to do so and that he assIgned Mr SullIvan temporanly to A area and called Ms MOrrIson, a casual, to come In, at whIch tIme Mr SullIvan was able to return to the cleanIng duty to whIch he had been assIgned. He recalled that the gnevor left the InstItutIOn before 1900 He said In dIrect that untIl the gnevor left the InstItutIOn, the staff level had been at complement, and that he was unable to JustIfy callIng In another casual He said that the SchedulIng Officer (Mr St. Jean) had scheduled two male casuals to replace Ms Frozel and other staff who were absent. WhIle reVIeWIng hIS Occurrence Report (Ex. 14 101) In dIrect, he said that he felt that he should not have had to JustIfy assIgnIng Ms LatImer to A area, and that she should not have questIOned hIS assIgnment of her there because It was not a common occurrence, and because he had no other optIOn. Later In cross, he dId not dIspute that he knew that the SchedulIng Officer had had advance notIce ofMs Frozel's "stat" tIme off, and that the sItuatIOn WIth the gnevor could have been aVOIded. He said that the SchedulIng Officer could have hIred another female casual, unless all the female casuals had worked 40 hours by then that week. He acknowledged that Ms D PyhtIla had been sIck between January 2 and May 20 1995 and that the gnevor had been the only female full-tIme C 0 "on the male schedule" dunng that penod. In re-eXamInatIOn, he said that wIthout the InfOrmatIOn the SchedulIng Officer had had earlIer In the day he could not determIne whether the schedulIng for March 1 1995 had been done Improperly Mr Pedron Said that at 1900 the complement had been eleven, although the Roster stIpulated "12" He maIntaIned that there had been no Inmates In D area, or that D area was closed, so that he had not needed to assIgn anyone to that area at 1900 on the presumptIOn that "If there had been Inmates, I would have assIgned someone" He said that when the gnevor left, he had called In Ms MOrrIson, a casual, because In hIS VIew once the gnevor left, he had ten staff, ten was one below complement, and therefore at that pOInt he was JustIfied In callIng In a casual Asked whether It had been common knowledge that It was lIkely that Ms LatImer would be upset at beIng asked to work A area, Mr Pedron said "There was a hIStOry there" He said that he "could have" obtaIned that common knowledge from the Supenntendent, possIbly other Managers, or ShIft SupervIsors He said that at monthly ShIft I/C meetIngs whIch took place between 1990 and 1995 "It could have been the sItuatIOn was dIscussed. Not Noe1la." He said that he dId not recall whether he had had Mr Parent wItness whenever he was gOIng to assIgn a female C 0 to A area. He agreed that he had asked Mr Parent to stay back because he was expectIng "a reactIOn from Ms LatImer" He dId not dIspute that the gnevor' s reactIOn came as no surpnse, and that he knew that one was lIkely 15 EVIdence of Gary Parent re March 1, 1995. Mr Parent said that before March 1 1995 he had "probably" been present at dIscussIOn of the gnevor and assIgnment of her to A area at an I/C meetIng, and that thIS would have alerted hIm to thIS problem. He said "probably not the reason" (as to why the gnevor dId not want to be assIgned to A area) had been dIscussed. He dId not respond dIrectly to the questIOn as to whether there had been any dIscussIOn of her reactIOn upon beIng assIgned to A area. He said "A decIsIOn was made that we would do anythIng In our power not to put her In that posItIOn." He dId not respond dIrectly to the questIOn as to whether the reason for not puttIng her In that posItIOn had been dIscussed. He said, "There was no purpose to try to aggravate the sItuatIOn. It dIdn't happen that often that we'd have to worry about It." He said that he understood that the gnevor would be "aggravated" because "she Just dIdn't care for It." He said that he dId not recall whether her reason for not wantIng to be posted to A area had been explaIned In the I/C meetIngs Mr Parent said that he recalled haVIng been present when Mr Pedron asked Ms LatImer to work A area, and that Mr Pedron had said, "I need you to work In A area, you're the only babe on" He said that Mr Pedron ImmedIately apologIzed for USIng that word. When asked whether he recalled anythIng else, he replIed, "I belIeve I recall she left In a sImIlar fashIOn [to May 10 1995]" In cross-eXamInatIOn, he said that when Mr Pedron asked hIm to be a wItness to hIS assIgnment of the gnevor to A area, Mr Pedron had said, wIthout elaboratIng, that she would probably be upset. He agreed that he already understood what Mr Pedron meant. He denIed haVIng dIscussed any strategy wIth Mr Pedron and said that he made no comments whIle he was wIth the gnevor and Mr Pedron. In cross-eXamInatIOn, when asked whether he notIced a response when Mr Pedron told the gnevor that she was to work In A area, he sIghed and said "yes" He descnbed her as "VISIbly upset" He was uncertaIn as to whether he had heard her say that she was gOIng home sIck, and said that he "probably" left the bUIldIng shortly after the gnevor He said that he could not remember the number of tImes the gnevor entered and left the office and could not recall whether he had dIscussed anythIng wIth Mr Pedron dunng the gnevor's absence from the office and before he (Mr Parent) left the 16 bUIldIng. He said that he could not recall whether he had been consulted by anyone from the I/C or OM16 level up regardIng the March 1 1995 IncIdent. Mr Parent agreed that on March 1 1995 he had receIved "qUIte an ImpressIve example of what occurs when Ms LatImer IS assIgned to A area." He agreed that there was "probably" no reason to belIeve It would not recur If she was assIgned to A area agaIn. EVIdence of Claude St. Jean re March 1, 1995. Claude St. Jean said In dIrect that he became a SchedulIng Officer at the Sudbury JaIl In the fall of 1994 In cross-eXamInatIOn he amended that to 1993 He said that he was the SchedulIng Officer for March 1 1995 (and May 10 1995) He said that he relIeved as ShIft I/C In 1995 but had not done so on March 1 May 10 or Dec 22, 1995 His dutIes Included produCIng Rosters and Schedules, ensunng that the complement IS present, schedulIng staff to cover for absent C 0 s, grantIng tIme off (staff submItted wntten requests) and makIng changes to the Schedules InItIally he said he developed and pnnted the CO Schedule for the week of February 27 to March 5 1995 (Ex. 10b P 12) roughly one year pnor to that week, to keep track of vacatIOns and shIft changes He later said that he dId not know the actual day he produced the Schedule and said "It would have to have been generated at least a month and a half ahead, because they are posted for all staff to see" Subsequently he said that he kept a copy of the pnnted Schedule In hIS desk a year pnor to keep track of vacatIOns, and pnnted It about one month ahead of tIme, for postIng In the staff room He said that he made the handwntten changes on the CO Schedule whIch appear In red and "possIbly some" whIch appear In blue He confirmed In cross that he knew In advance that Ms Martel was on Leave of Absence and said that he dId not know how far In advance Ms Frozel had claimed the "stat" day He agreed that the normal rule IS that "stat" days must be requested 30 days In advance In wntIng, and said that he dId not know If that rule had been followed for her March 1 1995 "stat" day 17 Mr St. Jean dId not dIrectly acknowledge havIng marked "stat" besIde Ms Frozel's name on the CO Schedule (Ex. 10b) but acknowledged havIng made the entnes In red, of whIch "stat" was one He said he had arranged wIth Ms Webb for her to work ShIft 1 0700 to 1900 rather than ShIft 4 0700 to 1500 as a result of whIch, he said, he was able to gIve her Fnday (ShIft 4) off Mr St. Jean said that he produced the March 1 1995 Duty Roster (Ex. Ilb p 13) In cross, he confirmed that the Roster had been generated from the data on the weekly C 0 Schedule (Ex. 1 Ob) He said that he produces the Duty Rosters approxImately one month ahead of tIme, and then said that they are pnnted 1 1Iz to 2 weeks ahead of tIme He said that he hIghlIghted the names of staff who would be absent on the Duty Roster In green, and IndIcated In handwntten red pen the reason for theIr absence then counted the names In each ShIft column to determIne whether he needed to call In casuals Mr St. Jean said that he had not called In a casual for 1900 to 2300 on March 1 1995 because "ongInally there was a proper amount of staff workIng-there was eleven staff scheduled to work" He later explaIned that "ongInally" meant one week before March 1 Asked to "explaIn the dIscrepancy" he pOInted to whIte-out whIch appears In the casual column for 1900 hours on the Duty Roster (Ex. 11 b) above Mr Moyle's name He said that ongInally twelve people had been scheduled and that he dId not know who whIted out the name In the first lIne of the casuals sectIOn. He said, "It mIght have been me, or It mIght have been done when It was decIded to close the area up" He said that Mr SullIvan had ongInally (on the weekly CO Schedule, Ex. 10b p 12) been scheduled to work In D area on ShIft 2 (1100 to 2300) but that on the Duty Roster (Ex. Ilb) he had been marked as a spare ("S") In the 1500 column and "cln" for cleanIng duty In the 1900 column. He surmIsed from these changes that D area was closed and that the casual's hours at 1900 had been cancelled. Mr St. Jean said that he usually knew a week ahead of tIme If someone was on a leave of absence or a "stat" day so that he could enlIst a casual to work that shIft. He said that no female casual had been scheduled to cover for Frozel on March 1 1995 He agreed wIth reference to the Casual Hours lIst for F eb 17 to Mar 5 1995 (Ex. 108) that 18 wIth the exceptIOn of Ms Solomon, who had not been avaIlable for the entIre week, none of the seven other female casuals (MorrIson, Nadon, Noel, Rouleau, Verge Campbell and Date) would have Incurred overtIme If they had worked March 1 1995 EVIdence of Former Supt. LIOnel Chevner re March 1, 1995. Mr Chevner testIfied on March 14 2000 some three years after hIS retIrement and about five years after the events he was beIng asked to recall He was lead through the events of March 1 1995 by reVIeWIng Mr Pedron's Occurrence Report. He had lIttle Independent recall of hIS knowledge at the tIme of the events of and around March 1 1995 He understood that Mr Pedron had dIrected the gnevor to work A area on the 1900 to 0700 ShIft, and that "she decIded not to go and went home SICk." He said that he had no knowledge of the conversatIOn whIch had taken place between Mr Pedron and the gnevor He said that he thought Mr Pedron's request that she stay untIl he got a replacement was "a fair request" because "she was only asked to stay a short penod untIl a replacement could be called In." He was unable to recall haVIng taken any steps after reCeIVIng Mr Pedron's report, other than haVIng been "WaitIng to talk to Ms LatImer" Shown a Memorandum from ActIng Deputy Supt. Graham dated March 8 1995 (Ex. 102, P 36), he recalled haVIng requested Mr March to InqUIre Into and report on the matter He was unable to recall whether he had dIscussed Mr Pedron's report wIth hIm Mr Chevner said that he had doubts as to whether the gnevor was sIck on March 1 1995 He said that he dId not belIeve that he had asked the gnevor to provIde hIm wIth any medIcal documentatIOn to venfy the necessIty of leavIng work and could not recall anyone In management haVIng requested venficatIOn of Illness He acknowledged that such documentatIOn mIght have played a role In determInIng whether dIscIplIne was appropnate He acknowledged that he had not known the degree of the gnevor' s Illness or the state she had been In when she left work. He said that he dId not thInk It was 19 reasonable to expect someone suffenng from "severe anxIety" to remaIn at a post and functIOn properly as a C 0 He agreed that leavIng someone "In severe anxIety at a post" was "not the best sItuatIOn." In re-dIrect he said that a C 0 IS lIkely to expenence extreme anxIety and that a C 0 should not leave the InstItutIOn untIl relIeved. He dId not dIspute that the gnevor had sIgned out before the commencement of her ShIft and had not assumed her post. He agreed that other staff had been present at the JaIl to cover He said that he dId not know what the staff level and complement had been before she was to commence her ShIft and after she left. In re-eXamInatIOn he said that he doubted that she had been sIck because she had been "very reluctant" to work In the female sectIOn and "by Mr Pedron's report" had sIgned out, "sIck of harassment." He said that not all medIcal notes came to hIm, that they were an attendance matter and were filed In the CO' s personal file Mr Chevner had no wntten report from the gnevor as to what had occurred between her and Mr Pedron on March 1 1995 Mr Chevner dId not remember whether the gnevor's preference or desIre not to work A area had been dIscussed at the monthly I/C meetIngs He said that he belIeved that there had been dIscussIOn about the CIrcumstances In whIch a female COon the male schedule would be asked to work the female sIde His tentatIve recall of the dIscussIOn was" If we were short a female CO and there was a spare female on the male sIde, rather than call In a casual or pay overtIme, use the female" He could not recall whether there had been any dIscussIOns about aVOIdIng that sItuatIOn. He was unable to recall whether there had been an agreement between the UnIon and management to hIre females to aVOId the sItuatIOn. Mr Chevner Said that ultImately he suspended the gnevor for two ShIftS because "There was an ongoIng hIStOry wIth the Issue Ms LatImer dId not want to work there We only placed her there when no other female was avaIlable, to aVOId callIng In another casual or overtIme And that she went home sIck on two occaSIOns when asked to work that area." 20 The eVIdence wIth respect to the second occaSIOn to whIch Mr Chevner referred wIll now be consIdered. The Gnevor's EVIdence regardIng Mav 10, 1995. The gnevor' s name appears on the C 0 Schedule for May 8 to 14 1995 (Ex. 13b P 15) as scheduled to work an eIght-hour ShIft from 0700 to 1500 (ShIft 4) on "the male schedule" that day The May 10 1995 Duty Roster (Ex. 14b p 14) IndIcates that Ms Martel had ongInally been scheduled to work 0700 to 1900 In the female sectIOn, and that she was on leave of absence on May 10 and 11 1995 The gnevor arrIved at work at about 6 50 a.m expectIng to work "any area In the men's sectIOn." Mr Parent was ShIft SupervIsor that day She said that dunng muster Mr Parent assIgned her to I area. She said that at about 1100 hours, Mr Parent came to her and said that she would be gOIng to A area. She said that no reason was gIven to her "other than the fact that I was needed In A area." She said that the female casuals who were on ShIft at the tIme were Ms MOrrIson, Ms Campbell and Ms Nadon. She said that Ms Webb (who appears from the C 0 Schedule (Ex. 13b) to have been scheduled to work In the female sectIOn from 0700 to 1500 (ShIft 4) ) was also at work. She questIOned why she was beIng taken off her post and sent to A area, when two casuals were at work who could have been assIgned to A area. The gnevor said that when Mr Parent as I/C assIgned her to A area, she was "very upset." She said "It happened two months ago and Mr Parent had wItnessed It WIth Mr Pedron." She said she felt that It was "a set-up" as there were female casuals at work who could have been assIgned to A area. She said "AgaIn, I felt, why me?" She said that she was very nervous and shakIng, that she could not get over the fact "that thIS was happenIng agaIn" at the order of the LIeutenant who had been present on March 1 1995 partIcularly when there were female casuals on shIft who could have been assIgned to A area. She said that she felt there was no need to have assIgned her to A area In such CIrcumstances She said that she dId not feel she could contInue her dutIes as a C 0 and 21 told Mr Parent that she had to "go home SICk." She said she was "very upset, the way I was feelIng," and "It seemed lIke a repeat performance from the tIme before" WhIle gIVIng her eVIdence the next day the gnevor amended her recall of the events of May 10 1995 She said that she heard from a casual officer that he had seen the LIeutenant's schedule and that she understood from the officer that "they" were tryIng to set her up "for the A epIsode at 11 0' clock today" She said that she was upset on heanng thIS, and went to Mr Parent and asked hIm, and Mr Parent "venfied and said yes, you're gOIng to A area at 11 " She said that she asked hIm why she was beIng assIgned there at 11 that he had "all these female C 0 s on duty" and that Mr Parent told her that that was where she was gOIng. She said that Mr Parent wanted her to work four hours on her "regular ShIft" and "surpnse" her "halfway through." She said that she was feelIng "set up" and was upset and very frustrated and angry and told Mr Parent that she would leave, that "thIS IS harassIng." She said that It IS hard to go In to work "not knowIng when a set-up IS beIng planned for you." She said that she had not yet assumed her post In I area, and sIgned out on the RegIster and left. She said that she was "very upset, agaIn." She said that In spIte of everythIng she the umon and her doctor had been tryIng to tell her employer "they stIll InsIsted on settIng me up I felt very much harassed." She later said that she told Mr Parent "It wasn't fair he had two female casuals, sendIng me down there was blatant harassment." She said that she had been upset, frustrated "It was ObVIOUS to me that thIS was Parent's chance to help out Enzo (Pedron), Enzo was the first one" She said that the set-up was ObVIOUS, In that they had not told her about the plan to have her cover A area later when she first came In. She said "If he dIdn't have anythIng to hIde, he could have told me first thIng In the mornIng." The gnevor agreed In cross-eXamInatIOn that she had not been assIgned to a partIcular post for May 10 1995 She dId not dIspute that IfMs Webb left at noon, a vacancy arose In A area between 1200 and 1500 hours She dId not dIspute that the word "doc" wntten In red next to her name In the 0700 column of the May 10 1995 Duty Roster IndIcated that she had ongInally been assIgned to doctor's parade startIng at 0700 She dId not dIspute that she had sIgned out "Upset Harassed AgaIn!!!" on the 22 Attendance RegIster that mornIng (Ex. 26b p 42) at 0658 hours and had not worked doctor's parade that mornIng. The gnevor IdentIfied Ms Campbell, Ms Date Ms MOrrIson, Ms Nadon, Ms Noel, Ms Rouleau and Ms Verge as female casuals "avaIlable on the lIst" for May 10 1995 and IdentIfied Ms Froze!, Ms Launn, Ms Legacy Ms Syms, Ms J Webb and herself as the female C 0 s on the full-tIme Attendance RegIster for May 10 1995 She later acknowledged that Ms Legacy had been assIgned to A & D (whIch has ItS own separate schedule) from 0700 to 1500 She said that five other female C 0 s had been avaIlable for assIgnment to A area. She dId not dIspute that they had ongInally been scheduled to work only from 0700 to 1100 hours, and had all been asked to stay The gnevor dIsputed the suggestIOns a) that Mr Parent had not told her she would be assIgned to A area later because there mIght have been changes to the assIgnments later b) that Mr Parent told her that he wanted her to cover A area from the tIme Mrs Webb left (noon) untIl the end of her ShIft (1500) c) that she was the only female COon duty between 1100 or noon and 1500 hours She dId not dIspute that 4 hours was the longest she had been lIkely to remaIn In A area on May 10 1995 She said that Ms Campbell, a female casual, worked from 0700 to 1500 and that female CO s were scheduled to work on each four-hour segment of the Duty Roster (Ex. 14b p 14) and dIsputed that It had been necessary to order her to work A area. She dId not dIspute that Ms MOrrIson's 0700 to 1100 ShIft had been extended to 1500 because she (the gnevor) had gone home, and that Ms Campbell had covered for Mr Hogan, who had been SICk. She pOInted out that Ms Campbell could have been assIgned to A area Instead of her She dId not dIspute that the complement had been fifteen for the 1100 to 1500 shIft. The gnevor receIved a letter dated May 10 1995 from Supt. Chevner (Ex. 18 p 43) whIch stated I have been advIsed that upon beIng notIfied that you were assIgned to "A" area, you went home On the attendance sheet you IndIcated "Upset, 23 Harassed agaIn." Could you please Inform us as to the nature of the harassment In order for us to rectIfy thIS problem. Also I must advIse you that If you feel that you are beIng harassed, you have the nght to file a complaInt under the W.D.H.P polIcy (whIch IS attached) Further to thIS, I would lIke to schedule a heanng on Monday May 15 1995 at 1400 hours to dISCUSS your leavIng work. You are remInded that you are entItled to be accompanIed by a Umon RepresentatIve at thIS heanng. She said that on May 12, 1995 she put In a complaInt to the WDHP UnIt. She remaIned off work from May 10 1995 and returned to work on about October 9 1995 EVIdence of Gary Parent re Mav 10, 1995. Mr Parent gave hIS eVIdence on March 13 2000 He was a ShIft SupervIsor at the Sudbury JaIl on May 10 1995 and hIS dutIes Included the assIgnment of staff In the operatIOn of the JaIl He said that he used the May 8 - 14 1995 C 0 Schedule (Ex. 13b p 15) and the May 10 1995 Duty Roster (Ex. 14b p 14) In hIS dutIes In cross, he said that the Schedule (Ex. 13b p 15) had been pnnted three weeks In advance Mr Parent said that the gnevor had been scheduled to work ShIft 4 (0700 to 1500) and that C 0 S who work ShIft 4 are always consIdered "a float" 1 e no fixed assIgnment or pOst. He said that Ms Martel had been scheduled to work A area ShIft 1 (0700 to 1900) and had been on leave of absence He said that he had entered "doc" to the left of the gnevor's name and "(UPSET)" to the nght of her name In the 0700 column of the Duty Roster as well as the letter A besIde the gnevor' S name In the 1100 column and "would have" entered the green hIghlIghtIng over the gnevor's name In the 0700 and 1100 columns Mr Parent InItIally Said that the gnevor had done doctor's parade some tIme between 7 45 and 10 a.m. In cross, he said that he became aware at 6 50 a.m. when he came on ShIft, that Ms Webb was workIng untIl 1200 and that he would have to assIgn someone to cover A area thereafter He said that Ms Webb had been scheduled to work 0700 to 1200 from May 8 to 12, 1995 as an "accommodatIOn." He assIgned casuals Ms MOrrIson to I area and Ms Campbell to E area at 0700 and after the gnevor left, wrote In 24 Ms MOrrIson's name at the top of the 1100 column and assIgned her to "A area" He said that Mr St. Jean had been the SchedulIng Officer at the tIme and that eIther Mr St. Jean or the ShIft SupervIsor the nIght before, If they had receIved a call from an Officer who was unable to come In "would have filled In the shortfalls the nIght before" Mr Parent said that InItIally 17 staff were scheduled to work at 0700 IncludIng the gnevor because two extra staff were reqUIred, one to cover for Mr Lachance who had a French test at 1100 and an extra person to do yard duty Ms LatImer left at 6 58 a.m. and the stafflevel was reduced to 16 Subsequently between 0700 to 1100 two scheduled officers were reqUIred to escort an Inmate to hospItal, and an escort was reqUIred to take an Inmate to court (the exact tIme IS not known) and Mr Hogan, who was scheduled to work 1100 to 2300 called In SICk. Mr St. Jean had scheduled Ms Nadon and Mr BaldellI to work from 0900 and wrote theIr names In the casuals sectIOn of the 0700 column of the Duty Roster (Ex. 14b) Mr Parent said that for 0700 hours, he assIgned Ms LatImer to doctor's parade and then assIgned the casuals to theIr posts, MOrrIson to I, Caverson to yard, WhIte to B WillIams to C Campbell to E He said that between 0700 and 1100 he reassIgned Mr Lachance from E area to showers, and assIgned Ms Campbell to E area. Mr Parent said that the A besIde the gnevor's name In the 1100 column meant "I had to assIgn her to A area" some tIme between 630 and 7 that mornIng. He said that he assIgned Ms LatImer to A area "because" Mrs Webb had been assIgned to work A area by "someone else" the nIght before" He said that he had not asked Ms MOrrIson or Ms Campbell to replace Ms Webb In A area, because they had been scheduled to work only from 0700 to 1100 He said that he thought Campbell's ShIft was extended from 1100 to 1500 because It had been entered In dIfferent Ink from the 0700 to 1100 column and was wntten In a dIfferent handwntIng. He dId not IndIcate who had extended Ms Campbell's ShIft, and when. He said that he had not asked Ms Nadon to work In A area because she had not been "In" when he assIgned Ms LatImer to A area. He said that he could not have asked Ms Legacy to work A area, because at the tIme she was responsIble for dIrectIng the A & D area. 25 Mr Parent said that Mr Hogan had called In sIck some tIme between the tIme he (Mr Parent) first arrIved at work, and 1100 and that he recognIzed "SICK" besIde Mr Hogan's name as hIS handwntIng. He said that the reqUIred (pnnted) complement had been 15 and that hIS staff level was 17 because In May "we were under the habIt of hmng one over complement In order to complete our yard." He said that the Supenntendent had gIven the ShIft SupervIsors permISSIOn to staff above the complement level, and that one extra C 0 was not sufficIent to enable all Inmates to have access to the yard each day and that two were sufficIent. He then pOInted out that on May 10 1995 C 0 LaChance had been scheduled for a French test at 10 a.m. and that a seventeenth C 0 was hIred to cover hIS absence Mr Parent advIsed that the staff level at 1100 had been 16 wIthout the gnevor (The pnnted complement was 15) He said that he needed an extra C 0 to cover for Mr SullIvan who was scheduled for a French test at 2 p.m. In cross, he said that he had not called In someone to cover Mr SullIvan, and that he suspected that the SchedulIng Officer had called someone In. He was unable to IdentIfy whIch casual had been called In to cover Mr SullIvan. He said that the French tests would take one hour Mr Parent said that he had wntten "upset" besIde the gnevor's name because at about 6 40 a.m she had come In and that he had assIgned her to doctor's parade and "explaIned I'd have to post her In A area. At that pOInt she stormed out of the office" He said that he could not remember very much about the conversatIOn he had wIth her He said, "she stormed out to the other sIde VISIbly upset. WithIn maybe 2 or 3 mInutes she looked back Into my office from the doorway and said 'I'm gOIng home' and she left." He said that he had not had a chance to say anythIng to her before she left, and that hIS complement had been 16 after she left. He said that he "had no understandIng at that tIme as to why she went home" He said that he wrote the word "upset" besIde her name on the Duty Roster because he "used the same word on the Duty Roster as I saw on the Attendance RegIster" In re-eXamInatIOn, he acknowledged that he had been aware of Ms LatImer havIng alleged harassment and dISCnmInatIOn regardIng assIgnments to A area before March 1 1995 and said "If I recall correctly the reason was, she felt her 26 beIng on the male sIde absolved her workIng on the female sIde" He said that the gnevor had not made "these allegatIOns" to hIm In cross, Mr Parent agreed that on May 10 1995 there had been an Informal muster In the lunchroom. He was unable to recall havIng told her at the Informal muster that she was assIgned to doctor's parade He said, "I don't belIeve so" He dId not dIspute that shortly thereafter the gnevor approached hIm In hIS office and asked hIm whether It was true that he was puttIng her In A area. He said, "She would've never said that. I belIeve I told her" He was asked to confirm that he had confirmed to her at that pOInt that he was puttIng her In A area. He replIed "No Mrs LatImer dIdn't sIgn In tIll 6 50" He said he had no recall of whom he saw and what he said In the lunchroom He said that he dId not know the tIme at whIch he had entered the checkmark on the Duty Roster (Ex. 14b) that IndIcated to hIm that he had found the gnevor and had assIgned her to doctor's parade He dId not dIspute that someone else had Informed the gnevor that she was to work In A area. He said that he dId not recall the gnevor havIng pOInted out to hIm that there were female casuals who could be assIgned to A area, and havIng essentIally told her "you're gOIng to go where I assIgned you." Mr Parent said that he had not called In a female casual to replace Ms Webb at noon because "It would have been IrresponsIble when I had the complement." Asked to clanfy "IrresponsIble" he replIed "to hIre someone over and above complement when everyone IS slotted In, you can't use them, unless you have a specIfic Job for the person." He said that he had assIgned female officers from the male area other than Ms LatImer to the A area and dId not IndIcate a tIme penod In whIch thIS had occurred. In cross, Mr Parent said that the women whose names appeared In the Female SectIOn (F/S) of the Schedule (Ex. 13b) worked In the Female SectIOn. He was not able to confirm whether they had been hIred for the purpose of workIng In the Female SectIOn. He dId not agree that It was lIkely but said that It was "possIble" that the SchedulIng Officer who he IdentIfied as Mr St. Jean, would have known three weeks In advance that Ms Martel would be on leave of absence on May 10 1995 SInce the Schedule was pnnted three weeks In advance and "LOA" appeared In pnnt on Ms Martel's lIne He 27 agreed that the SchedulIng Officer would, at some pOInt, have known that Ms Webb was "on accommodatIOn" wIth respect to her hours of work. Mr Parent said that he dId not know when he became aware that he would have to cover A area at 1200 on May 10 1995 He said that he "extended" Ms MOrrIson, who had ongInally been scheduled to work 0700 to 1100 but that he had not "extended" Ms Campbell, and said that eIther Mr Blais (the second I/C on the dayshIft) or Mr St. Jean had done so He said that at the start of the 0700 ShIft, one person would have been scheduled to cover for the person takIng the French test. He said that the staffing need changed over the day as two full-tIme CO S, GoodwIn and Juhas, were assIgned to the hospItal, and Hogan (who was scheduled to work 1100 to 2300) had booked off SICk. He said "At that pOInt we reqUIred three more staff, four wIth LatImer" He said that Ms MOrrIson could not cover both Mr Hogan's and the gnevor' s posts Mr Parent acknowledged that he could have assIgned the gnevor to cover Mr Lachance's postIng In E area, as Mr Lachance needed to be relIeved at 1100 to attend a French test. He said "It's not the usual procedure The spare can be used where needed." He agreed that Mr Lachance could have returned and completed hIS ShIft as a spare, or have worked 1100 to 1500 or 1500 to 1900 as a spare, despIte not havIng been desIgnated a spare on the schedule He said that he "could have but wouldn't have" assIgned Ms LatImer to E area. He said "It wouldn't be fair to Ms LatImer to stIck her In one slot (a four hour tIme penod) for E area, as It was her spare week." He said that to be fair to everyone, he had to assIgn them to an area for a maXImum of 8 hours When asked whether It was more fair to "stIck her In A" he replIed that that was "not a problem" Asked whether he thought It would be vIewed as fair by the gnevor he replIed "I have to manage my shIft." He later acknowledged that the gnevor would not have thought It was fair He agreed that he "probably" knew that the gnevor would become extremely upset If she were assIgned to A area. In re-eXamInatIOn, Mr Parent advIsed that "the normal procedure" was to assIgn "spares" to posts whIch are not [inmate lIvIng] areas, unless absolutely necessary He said that It would not have been absolutely necessary to replace LaChance (E area) wIth the gnevor He agreed that CO s Nadon and BaldellI had been called In for 0900 to 28 replace two C 0 s who were reqUIred to take an Inmate to court. He said that Mr St. Jean had called them In, and that Mr St. Jean "provIded hIm bodIes" and that he decIded "where the bodIes went" He was unable to IdentIfy any female C 0 he had transferred from the male schedule to A area before May 10 1995 EVIdence ofMr. St. Jean re May 10, 1995. Mr St. Jean said In dIrect that he produced the CO Schedule for May 8 to 14 1995 (Ex. 13b P 15) and had done the entnes In red and black. He said that Ms Martel (who had been scheduled to cover A area from 0700 to 1900 on May 10 1995) had been on leave of absence "SInce March 1 1995 to the week of May 8 to 14 at least." He had marked a red "L" for leave on the Schedule besIde her desIgnated ShIft (#1) for May 10 1995 On the May 10 1995 Duty Roster (Ex. 14b p 14) he hIghlIghted Ms Martel's name In green to denote that she would not be In attendance, and marked "LOA" In red besIde her name, and wrote Ms Webb's name In the 0700 and 1100 columns and "07- 12" In the left-hand column. In cross, he agreed that he had known about Ms Martel's leave of absence "way In advance" He said that Ms Webb had been scheduled to replace Ms Martel In A area from 0700 to 12 noon and that Ms Webb had worked that penod In A area and that the post would have to be "filled In" from noon to 1500 hours He said "accordIng to the Roster It was to be filled In by Ms LatImer" Asked whether he knew why the two female casuals scheduled for the 1100 ShIft (MorrIson and Campbell) had not been scheduled to work A area for that penod, he said "I thInk they were add-ons (had not been scheduled to work at 1100 pnor to that mornIng)" Asked agaIn whether he knew why they had not been asked to work A ShIft, he said "The number of people In the area dIdn't reqUIre casuals" He agreed that that was the only reason and said "the numbers were there, so there was no reason to hIre casuals" Mr St. Jean said In dIrect that he had worked from 8 a.m. to 4 p.m. on Tuesday May 9 1995 and from 8 a.m to 4 p m on May 10 1995 He said that he had not been at the JaIl at 7 a.m. on May 10 1995 He said that he entered all the names In the casual 29 sectIOn of the 0700 column, and that he had scheduled the first two casuals, MOrrIson and Caverson, to work 0700 to 1100 one week pnor He said that he surmIsed that the next two casuals, WhIte and WillIams, had been called In to replace GoodwIn and Juhas who were assIgned HospItal duty He said that Ms Campbell, the next casual lIsted under 0700 was called In "for coverage to replace Lachance" who had a French test at 1000 and that Nadon and BaldellI were called In at 9 a.m. "to provIde coverage for a court escort" Mr St. Jean said In dIrect that seventeen staff had been scheduled to work at 0700 two above the complement of fifteen, because Ms Campbell was replacIng Mr Lachance for a test, and In addItIOn, Mr Stutt, who had been sIck, came In to work wIthout notIce He said that he dId not hIre any casuals for 1100 on May 10 1995 because on the Wednesday pnor (one week earlIer) fifteen staff had been scheduled to work, and when Stutt returned, there were sIxteen staff He said he had not wntten the names of any of the casuals In the 1100 column. Asked whether he was aware that Ms LatImer was obJ ectIng to beIng assIgned to A area around May 10 1995 he replIed "Was I aware? People obJect all the tIme" He then said "I'm sure I was" Asked whether he was aware that extra female casuals had been hIred In order to cover A area, he replIed "It wasn't female casuals hIred stnctly to cover A area." He said that he was not aware that concern had been expressed that more casuals be hIred to cover A area and that full-tIme C 0 s not be asked to cover A area. Mr St. Jean said that he could not recall whether the gnevor's concern had ever been dIscussed In any ShIft I/C meetIngs He agreed that he was somehow aware of her desIre not to be asked to cover A area. He said that he became aware of It from heanng the gnevor speak of It. He was uncertaIn as to whether he was aware of her obJectIOn to beIng asked to cover A area before March 1 1995 He said "I don't thInk I knew then that she saw It as harassment." Mr St. Jean said that he had not receIved any InstructIOns or recommendatIOns from anyone In management as to how to deal wIth Ms LatImer's desIre not to be assIgned to A area. He said "If the numbers were low enough, I could replace someone 30 wIth a casual," and "She dIdn't want to work A area. We have to be fiscally responsIble" He said that he never said that to the gnevor and never dIscussed It WIth anyone In management. He agreed that female casuals had been avaIlable (for the 1100 to 1500 ShIft on May 10 1995), and that he had felt that they were not reqUIred. Mr St. Jean agreed that he knew of other Officers who had gone home because they dId not lIke theIr assIgnment, and said that they had "sIgned off sIck" and that they had not been suspended. EVIdence of Former Supt. Chevner re May 10 and 15, 1995. Mr Chevner wrote a letter to Ms LatImer dated May 10 1995 (Ex. 18 P 43 reproduced at p 22, above) He was unable to recall whether he wrote It before or after the IncIdent of May 10 1995 wIth Mr Parent. Mr Chevner Said that he had been referrIng to the IncIdent wIth Mr Pedron In the letter Mr Chevner Said that the meetIng referred to In the letter took place on May 15 1995 that It had been about two IncIdents of thIS nature, and that as far as he could remember the dIscussIOn had been "around why Ms LatImer dIdn't want to work In the female sectIOn" He Said that he could not remember anythIng that he had Said at the meetIng. EVIdence of the Gnevor re the May 15, 1995 MeetIng. The gnevor Said that Supt. Chevner Asst. Supt. Graham, she, Local PresIdent Larry McGregor and UnIon RepresentatIve Mr Slee attended the May 15 1995 meetIng. She Said that Supt. Chevner asked her why she had sIgned out IndIcatIng that she was harassed and that he had Said that he felt that management had had no chOIce but to assIgn her to A area. She Said that she brought to hIS attentIOn that on March 1 1995 two male casuals had been called In Instead of a female and that the vacancy In A area had been known well ahead of that date She Said that she had told those present that she "was upset, harassed, felt dIscnmInated upon, and that It was ongoIng." She Said that a 31 casual would have been reqUIred to replace her In a post on the male sIde when she was assIgned to work A area, that although management knew that her gnevances were gOIng to arbItratIOn, It contInued to assIgn her to A area, and that thIS was partIcularly upsettIng to her because "they knew full well" the Impact such an assIgnment had on her health. She said she dId not recall statIng that she dId not lIke to have her scheduled dIsrupted. She said that she dId not lIke to be treated any dIfferently "from anyone else on my schedule" She said "I wanted to work my schedule Just lIke everyone else on my schedule All I was askIng for was for fair treatment." She said that she also told them that If she had been a male CO workIng that day "I would've been able to work my schedule" She said she dId not recall suggestIng that her preference not to work In A area extended to cancelIng male casuals' ShIftS She said that In the meetIng she told them that they had two male casuals there to cover her She later said that they had scheduled two male casuals In order to put her In Area A. She dId not dIspute that she was allegIng that two supervIsors had specIfically engIneered a sItuatIOn In order to hurt her and that she had not told Mr Chevner thIS She said that she understood that Mr Slee and Mr MacGregor explaIned It to management. She said that she went to the meetIng and "It all got turned around" and that that was why she no longer speaks to any of them wIthout wItnesses MedIcal DocumentatIOn, Correspondence and the Letter ofDIscmlIne. The gnevor said that she gave the employer her doctor's note, dated May 17 1995 (Ex. 15 P 138) on May 17 1995 The note stated Noe1la LatImer has been offwork SInce 10 May 1995 because of severe anxIety caused by CIrcumstances at work. She wIll be off work for a few more weeks o Yankowsky She said that the same day she receIved two letters from Supt. Chevner the first (Ex. 16 p 44) Inqumng whIch credIts she wIshed to use for her absence on May 10 1995 and the second (Ex. 17 pp 47-48), a letter of dIscIplIne It stated In the presence of your OPSEU RepresentatIve, Mr P Slee, your UnIon Steward, Mr L McGregor and Mr N Graham, Deputy Supenntendent, I 32 met wIth you at approxImately 1400 hours on May 15 1995 at the Sudbury JaIl The purpose of our meetIng was In relatIOn to the folloWIng allegatIOn "It IS alleged that you dId not comply wIth the OperatIOnal Manager's Orders to report for duty to the female sectIOn at the Sudbury JaIl " You were gIven an opportUnIty to refute or mItIgate your conduct In thIS matter At the meetIng, you admItted to not complYIng wIth the OperatIOnal Manager's orders as you were upset and left the grounds at your own decIsIOn. After reVIeWIng all avaIlable InfOrmatIOn, and heanng your explanatIOn regardIng thIS IncIdent, I have concluded that you faIled to comply wIth the OperatIOnal Manager's orders As well, you dIsplayed the sImIlar conduct on March 1 1995 In my OpInIOn, your behavIOur dunng these IncIdents are consIdered to be senous and an ImmedIate nsk to the busIness of the Sudbury JaIl, JeopardIZIng the safety and secunty of the Inmates and staff of thIS facIlIty Under the authonty delegated to me by the Deputy MinIster It IS my deCISIOn to suspend you wIthout pay for a penod of two (12) twelve hours ShIftS, In accordance wIth SectIOn 22(2) of the PublIc ServIce Act. The schedulIng of your two day suspenSIOn wIll be communIcated to you by Mr C St. Jean, SchedulIng Officer Further you should be aware that any IncIdents of a sImIlar nature that you Incur In the future may be subJect to more dIscIplInary actIOn up to and IncludIng dIsmIssal Mr Chevner said that he could not recall havIng ever seen Dr Yankowsky's note dated May 17 1995 and could not recall whether Ms LatImer had been on sIck leave when hIS letter was drafted. He agreed that he had been aware that Ms LatImer had claimed that she went home because she was SICk. He confirmed that he had doubts as to whether she had been sIck on May 10 1995 and that he had not requested medIcal venficatIOn. He acknowledged that he had no reason to dIsbelIeve the May 17 1995 noted IndIcatIng that the gnevor had been unable to attend at work SInce May 10 1995 Mr Chevner descnbed the above letter (Ex. 17) as "a copy of mInutes of a meetIng of people mentIOned In the first paragraph" and said that he wrote It "because It was mInutes of a meetIng about an allegatIOn" that the gnevor had left work on two occaSIOns because she had been ordered to work In the female sectIOn He said that he belIeved the dIscIplIne he Imposed In the above letter was for both the March 1 and May 33 10 1995 IncIdents He later said that the employer had not had an opportUnIty to cover her and she left the InstItutIOn understaffed and that he dIscIplIned her because she dId not remaIn at her post. At another pOInt In hIS eVIdence he agreed that other staff had stIll been In the InstItutIOn to cover Mr Chevner was asked whether If he had been aware that Ms LatImer had been suffenng from "severe anxIety" he would have thought It appropnate to Issue a dIsCIplIne letter on May 17 1995 He replIed "It was well known back then that Ms LatImer dId not want to work In that area. It would be fine If you want to accommodate everybody but you can't. In all fairness to Ms LatImer I strongly belIeve she was only asked to work there when no other female was avaIlable I don't know how often that happened" Mr Chevner said that the reasons, ultImately for whIch he suspended the gnevor for two ShIftS were "There was an ongoIng hIStOry wIth the Issue Ms LatImer dId not want to work there We only placed her there when no other female was avaIlable, to aVOId callIng In another casual or overtIme And that she went home sIck on two occaSIOns when asked to work that area." The gnevor provIded the employer a further note from Dr Yankowsky dated June 6 1995 (Ex. 19 P 139) whIch stated Noe1la LatImer wIll be off work IndefinItely There are several problems whIch have to be solved first. o Yankowsky Mr Chevner said that he dId not recall havIng seen the above note He said that doctors' notes were normally handed In to the ShIft SupervIsor and were then passed on to the front office for recordIng attendance and reasons for absence, and were then filed In the staff member's personal file WhIle absent from work on sIck leave, the gnevor receIved a letter from Mr Chevner dated July 20 1995 (Ex. 20 P 152) whIch stated 34 I reqUIre more medIcal InfOrmatIOn from your physIcIan on your medIcal prognosIs of your present and future status In completIng your dutIes as a CorrectIOnal Officer at the Sudbury JaIl I have enclosed a Waiver of release of medIcal InfOrmatIOn form that you must sIgn and return to myself no later than August 4 1995 Mr Chevner was unable to recall havIng sIgned the letter or anythIng about It. He said that It was standard practIce to send such a letter when a staff person had been off work In excess of four days He agreed that he had receIved some medIcal InfOrmatIOn and needed more He agreed that It was lIkely that by July 20 1995 he had receIved Dr Yankowsky's May 17 and June 6 1995 notes, and had decIded he needed more InfOrmatIOn as to when she would return to work. In re-eXamInatIOn he said that he needed more medIcal InfOrmatIOn because he was tryIng to find out when the gnevor would be able to return to work. The gnevor said that on July 15 1995 she submItted a doctor's report, whIch contaIned a dIagnosIs and prognosIs, to the MinIstry and to the JaIl She said that on August 14 1995 she receIved a letter from Supt. Chevner requestIng more InformatIOn by August 25 1995 faIlIng whIch she would be removed from the payroll on August 28 1995 (ThIS correspondence was not produced and IdentIfied.) She said that she had an appoIntment to see her doctor on August 25 1995 and gave the employer the folloWIng note from Dr Yankowsky dated August 25 1995 (Ex. 21 P 140) It stated Dear SIr Re Noe1la LatImer ThIS lady IS suffenng WIth an anxIety state due to sexual harassment at work. The prognosIs IS excellent. She can return to work once the problem (sexual harassment) IS solved. If she can be assured that thIS wIll no longer be a problem at work, she can return. Mr Chevner said that he left the Sudbury JaIl In August of 1995 and was unable to recall whether he had seen the above letter Mr March succeeded Mr Chevner as Supenntendent of the Sudbury JaIl Mr March dId not gIve eVIdence at thIS heanng. The Gnevor's EVIdence re her Return to Work. 35 The gnevor was authonzed to return to work by her doctor by a note, dated September 28 1995 (Ex. 23 P 141) whIch states Noe1la LatImer may return to her regular Job provIdIng that she IS no longer harassed as before o Yankowsky Mr St. Jean requested to see her doctor's note, before authonzIng the gnevor to work her next scheduled shIft. In response, she faxed the above note to Mr St. Jean. Mr St. Jean told her that Mr March wanted the ongInal delIvered. She had the ongInal delIvered. Mr Blais Informed her by telephone that Mr March would not accept her doctor's certIficate because of the proVISO In It regardIng harassment. The UnIon provIded Mr March a letter dated October 6 1995 (Ex. 24 P 154) whIch apparently persuaded the employer that the proVISO regardIng harassment was not an ImpedIment to her return to work. The gnevor returned to work on or about October 9 1995 havIng been absent from work SInce May 10 1995 On October 10 1995 she met wIth Mr Blais and receIved a Performance Plan ReVIew whIch she found dISappOIntIng, and an Attendance ReVIew October 11 and 12, 1995 were her scheduled days off She next worked on October 13 1995 She agaIn met wIth Mr Blais, and receIved a notIce from the then current Supenntendent, Mr March, dated "October 1995" (Ex. 27 P 49) whIch provIded On May 19 1995 at 1123 hrs the attached letter was delIvered to your resIdence by couner Due to the fact that you were on sIck leave at the tIme, you dId not complete the condItIOns of the suspenSIOn as outlIned. ThIS letter IS to advIse you that thIS suspensIOn wIll be served on the first two days of your next scheduled ShIft, Wednesday October 18 and Thursday October 19 1995 You wIll be expected to report for work on the next ShIft of your regular schedule SIncerely Nigel March WhIle Mr Blais was InformIng the gnevor of the dates upon whIch she would serve the suspenSIOn, Mr St. Jean entered the office and asked her whether she wanted to 36 work overtIme She was asked to work overtIme on five occaSIOns dunng the week In whIch her suspenSIOn was served. She concluded that the employer was ImpOSIng the suspenSIOn despIte the notes from her doctor and correspondence from the UnIon, "to make me sIck" ConclusIOns. The JaIl IS charged wIth protectIng the secunty of the publIc by ensunng, among other thIngs, that Inmates are contaIned securely wIthIn the InstItutIOn and controlled securely whIle under escort outsIde the JaIl ThIS reqUIres quasI-mIlItary dIscIplIne and organIZatIOn of the CO staff, In the sense that there IS a stnct chaIn of command In the workplace quasI-mIlItary tItles (e g. LIeutenant) are used, and CO s are expected to follow and respect the rules and orders and requests of staff who are supenor to them In the chaIn of command, specIfically managers To ensure that the JaIl delIvers thIS servIce to the publIc efficIently and effectIvely mInImUm staffing levels (the numencal complement) are desIgnated for each ShIft (0700 1100 1500 1900 2300) on the Duty Rosters used by the SchedulIng Officers and the ShIft SupervIsors In emergency sItuatIOns and on occaSIOns where specIal actIvItIes are planned or anse unexpectedly (e g hospItal escort) such that more staff than the desIgnated complement are reqUIred to meet the needs on any gIven shIft, the SchedulIng Officers and ShIft SupervIsors have the dIscretIOn to hIre more staff and exceed the desIgnated complement. ThIS IS the envIronment In whIch the gnevor has accepted employment, and ImplIcItly she has agreed to respect the rules and orders of managers The gnevor's statement that she had been hIred as a full-tIme CO to work exclusIvely the male schedule, was contradIcted somewhat by her own eVIdence 1 e that she worked In A area after she became a full-tIme CO The posItIOn for whIch she applIed and was hIred as a full-tIme COIn about 1986 opened up as a result of the constructIOn of the new sectIOn, E area, whIch houses only male Inmates It IS understandable that the gnevor may have receIved the ImpreSSIOn that she was beIng hIred to work only on the male sIde However her eVIdence was that after she was hIred 37 as a full-tIme C 0 she was not posted exclusIvely to E area, but also worked In A area. After 1986 she worked In most parts of the JaIl, In both the male and the female sectIOn There was no corroboratIng eVIdence, and no documentary eVIdence such as the Job postIng, or a posItIOn specIficatIOn to Support her contentIOn that she was hIred to work the male sIde of the JaIl only Hinng female CO s to work one sectIOn of the JaIl only such as A area, would be hIghly restnctIve on the employer's abIlIty to assIgn ItS staff wherever they were needed, and Impair ItS abIlIty to deploy ItS staff In the most efficIent manner possIble, and Impair ItS abIlIty to ensure the safety of the publIc, the Inmates and the staff I conclude that It was very unlIkely that the employer would have done so I therefore conclude that the gnevor was mIstaken as to the terms upon whIch she was hIred, and conclude that, as suggested by the employer she was hIred as a General Duty Officer However on the basIs of the eVIdence that she gave and the manner In whIch she gave It, I also conclude that the gnevor sIncerely and honestly belIeved that she was hIred to work exclusIvely In the male sectIOn of the JaIl I conclude that between 1986 and 1990 some annoyance and complaInt was expressed by female full-tIme CO S, IncludIng the gnevor about re-assIgnments to A area, and that thIS complaInt was reflected In a petItIOn that was one of the subJects of the August 24 1990 E.R.C meetIng. I conclude on the basIs ofMr Pedron's eVIdence and the posItIOn of the unIon reflected In the mInutes of the August 24 1990 E.R.C meetIng (Ex. 100) that the nature of the unIon's concern about the assIgnments of female full- tIme CO s on the male schedule to A area In 1990 was not dIrected agaInst the assIgnments of female full-tIme C 0 s on the male schedule to A area per se Rather the concern was regardIng the frequency of those assIgnments, and the unequal dIstnbutIOn of those assIgnments among the full-tIme female CO s I conclude that In 1990 to mInImIZe the frequency of the assIgnment of full-tIme female CO s on the male schedule to A area, several new female casual C 0 s were hIred. I conclude that when they were hIred, the pnmary purpose was to ensure that there were enough female casuals on staff to cover absent female C 0 s who were scheduled to work A area and who rotated through the ShIftS In A area on the Weekly C 0 Schedules 38 The addItIOnal female casuals were not, however hIred to work exclusIvely In A area. The eVIdence dId not establIsh the frequency at whIch female full-tIme CO s In general had been assIgned from the male sIde to work A area before or after August, 1990 The gnevor acknowledged havIng worked In A area on four occaSIOns between August 24 1990 and March 1 1995 The eVIdence dId not dIsclose whether those four occaSIOns arose sporadIcally over that approxImately five-year penod, or whether they arose In a cluster and whether they arose In early 1995 when Ms Martel was on leave of absence and Ms PyhtIla was on sIck leave (January 2 to May 20 1995) and the gnevor was the only full-tIme female COon the male schedule As the gnevor dId not file a gnevance pertaInIng to re-assIgnment to A area pnor to March 7 1995 I conclude that from 1990 to about March 1 1995 she was assIgned to work A area relatIvely Infrequently I conclude that when the gnevor was assIgned to A area on those four occaSIOns, she dId so under protest, on balance of probabIlItIes due to her mIstaken VIew that she could not or should not be asked to work A area because she had been hIred exclusIvely to work "the male schedule" and because of her further mIstaken VIew that she was entItled to be treated the same as a male full-tIme C Ole assIgned only to posts to whIch a male full-tIme C 0 could be assIgned. A local agreement was In place between UnIon and management that male C 0 s would not be assIgned to work A area. The female Inmates had decency and pnvacy concerns that reqUIred that the area be staffed by female C 0 s The male CO s had concerns that If they staffed A area, they would be subJect to vanous complaInts from theIr spouses, and subJect to complaInts from female Inmates whIch could lead to dIscIplIne heanngs, however unwarranted, whIch they wIshed to aVOId. I find that the decIsIOn to staff A area wIth female C 0 s was reasonable and bona fide In the cIrcumstances, gIven the nature of the employment and the potentIal problems anSIng from male C 0 s staffing A area. I therefore conclude that the gnevor's nght to equal treatment wIth the male full-tIme C 0 s was not Infnnged per se by beIng re-assIgned to A area In these CIrcumstances I also conclude that In 1990 female casual C 0 s wanted to be assIgned to posts other than A area, In order to have as wIde and as vaned an expenence workIng In the JaIl as possIble because that made theIr dutIes more InterestIng and challengIng, and 39 because It would Increase theIr chances of beIng successful In a competItIOn for a full- tIme posItIOn. I conclude that management accepted that as a reasonable request and scheduled them to work In vanous places In the InstItutIOn. ThIS practIce contInued untIl 1995 and beyond. It was not reduced to wntIng. In addItIOn, ensunng that the hours of casual C 0 s were "equalIzed" more or less, over a two week penod, so as to ensure that hours were beIng dIstnbuted wIthout favountIsm, arose as a schedulIng practIce In Mr Pedron's and Mr St. Jean's VIew the equalIzatIOn of hours was one of the pnmary pnncIples In schedulIng the casuals Another pnncIple was to mInImIZe overtIme and not exceed the staff level of the numbered complement for each ShIft, except when "necessary" I conclude that In 1995 Mr St. Jean, Mr Pedron and Mr Parent were of the VIew that polIcIes and practIces concernIng schedulIng were such that It was not JustIfiable or "necessary" to hIre a female casual to cover A area when a female COon "the women's schedule" was absent, If a female full-tIme C 0 scheduled to work the male sIde was present for that shIft. Mr Pedron emphasIzed not exceedIng complement and mInImIZIng overtIme Mr St. Jean cIted "fiscal responsibIlIty" It dId not emerge from the eVIdence that those practIces and polIcIes of schedulIng were ever clanfied to the UnIon or to the gnevor Mr Pedron acknowledged that In 1990 several female casuals had been hIred specIfically to mInImIZe the frequency of female full-tIme CO s on the male schedule beIng assIgned to A area. However Mr Chevner who was the Supenntendent In 1995 untIl August, 1995 was not aware of the hmngs, and theIr purpose I accept Mr Chevner's eVIdence that there were a number of practIces whIch had not been reduced to wntIng, and that he learned of them orally when he became Supenntendent at the Sudbury JaIl His statement was that the gnevor had been placed In A area "when no other female was avaIlable, to aVOId callIng In another casual or overtIme" (emphasIs added) I conclude that between August 24 1990 and March 1 1995 the practIce may have been to Incur the cost of a female casual at regular rates and/or overtIme rate each tIme a regularly scheduled female COon the female schedule was gOIng to be absent, to aVOId havIng the assIgn a full-tIme female C 0 prevIOusly scheduled to work that ShIft on the male schedule to A area. I conclude that by March 1 1995 pnontIes had shIfted, 40 and management was not prepared to Incur the cost of callIng In another casual at regular or overtIme rate, If a full-tIme female C 0 was scheduled to work that shIft. The eVIdence dId not establIsh that the UnIon or the gnevor were Informed by the employer of any ShIft In pnontIes In schedulIng practIces by 1995 It IS therefore not surpnSIng that the gnevor In partIcular was of the firm and SIncere belIef, however mIstaken that belIef was, that In all sItuatIOns In whIch a female CO who had been scheduled on the pnnted weekly C 0 Schedule to work In A area was to be absent, management was oblIged to cover the absence wIth a female casual C 0 The eVIdence establIshed that Ms Martel was on leave of absence from at least March 1 to May 10 1995 and that Ms D PyhtIla had been sIck between January 2 and May 20 1995 Mr Pedron said that the gnevor had been the only female full-tIme CO "on the male schedule" dunng Ms PyhtIla's absence on sIck leave These facts raise the possIbIlIty that dunng Ms PhytIla's and Ms Martel's absences, the gnevor may have been assIgned to A area dIsproportIOnately In relatIOn In relatIOn to other full-tIme female C 0 s scheduled to work on the male sIde at other pen ods of tIme However on the eVIdence presented, no conclusIOn can be drawn. I conclude from Mr Chevner's eVIdence that when the March 7 gnevances arose In 1995 he was not aware of the hIStOry of management havIng hIred more casuals In 1990 to provIde more coverage for A area. I conclude therefore that he was at a dIsadvantage In apprecIatIng the hIStOry upon whIch the gnevor was relYIng In complaInIng that female casuals were beIng scheduled to work ShIftS In the male sectIOn of the JaIl to such an extent that they were not avaIlable for assIgnment to A area when female C 0 s regularly scheduled to A area were absent. As a result, he was unable to provIde hIS management staff, specIfically hIS SchedulIng Officer(s) and ShIft SupervIsors, WIth any dIrectIOn on that Issue before or after the March 1 and May 10 1995 IncIdents The general rule In the unIonIzed workplace regardIng dIssatIsfactIOn wIth workplace assIgnments IS "Work now gneve later" FaIlure to "work now" can result In a JustIfied allegatIOn of InsubordInatIOn and can lead to dIscIplIne There are some exceptIOns to the "Work now gneve later" rule, however One of them IS InabIlIty for 41 health reasons, to work. Health reasons are not restncted to physIcal dIsabIlItIes Rather they extend to emotIOnal states, If they are dIsablIng. Mr Chevner Mr Pedron and Mr Parent each IndIcated that they doubted that the gnevor was III on March 1 and May 10 1995 I conclude from theIr eVIdence that they thought that her reactIOn to beIng assIgned to A area was exceSSIve and SUSpICIOUS, that she was "fakIng" Illness, and had manufactured a reason whIch she would use to excuse herself from havIng refused an assIgnment whIch she dId not want to take There IS no eVIdence that they had any understandIng of or InsIght Into the effect upon the gnevor's emotIOnal state that the assIgnment to A area would have, other than that there would be "a reactIon" I am unable to conclude, on the eVIdence before me that they had any comprehensIOn or awareness of her becomIng so emotIOnally agItated that she became sIck, In the sense of expenenCIng both physIcal and emotIOnal symptoms that Interfered wIth her functIOnIng effectIvely In her dutIes as a CO I accept that from theIr pOInt of VIew they were entItled to ask her to work A area, and were under no oblIgatIOn to call In a casual In the absence of any comprehensIOn of the effect of Intense anxIety on her abIlIty to work, they saw the gnevor receIve theIr assIgnment to A area, saw her questIOn theIr authonty to assIgn her and the reasons for It, saw her become agItated and claim that she was sIck and had to leave, and saw her leave They took the matter at face value, and concluded that she was "fakIng It." I conclude that on March 1 1995 Mr Pedron compounded the gnevor's upset at beIng assIgned to A area by tellIng her that she was so assIgned because she was "the only babe on duty" His chOIce of term to refer to her sex and the sex of the Inmates to whose sectIOns she was assIgned was most unfortunate The term "babe" both InfantIlIzes women (it charactenzes a woman, and all women, as chIld or Infant, a "baby") and denIgrates and demeans them as persons (it charactenzes women as sexual obJects) It tnvIalIzes them. It was a sexIst remark. It IS unquestIOnably InsultIng to women In general, and was InsultIng to the gnevor In partIcular I find, on balance of probabIlItIes, that Mr Pedron used the term to show dIsrespect for both the gnevor and for her concerns regardIng the schedulIng that had been done and that he dId so In annoyance at her havIng questIOned hIS Judgment and authonty to so assIgn her In 42 USIng the term In respondIng to her he acted In an unprofessIOnal manner His unprofessIOnal manner then had the folloWIng unforeseen consequences Once Mr Pedron referred to the gnevor as "the only babe on duty" It appears, on the eVIdence, to have had a very powerful emotIOnal Impact upon the gnevor I accept hIS and Mr Parent's eVIdence that he apologIzed to her for havIng used It. It was proper of hIm to have apologIzed. However the harm was done I accept the gnevor's eVIdence that the statement made her feel "not the same" and "degraded" I find, on balance of probabIlItIes, that hIS remark contnbuted further to her feelIng upset and her feelIng physIcally unwell, and to the urgency of her need to leave the workplace The eVIdence dId not establIsh that the gnevor was sImply takIng advantage ofMr Pedron's unprofessIOnal turn of phrase I am unable, on all the eVIdence, to conclude that the gnevor was feIgnIng Illness on March 1 1995 Although the gnevor' s reactIOn to Mr Pedron's remark may have been unusual, In the sense that It was deeply felt, and had a physIcal and emotIOnal component whIch affected her abIlIty to work, and although that reactIOn may have been partIcular to the gnevor there was no reason, on the eVIdence, to doubt ItS sIncenty The gnevor had a nght to work In an envIronment free of sexIst remarks and that nght was vIOlated. Because the sexIst remark was made by the gnevor's ImmedIate SupervIsor In the presence ofMr Parent, another ShIft SupervIsor It undermIned the gnevor's abIlIty to place trust and confidence In eIther of them ThIS Impact was especIally sIgnIficant, as CO s In the quasI-mIlItary structure of the JaIl are oblIged to rely upon and place confidence In the dIrectIOns of managers, to ensure the secunty of the InstItutIOn as well as the publIc, and the secunty of her fellow officers Her abIlIty to expect support from management In a workplace envIronment In whIch her personal safety and the safety of her fellow officers could be challenged by the Inmates at any tIme was undermIned by Mr Pedron's remark, and by Mr Parent's sIlent presence at the tIme It was made Mr Pedron made the remark In the context of assIgnIng her to a post, whIch assIgnment the gnevor felt was unJustIfiable and dISCnmInatory She mIstakenly saw the assIgnment as dISCnmInatory on the basIs of sex. I conclude that when Mr Pedron said that he was assIgnIng her to A area because she was "the only babe on duty" the gnevor 43 correctly apprecIated the remark as dISCnmInatory on the basIs of sex. I also conclude, on a balance of probabIlItIes, that the gnevor saw the events of March 1 1995 as a repeat of prevIOUS assIgnments of her to A area, to whIch she had prevIOusly obJ ected, and for thIS reason vIewed the events of March 1 1995 as a course of vexatIOus conduct constItutIng harassment on the basIs of sex whIch she belIeved was known to the employer She did not distinguish the assignment to A area from Mr Pedron's remark. I conclude, on the eVIdence, that Mr Pedron's remark, however provocatIve and vexatIOus It was to the gnevor was an Isolated event, and dId not constItute a course of conduct. I conclude, therefore, that It was not harassment In the sense contemplated by the partIes In Art. 27 10 Although It was not harassment, It lJ,as dISCnmInatory on the basIs of sex. I conclude that the gnevor charactenzed the assIgnment to A area on May 10 1995 as harassment because she dId not VIew the assIgnment to A area as JustIfiable, saw It as dISCnmInatory on the basIs of sex, and saw It as contInuIng course of conduct, whIch she assocIated wIth Mr Pedron's earlIer dISCnmInatory remark as well as hIS assIgnment of her to A area, both of whIch she found vexatIOus and provocatIve Mr Pedron compounded the sItuatIOn further by omIttIng any mentIOn of hIS "babe" statement In hIS Occurrence Report. In dOIng so he at least temporanly depnved Mr Chevner and other members of the management team lookIng Into the matter of certaIn relevant InformatIOn whIch supported the gnevor' S concerns that she had been dIscnmInated agaInst on the basIs of sex, and depnved them of the opportUnIty to address those concerns In omIttIng any mentIOn of havIng used the expreSSIOn "the only babe on duty" In speakIng wIth Ms LatImer before she left on March 1 1995 he left hIS supenors wIth the ImpreSSIOn that the only matter to whIch the gnevor had been reactIng was the assIgnment to A area, and wIth the ImpreSSIOn that the gnevor's removal of herself from the workplace was IrresponsIble, unreasonable, self-Indulgent and wIthout any JustIficatIOn whatsoever His report "set her up" for her anger frustratIOn and IntensIty to be mIsunderstood and to be perceIved as IrratIOnal The eVIdence dId not 44 dIsclose that Mr Chevner was at any pOInt Informed about Mr Pedron's statement "you're the only babe on duty" to the gnevor I find, on balance of probabIlItIes, that the gnevor contnbuted to some extent to the mIsunderstandIng, as It appears that she was not wIllIng to provIde a wntten report regardIng the March 1 1995 IncIdent, whIch would have gIven her an opportumty to clanfy to management what had taken place However I find, on balance of probabIlItIes, that she was too upset and anxIOUS to have done so at the tIme one was requested, and It does not appear she was asked agaIn to provIde a wntten report before she receIved the letter of dIscIplIne I find, on balance of probabIlItIes, that because Mr Parent had been present when Mr Pedron assIgned the gnevor to A area and said that he was dOIng so because she was "the only babe on duty" and had remaIned sIlent, the gnevor concluded that Mr Parent had been a party to Mr Pedron's unprofessIOnal remark to her as well as to a conspIracy or a plan on the part of management to assIgn her to A area repeatedly She was thereafter unable to trust Mr Parent any more than she was able to trust Mr Pedron. Mr Pedron's remark had pOIsoned the workplace envIronment for the gnevor and In her eyes, Mr Parent was taInted as untrustworthy by assocIatIOn WIth Mr Pedron. It IS sIgnIficant, however that neIther Mr Pedron nor Mr Parent dIrectly questIOned the gnevor' s claim that she was sIck on eIther occasIOn, and that former Supt. Chevner's letter of dIscIplIne dId not address the Issue dIrectly Art. 52 10 of the collectIve agreement enables the employer through the Deputy MinIster or hIS desIgnee, "where It IS suspected that there may be an abuse of sIck leave" to "reqUIre an employee to submIt a medIcal certIficate for a penod of absence of less than five (5) days" Art. 52 10 gIves the employer a lImIted means ofvenficatIOn of Illness However the authonty IS gIven only to the Deputy MinIster or hIS desIgnee ImmedIate management staff may not be able to make a s 52 10 request qUIckly unless they can obtaIn the desIgnatIOn from the Deputy MinIster promptly Consequently there may be a lapse of tIme before such a request can be made, and the physIcIan so requested to venfy an Illness may not have seen the employee on the InItIal date upon whIch the 45 employer suspects that sIck leave has been abused. NotwIthstandIng thIS lImItatIOn, an employee who claims to be sIck and who management suspects IS abusIng sIck leave, IS entItled to be Informed of that doubt, and asked to provIde venficatIOn, so that s/he may provIde tImely medIcal documentatIOn whIch may remove the SuspICIOn (or confirm the SuspICIOn, for that matter) Because neIther Mr Pedron nor Mr Parent nor Mr Chevner asked the gnevor for venficatIOn of her Illness on March 1 and May 10 1995 In partIcular they depnved her and themselves of an opportUnIty to receIve medIcal venficatIOn (or lack thereof) as to her Illness on those dates ThIS IS partIcularly troublesome, as Mr Chevner's doubt as to her havIng become III on those dates contnbuted to hIS decIsIOn to dIscIplIne her In order for the gnevance allegIng harassment to succeed, the unIon's eVIdence must establIsh on balance of probabIlItIes that a member or members of management staff faIled to schedule or call In a female casual for 1900 to 0700 on March 1 1995 and for 1200 to 1500 on May 10 1995 wIth the pnmary IntentIOn of veXIng, annoYIng or dIsCOmpOsIng the gnevor I conclude, on the basIs ofMr Pedron's and Mr Parent's eVIdence that the gnevor's obJectIOns to beIng re-assIgned to work In A area, and the basIs for them, had become well known to them by March 1 1995 I conclude that SchedulIng Officer Mr St. Jean knew at least a week pnor to March 1 1995 that Ms Frozel was scheduled to be absent from the 1900 to 0700 shIft. His eVIdence as to the practIces In 1995 regardIng replacIng absent women C 0 s who had been scheduled to work A area was that casual C 0 s were to receIve the same hours over a one or two-week penod. There was no eVIdence that equal dIstnbutIOn of hours was an Issue In the schedulIng for the evenIng of March 1 1995 His eVIdence was that there was a polIcy or practIce that casuals should not be called In If to do so would Incur overtIme He acknowledged that no overtIme would have been Incurred If any of the seven female casuals who had been avaIlable that week had been asked to work 1900 to 0700 on March 1 1995 He said that there was dIscretIOn to call In extra staff only when "necessary" I conclude that he could have scheduled a female casual to work from 1900 to 2300 rather than oblIge the ShIft SupervIsor Mr Pedron, to assIgn the gnevor to A 46 area and that he chose not to because the gnevor's obJectIOns dId not fall wIthIn hIS VIew of what was necessary NotwIthstandIng management's concern wIth fiscal responsIbIlIty In schedulIng, the eVIdence was less than clear as to why Mr Pedron decIded not to call In a casual to cover A area for the March 1 1995 nIghtshIft. I accept hIS and Mr St. Jean's eVIdence that D area dId not reqUIre staff that evenIng. I accept Mr Pedron's eVIdence that the complement was 11 that evenIng, rather than 12, and that he had 11 staff untIl the gnevor left. The eVIdence establIshed that ShIft I/Cs had some dIscretIOn to exceed the pnnted complement on the Duty Roster on any gIven shIft If the "needs" of the InstItutIOn "reqUIre" It. I conclude, from hIS eVIdence, that Mr Pedron knew on March 1 1995 that If he assIgned the gnevor to A area he would be provokIng "a reactIOn" though he dId not know and could not antIcIpate ItS IntensIty The eVIdence raises a number of possIbIlItIes -the schedulIng polIcIes and practIces stated by the employer's wItnesses to be the pnmary consIderatIOns were an after-the-fact explanatIOn as to why Mr St. Jean had not scheduled a female casual to work the ShIftS to replace Ms Frozel on March 1 1995 and Ms Martel and Ms Webb on May 10 1995 and as an after-the-fact JustIficatIOn for Mr Pedron and Mr Parent not havIng called In a female casual on March 1 1995 and May 10 1995 -neIther Mr St. Jean nor Mr Pedron were present at the meetIng Mr Parent recalled, In whIch "a decIsIOn was made that we would do anythIng In our power not to put her In that posItIOn." -Mr St. Jean and Mr Pedron were present at the meetIng Mr Parent recalled, but -dId not remember that the decIsIOn was taken, or -dId not belIeve that "anythIng In our power" encompassed InCUrrIng the expense of a further casual at regular rates -Mr Parent dId not belIeve that "anythIng In our power" encompassed InCUrrIng the expense of a further casual at regular rates -the pnncIples were not after-the fact JustIficatIOns, and faced wIth the decIsIOn as to whether or not to Incur the expense of askIng a casual to work In A area, Mr Pedron followed the "fiscal responsIbIlIty" and not hmng over complement pnncIples for schedulIng on March 1 1995 eIther because he was not present at the meetIng Mr Parent recalled, or because he forgot about the 47 deCISIOn at the meetIng or belIeved It dId not encompass hmng over complement, even at regular rates - Mr Pedron was sImply uncomprehendIng of or IndIfferent to the gnevor's eVIdent dIstress on beIng asked to work A area. -Mr Pedron was knew of and was vaguely amused at the prospect of the gnevor's antIcIpated "reactIOn" upon beIng asked to work A area, and took advantage ofMr St. Jean's decIsIOn not to schedule a female casual to work that nIghtshIft, In order to ask the gnevor to work A area, to see how she would react. The latter two possIbIlItIes are the ones whIch bear the closest resemblance to the posItIOn advanced by the UnIon. The latter possIbIlIty In partIcular suggests that pnor to havIng asked the gnevor to work A area on March 1 1995 Mr Pedron harboured a mIschIevous or malIcIOus motIve Merely havIng asked Mr Parent to be present, In antIcIpatIOn of the gnevor posSIbly reactIng wIth some upset to the assIgnment, IS SUSpICIOUS, but InCOnclUSIve AskIng Mr Parent to be present was as consIstent WIth Mr Pedron havIng honestly and sIncerely wanted a wItness to be present In order to corroborate what transpIred If the gnevor made allegatIOns wIth whIch he took Issue, as It was WIth hIS havIng mIschIevously Intended to have an audIence to what he antIcIpated would be annoyance and/or dIstress on the part of the gnevor Further neIther motIve IS mutually exclusIve As It turned out, Mr Parent dId not corroborate Mr Pedron's omISSIOn of hIS sexIst remark from hIS Occurrence Report. Rather Mr Parent corroborated the gnevor's allegatIOn that Mr Pedron made the remark. Mr Parent denIed any knowledge ofMr Pedron havIng Intended to antagonIze the gnevor ThIS type of eVIdence does not support the notIOn of a plan or a set-up Further the eVIdence suggests that Mr Pedron became ImpatIent and antagOnIstIc toward the gnevor and made the sexIst remark only after she questIOned hIS assIgnment of her to A area rather than callIng In a female casual ThIS suggests that he dId not harbour any antagonIsm toward her untIl she challenged hIS decISIOn, whIch he vIewed as provocatIve and somewhat InsubordInate I conclude that by March 1 1995 as compared to August, 1990 efficIency and cost-effectIveness were the paramount pnncIples In schedulIng, that they were followed 48 by Mr St. Jean and Mr Pedron wIth respect to the 1900 to 0700 ShIft on March 1 1995 and that neIther Mr St. Jean or Mr Pedron or Mr Chevner thought that the gnevor's obJectIOns were worthy of consIderatIOn In such CIrcumstances I am unable to conclude, on the eVIdence before me, that eIther Mr St. Jean, Mr Pedron or Mr Chevner were aware of and could have antIcIpated that the gnevor would suffer such Intense anxIety on beIng assIgned to A area on March 1 1995 that she would become III and unable to assume her dutIes I conclude that the evidence of mischievous or malicious motive or bad faith on Mr Pedron's or Mr St. Jean's part amounts only to suspicion and does not discharge the burden of proof incumbent upon the union and the grievor in this case. I conclude that Mr St. Jean was aware at least three weeks before May 10 1995 that Ms Martel, who remaIned scheduled on the female schedule to work ShIft 1 (0700 to 1900) In A area, would be on leave of absence on May 10 1995 and that Ms Webb and the gnevor were scheduled to work the dayshIft. The eVIdence dId not establIsh when Ms Webb began to reqUIre an accommodatIOn of five-hour ShIftS, and dId not establIsh when Mr St. Jean IndIcated on the May 10 1995 Duty Roster (Ex 14b) that Ms Webb would be workIng from 0700 to 1200 GIven that Mr St. Jean was gIVIng eVIdence In the year 2000 as to schedulIng decIsIOns he had made In May 1995 It was not surpnSIng that he could not recall when he learned that Ms Webb would be workIng from 0700 to 1200 rather than a full eIght- or twelve-hour shIft. I conclude, on the eVIdence, that once Ms Webb's shortened ShIft came to Mr St. Jean's attentIOn and he entered It on the May 10 1995 Duty Roster (Ex. 14b) It became apparent to hIm that one full-tIme female CO the gnevor was scheduled to work from 0700 to 1500 and he concluded that she could be assIgned to A area from 1200 to 1500 and that a female casual would be need to be scheduled replace Ms Martel In A area at 1500 hours I conclude that for the same polIcy and practIce reasons as those whIch were applIed on March 1 1995 and because there were a number of addItIOnal casuals hIred to work the mornIng of May 10 1995 to replace full-tIme CO s assIgned to dutIes outsIde the JaIl and to cover Mr Lachance whIle he took the French test, Mr St. Jean decIded not 49 to schedule a female casual C 0 for 1100 to 1500 for May 10 1995 I am unable to conclude, on the eVIdence, that he faIled to schedule a casual C 0 for the 1100 ShIft In order to "set up" the gnevor to work In A area from 1200 to 1500 on May 10 1995 As IndIcated prevIOusly Mr Parent's eVIdence was that he recalled an I/C meetIng at whIch "a decIsIOn was made that we would do anythIng In our power not to put her In that posItIOn" 1 e not to reqUIre the gnevor to work A area. The date of the meetIng he recalled was not establIshed. The meetIngs were attended by ShIft I/Cs and the Supenntendent. It was not clear that the meetIngs were attended by the SchedulIng Officers Mr Chevner's eVIdence was that he dId not remaIn for the entIre meetIng. The eVIdence establIshed that ShIft I/Cs had some dIscretIOn to exceed the pnnted complement on the Duty Roster on any gIven shIft If the "needs" of the InstItutIOn "reqUIre" It. The eVIdence dId not establIsh that "AnythIng In our power" excluded the authonty to hIre a female casual on the Infrequent occaSIOns upon whIch the gnevor was the only female CO scheduled to work a ShIft In whIch there was a vacancy In A. However the eVIdence dId not establIsh what "anythIng In our power" meant to Mr Parent. I conclude, on the eVIdence, and on a balance of probabIlItIes, that fiscal responsIbIlIty prevaIled on May 10 1995 I conclude, from Mr Parent's eVIdence, that when he came In at about 6 50 a.m and saw the Duty Roster for May 10 1995 he realIzed that there was a vacancy In A area from 1200 to 1500 and that antIcIpated that the gnevor would become a "VISIbly upset" If and when he asked her to work A area. I conclude that he wrote "doc" besIde her name In the 0700 column and at an Informal muster assIgned her to doctor's parade I conclude that he dId not advIse her of the vacancy In A area at 12 noon at that tIme, In order to aVOId upsettIng her at the start of the shIft. I conclude that pnor to 0700 hours, eIther at the same tIme that he wrote "doc" besIde the gnevor's name In the 0700 column, or shortly thereafter Mr Parent wrote an A besIde the gnevor' s name In the 1100 column, and that one of her colleagues brought the entry of "A" at 1100 to the gnevor's attentIOn. 50 I conclude that upon beIng advIsed by her colleague of an upcomIng assIgnment to A area, pnor to the start of the shIft, the gnevor Jumped to the conclusIOn that Mr Parent had tncked her regardIng her assIgnments for the rest of the day that he had no authonty to assIgn her to A area, that he was delIberately settIng her up and that he wanted to provoke her She had not forgotten that he had been present on March 1 1995 when Mr Pedron assIgned her to A area, and she mIstakenly contInued to VIew an assIgnment to A area as dISCnmInatory on the basIs of sex. She Incorrectly assumed that all the female casuals who had been scheduled to work at 0700 were eIther also scheduled to work at 1100 or were avaIlable to work at 1100 The eVIdence dId not establIsh the day or tIme at whIch Ms Campbell, a casual whose name appears In the 1100 column, had been asked to work at 1100 on May 10 1995 IfMs Campbell had been scheduled before 0700 hours to work at 1100 Mr Parent would have had the dIscretIOn to have assIgned Ms Campbell to A area at 1200 hours Instead of the gnevor However the eVIdence dId not establIsh that Ms Campbell was scheduled to work at 1100 before the gnevor left work that mornIng. I am unable to conclude, on the eVIdence before me, that eIther Mr St. Jean or Mr Parent planned or contnved to set up the gnevor to work In A area on May 10 1995 I find that before 7 a.m. on May 10 1995 the gnevor Jumped to the conclusIOn that she was beIng harassed by management. On the basIs of the gnevor' s eVIdence as to her VIew of what occurred on May 10 1995 and her assumptIOns as to Mr Parent's motIvatIOns, and of her symptoms on that date, I conclude, on balance of probabIlItIes, that the gnevor became III and not well enough to work on that occaSIOn. I find, on balance of probabIlItIes, that she knew that she was expenencIng physIcal and emotIOnal symptoms whIch would make It unsafe for other staff If she were to assume her dutIes on doctor's parade, and that she should not assume them, and sIgned out, albeIt angnly complaInIng of harassment. The employer's doubts, as IndIcated by Mr Chevner were not unreasonable The gnevor' s symptoms, on the face of It, appeared on March 1 and May 10 1995 only after beIng assIgned to work In A area, a postIng to whIch she had prevIOusly obJected. However on March 1 1995 she was also subJected to a sexIst remark, whIch was not 51 dIsclosed to Mr Chevner and on May 10 1995 the assIgnment was gIven by a ShIft SupervIsor who had been present at the tIme of March 1 1995 assIgnment and remark, and was made notwIthstandIng that two gnevances on the matter were pendIng. These factors were not taken Into consIderatIOn by Mr Chevner In expreSSIng those doubts as to her Illness In the absence of any medIcal eVIdence castIng doubt on the gnevor's abIlIty to work on March 1 1995 and on May 10 1995 and subsequently those doubts remaIn In the nature of personal SuspICIOns Those SuspIcIOns do not form a basIs upon whIch an arbItrator can reJect unchallenged medIcal eVIdence In the form of doctor's notes confirmIng the gnevor' s InabIlIty to work. I accept the gnevor's eVIdence that she became sIck on March 1 1995 and May 10 1995 and the medIcal notes she provIded (Ex. 19 p 139 Ex. 21 P 149 Ex. 23 P 141) as eVIdence that she was III from May 10 1995 and unable to work untIl September 28 1995 Mr Chevner Imposed a two-day suspenSIOn on the gnevor by letter dated May 17 1995 (Ex. 17 pp 47-48) on the grounds that she had faIled to comply wIth an order on two occaSIOns and that thIS constItuted a "senous and an ImmedIate nsk to the busIness of the Sudbury JaIl, JeopardIZIng the safety and secunty of the Inmates and staff of thIS facIlIty" There IS no doubt that the safety and secunty of the Inmates and staff of the JaIl are of paramount concern at all tImes, and that a C 0 who IS III but able to fulfill hIs/her dutIes should comply wIth orders and assume hIs/her post or remaIn there untIl relIeved. The exceptIOn, as stated prevIOusly anses when the C 0 IS too III to do so and, to expand upon that, partIcularly when assumIng theIr assIgned post whIle III could JeopardIze the safety and secunty of the Inmates and staff As the eVIdence of Supt. Chevner and Mr Parent and Mr Pedron was that staffwas avaIlable (albeIt wIth some InconvenIence) to cover Ms LatImer when she left, I conclude that her havIng left the JaIl on March 1 and May 10 1995 dId not In fact JeopardIze the safety and secunty of the Inmates and staff When the gnevor returned to work on October 9 1995 Mr Chevner who had Issued the letter of dIscIplIne dated May 17 1995 (Ex. 17), was no longer Supenntendent of the Sudbury JaIl, havIng left It for MonteIth some tIme In August, 1995 He had been replaced by Mr March, who had been In management In March, 1995 and who had had 52 some Involvement In the InVestIgatIOn of the March 1 1995 IncIdent. There was no eVIdence that Mr March was aware ofMr Pedron's remark to the gnevor on March 1 1995 or that the gnevor' S medIcal notes had come to hIS attentIOn. I conclude, on a balance of probabIlItIes, that Mr March dId not VIew the gnevor's absence on sIck leave as havIng any connectIOn wIth the events of March 1 and May 10 1995 and that accordIngly he dId not re-assess the appropnateness of the dIscIplIne Mr Chevner had Imposed, and that he sImply assIgned dates upon whIch she would serve her suspenSIOn. I gather on the gnevor's uncontradIcted eVIdence that she was asked to work overtIme that week, that the assIgned dates of her suspenSIOn occurred cOIncIdentally In a week In whIch the staffing needs of the JaIl were heavy I apprecIate the gnevor's SuspICIOns, but I am unable to conclude, on the eVIdence, that Mr March enforced the suspenSIOn wIth the IntentIOn of makIng the gnevor sIck, as she alleged. For all the foregoIng reasons, I conclude that 1 The gnevor was not wrongfully dIrected to work In A area on March 1 1995 2 On March 1 1995 the employer through the remark ofMr Pedron "because you're the only babe on duty" dIscnmInated agaInst the gnevor on the basIs of her sex, contrary to Art. A of the collectIve agreement. 3 The remark, made In Mr Parent's presence, humIlIated and demeaned the gnevor and pOIsoned the gnevor's work envIronment, and undermIned her trust and confidence In both Mr Pedron and Mr Parent. 4 Mr Pedron's assIgnment of the gnevor to A area and hIS Isolated remark to her on March 1 1995 dId not constItute a course of conduct or a course of vexatIOus comments and therefore the events of that date dId not constItute harassment and dId not vIOlate Art. 27 10 5 I conclude that Mr Parent's assIgnment of her to A area on May 10 1995 had not been planned, and that the gnevor Jumped to the Incorrect conclusIOn that It had been planned In part because of her pnor expenence of March 1 1995 wIth Mr Pedron, In Mr Parent's presence 53 6 I conclude that on both March 1 1995 and May 10 1995 after beIng assIgned to A area and whIle questIOnIng the assIgnment, the gnevor expenenced a state of Intense anxIety whIch Included physIcal symptoms, and that she was unable to work on those occaSIOns 7 I conclude that the dIscIplIne InItIally determIned on May 17 1995 and scheduled In the notIce ofMr March dated October 1995 (Ex. 27) was not mented, as the gnevor became too III to work on March 1 and May 10 1995 AccordIngly the gnevance dated October 18 1995 succeeds 8 The gnevor IS to be compensated for all lost wages, Interest, benefits and credIts lost as a result of the ImposItIOn of dIscIplIne floWIng from Supt. Chevner's letter dated May 17 1995 and Mr March's letter dated October 1995 54 Segment 2 Events from November 1995 to August, 1996 The partIes agreed that the gnevor had filed a complaInt wIth the WDHP programme earlIer In 1995 It was not In dIspute that In November 1995 the Independent InvestIgatIOn UnIt Report determIned that the gnevor' s complaInt was not substantIated. As the contents of the Report were hearsay and Its author was not called as a wItness, It dId not become an ExhIbIt and Its contents were not consIdered In the heanng of these gnevances EVIdence of the Gnevor re Dec. 22, 1995. The gnevor was scheduled to work the nIght ShIft, from 1900 to 0700 on December 22, 1995 In accordance wIth the practIce not to assIgn staff on the nIghtshIft to partIcular posts on the Duty Roster (Ex 29b) (wIth the exceptIOn of A & D and Control) she had not been assIgned a post. She sIgned In at 1840 sIgned her name and wrote In "0700" In the "tIme out" column to IndIcate when she Intended to leave and went to the I/C's office She Said that she expected to be workIng the ShIft on the male SIde of the JaIl She asked Mr Moxam, the ShIft I/C where she was to be assIgned, and he told her that she was gOIng to A area. She Said "Then of course It'S here we go agaIn, another set-up what's happenIng here" She Said that Mr Moxam Said to her "You're the only female on" and that he dId not explaIn why there was no other female scheduled to work. In cross she Said that Mr Moxam had not mentIOned the length of tIme he was assIgnIng her to A area. The gnevor Said "after I found out thIS lIttle set-up was here In place for me, IJust scratched It all out as off SICk." She Said that she dId not Wait untIl a replacement came to the JaIl She Said that she was "upset. There was no way I could go In to work, the way that I felt at that tIme No" She Said that there had been plenty of tIme for someone else to come In to replace her She wrote "off sIck - Harassment agaIn" under "remarks" on 55 the Attendance RegIster (Ex. 30d) and left the JaIl wIthIn 10 mInutes of her arrIval at 1840 Ms Frozel had ongInally been scheduled to work the female schedule from 0700 to 1900 on December 22, 1995 and Ms Launn had ongInally been scheduled to work the female schedule from 1900 to 0700 accordIng to the C 0 Schedule (Ex. 28b) and the Duty Roster (Ex. 29b) "V AC" appears In pnnt on the lIne on whIch Ms Frozel's name appears on the C 0 Schedule (Ex. 28b) The gnevor said that Ms Frozel had to have gIven at least 30 days' notIce to have taken that vacatIOn tIme and that the employer should have and could have scheduled a female casual to work the nIghtshIft In A area. Ms Frozel's and Ms Launn's names appear In handwntten block pnnt on the Duty Roster Ms Frozel's ongInal ShIft had been changed and she was scheduled to work from 1900 to 0700 on December 22, 1995 accordIng to the Duty Roster (Ex 29b) However her 1900 to 0700 ShIft on the Duty Roster was hIghlIghted In green, and she was IndIcated as beIng on vacatIOn that day The gnevor noted that many female casuals had been scheduled to work dunng the day on Dec 22, 1995 but that none had been scheduled to work the 1900 to 0700 shIft. In cross she dId not dIrectly acknowledge that she was the only woman scheduled to work at 1900 but pOInted out that all the casuals (SIX) who had been scheduled to work at 1900 had been men. She acknowledged that she dId not know who was "settIng her up" and said that there was a problem In the schedulIng and said "I'm the only one management sends down to A area." The gnevor said In chIef that on December 28 1995 she provIded the employer a note from her doctor dated Dec 28 1995 (Ex. 31 P 142) whIch stated 28 Dec 95 Mrs Noe1la LatImer has been offwork SInce 22 Dec 95 because of severe anxIety She IS ImproVIng and may return to work on 1 Jan 1996 M.O Yankowsky She said that she had been off work SInce December 22, 1995 and receIved the above note from Dr Yankowsky when she saw hIm. In cross-eXamInatIOn, she agreed 56 that she returned to work on January 1 1996 She said that on January 3 1996 she receIved the folloWIng letter from Mr March (Ex. 32) On Fnday December 22, 1995 whIle on the nIght ShIft you were advIsed that you would be reqUIred to work for a penod of four (4) hours In "A" UnIt of the J all whIch Includes the female sectIOn. The OperatIOnal manager explaIned that there were no other female correctIOnal officers on duty who could fulfill the functIOn and that you would have to work the area as requested. Upon reCeIVIng the forgoIng (SIC) InformatIOn you left the InstItutIOn due to sIckness Although you submItted a doctor's note dated December 28 1995 to cover thIS partIcular IncIdent, you have, on prevIOUS occaSIOns left your post claimIng sIckness when asked to perform correctIOnal officer dutIes In the female area. These IncIdences have reached a pOInt where some actIOn IS reqUIred, therefore In accordance wIth ArtIcle 52 9 of the CollectIve Agreement, you are reqUIred to submIt to a medIcal eXamInatIOn at the expense of the employer Such medIcal eXamInatIOn wIll be conducted by a mutually acceptable physIcIan to determIne your abIlIty to fulfill all of your dutIes and to obtaIn a prognosIs regardIng your abIlIty to perform all correctIOnal officer responsIbIlItIes at the Sudbury JaIl for the future Please submIt a lIst of three (3) physIcIans whom you would agree to be examIned by I wIll choose one of the three and arrange an appoIntment on your behalf To expedIte thIS process, please sIgn the enclosed "MedIcal Release Form" and return It along wIth the names of three (3) local physIcIans, no later than January 18 1996 Once I have receIved the results of thIS mandatory medIcal eXamInatIOn I wIll hold a meetIng wIth you to reVIew the IncIdent of December 22, 1995 to determIne If further actIOn IS reqUIred. The gnevor said that she selected three doctors from the telephone book and wrote a letter to Mr March provIdIng them and "put It In the slot for I/C mall" and that she heard nothIng further regardIng the three names she had provIded for the medIcal eXamInatIOn. She said that a stnke occurred thereafter and that she had not been made aware that management had not receIved her letter The gnevor took Issue WIth the charactenzatIOn of havIng left her post, and wIth other phrases In the above letter On January 17 1996 the gnevor receIved a wntten repnmand from Mr March, (Ex. 33 p 54) whIch stated Further to my meetIng wIth you on January 10 1996 In the presence of Mr Art McComb Deputy Supenntendent and your UnIon representatIves 57 Mr Peter Slee and Mr Larry McGregor the folloWIng are the findIngs concernIng the allegatIOn that you faIled to follow the order of the operatIOnal manager that you report to the female ("A) area of the InstItutIOn. After consIdenng the InfOrmatIOn obtaIned at our meetIng and reVIeWIng the reports of the InItIal meetIng, and the fact that you freely admItted that you dId not comply wIth the order to report to "A" area. Under the authonty delegated to me by the Deputy MinIster In accordance wIth SectIOn 22 of the PublIc ServIce Act, this letter is to serve as a Formal Letter of Reprimaml Further you should be aware that any Instances of a sImIlar nature that you Incur In the future, may be subJect to further dIscIplInary actIOn. Yours truly Nigel March Supenntendent EVIdence of Kent Moxam. Mr Moxam gave hIS eVIdence on March 15 and 16 2000 He had been a C 0 wIth the MinIstry SInce 1988 He started takIng on the dutIes of ActIng ShIft SupervIsor In about June of 1995 and was the ActIng ShIft SupervIsor on December 22, 1995 Mr Moxam said, wIth reference to the CO Schedule for Dec 18 to 24 1995 (Ex. 28b) that the SchedulIng Officer who he later IdentIfied as Mr St. Jean, had scheduled Ms Frozel on vacatIOn that week. He said that he started work on Dec 22, 1995 at about 630 p.m He said that the Roster IndIcated to hIm that at the start of the ShIft, he had thIrteen staff scheduled to work IncludIng the gnevor whIch was one person In excess of the pnnted complement of twelve for 1900 hours, because one Officer was reqUIred for constant watch, a specIal duty whIch was not a post per se Mr Moxam said that he assIgned the gnevor to A area because "She was the only female staff on shIft. It's the polIcy Female staff work the female sectIOn." He said that he assIgned her to that area pnor to 1900 when staff were reportIng for the shIft. He said that the gnevor came on duty and entered the office, that he assIgned her to A and that she asked hIm "why?" He said that he IndIcated to her that she was the only female on 58 ShIft, that the gnevor said that she was gOIng to go home sIck and that she said "Book me off sIck" and "ThIS IS bullshIt." He said he belIeved that Mr St. George asked her If she could stay untIl they found a replacement, and that she said that she was gOIng home sIck then and left the I/e's office He called the Control Officer who confirmed to hIm that she had left, thereby confirmIng to hIm that he was then reqUIred to find a replacement officer Mr Moxam said that he hIred Ms Nadon, a casual, to replace the gnevor from 1900 to 0700 to enable hIm to retaIn a staff level of thIrteen. He said that he belIeved that he hIred Ms Nadon because she lIved close to the JaIl and regularly worked on short notIce He said that he wrote Ms Nadon's name In the casuals sectIOn of the 1900 column of the Duty Roster (Ex. 29b) and that he wrote "0 T " for overtIme besIde Ms Nadon's name He acknowledged that he was not certaIn that she had In fact been paid overtIme for that shIft. Mr Moxam said that he had seen the words "off sIck Harassment agaIn" In the remarks column of the copy of the Attendance RegIster (Ex. 30a), on the gnevor's lIne, on Dec 22, 1995 He said that he had not seen the words "abandon post" at that tIme The words "abandon post" appear on the gnevor's lIne on another copy of the Attendance RegIster (Ex. 30b) whIch was provIded when Mr Moxam gave hIS eVIdence Mr Moxam said that that was the first tIme he had seen the words "abandon post" entered on the gnevor's lIne of the RegIster and that he dId not know who had wntten them He subsequently said that he had seen the ongInal RegIster the Thursday before he gave hIS eVIdence, when he was reVIeWIng hIS Occurrence Report, and that at that tIme he saw the words "abandon post" on the RegIster Mr Moxam said that he prepared hIS Occurrence Report (Ex. 104 P 51) at 23 45 on Dec 22, 1995 to explaIn what occurred when assIgnIng posts that evenIng, and the reason for hmng Ms Nadon on overtIme and the IndIcatIOn of harassment on the attendance record. His report, whIch IdentIfied ItS subJect as "C/O LatImer gOIng home sIck due to alleged harrassment (SIC)" was addressed to Mr March. It stated SIr On Fnday Dec 22 1995 I was workIng the 1900 to 0700 hour ShIft as actIng OM16 at the Sudbury DIstnct JaIl 59 About 1845 hours whIle assIgnIng posts to the oncomIng staff I told C/O Noela (SIC) LatImer that she would be workIng "A" area. C/O LatImer then asked why she was workIng "A" area. I then told C/O LatImer that she was the only female on shIft. C/O LatImer then stated "thIS IS bullshIt I'm gOIng home sIck! ActIng I/C St. George then asked C/O LatImer to stay untIl we got another staff member In. C/O LatImer stated "I'm gOIng home sIck now!" C/O LatImer then sIgned out, (off-sIck harassment (SIC) agaIn) see attached copy of sIgn In sheet, then left the bUIldIng. I then called In C/O LIse Nadon to fill a 12 hour ShIft created by the above IncIdent. Mr Moxam confirmed that C 0 s are normally reqUIred to gIve 30 days advance notIce of IntentIOn to take vacatIOn and stat tIme He acknowledged that December IS a month whIch IS partIcularly dIfficult to obtaIn vacatIOn tIme In. He was unable to confirm In chIef that the December schedule had been done a year In advance In cross, he said that the C 0 s' 1995 VacatIOn Schedule was posted In the lunchroom, "any tIme before the New Year" "In the fall' and "shortly before 1995" He said that the Officers wIth the most senIonty get first chOIce as to theIr vacatIOn tImes, and the rest of them are permItted to select theIr tImes In accordance wIth descendIng senIonty He also said that only four Officers could be on vacatIOn In the same week, and that they must select theIr vacatIOn tImes accordIngly In re-eXamInatIOn, he said that he had observed exceptIOns to the normal reqUIrement that staff schedule vacatIOns thIrty days In advance Mr Moxam IdentIfied the Casual Attendance RegIster for Dec 22, 1995 (Ex. 30c) Mr Moxam said that Mr Lachance had been ongInally scheduled to work at 1900 but that hIS name had been hIghlIghted and "vac" had been wntten besIde hIS pnnted name He said that he belIeved Mr St. Jean had handwntten Mr Lachance's name In the casuals sectIOn of the 1900 column on the Dec 22, 1995 Duty Roster (Ex. 29b) and that Mr Lachance had been re-scheduled to work at 1900 despIte havIng earlIer been recorded as on vacatIOn. He said that Mr Lachance had not been called In on a last-mInute basIs, and that he was paid overtIme He later said "The SchedulIng Officer apparently scheduled Lachance for 1900 on the 22nd" and said that he belIeved that In hmng Mr Lachance for 1900 on December 22, 1995 Mr St. Jean used the 60 overtIme system, 1 e If no casual Officers who could work at theIr regular rate were avaIlable for the reqUIred shIft, or If all the avaIlable casual Officers had worked 40 hours that week, he was oblIged to call full-tIme C 0 s and offer them avaIlable hours at overtIme rate, before offenng the hours to casual Officers, He said that he belIeved that It had not been possIble to call In a female casual for the 1900 slot, because all the casuals had worked 40 hours that week. He acknowledged that nothIng had prevented hIm from assIgnIng Ms LatImer to constant watch duty (to whIch he had assIgned Mr Lachance), except that he had needed a female Officer In A area. The folloWIng day March 16 2000 Mr Moxam was gIven the Casual Hours Sheet for the week ofDec 18 to 14 1995 (Ex. 105) He agreed that at the begInnIng of the week, the total number of hours each casual IS scheduled for that week IS entered In the total column, and that If an employee's hours are changed dunng the week, the dally hours and subtotals wIll be erased and changed dunng the week, as wIll the employee's weekly total hours He agreed that accordIng to the Casual Hours Sheet, Ms Nadon had worked up to 32 hours by Thursday Dec 21 1995 and possIbly had worked only 28 hours by then He agreed that If ongInally Ms Nadon's total weekly hours had been 24 then that would IndIcate that she had been pre-scheduled to work 24 hours that week. In re-eXamInatIOn, Mr Moxam said that he was not sure, but that he may have wntten "+ 12 OT" on Dec 23 1995 on the Casual Hours Sheet (Ex. 105) on the lIne for Ms Nadon. He agreed that when he had answered questIOns regardIng Ms Nadon's hours In cross, he had been "makIng assumptIOns based on someone else's wntIng." Asked "If Nadon was pre-scheduled to work 12 hours on Monday Dec 18 and If she was pre-scheduled to work 12 hours on Wed. Dec 20 and If she was pre-scheduled to work 4 hours on Thurs Dec 31 and then pre-scheduled to work 12 hours on Sunday Dec 24 what would her total prescheduled hours for that week have been?" he replIed "Forty" Asked "And If, so when you ask Ms Nadon to work, on Dec 22/95 from 1900 to 2300 and If those assumptIOns are true, would her 1900 - 2300-would that ShIft have attracted regular or overtIme pay?" he replIed "OvertIme" Asked "Why?" he said "Her hours were already at 40 for that week." 61 Mr Moxam agreed that on Dec 22, 1995 Ms Launn, who had ongInally been scheduled to work from 1900 to 0700 on the female schedule, and whose ShIft had been changed to 0700 to 1900 had been a full-tIme CO He said that Ms Launn had been In Control area from 0700 to 1500 and In A area from 1500 to 1900 He said that Ms Syms, who was scheduled to work at 0700 had also been a full-tIme CO He agreed that dunng the dayshIft, Ms Solomon, a casual, had been called In to cover A area from 0700 to 1500 and that Ms Campbell, another casual, had also been called In to work from 0700 to 1500 Mr Moxam agreed that In replacIng Ms LatImer and to aVOId InCUrrIng overtIme costs, he could have asked Ms Nadon to work from 1900 to 2300 and could have asked another casual who had not worked 40 hours to work from 2300 to 0700 He said that he "assIgned a 12-hour ShIft Just before 1900" and said, "I had an emergent sItuatIOn." He said that he dId not know whether Ms Frozel had had to book her vacatIOn (Dec 18 19 22,23 and 24 1995) In advance He agreed that It appeared, from the Dec 22, 1995 Duty Roster (Ex. 29b) that Ms Frozel and Ms Launn had done a ShIft exchange He said that he dId not know when the exchange had occurred. Mr Moxam said that he belIeved that he was aware that earlIer In 1995 the gnevor had on a couple of occaSIOns been asked to work A area and had gone home SICk. He said that he had no recall of any dIscussIOn wIth management of the gnevor or of her assIgnment to A. He said that he attended part of the monthly I/C meetIngs, and that ActIng I/Cs were excluded from the part of the meetIngs that dId not pertaIn to general operatIOns He said that he could not recall whether the gnevor had been dIscussed at all, and whether the assIgnment of staff to A area had been dIscussed. He said hIS InstructIOns In any other context regardIng staffing A area were that only female CO s were to work there Asked whether he understood that only the females whose names appeared on the female schedule were to work A area, he replIed "I was told the general Duty Roster was In general to be followed, but It wasn't carved In stone" He InItIally dId not respond dIrectly when asked whether he had been gIven InstructIOns to prefer to use female casuals to cover A area, as opposed to female full-tIme C 0 s on the male schedule He said "LIke I said, dependIng on the reqUIrements of the day we try to 62 schedule officers In theIr area as best we can." He later denIed havIng had any InstructIOns to use female casuals to staff A area as a preference rather than full-tIme female CO s on the male schedule, If A area was vacant. Mr Moxam said that "assumIng a post" Involved the CO gOIng to the post to whIch s/he had been assIgned and relIevIng the officer then at the post. An exchange of keys takes place, and both C 0 s sIgn a "ShIft Changeover CertIficate" The outgOIng officer sIgns out on a log at the post, and the IncomIng officer sIgns In on the log. He agreed that on Dec 22, 1995 the gnevor had not arrIved at the post and had not sIgned the CertIficate EVIdence ofMr. St. Jean re December 22, 1995. Mr St. Jean Said that he had produced the CO Schedule for Dec 18 to 24 1995 (Ex. 28b) and that he had marked "V" besIde Ms Frozel's ShIftS for that week. He agreed that the Schedule had been posted at least one month pnor to the week ofDec 18 1995 He Said that he dId not know when Ms Launn's shIft had been changed from 1900 to 0700 (ShIft 3), to 0700 to 1900 (ShIft 1) He Said that Said that he had hIghlIghted Ms Frozel's name on the Dec 22, 1995 Duty Roster (Ex. 29b) and had wntten "vac" besIde her name He Said that he hIred the casuals, WillIams, Carbone and Leopold, for 1900 on Fnday Dec 22, 1995 "probably" the week pnor and Said "the Wednesday of the week before" He Said that he hIred Mr Lachance for constant watch that evenIng "on short notIce" InItIally he Said that there was no constant watch assIgned pnor to 1900 He then noted that Ms Campbell, a casual had been assIgned to constant watch at 0700 as had Coffyn, another casual, at 1100 and WhIte, another casual, at 1500 He then Said that he was not sure when Lachance had been hIred, but that It would have been on short notIce because overtIme IS not scheduled a long tIme In advance, and Mr Lachance's name IS marked "OT" He confirmed that Mr Lachance was a full-tIme classIfied CO and that overtIme IS offered to full-tIme C 0 s when no casuals are avaIlable In cross, he agreed that he mIght have to Incur 63 overtIme In replacIng a casual or full-tIme CO who was sIck, and that that would be an appropnate use of overtIme Mr St. Jean worked from 8 a.m. to 4 p m on Dec 22, 1995 He said that he dId not know who had wntten "abandon post" on the Dec 22, 1995 Attendance RegIster (Ex. 30d) Mr St. Jean said that he had handwntten Ms Launn's name In the 0700 1100 and 1500 columns and had handwntten Ms Frozel's name In the 1900 and 2300 columns of the Dec 22 1995 Duty Roster (Ex. 29b) He said that he thought that there had been a mutual exchange because Mr Frozel's name appears In pnnt In the 0700 1100 and 1500 columns, and Ms Launn's name appears In pnnt In the 1900 and 2300 columns under the whIte-out on the lIne for A area on the Duty Roster In cross, he said that because "V AC" was pnnted In the remarks column on Ms Frozel's lIne on the CO Schedule (Ex. 28b) her vacatIOn "probably would have been scheduled well In advance" He said that he had changed Ms Launn's ShIft 3 to whIch she had ongInally been assIgned for Dec 22, 23 and 24 1995 to ShIft 1 "possIbly the week before" He agreed that havIng done so left 3 ShIft open on the female schedule Asked what steps he had taken to cover ShIft 3 wIth a female, he replIed "I put In MOrrIson, startIng at 2300" Asked, SInce Launn had been changed from ShIft 3 to ShIft 1 whIch CO would cover A area for ShIft 3 he replIed "LatImer" He said that Nadon was the female casual In the 1900 column of the Dec 22, 1995 Duty Roster He said that had wntten the names WillIams, Carbone Leopold and Lachance In the 1900 column. Mr St. Jean agreed that the Casual Hours lIst for Dec 18 to 24 1995 (Ex. 105) changed all the tIme, contaIned lots of correctIOns, and that he dId not know when the casuals had been scheduled and the reason they had been scheduled. He agreed that It would have been possIble to have had one or two female casuals scheduled to work at 1900 on Dec 22, 1995 Instead of male casuals He said that he dId not recall whether In schedulIng the casual staff for Dec 22, 1995 he had gIven any consIderatIOn to tryIng to prevent USIng Ms LatImer to cover A area. EVIdence of the Gnevor re 1996. 64 The Gnevor said that In 1996 there had been no IncIdents concernIng A area. She said that an IncIdent occurred In 1996 whIch was "confusIng" and whIch she "felt was part of a harassment ploy by Mr Pedron." She said that she had been workIng In E area, and "the officer had done hIS clock rounds" She said she left the area to use the washroom upstairs, because E area had been flooded for some tIme Another officer In the area heard a sound from an Inmate In a cell and made a radIO call requestIng someone to bnng a key to the cOrrIdor She had been out of the area for about four to five mInutes, and was one of the first officers to respond. An Inmate had had dIfficulty breathIng and was removed to a medIcal segregatIOn cell She accompanIed the Inmate to hospItal In an ambulance Mr Pedron requested her to provIde an Occurrence Report as to why she had not been In that area "for those four mInutes" and said that an officer should be In that area at all tImes She asked Mr Pedron why there was a concern regardIng the area beIng wIthout an officer for four mInutes, when the area had been wIthout an officer for the last half hour whIle she had escorted the Inmate In the ambulance She said that Mr Pedron had been upset and had counselled her on how to make proper reports because she was puttIng an OpInIOn In the Report, and that she had told hIm that It was not an OpInIOn, and that she was askIng a questIOn because she couldn't understand the concept of beIng wOrrIed for four mInutes as compared to half an hour Later Mr Pedron told her that her Report had not been used. She acknowledged that she had made a Workplace DISCnmInatIOn and Harassment PreventIOn (WDHP) complaInt agaInst Mr Pedron. The gnevor advIsed In cross that the Report to whIch she had referred had been dated August 25 1996 She said that she consIdered the request for a Report as to what she had been dOIng dunng the four mInutes In whIch she had been away from the area harassment. She said "[management] had left the area open for a half hour when I went to the hospItal" She said no one else had been asked for a report "when they took me out for half an hour " ConclusIons. Re Dec. 22, 1995. 65 The gnevor returned to work at about the begInnIng of October 1995 folloWIng an absence of about 5 months after the May 10 1995 assIgnment to A area. In November 1995 the Independent InvestIgatIOn UnIt Report determIned that the gnevor's WDHP complaInt was not substantIated. Her May 7 1995 gnevances allegIng sexual harassment and that she had been wrongfully assIgned to A area had not yet been heard and determIned by arbItratIOn. The fact of the pendIng gnevance(s) and her five month absence OWIng to anxIety after May 10 1995 was known or ought to have been known by Mr March, as he was a member of management In March, 1995 and had become Supenntendent of the JaIl In about August, 1995 Mr March's VIew of the ments of the outstandIng gnevances, partIcularly In VIew of the determInatIOn of the Independent InvestIgatIOn UnIt Report, remaInS a matter of speculatIOn. There was no eVIdence that eIther Mr St. Jean or Mr Moxam had any knowledge of the reason for her lengthy absence There was no eVIdence that Supt. March had gIven any dIrectIOn to the SchedulIng Officer Mr St. Jean, or to ActIng ShIft SupervIsor Mr Moxam to make any specIal effort to ensure that If there was a vacancy In A area on ShIftS the gnevor was scheduled to work, a female casual C 0 was also scheduled, who should then be assIgned to A area. Mr St. Jean acknowledged that he had known that Ms Frozel would not be workIng the 1900 to 0700 ShIft on Dec 22, 1995 well In advance of that date, as she had booked her vacatIOn some tIme In advance and he had entered It on the pnnted C 0 Schedule (Ex. 28b) He also acknowledged that he had known at least one week before Dec 22, 1995 when he changed Ms Launn's ShIft 3 to ShIft 1 that there would be a vacancy In A area at 1900 on Dec 22, 1995 He acknowledged In eVIdence that he could have scheduled a female casual or casuals to work the 1900 ShIft, to aVOId the gnevor havIng been the only female CO workIng that shIft. I conclude that Mr St. Jean dId not put hIS mInd to aVOIdIng those cIrcumstances, although he could have Mr Moxam had been an ActIng ShIft SupervIsor sInce June, 1995 The gnevor had been absent on sIck leave pnor to Mr Moxam havIng become an ActIng ShIft SupervIsor untIl October 9 1995 The eVIdence suggests, and I find, that Mr Moxam assIgned her to A area because no female casual had been scheduled to work the 1900 66 ShIft, and because he thought that he was oblIged to assIgn the staff that had been scheduled to work the shIft solely In accordance wIth the pnncIple of "fiscal responsIbIlIty" 1 e to assIgn the one female C 0 (the gnevor) who had been scheduled to work the 1900 ShIft, to cover A area. I conclude that he had receIved no other InstructIOn or dIrectIOn from the Supenntendent, Mr March, wIth regard to the gnevor and the staffing of A area. I conclude, on the eVIdence, that Mr Moxam was surpnsed and taken aback when the gnevor reacted to hIS assIgnment by descnbIng eIther the schedulIng or the assIgnment (she was not specIfic) as "bullshIt" and statIng that she was gOIng home sIck, declInIng to Wait untIl he found a replacement, and wntIng "off sIck Harassment agaIn" In the Attendance RegIster I conclude that he not unreasonably felt oblIged to defend hImself from the gnevor's accusatIOn of harassment, wntten on the Attendance RegIster ImplIcItly agaInst hIm, and that for that reason he submItted an Occurrence Report. I also conclude, on balance of probabIlItIes, that the gnevor was too upset, both physIcally and emotIOnally to remaIn at work on Dec 22, 1995 after she was asked to work A area, and I conclude, on Mr Moxam's eVIdence that she dId not arrIve at A area, that she dId not abandon her post. On the eVIdence before me concernIng Dec 22, 1995 I am unable to conclude that any manager delIberately set about to ensure that the gnevor was the only female C 0 workIng that shIft. The eVIdence demonstrates that a cOmbInatIOn of factors, IncludIng Ms Frozel's vacatIOn, followed by Mr St. Jean's decIsIOn to change Ms Launn from ShIft 3 to ShIft 1 and Mr March's and Mr St. Jean's faIlure to keep In mInd the gnevor's pendIng gnevance left Mr Moxam In the posItIOn of feelIng oblIged to assIgn the gnevor to work A area. Mr Moxam was, cOIncIdentally a relatIvely Inexpenenced ActIng ShIft SupervIsor who wanted to ensure coverage of all areas of the InstItutIOn on hIS shIfts, and was probably eIther afraid to nsk hmng a female casual as hIS staff level already exceeded complement, or unaware that he could have JustIfied havIng done so In the absence of clear IndIcatIOn as to Ms Nadon's ongInal hours the week of Dec 18 to 24 1995 and In VIew of the dIscrepancy In the subtotal of her hours up to 67 Dec 21 1995 (she IS entered as havIng worked 12 hours on Dec 18 12 hours on Dec 20 and 4 hours on Dec 21 a subtotal of 28 hours, however the subtotal entered on Dec 21IS 32), It IS not possIble, on the eVIdence provIded, to conclude wIth any certaInty that the employer Incurred overtIme expense In hmng Ms Nadon to work 12 hours on Dec 22, 1995 I apprecIate that the gnevor may have seen the events ofDec 22, 1995 as a contInUatIOn of a course of conduct known to be unwelcome to her However the ultImate decISIOn to ask her to work A area was Mr Moxam's He had had no prevIOUS expenence wIth her and the Issue of A area, other than that he had heard that she had been asked to work A area and had gone home SICk. He had receIved no InstructIOn on the subJect. There IS no eVIdence to suggest that he knew that she would VIew hIS assIgnment of her to A area as wrongful, or harassment. I am unable to draw an Inference on the eVIdence before me that Mr St. Jean faIled to schedule a female casual to work the 1900 ShIft on Dec 22, 1995 because he wIshed to provoke or harass the gnevor or denve some amusement from her reactIOn, or for any other bad faith motIve I am unable to draw an Inference on the eVIdence before me, that Mr Moxam faIled to call In a female casual before the gnevor left because he wIshed to provoke or harass her or denve amusement from her reactIOn, or for any other bad faith motIve I therefore conclude that the assIgnment to A area on Dec 22, 1995 was unfortunate and troublIng for the gnevor but that It was neIther dISCnmInatory on the basIs of sex, nor harassment. Re August, 1996. Some tIme In August, 1996 Mr Pedron asked the gnevor to wnte an Occurrence Report IndIcatIng the reason she had been absent from E area for four or five mInutes I conclude, on the facts provIded, and on a balance of probabIlItIes, that Mr Pedron belIeved that It would be prudent to have a wntten record as to why there was a tIme 68 lapse, however bnef, between the tIme the other officer Issued a radIO request for a key to the area, and the tIme the Inmate was removed to a medIcal segregatIOn cell and then to hospItal It was Mr Pedron's decIsIOn to make and It was the gnevor's responsIbIlIty to comply wIth hIS request. It IS doubtful that her dIrect questIOnIng of her ImmedIate manager's Judgment and decIsIOn to request the Report of her and pOIntIng out to hIm that the area had been unstaffed for half an hour was, In all the cIrcumstances, constructIve I conclude, on the eVIdence before me, that the request for an Occurrence Report In these CIrcumstances was reasonable, and that It was not "part of a harassment ploy" on Mr Pedron's part. 69 Segment 3 Events from January 15 to February 6 1997 EVIdence of Gnevor re Jan. 20, Jan. 28 and Feb. 6, 1997 gnevances. The gnevor's eVIdence regardIng these matters was gIven on September 30 and March 5 1998 The gnevor Said that she was "ordered to A area" on Jan. 15 1997 She Said, wIth reference to the Jan. 13 - 19 1997 CO Schedule (Ex. 34 p 19) and the Jan. 15 1997 Duty Roster (Ex. 35) that she "had a mutual exchange" wIth Mr Juhas to work hIS #1 ShIft (0700 to 1900) In exchange for her #3 ShIft (1900 to 0700) and that Mr Juhas had been scheduled to work Post H for the #1 ShIft. She later Said that she made out a wntten request for a mutual exchange and gave It to the SchedulIng Officer and that It had been approved. She was unable to remember when she had made the wntten request. She Said that Ms Date and Ms Campbell, casual C 0 s, had been scheduled to work. TheIr names appear In the casual sectIOn of the Duty Roster In the 0700 to 1100 column. Ms Campbell had been assIgned to showers and yard duty and an A appears next to Ms Date's name The gnevor Said that she started her ShIft that day at 7 a.m In H area, and that at about 1030 a.m. ShIft I/C Mr George St. George approached her and Said that he would lIke her to go up to hIS office so that he could speak wIth her In pnvate She Said that she told hIm that he would have to get her a relIef, as she was unable to leave her post. She Said that she ImmedIately became "really concerned here" because of hIS wIsh to pull her aSIde, and feared somethIng had happened at home or another emergency and ImmedIately became very nervous and asked hIm what It concerned. He told her that she was not gOIng to lIke It, and that she had better hear It pnvately The gnevor Said "And then It dawned on me and I Said IS thIS another set-up for A area? George, I don't know why you're dOIng thIS" She Said that Mr St. George had not responded to her She Said "IJust went on, 'cause I was upset. I Said, you know thIS 70 IS gOIng through to arbItratIOn and he said they told me you're to go to A area. I said you have others on In order to send them there There [were] other females In the bUIldIng." She said "Ms Frozel was workIng A & D and Ms Date and Ms Campbell were workIng from 0700 to 1100 and Mrs Legacy was In E area at 0700 Ms Frozel and Mrs Legacy had been hIred specIfically for A area. Four male casuals, BaldellI, BIgnucolo Carbone and Caverson had been scheduled to work at 1100 hours" The gnevor said that she dId not get to Mr St. George's office and agreed that Mr St. George confirmed that her guess was correct. She said that she was "really upset" and said to Mr St. George "I can't work anywhere nght now I'm too upset. I've got to go home" She said that In response, Mr St. George put hIS hand on her left elbow a gesture of reassurance, and said "Oh, by the way They told me to tell you to get a doctor's note before you come back." She said that he dId not IdentIfy "they" She said "and agaIn, beIng upset, I have a mutual exchange wIth Mr Juhas scheduled and posted. I started my shIft. IfMr Juhas had been workIng that day there IS no way they would've sent hIm to A area, because It'S not theIr practIce to send men to A area." She said "I'd Intended to work my whole ShIft wIthout beIng harassed." In cross-eXamInatIOn, the gnevor said that Mr St. George had not asked her to take dutIes In A area. She said that he had asked her to go upstairs to the I/C office that he wanted to speak wIth her and that she was busy as a bottom floor runner and told hIm that she could not leave, that she would need a relIef, and that she asked hIm "why?" She said that Mr St. George said agaIn that he wanted her to go upstairs to the I/C office and that he wanted to talk to her pnvately She said "I had a feelIng, and I asked hIm 'IS thIS a set-up am I to go to A area?' " When It was suggested to her "In any case, at the end of the day he asked you to go to A area." she replIed "No He told me you're gOIng to A area. And agaIn I was upset. You have all these female casuals on and he can blatantly take me out of a post I'm workIng on Instead of replacIng me wIth female casuals" She said, regardIng Mr St. George havIng gone out of hIS way to assIgn her to A area, "He said that he was told that I was to go to A and that he was to ask me for a doctor's note If I was gOIng to go off SICk. It looked orchestrated to me" She agreed that she was saYIng that Mr St. George had been actIng on InstructIOns She also said "He dIdn't ask me for a doctor's note He said 'oh, by the way you have to bnng a doctor's 71 note' I'm Just saYIng treat me fair Treat me lIke the rest of the staff" She said that It was known to management that If they asked her to work In A area, that she would become upset, and that management knew full well that she would have to sIgn out of work SICk. In cross, she agreed that Ms Frozel had been workIng In A & D at 11 a.m She suggested that Ms Legacy could have been asked to work In A area. She said that she dId not recall havIng said to Mr St. George that she would probably be off sIck for the rest of the year She said "I can see myself beIng upset and saYIng 'If! ever do come back.' And there's all these female casuals on thIS shIft, one dOIng yard, another one workIng A area. You also have Ms Frozel and Ms Legacy" The gnevor said, wIth reference to the Attendance RegIster (Ex. 36a, p 59 and 23) that she had sIgned In at 0630 at whIch tIme she had sIgned out at 1900 She said that she crossed out 1900 and wrote" 1 020" when she left. The entry "DISCnmInatIOn & Harassment (SIC) AgaIn!" appears In her handwntIng under "Remarks" on her lIne on the RegIster By January 1997 Dr Yankowsky had retIred and Dr D A. Pnnce had become the gnevor's physIcIan. On January 20 1997 the gnevor submItted the folloWIng note (Ex. 37 p 61) from Dr Pnnce to the employer RETURN TO WORK OR SCHOOL Date Jan 16/97 Name Noe1la LatImer Date first unable to work Jan 15/97 Date first attended Jan 15/97 Able to return to work/school on Jan 20/97 Remarks Dr D A. Pnnce On January 20 1997 she also filed two gnevances dated January 20 1997 (Ex. 4 and 8) The first (Ex. 4) gneved that management was In vIOlatIOn of Art. 52 10 by askIng for a doctor's slIp The second (Ex. 8) alleged that she had been harassed and dIscnmInated agaInst by reason of her sex, In vIOlatIOn of Art A and any other relevant provIsIOns of the collectIve agreement and s 10(1) of the Ontano Human Rights Code 72 The gnevor said that on January 21 1997 she brought to the attentIOn ofMr McKerrell (Asst. Deputy MinIster of CorrectIOns), who was tounng the JaIl wIth Mr Chenard, "the harassment and dISCnmInatIon I was subJect to " On January 22, 1997 the gnevor receIved the folloWIng letter from OperatIOnal Manager Mr KIrby Blais (Ex. 38 P 62) ThIS IS to advIse you that your presence IS requested at a meetIng to be held on Wednesday January 29 1997 at 11 00 a.m In the Supenntendent's Office The purpose of thIS meetIng IS to dISCUSS your leavIng work on January 15 1997 After beIng asked by the OperatIOnal Manager G St. George to work "A" Area Female SectIOn, you stated you were "sick" and sIgned out on the attendance regIster "Discrimination and Harassment Again." I must formally advIse you that If you should fall to attend thIS meetIng, It wIll be conducted In your absence and you wIll not be entItled to any further notIce regardIng the proceedIngs You are entItled to be accompanIed by a Umon RepresentatIve at thIS meetIng. She agreed that on January 26 1997 before the meetIng contemplated In the above letter Mr Bergeron assIgned her to A area. She said "The same thIng happened agaIn, only eleven days later" The gnevor said, In reference to the Jan. 20 to 26 1997 C 0 Schedule (Ex. 39a, p 25) that she had mutually exchanged her ShIft wIth another Officer who was to work her #3 ShIft (1900 to 0700), whIle she would work theIr #1 ShIft (0700 to 1900) In re- eXamInatIOn, she said that when C 0 s exchange ShIftS, they exchange posts and take on one another's assIgnments She said that she and Mr Juhas had exchanged ShIftS for the entIre week of Jan. 20 to 26 1997 In reference to the Jan. 26 1997 Duty Roster (Ex. 40a, p 26) she said that Ms Frozel had been assIgned to A & D and that Ms Frozel had been "hIred for the female sectIOn" and that Ms Legacy had been assIgned to Control, but had been marked SICk. She said that the casuals who had been scheduled to work that day Included Ms Date The gnevor said that when she went In to work on January 26 1997 she was told she would work Control office and that It IS common practIce to work Control for a complete twelve-hour shIft. She said that she had been workIng In Control Module wIth another officer Before 11 a.m she went upstairs to the washroom Mr Bergeron, who 73 was "ActIng I/C" that day met her In the locker room and said "Noell a, I hate to do thIS to you, but you have to go to A area at 11 " She said that she said to hIm "Greg, you know there's no reason for thIS" and that Mr Bergeron said "Well, I have to send you down to A area at 11 " She said that she said to hIm "You know thIS IS beIng dealt wIth through arbItratIOn. I don't know what you're gettIng by dOIng thIS to me all the tIme, there's no reason for It." She contInued "And agaIn, very upset. Here's two tImes WIthIn eleven days, the same thIng, for no reason. Plenty of females on, plenty of extra staff on, females on ShIft that were hIred specIfically for that area." She said that shortly after he told her to go to A area, and after he had seen that she was upset, Mr Bergeron told her "If you're gOIng home" to "be sure to bnng In a note from the doctor" She agreed that she had sIgned In at 0630 on Jan. 26 1997 on the Attendance RegIster (Ex. 41a, p 27) She said that when she sIgned In, she entered" 1900" In the "tIme out" column, and that when she sIgned out, she stroked out" 1900" and wrote "1100" In cross-eXamInatIOn, she was unable to recall whether she had sIgned out at 1100 She said that no female CO' s name appears on the lInes IndIcatIng ShIftS 1 and 3 of the female sectIOn (F/S) segment of the Weekly C 0 Schedule (Ex. 39a) for Jan. 26 1997 Just "A" and "H" She said "So ObvIOusly It was known that that was open." She said that she receIved the folloWIng Memorandum from then Deputy Supt. - AdmInIstratIOn, Roger Chenard, dated Jan. 28 1997 (Ex. 42, P 70) Re MedIcal CertIficate In reference to your attendance at the Sudbury JaIl In relatIOn to your most recent absence commenCIng on January 26 1997 we are requestIng you to submIt a medIcal certIficate as per ArtIcle 52 10 of the CollectIve agreement. You were verbally requested from Mr G Bergeron, OperatIOnal Manager (A) at the tIme you reported your Illness We reqUIre thIS medIcal certIficate by February 14 1997 or you wIll be removed from the payroll effectIve the March 6 1997 paydate If I can be of any assIstance, please do not hesItate to call Roger Chenard 74 In cross-eXamInatIOn, she said that she receIved the above letter on Feb 10 1997 She said that she had not attended the Jan. 29 1997 meetIng, because "I had been off sIck now I dIdn't feel I could attend." The gnevor submItted two gnevances dated Jan. 28 1997 The first one (Ex. 5) stated AgaIn I gneve that I have been contInuely (SIC) harassed and dIscnmInated agaInst In vIOlatIOn of ArtIcle "A" and other relevant provIsIOns of the collectIve agreement and also Art. 10 1 of the OHR Code The second gnevance dated Jan. 28 1997 (Ex. 9a) stated AgaIn I gneve because of another sItutatIOn (SIC) of the same harassment whIch happened on the 26/Jan/97 I gneve that mgt IS In vIOlatIOn of artIcle 52 10 of the collectIve agreement by askIng for a doctor's slIp In cross-eXamInatIOn, the gnevor acknowledged that no specIfic postIng had been IndIcated on the Weekly C 0 Schedule (Ex. 39a) for Mr Juhas' #1 ShIft, whIch, by mutual exchange she was to work. She said that she was "workIng Control, whIch was a post left open on my schedule" She said, wIth respect to management havIng someone else posted to A area, "There were three casuals on agaIn, and they knew well ahead of tIme Mrs Legacy had booked off SICk. The SchedulIng LIeutenant dIdn't have It booked out at all There's no reason for It not to be covered." She said, In cross, that when she was assIgned to A area, she "felt harassed, gIven that there were others who could have been assIgned to that area, and I felt sIck and had to go " She agreed that she had receIved the letter of suspenSIOn from Mr Blais, dated Jan. 31 1997 (Ex. 43 P 67-68) whIch stated On January 22, 1997 you were advIsed that a meetIng would be convened on January 29 1997 to provIde you wIth an opportUnIty to respond to the allegatIOn that you faIled to comply wIth the InstructIOns of OperatIOnal Manager George St. George to work "A" area female sectIOn. Rather you stated you were sIck and sIgned out on the attendance regIster "dISCnmInatIOn and harassment agaIn." You chose not to attend the meetIng schedule (SIC) for January 29 1997 and were represented at the meetIng by Mr Peter Slee, O.P S.E U Staff RepresentatIve and Mr Larry McGregor Local O.P S.E U presIdent. At the begInnIng of the meetIng your representatIves agreed that the meetIng would also deal wIth a sImIlar IncIdent whIch occurred on 75 January 26 1997 Your UnIon representatIve asserted that your conduct on these occaSIOns IS based on your belIef that you are only reqUIred to work wIth the male Inmate populatIOn at Sudbury JaIl because you occupy the posItIOn In the roster whIch provIdes coverage In that area of the InstItutIOn. Your representatIves also descnbed your VIew that you were beIng dIscnmInated agaInst due to your gender It was explaIned to your representatIves that you are In the posItIOn of General Duty Officer at the Sudbury JaIl, the same posItIOn occupIed by all correctIOnal staff members to provIde servIce In eIther the male or female parts of the J all The duty assIgnment to provIde supervIsIOn In the female area IS entIrely wIthIn the scope of your responsIbIlIty as a General Duty Officer A reVIew of your file reveals that thIS IS not the first occaSIOn that you have refused to follow duty assIgnments SInce March 1 1995 you have refused to follow the same order on five dIfferent occaSIOns These IncIdents occurred on the folloWIng dates March 1 1995 May 10 1995 December 22, 1995 January 15 1997 and January 26 1997 As a result of two of the earlIer IncIdents, you receIved a letter of repnmand and a two day suspenSIOn for refusIng to comply wIth your supervIsors' orders In consIderatIOn of the foregoIng It IS abundantly clear that you have not learned from the prevIOUS IncIdents and agaIn refused to comply wIth your supervIsors InstructIOns on January 15 and 26 1997 Your behavIOur represents a senous dIsregard for the dutIes of your posItIOn despIte efforts to Impress upon you the need to comply wIth InstructIOns of your SupervIsor Such contInued InsubordInatIOn wIll not be tolerated. It IS my decIsIOn that you wIll be removed from duty for five days wIthout pay You wIll be advIsed of the tIme and dates of thIS removal from duty by the schedulIng officer You should also regard thIS letter as a final warnIng that any future IncIdents of thIS nature wIll result In dIsmIssal Yours truly KIrby Blais OperatIonal Manager cc Nigel March, Supenntendent J WhIbbs, SHRC Peterborough K. Graham, HR Consultant, Sudbury Personnel FIle The gnevor dIsputed the statement that she had "chosen" not to attend the meetIng scheduled for Jan. 19 1997 and said that she had not been well enough to attend. 76 She said that she found the accusatIOn of InsubordInatIOn "very upsettIng" She said that management was "gOIng out of theIr way to harass me" and that she took "very great offense to that." She said that she was also upset wIth the five day suspenSIOn wIthout pay "to pUnIsh me for beIng unable to work after I, the doctors and the UnIon repeatedly asked them to stop such harassment, and to sIgn off the final warnIng-'future IncIdents of thIS nature wIll result In dIsmIssal'" She said that thIS was "a very much unwelcomIng letter for someone who has been off due to stress due to theIr actIOns" The gnevor submItted a gnevance dated Feb 5 1997 (Ex. 6) allegIng that she had been dIscIplIned wIthout Just cause and that the dIscIplIne was "an attempt to IntImIdate me from eXerCISIng my nghts under the Human Rights Code In ViolatIOn of Art. A, 18 52 and other relevant provIsIOns of the CollectIve Agreement." On about February 6 1997 the gnevor saw her physIcIan, Dr Pnnce, and receIved a note from hIm dated February 6 1997 (Ex. 44 P 71) whIch stated "ThIS lady wIll be off work for an IndefinIte penod of tIme due to Illness" EVIdence of George St. George re Jan. 15, 1997. Mr St. George's eVIdence was gIven on November 18 1999 Mr St. George confirmed that the gnevor's ShIft for Jan. 15 1997 had been a mutual exchange wIth Mr Juhas from #3 ShIft to #1 ShIft. He agreed that he was unable to tell who had been scheduled to work In A area on Jan. 15 1997 from the Jan. 13 to 19 1997 C 0 Schedule /Master RotatIOn (Ex. 34) He Said that Ms LatImer was assIgned to replace Mr Juhas In H area as the maIn floor runner Mr St. George Said that no one had been scheduled to work A area from 0700 to 1900 and that the pnnted letter H appeanng In the 0700 1100 and 1500 columns on the lIne for A area on the Jan. 15 1997 Duty Roster (Ex. 35) meant that no one had been scheduled. He Said that he asked the gnevor to work In A area because no one had been scheduled to work there after 11 0' clock. He descnbed the gnevor's response "She IndIcated she wasn't gOIng to work there She refused. She Said It was due to there beIng a pendIng gnevance of harassment concernIng workIng In A area." He Said that she appeared to be agItated over the fact that he had asked her to work A area, and Said that 77 she was sIck and needed to go home ImmedIately and asked for a replacement. He later said that he told her that he would attempt to find someone to replace her and that he told her that he would reqUIre a doctor's slIp on her return to work for thIS absence He said that he requested that because she had not mentIOned sIckness to hIm before he had asked her to work A area, and that he needed some valIdatIOn that she was SICk. He said that nght after he IndIcated that he would reqUIre a doctor's slIp the gnevor IndIcated that she would probably be off the rest of the year He said "It kInd of threw me for a lIttle bIt. She dIdn't state why" He said that Ms LatImer had not IndIcated to hIm what her condItIOn was to JustIfy sIck leave He said "It seemed almost lIke a threat to me" He said "It's not somethIng a person would ordInanly say when they're gOIng off SICk. It was Jan. 15 It's not ordInary for someone to tell me they're gOIng to be off sIck for the rest of the year He said that Ms Legacy had done a mutual exchange wIth McCausland, and that she had been assIgned to E area from 0700 to 1900 He said that Ms Frozel was workIng from 0700 to 1500 In A & D He said that he had assIgned Ms Date, a casual C 0 to A area "for the first four hours of her shIft." He said that he had not asked Ms Frozel to work A area, "because these officers apply to work A & D It IS a separate area" whIch has ItS own schedule He said that the Officers make wntten applIcatIOn for the postIng, whIch IS assIgned based on semonty and the number of applIcants He said that he had not asked Ms Campbell, another casual, to work A area at 1100 because she had been scheduled to work from 0700 to 1100 and that schedulIng needs were such that she was only reqUIred for four hours, untIl 11 a.m He said that four male officers had been hIred to do secunty and searches from 0900 to 1500 as a result of whIch there were 20 staff at 11 a.m rather than the complement of 16 He descnbed thIS as an "overage" He said "To be fiscally responsIble, we must maIntaIn the mInImUm complement. So we must stIck to the tIme frame they are hIred for " In cross, he agreed that the presence of the four male casuals dId not really determIne whether he had been able to relIeve the gnevor Later In cross he said that at 1100 excludIng the four C 0 s who had been called In for searches from 0900 to 1500 the staff level had been at complement. 78 Mr St. George said that he had not asked Ms Date to work A area, as opposed to the gnevor because Ms Date had not been scheduled to work past 11 a.m. He agreed that he could have asked her to work at 11 and said "But why create more costs? In a tIme of fiscal responsIbIlIty we can't go beyond complement. We can't hIre unless there's a reason for It." He said that he had not asked Ms Campbell, the other casual, to work A area, because she too had not been scheduled to work past 11 a.m He said that callIng In another casual had not been an optIOn because "Whether I call someone In or hold someone back, you are paYIng someone for somethIng they don't need to do You are caUSIng an overage that IS not reqUIred." He said In chIef that he had not assIgned Ms Legacy to work A area "Because she was assIgned to E area, 0700 to 1500" He said "I prefer to keep officers In the same area for the entIre shIft, because It creates contInUIty In the area." He said that A, BCD and E are areas where Inmates are housed and where C 0 s dIrectly supervIse them. In cross, he said that Ms Froze!, Mrs Legacy Ms Date and Ms Campbell had not ever IndIcated that they dId not want to work A area. Later In cross he agreed that nothIng had prevented hIm from askIng Mrs Legacy to work In A area Instead of the gnevor He said that If the gnevor had not exchanged shIfts wIth Mr Juhas, she would not have been asked to work A area, as other female CO s, Ms Launn and Ms Rouleau, had been scheduled to work 1900 to 0700 that evenIng. Mr St. George IdentIfied a two-page Occurrence Report dated Jan. 15 1997 at "1027 hr" addressed to Supt. March, on the subJ ect of "N oella LatImer RefusIng to go to assIgned post" (Ex. 98 pp 21-22 and 57-58) as hIS Report. He said that he submItted It, because If a person does not go to an assIgned post, "then ObvIOusly dIscIplInary actIOns follow" He read hIS handwntten report SIr On Wednesday January 15 1997 I was the ShIft SupervIsor on duty from 0700 - 1900 hrs at the Sudbury JaIl At 0945 hrs thIS date I Informed Mrs N LatImer that I needed her to take over the dutIes In (A) area female sectIOn. I IndIcated that the only other female on duty was Mrs Paulette Legacy who was already scheduled (8) eIght hours In (E) area. She became dIstraught and stated that she wasn't on the roster for (A) area and has a harrassment (SIC) gnevance pendIng for beIng assIgned to (A) area In the past. At thIS pOInt Mrs N LatImer stated that she was 79 gOIng home sIck and needed to be replaced nght away I Informed Mrs MamIe Campbell who was assIgned to yard dutIes to take over Mr (SIC) N LatImer dutIes as maIn floor runner at 1410 hrs after sendIng the Inmates she had out to yard back to theIr area. I also Informed Mrs N LatImer that she would reqUIre a doctor note when she returns to work. Mrs N LatImer stated that she would probably be off sIck for the rest off (SIC) the year RegardIng the entry" 141 0" above, Mr St. George said "That's a typo I wrote the report. It IndIcates 1027 I meant, by 'after sendIng the Inmates she had out to the yard back to theIr area' after MamIe Campbell finIshed wIth the Inmates In the yard, she took over N oella LatImer's post." In cross, he agreed that" 141 0" should have been "1010" He said that he had wntten hIS report "wIthIn twenty mInutes" He agreed that he belIeved that It was accurate, and that he had to refer to It In order "to remember specIfic pOInts" He said he had wntten hIS Report "Because there could be dIscIplInary actIOn later on" He said that he dId not know If dIscIplInary actIOn had been taken. Later asked whether he was certaIn that he wrote hIS Report before speakIng to management, he said "I belIeve I dId" Later In cross Mr St. George said that he "probably" first saw the entry "dISCnmInatIOn and harassment agaIn" on the Attendance RegIster (Ex. 36 p 23) "probably later that day" He said that he could not recall whether he saw It before or after he wrote hIS Report. He said that he had dIscussed the entry "probably" wIth Enzo [Pedron] hIS ImmedIate supervIsor He could not recall whether he had dIscussed It WIth Mr Chenard. He said that he sent a Memo to Ms LatImer dated Jan. 16 1997 (Ex. 99 P 60) In reference to your attendance at the Sudbury JaIl In relatIOn to your most recent absence commenCIng on January 15 1997 we are requestIng you to submIt a medIcal certIficate as per ArtIcle 52 10 of the CollectIve Agreement. We reqUIre thIS medIcal certIficate January 31 1997 or you wIll be removed from the payroll effectIve the February 20 1997 paydate If I can be of any assIstance, please do not hesItate to call He said that two weeks was a reasonable tIme In whIch to obtaIn a doctor's slIp and was the normal tIme frame, and that she reqUIred the valIdatIOn of a doctor to remaIn on the payroll after February 20 1997 He said that she provIded a doctor's slIp and 80 acknowledged that he was referrIng to Dr Pnnce's note (Ex. 37 p 61 supra) In cross, he said that he receIved Dr Pnnce's note "shortly thereafter" and acknowledged that the gnevor had not been absent for a year He said that he "probably" dIscussed hIS memo above wIth a member of management. Mr St. George said that three years after-the-fact he was not able to remember wIth whIch member of management he had spoken about the IncIdent. He later said that he reqUIred the permISSIOn of a manager to state that someone would be removed from the payroll, and that he had spoken to eIther Roger [Chenard] or Enzo [Pedron] In re- eXamInatIOn he said he had had to get authonty from "Mr March or ObvIOusly Mr Chenard." He said In cross that It was the first memo he had wntten. He said that he had sent the above memo because the gnevor had not responded to hIm when he had told her that one would be reqUIred. He said that the gnevor had "refused a post" and said that she was sIck after he had asked her to work A area. He declIned to agree that he had not belIeved that the gnevor was sIck and said that he "reqUIred venficatIOn." In cross, Mr St. George said that the SchedulIng LIeutenant usually prepared the pnnted portIOn of the Duty Roster (Ex. 35 Jan. 15 1997) two weeks In advance He confirmed that he had revIewed the Roster when he came on shIft, and that It was necessary to have someone In A area for 0700 and that "H" appeared on the lIne for A area In the 0700 1100 and 1500 column. Asked If he knew why no one had been scheduled to work there, he IndIcated that he dId not understand the questIOn. He said that he had not InqUIred as to why no one had been scheduled to work that area. He agreed that he deduced, from the pnnted letter A whIch appears In the 0700 and 1100 columns on the lIne below the lIne for I area, that there was a vacancy In A area. In re- eXamInatIOn, he said that he had seen a vacancy In A area as IndIcated by the letter Hand A on the Duty Roster "happen In the past, Infrequently beIng that the person IS on rotatIOn. " He said that he dId not remember whether he had called In Ms Date (who he had assIgned to A area from 0700 to 1100) or whether anyone else had called her In, and said "I'm not gOIng there" He said that he had not wntten In Ms Campbell's, Ms Date's and WillIams' names In the 0700 column, and the names BaldellI, BIgnucola, Carbone 81 and Caverson In the 1100 column, and that someone else had pre-scheduled Ms Date to work 0700 to 1100 hours that mornIng. He said that he wrote Ms Campbell's name In pen In the 1100 and 1500 columns and dId not know who had entered her name there In pencIl InItIally He IdentIfied Mr Blair as the SchedulIng Officer at the tIme Mr St. George Said that he realIzed that he would have to cover the 1100 shIft "probably some tIme around 8 30 to 9 [a.m.]" He said that "possIbly" he had scanned the Duty Roster at the begInnIng of the ShIft and notIced the vacanCIes then. Mr St. George acknowledged havIng been aware of problems In the past In assIgnIng the gnevor to A area, "probably" a year pnor to Jan. 15 1997 He could not remember who had told hIm of the problems, and acknowledged that It would have had to have been a member of management who told hIm of them. He said that he belIeved that he knew that the gnevor had been "off sIck about thIS" and said that he was not sure He said that he could not remember the nature of the problem, and that pnor to Jan. 15 1997 there may have been dIscussIOns about the gnevor A area, and her reactIOn to It, but "It was never elaborated." Asked whether he had receIved "any InstructIOn or dIrectIOn regardIng assIgnIng her to A area" Mr St. George said "I wasn't Informed not to assIgn her" When the questIOn was restated, he said "I was Informed there were problems In the past and she'd refused to work the area. There were no stIpulatIOns agaInst her not workIng In the A area, If needed." When asked on how many occaSIOns he had been Informed of the problem, he said that he belIeved that there had been "one IncIdent" pnor to Jan. 15 1997 He agreed that he had been aware that the gnevor had been off work pnor to Jan. 15 1997 and said that he was not aware of the reason for her absence He agreed that he had had a SuspICIOn that If he assIgned the gnevor to A area, she mIght "go off SICk." He said that he had heard that she had "done It before It stIll dIdn't change the fact I needed someone to work the area." Asked "No one told you to ask for a doctor's note?" he replIed "No Because of what she said." Later In cross Mr St. George agreed that he knew from conversatIOns wIth hIS supenors that the gnevor had had a bad reactIOn from beIng asked to work In A area, and that "possIbly" he knew that the gnevor had taken sIck tIme off He dIsputed that that had been why he said "they want me to tell you to bnng a note" When It was put to hIm 82 that he knew that the gnevor had had a medIcal reactIOn the last tIme she was asked to go to A area, and that that was why he had said "they want me to tell you to bnng a note" and that someone hIgher up had told hIm to ask for a note when he got a reactIOn, he replIed "You mean I figured there'd be a problem?" When It was put to hIm that he had been forewarned that there would be a reactIOn and also to ask her for a note he replIed "The conversatIOn mIght have occurred." Mr St. George said that he belIeved that Mr Chenard had been present at the JaIl on Jan. 15 1997 He denIed havIng approached the gnevor and havIng asked to speak to her pnvately at about 9 50 a.m He said that he had been nght on the maIn floor and that he "wouldn't have done that." When It was suggested to hIm that he mIght have asked to speak to her pnvately Ifhe had expected a reactIOn, he said "I don't remember I thInk It was outsIde the I/C's door the LIeutenant's office He said that he recalled that she had said that there was a gnevance pendIng, that he had known "there was a problem" and said that he had been surpnsed when she said that there was a gnevance pendIng. He said that he dId not remember and was "not debatIng" that the gnevor had asked hIm whether she was beIng set-up It was put to hIm that the unIon's eVIdence and argument would be that the gnevor had not told hIm that she would be off for the rest of the year Mr St. George maIntaIned the accuracy of the contents of hIS Report. AdvIsed that the eVIdence had been that he had said words to the effect of "If you go home, they want me to tell you to bnng a doctor's note" Mr St. George said "I couldn't tell you. It seems odd. I wrote thIS [Ex 98 supra] half an hour after the IncIdent." Asked whether he denIed havIng made that statement, he replIed "It's possIble It's three years ago" Asked "Who would be the 'they'?" he replIed "I don't know We were alone" The questIOn was repeated and he replIed "My bosses At the tIme, Mr Pedron and Mr Chenard." In re-eXamInatIOn, he said that Mr March had been Supenntendent of the JaIl at the tIme ImtIally he said that Mr Chenard and Mr Pedron had been AssIstant Supt. and Deputy Supt. at the tIme, and then said "I know Mr Chenard was " Mr St. George said that casuals were "fill-Ins" and that he dId not know If female casuals were hIred to work specIfically In A area. 83 Mr St. George InItIally advIsed that a C 0 who was so III as to be consIdered dIsabled would not be counted as a proper member of the complement "If they went In an ambulance" He agreed that as a general pnncIple, he would not count a CO who was III as a part of the complement. EVIdence of Supt. Chenard. The folloWIng eVIdence was gIven on July 25 2000 Supt. Chenard was asked whether he at any tIme had gIven specIfic InstructIOns to anyone In management regardIng schedulIng the gnevor to A area. He replIed "Not specIfically WIth regard to Ms LatImer But It was dIscussed wIth regard to overtIme WIth the managers, In regards to how overtIme IS assIgned, and In regards to tryIng to maIntaIn overtIme at a low level In order to keep a tab on our budget." Asked "Other than that, any dIscussIOn whatsoever wIth regard to the desIrabIlIty of assIgnIng females to A Area?" he replIed "That was the practIce at the Sudbury JaIl" The questIOn was restated to hIm as whether he had had any dIscussIOn wIth regard to assIgnIng full-tIme female CO s to the A area. He replIed "No" Asked "Were there any InstructIOns that schedulIng to A area would only be females?" he replIed "No" Asked "Was there any dIscussIOn or InstructIOns anSIng from complaInts In the early '90's re female officers from the male area beIng assIgned to the female area?" Supt. Chenard said, "No no InstructIOns to change practIces I'm not sure when the practIce arose" He then said that he first "started wIth the Sudbury JaIl" In 1982 Asked "You knew of no arrangements re an undertakIng to hIre more female casuals to aVOId assIgnIng female C 0 s on the male schedule to the female sIde?" he replIed that he knew of them, and said "but when we were at full complement, we wouldn't call In female casuals" Supt. Chenard said "I belIeve I was a Secunty Manager March 1 /95" He said that he had not been a Supenntendent or Deputy Supt. at that pOInt. With regard to Ms LatImer's obJectIOns to beIng assIgned to A area, he said "I belIeve Mr Graham asked me to look Into It. I thInk I dId make some attempts to contact Ms LatImer to look Into some complaInts and find out what the Issues were I'm not sure after whIch IncIdent." 84 Asked whether he came to any conclusIOns, Supt. Chenard said that he wrote a report saYIng that Ms LatImer dIdn't want to deal wIth It and that she wanted It "dealt out of the bUIldIng." He said that he had not made any recommendatIOns and said "I'm not sure I was Involved wIth any of the IncIdents In 1995" (Dunng hIS eVIdence former Supt. Chevner referred to a bnef report dated March 13 1995 prepared by Mr Chenard (Ex. 103) Mr Chenard's attentIOn was not drawn to that report In hIS eVIdence) ConclusIOns. I conclude, on the basIs ofMr St. George's statements, that for approxImately a year before Jan. 15 1997 he had known, havIng been Informed by a member of management, that there had been problems In assIgnIng the gnevor to A area, and that she had been "off sIck about thIS" I conclude, on a balance of probabIlItIes, that at the start of the Jan. 15 1997 mornIng shIft, he notIced the vacanCIes In A area at 0700 1100 and 1500 on the Duty Roster (Ex. 35) The gnevor and Mrs Legacy had exchanged theIr nIghtshIfts for Mr Juhas' and Mr McCausland's dayshIfts (M/E IS marked besIde theIr pnnted names on the Duty Roster Ex. 35 and theIr mutual exchange IS IndIcated In the Remarks column on the CO Schedule (Ex. 36) ) I accept Mr St. George's eVIdence that Ms Date and Ms Campbell had at that pOInt been hIred to work from 0700 to 1100 and that they would not be avaIlable after 1100 I accept hIS eVIdence that Ms Frozel had competed for the A & D assIgnment, and that he could not transfer her from A & D to A area. I conclude, from Mr St. George's eVIdence, that he was aware that he could assIgn Ms Legacy to A area at any tIme dunng the day and that Ms Legacy had no obJ ectIOn to workIng In A. I conclude that at the start of the mornIng ShIft he assIgned Ms Date a casual, to A area, because he knew that It was the JaIl's practIce to assIgn a casual female C 0 who had been scheduled to work a certaIn shIft, to a vacancy In A area, rather than assIgn a female full-tIme CO who was scheduled to work the male sIde to the vacancy In A area. I conclude that at 0700 he assIgned the gnevor to H area In 85 place of Mr Juhas and Mrs Legacy to E area In place of Mr McCausland, as Mrs Legacy and Mr McCausland OWIng to theIr mutual exchanges of ShIftS Mr St. George's acknowledgment that he belIeved that the gnevor had been off sIck folloWIng prevIOUS assIgnments to A area, hIS eVIdence that he kept Ms Legacy In E area rather than assIgn her to A area at 1100 because he preferred to keep Officers In the same area for the entIre shIft, because It creates contInUIty In the area, and hIS subsequent acknowledgment that nothIng had prevented hIm from assIgnIng Mrs Legacy to A area, gIve Mr St. George's statements "I wasn't Informed not to assIgn her" and "There were no stIpulatIOns agaInst her not workIng In the A area, If needed" a nng of InsIncenty I conclude that Mr St. George was probably attemptIng to retrospectIvely ratIOnalIze what he knew had been a poor exerCIse of dIscretIOn. Because he acknowledged that nothIng had prevented hIm from assIgnIng Mrs Legacy to A area, hIS explanatIOn that he assIgned the gnevor to A area out of "fiscal responsIbIlIty" cannot be assIgned any weIght. I conclude that Mr St. George had been cunous to see what would occur 1 e to see how the gnevor would react, If he assIgned her to A area. Mr St. George admItted that he dId not remember whether he had asked to speak to the gnevor pnvately although he was expectIng a reactIOn. I conclude, on a balance of probabIlItIes, that at about 945 a.m. on Jan. 15 1997 he asked to speak wIth the gnevor pnvately In antIcIpatIOn that she would become upset at beIng assIgned to A area. In VIew ofMr St. George's statement "The conversatIOn mIght have occurred" when It was suggested to hIm that he had been forewarned that there would be a reactIOn and to ask the gnevor for a note, I accept the gnevor's eVIdence that Mr St. George said to her "They told me to tell you to bnng a doctor's note before you come back." or words to that effect. I accept that the gnevor appeared "dIstraught" to Mr St. George, as he described her In hIS Report, on thIS occaSIOn I accept the gnevor's eVIdence that she asked Mr St. George whether It was a set-up In VIew ofMr St. George's late acknowledgment that he mIght have been forewarned that there would be a reactIOn and to ask the gnevor for a note I also accept the gnevor's eVIdence that Mr St. George had said to her that he had been told that she was to go to A. I conclude, on balance of probabIlItIes, that the gnevor had become "dIstraught" as a result ofMr St. George havIng told her that he had been told to tell her that she was 86 beIng assIgned to A area, and I conclude that she was unable to contInue to work In such condItIOn. SInce she appeared "dIstraught" to Mr St. George, I conclude, on balance of probabIlItIes, that the gnevor was expenenCIng both physIcal and emotIOnal symptoms and consequently had good and sufficIent reason to state that she was unable to work, that she was sIck and needed to leave work. I conclude, because she was "dIstraught" on Jan. 15 1997 and had been off work between about March 10 and Oct. 9 1995 folloWIng sImIlar cIrcumstances, that on balance of probabIlIty she belIeved that she would agaIn be sIck a long tIme, and blurted that she would probably be off sIck for the rest of the year I am unable to conclude, In these cIrcumstances, that In so remarkIng, she was dIscloSIng a bad faith IntentIOn of abusIng sIck leave and/or extended health benefits I am unable, on the eVIdence, to determIne precIsely who had told Mr St. George that he was to tell the gnevor that she was beIng assIgned to A area. The appropnate Inference, on the eVIdence, IS that Mr St. George was Instructed by one of hIS SupervIsors, eIther Mr Pedron or Mr Chenard I conclude, on balance of probabIlItIes, that Mr St. George and those from whom he took hIS InstructIOns, had taken advantage of the staffing configuratIOn to assIgn the gnevor to A area. That configuratIOn arose when the gnevor mutually exchanged her nIghtshIft (1900 to 0700) wIth Mr Juhas' dayshIft (0700 to 1900) on a day when no female officer had been scheduled to work A area. I conclude that they and Mr St. George knew or ought to have known that they had the dIscretIOn to assIgn Ms Legacy to A area and that there was no operatIOnal necessIty prohIbItIng them from assIgnIng Ms Legacy to A area on that occaSIOn. I accept the gnevor' s uncontradIcted eVIdence regardIng her conversatIOn wIth Mr Bergeron on Jan. 26 1997 I find the statements whIch the gnevor attnbuted to Mr Bergeron, e g. "Noell a, I hate to do thIS to you, but you have to go to A area at 11 " and "I have to send you down to A area at 11" strongly suggest that Mr Bergeron, lIke Mr St. George, had also been Instructed by someone else to assIgn the gnevor to A area. As had occurred on Jan. 15 1997 the gnevor had exchanged her nIghtshIft wIth Mr Juhas for hIS day ShIft, and on Jan. 26 1997 as on Jan. 15 1997 there was a vacancy In A area for the dayshIft. Ms Legacy had agaIn exchanged her nIghtshIft wIth Mr McCausland for hIS dayshIft, but then became sIck and was not at work that day Ms Date had been 87 scheduled to work from 0700 to 1100 and Mr Bergeron apparently assIgned her to A area for that shIft, and needed a female CO to cover A area from 1100 to 1900 The Duty Roster IndIcates that eIther Ms Date was already scheduled to work from 1100 to 1500 or was asked by the ShIft I/C that mornIng to extend her work hours to 1500 and she was assIgned to A from 1100 to 1500 Ms Howard, another casual, appears to have worked from 1500 to 2300 In A area. In VIew of the repetItIOn of the CIrcumstances of the ShIft exchanges for the entIre week of Jan. 20 to 26 1997 I conclude, on balance of probabIlItIes, that the SchedulIng Officer knew at least by Monday Jan. 20 1997 that the gnevor would be workIng the dayshIft on Jan. 26 1997 and that there would be a vacancy In A area on the dayshIft on Jan. 26 1997 As the gnevor was not asked to work A area on the dayshIft on Mon. Jan. 20 Tues Jan 21 Fn Jan. 24 and Sat. Jan 25 1997 I Infer that the SchedulIng Officer and the ShIft I/Cs scheduled a casual or assIgned another female officer on each of those days to work A area, rather than the gnevor No reason was provIded as to why that could not have been arranged for Jan. 26 1997 partIcularly In VIew of the events of Jan. 15 1997 and In VIew of the gnevor havIng provIded a doctor's note on Jan. 20 1997 confirmIng that she had been III and unable to work from Jan. 15 1997 The uncontradIcted notes of the gnevor's doctor whIch were submItted In 1995 confirm that she had become III and unable to work and had suffered severe anxIety folloWIng the assIgnment to A area In May 1995 and In Dec 1995 Mr St. George denIed that he thought that the gnevor had not become Ill, but had been Instructed to seek venficatIOn. Mr Bergeron also said that he was told to ask for a doctor's note Each verbal request for a doctor's note on Jan. 15 and Jan. 26 1997 was followed by a wntten request pnor to five days' absence, CItIng Art. 52 10 The unavOIdable Inference whIch anses from these events IS that the employer In the language of the second sentence of Art. 52 10 "suspected that there may be an abuse of sIck leave" I conclude, therefore, that In January 1997 the employer remaIned skeptIcal of the realIty of the gnevor's prevIOus Illness as well as the Jan. 15 and 26 1997 claims of Illness, and attempted to use ItS authonty under the CollectIve Agreement to seek venficatIOn of the gnevor' s claim of Illness (or challenge It) 88 It must be acknowledged that the suggestIOn In Dr Yankowsky's June 6 Aug. 25 and Sept. 28 1995 notes (Ex. 19 21 and 23) that the employer had been harassIng the gnevor was dIfficult for the employer to understand and accept, partIcularly after It had receIved the Independent InvestIgatIOns UnIt report In November 1995 I conclude on balance of probabIlItIes, that as a result of the doctor's charactenzatIOn of ItS conduct as "harassment" the employer concluded that Dr Yankowsky was beIng mIslead by the gnevor as to the fact of her Illness and/or the extent of It, as well as the cause of It. I have found that the gnevor was mIstaken as to the employer's authonty at that tIme to assIgn her to A area, and that she was mIstaken In charactenzIng the assIgnment to A area as dISCnmInatory on the basIs of sex and as harassment. I conclude on balance of probabIlItIes, that she passed these mIsperceptIOns on to her physIcIan. However It IS sIgmficant and fundamental that each tIme that she became III when assIgned to A area and booked off sIck, she provIded the employer wIth doctor's notes whIch venfied that she was Indeed III The mIsperceptIOns of the gnevor do not make the doctor's notes any less relIable or accurate as to her health status I Infer from the eVIdence that the employer through ItS ShIft I/Cs on Jan. 15 and 26 1997 IntentIOnally took advantage of the gnevor havIng, through a voluntary mutual ShIft exchange, scheduled herself to work on a ShIft for whIch the SchedulIng Officer had not prescheduled someone on the female schedule to cover A area, to dIrect Mr St. George and Mr Bergeron to tell her that she was reqUIred to work In A area. I Infer from the eVIdence that by Jan. 1997 1 It was known or ought to have been known to the employer that the gnevor held extremely strong but SIncere (albeIt mIstaken) VIews on the employer's authonty to assIgn her to A area, 2 It was known or ought to have been known to the employer that on prevIOUS occaSIOns when assIgned to A area the gnevor had become III and had been absent from work for an extended penod of tIme, and 3 It was known or ought to have been known to the employer that Illness and further absence from work was the lIkely outcome of assIgnIng her to work A area, pendIng the outcome of her March 7 1995 gnevances I apprecIate that the gnevor's belIef that the employer dId not have the nght and authonty to assIgn her to work In A area may have been a source of some annoyance to 89 the employer I conclude on balance of probabIlItIes, that from the employer's pOInt of VIew to accede to the gnevor's stated preference to work only at posts In the male sIde of the InstItutIOn whIle her gnevance was pendIng 1 lImIted ItS fleXIbIlIty In utIlIZIng ItS staff resources economIcally and efficIently 2 appeared to be gIVIng In to an unreasonable demand and 3 would set a dangerous labour relatIOns precedent. I also conclude that In the Jan. 31 1997 dIscIplIne letter (5 day suspenSIOn - Ex. 43) the employer attempted to Inform and persuade the gnevor that she was a General Duty Officer and that as such her dutIes Included staffing A area. I am unable to conclude that the dIscIplIne Imposed In the letter or the letter Itself, was an attempt to IntImIdate the gnevor from eXerCISIng her nghts under the CollectIve Agreement or the Human Rights Code I conclude that In January 1997 and subsequently the gnevor could not be "moved off' the VIew that she was entItled to be treated the same as her male colleagues who were scheduled to work the male schedule, and that SInce they could not be assIgned to A area, neIther could she Under the collectIve agreement, officers have the nght to gneve when they belIeve theIr nghts under the agreement have been breached. OccasIOnally an employee wIll gneve under a mIsapprehensIOn as to theIr nghts and a breach. The arbItratIOn process IS avaIlable to resolve such gnevances, however wIthout ment they may appear to the employer WhIle the dIspute remaInS outstandIng and untIl such gnevances are resolved, It has become standard practIce In organIzed workplaces, where possIble wIthout substantIal dIsruptIOn of the workplace, to refraIn from the conduct whIch has become the subJ ect of the gnevance It IS a matter of responsible conduct and good labour relatIOns on the part of the employer The practIce or refraInIng from the dIsputed conduct IS partIcularly constructIve where the conduct whIch IS the subJect of the gnevance causes or IS alleged to cause or to contnbute to III health In the employee partIcularly as In thIS case, theIr emotIOnal health. If the conduct In dIspute IS not dIscontInued, It may then cause or contnbute to absenteeIsm and altered produCtIVIty on the part of the employee It may be counter- 90 productIve In such CIrcumstances for the employer to contInue the conduct, however legItImate, untIl the gnevance IS resolved. It IS also dIsrespectful of the gnevor and the gnevance process to contInue the dIsputed conduct, partIcularly If the dIsputed conduct can be aVOIded wIthout substantIal dIsruptIOn of the workplace Then contInuIng the dIsputed conduct can constItute a form of harassment and dISCnmInatIOn agaInst the IndIVIdual gnevor on the basIs of hIm or her havIng pursued hIs/her nght to gneve under the collectIve agreement. Such conduct can also constItute a form of harassment under the collectIve agreement as well as the Ontano Human Rights Code Harassment has been defined In the Code as "engagIng In a course of vexatIOus conduct or comment that IS known or ought reasonably to be known IS unwelcome" The fact that the person engagIng In the conduct was unaware that hIs/her conduct was vexatIOus does not vItIate the offence The standard IS an obJectIve one Further the fact that the person does not know that the conduct or comment was unwelcome does not vItIate the offence AgaIn, the standard IS an obJectIve one and If It can be concluded from all the CIrcumstances that the person who engaged In the conduct ought reasonably to have known that It was unwelcome the offence wIll have been made out. It was known to the employer or ought to have been known to the employer through notes from the gnevor's doctor that she had suffered severe anxIety folloWIng such IncIdents and had been absent from work, on sIck leave and extended health benefits, folloWIng such assIgnments In 1995 The notes dId not Inform the employer whether ItS conduct was the sole cause or was a tngger or merely an element or event whIch contnbuted to the gnevor's condItIOn of anxIety upon and folloWIng such IncIdents The medIcal notes clearly IndIcated that the gnevor's health was affected when these IncIdents occurred. Viewed from thIS perspectIve there can be lIttle doubt that It ought reasonably to have been known to the employer by Jan. 15 1997 that 1 the gnevor vIewed beIng asked or ordered to work In A area In such CIrcumstances as vexatIOus and unwelcome, and that 91 2 askIng or ordenng her to work In A area would lIkely cause or contnbute to an emotIOnal state In the gnevor such that she could not contInue to work. I conclude that a reasonable person, reVIeWIng thIS hIStOry would have so determIned. I conclude that by January 1997 the Supenntendent, out of prudence and cautIOn, should have dIrected management staff, IncludIng the SchedulIng Officer and the ShIft I/Cs, ActIng and Permanent, to ensure that whenever the gnevor was to work a ShIft In whIch a vacancy In A area arose, to schedule a female casual C 0 to work that shIft. That dIrectIOn could have stIpulated that thIS be done wIthout IncurrIng overtIme costs wherever possIble, and could have authonzed IncurrIng those costs where they could not be aVOIded. In faIlIng to so dIrect management staff, I conclude that In January 1997 the employer applIed ItS polIcy recklessly In relatIOn to the gnevor wIthout regard to her outstandIng gnevances, wIthout regard to the lIkelIhood of InduCIng emotIOnal symptoms In the gnevor and further absence on her part, and wIthout regard for the InconvenIence to the InstItutIOn that further absence of the gnevor would generate No eVIdence was presented wIth respect to the extra costs that the employer would have Incurred had It scheduled a female casual to work the same ShIftS as the gnevor on Jan. 15 and 26 1997 No convIncIng busIness reason was presented as to why on Jan 15 and 26 1997 the employer could not have aVOIded requmng the gnevor to work In A area. I therefore conclude, In all the cIrcumstances, that In havIng assIgned the gnevor to A area on Jan. 15 and 26 1997 the employer through ItS management staff, was IntendIng to provoke the gnevor Into a reactIOn, whIch It knew or ought to have known was potentIally InJunous to her health and her future attendance, and when It knew or ought to have known from past expenence that she was emotIOnally vulnerable In such CIrcumstances I conclude that ItS conduct was both vexatIOus and unwelcome to the gnevor and that the employer ought to have known that It was both vexatIOus and unwelcome I conclude that ItS conduct on Jan. 15 and 26 1997 constItuted harassment. I therefore conclude that the gnevances dated Jan. 28 1997 (Ex. 5 and 9a) succeed on thIS basIs 92 On Jan. 15 1997 Mr St. George had asked the gnevor for a doctor's note and confirmed the request In hIS memo dated Jan. 16 1997 (Ex. 99) In whIch he requested her to submIt a medIcal certIficate "as per ArtIcle 52 10 of the CollectIve Agreement." On Jan. 20 1997 the gnevor gneved (Ex. 4) that the employer had vIOlated Art. 52 10 by askIng her for a doctor's slIp On Jan. 26 1997 Mr Bergeron asked the gnevor to obtaIn a doctor's note before she returned to work, and Mr Chenard sent her a memo dated Jan. 28 1997 (Ex. 42) whIch also requested her "to submIt a medIcal certIficate as per ArtIcle 52 10 of the CollectIve agreement" On Jan. 28 1997 the gnevor filed a second gnevance (Ex. 9) allegIng that by askIng for a doctor's slIp on Jan. 26 1997 management had been In vIOlatIOn of Art. 52 10 Art. 52 10 provIdes After five (5) days' absence caused by sIckness, no leave wIth pay shall be allowed unless a certIficate of a legally qualIfied medIcal practItIOner IS forwarded to the Deputy MinIster of the mInIstry certIfYIng that the employee IS unable to attend to hIS officIal dutIes NotwIthstandIng thIS provIsIOn, where It IS suspected that there may be an abuse of sIck leave, the Deputy MinIster or hIS desIgnee may reqUIre an employee to submIt a medIcal certIficate for a penod of absence of less than five (5) days Although Mr St. George declIned to acknowledge In eVIdence that he belIeved that the gnevor had not been sIck on Jan. 15 1997 In VIew of the wntten request CItIng Art. 52 10 I conclude that the employer suspected "that there may be an abuse of sIck leave" and concluded that Art. 52 10 authonzed It to request a certIficate of a legally qualIfied medIcal practItIOner despIte the gnevor' s absence at that pOInt havIng been for less than five days However the eVIdence dId not establIsh that In makIng the requests for the medIcal certIficates, eIther Mr St. George (Ex. 99) or Mr Chenard (Ex. 42) was a desIgnee of the Deputy MinIster I am therefore oblIged to conclude that each was wIthout the authonty to make the request. For thIS technIcal reason, the Jan. 20 1997 gnevance (Ex. 4) and the second gnevance dated Jan. 28 1997 (Ex. 9a) succeeds By a gnevance dated Feb 5 1997 (Ex. 6) the gnevor alleged that she had been dIscIplIned wIthout Just cause and that the dIscIplIne was "an attempt to IntImIdate me from eXerCISIng my nghts under the Human Rights Code In ViolatIOn of Art. A, 18 52 93 and other relevant provIsIOns of the CollectIve Agreement." I conclude that she was gneVIng the five-day suspenSIOn Imposed by letter dated Jan. 31 1997 (Ex. 43 supra) The letter correctly attempted to explaIn to the gnevor that the assIgnment of her "to provIde supervIsIOn In the female area" was wIthIn the scope of her responsibIlIty of a General Duty Officer It charactenzed her as havIng refused to comply wIth an order on Jan. 15and 26 1997 as well as on March 1 May 10 and Dec 22, 1995 and stated that her conduct constItuted InsubordInatIOn. The letter of dIscIplIne acknowledged that the gnevor had stated that she had been sIck, and dId not dIrectly IndIcate that the employer dIsputed that she had been sIck or had been abusIng sIck leave on eIther of those occaSIOns It was not dIrectly alleged In eVIdence that the gnevor had been abusIng sIck leave on Jan. 15 and 26 1997 or that she had not been sIck when she said she had been and sIgned out. The eVIdence was that the employer had been SUSpICIOUS or doubtful on those occaSIOns that she was actually sIck or too sIck to work, and for that reason, had requested that she provIde a note from her doctor She had complIed and provIded notes from her physIcIan. The employer's wItnesses dId not dIrectly dIspute theIr contents I apprecIate the doubt that the employer entertaIned regardIng the gnevor's claim on Jan. 15 and 26 1997 that she was III It was dIfficult for the employer to comprehend or to accept that an employee could become symptomatIc and unable to work after beIng gIven a dIrectIOn to work In an area to whIch they had been assIgned. In the ordInary case, such CIrcumstances would lead to the SuspICIOn that the employee was fakIng symptoms In order to excuse hIm or herself from an assIgnment whIch they wIshed to aVOId. ThIS was not, In my VIew an ordInary case HavIng observed the gnevor and the manner In whIch she gave her eVIdence and consIstently and adamantly maIntaIned her VIew that It was dISCnmInatory to have assIgned her to A area when male full-tIme CO s could not be so assIgned and belIeved that she was beIng "set up" I conclude that on Jan. 15 and 26 1997 when she was told she was beIng assIgned to work In A area, she perceIved the orders to work In A area as a set-up and as provocatIOn by the employer In response, she became upset and symptomatIc, both emotIOnally and physIcally I find, on balance of probabIlItIes, that when she became symptomatIc, she concluded, reasonably and honestly that she was unable to work. There IS no eVIdence to suggest 94 that she was In control of or manufactured her symptoms I conclude that the gnevor reasonably and honestly belIeved that she could not assume the assIgned post and/or that she could not assume It and Wait for the employer to find another C 0 to relIeve her I am therefore oblIged to conclude, on the oral eVIdence and on the basIs of the medIcal notes provIded, that that the allegatIOn of InsubordInatIOn on the part of the gnevor on Jan. 15 and 26 1997 was not establIshed. I conclude, In all the cIrcumstances, that the gnevor's conduct on Jan. 15 and 26 1997 was not dIscIplInable The gnevance dated Feb 5 1997 (Ex. 6) succeeds I conclude that the five-day suspenSIOn wIthout pay cannot be upheld, and It IS hereby rescInded. In summary 1 The employer's conduct on Jan. 15 and 26 1997 constItuted harassment. The gnevances dated Jan. 28 1997 (Ex. 5 and 9a) succeed on thIS basIs 2 NeIther Mr St. George or Mr Chenard was establIshed to have been a desIgnee of the Deputy MinIster They requested a medIcal certIficate under Art. 52 10 wIthout the authonty to make the request. Consequently the Jan. 20 1997 gnevance (Ex. 4) and the second gnevance dated Jan. 28 1997 (Ex. 9a) succeed. 3 The gnevor was III when she left work on Jan. 15 and 26 1997 Consequently the 5-day suspenSIOn Imposed upon her cannot be JustIfied and the gnevance dated F eb 5 1997 (Ex. 6) succeeds 95 Segment 4 Events and Correspondence from February to May 1997 The gnevor dId not return to work for her next scheduled ShIft after Jan. 26 1997 She provIded the employer a note from her physIcIan, dated Feb 6 1997 (Ex. 44 P 71) whIch sImply stated ThIS lady wIll be off work for an IndefinIte penod of tIme due to Illness By January 1997 the gnevor's personal physIcIan was Dr Pnnce As well as maIntaInIng a pnvate practIce Dr Pnnce also provIded hIS professIOnal servIces as phYSICIan at the Sudbury JaIl on Monday Wednesday and Fnday Mr Roger Chenard was Deputy Supt. - AdmInIstratIOn at the JaIl In January 1997 In cross-eXamInatIOn, the gnevor was asked whether the prognosIs that she would be off work IndefinItely was partly due to the suspenSIOn that had been Imposed (Ex. 41 dated Jan. 31 1997 reproduced In Segment 3) She replIed "No My doctor said I would be off Indefimtely because of my Illness" It was put to the gnevor "But I mean you told hIm you would be off IndefinItely" The gnevor replIed that she could not speak for her doctor She agreed that the doctor had said that she was off work IndefinItely due to her Illness Mr Chenard wrote the folloWIng letter dated February 10 1997 (Ex. 61 P 72), to the gnevor Thank you for your doctor's note of February 6 1997 ThIS note IndIcates you wIll be off work for an IndefinIte penod of tIme due to Illness but does not satIsfy the InformatIOn reqUIrements of the mInIstry (SIC) In develoPIng an appropnate return-to-work plan. Please have you (SIC) phYSICIan reVIew the attached Job InformatIOn and provIde you wIth clanfied InfOrmatIOn by completIng the attached form The above InformatIOn IS requested by February 24 1997 Any charges for provIdIng thIS InfOrmatIOn should be consIstent WIth the OMA fee schedule and forwarded by InVOICe to my attentIOn. Upon receIpt of thIS InformatIOn, a return-to-work plan wIll be developed. DutIes wIll be assIgned to match your functIOnal abIlItIes and to meet operatIonal reqUIrements The plan wIll be dIscussed wIth you, at a meetIng, pnor to ImplementatIOn 96 Should you have any questIOns regardmg thIS request for mformatIOn, please contact me at [phone number provIded] Smcerely Roger Chenard Deputy Supenntendent - AdmmI stratI on An Attendance Enhancement Programme Request for InformatIOn From PhysIcIan form was attached to the above letter It requested her doctor's professIOnal opmIOn as follows Is the employee's condItIOn temporary or permanent m nature? If temporary what IS the expected recovery date? Refernng to the attached Job mformatIOn (PhysIcal Demands AnalysIs or PosItIOn DescnptIOn) whIch of the Job demands/reqUIrements IS the employee currently able to perform/meet and whIch of the Job demands/reqUIrements IS he/she not able to perform/meet as descnbed. What are the employee's specIfic medIcal/physIcal restnctIOns (i e functIOnal lImItatIOns) and theIr expected duratIOn's (SIC) ? Are there any restnctIOns on hours of work? If yes, what IS the recommended ShIft duratIOn (i e 4 6 8 hours) and the medIcal ratIOnale for It? What IS the potentIal for a graduated return to regular ShIftS? Are any further absences from work (i e for surgery) known or antIcIpated and when may these occur? Is there any other relevant prognosIs mformatIOn whIch wIll assIst US m developmg an appropnate return-to-work plan for thIS employee? A memo descnbmg the vanous postmgs m the JaIl to whIch a C 0 may be assIgned, and the physIcal and mental alertness reqUIrements of each postmg, and a FunctIOnal AbIlItIes form was also provIded wIth the above Form m the letter The letter (Ex. 61) IS marked m handwntmg "receIved Feb 26/97" In cross, the gnevor said that she submItted the above forms or "package" to her doctor probably shortly after Feb 26 1997 and that her doctor gave her a note to forward to the employer whIch, she said, stated that the form dId not apply to "my medIcal" By Feb 27 1997 Mr Chenard had become Actmg Supenntendent. In that capacIty he sent the gnevor the followmg letter dated February 27 1997 (Ex. 45 P 82) Thank you for your doctor's note of February 6 1997 ThIS note mdIcates you wIll be off work for an mdefimte penod of tIme due to Illness but does not satIsfy the mformatIOn reqUIrements of the mImstry m developmg an 97 appropnate return-to-work plan. Please have you (SIC) phYSICIan reVIew the attached Job mformatIOn and provIde you wIth clanfied mformatIOn by completmg the attached form The above mformatIOn IS requested by March 14 1997 Any charges for provIdmg thIS mformatIOn should be consIstent WIth the OMA fee schedule and forwarded by mVOIce to my attentIOn. Upon receIpt of thIS mformatIOn, a return-to-work plan wIll be developed. DutIes wIll be assIgned to match your functIOnal abIlItIes and to meet operatIonal reqUIrements The plan wIll be dIscussed wIth you, at a meetmg, pnor to ImplementatIOn ThIS mformatIOn IS also reqUIred for payroll purposes FaIlure to submIt thIS report may result m removal from the payroll Should you have any questIOns regardmg thIS request for mformatIOn, please contact me at [phone number provIded] Smcerely Roger Chenard Supenntendent (A) The gnevor said m dIrect that she had taken the employer's forms to her doctor She said that Dr Pnnce gave her "thIS certIficate" (Ex. 47 P 85) whIch IS a note from Dr Pnnce, wntten on hIS prescnptIOn pad, dated March 11 1997 whIch states ThIS mformatIOn IS not a medIcal problem It IS a personnel problem. The gnevor said that she receIved a Memo mdIcatmg that she had been sent a WDHP form and that she had not responded, "because the prevIOUS one dIdn't do anythmg so I decIded to go wIth the gnevance procedure" On March 18 1997 Mr Chenard wrote a further letter to the gnevor (Ex. 46 p 83) whIch the gnevor descnbed as "agam wIth the threat to be removed from the payroll " It stated Dear Ms LatImer Re. Request for MedIcal InformatIOn Upon notIficatIOn from Purolator the second request for medIcal mformatIOn was not receIved by you untIl March 17 1997 at 11 18 a.m. In knowmg thIS, we wIll extend the date for the receIpt of the requested mformatIOn from your physIcIan to March 28 1997 98 Upon receIpt of thIS InformatIOn, a return-to-work plan wIll be developed. DutIes wIll be assIgned to match your functIOnal abIlItIes and to meet operatIonal reqUIrements The plan wIll be dIscussed wIth you, at a meetIng, pnor to ImplementatIOn ThIS InformatIOn IS also reqUIred for payroll purposes FaIlure to submIt thIS report may result In removal from the payroll SIncerely Roger Chenard Supenntendent (A) cc Ken Graham, Human Resources Consultant The gnevor said In dIrect "On March 27 1997 we have no paperwork." In cross, she said that the answer to the above request for more medIcal InfOrmatIOn was In her doctor's note, and that her doctor felt that the forms dId not have anythIng to do wIth "the medIcal problem." The gnevor said that she had been off work contInuously from Jan. 26 1997 to March 22, 1997 She said that at 5 20 a.m on March 22, 1997 she receIved a telephone call from Mr St. George, who she said, was an I/C at the tIme, and that he asked her to work a 12-hour dayshIft on overtIme She said that she was half asleep when she took the call and told hIm that she had been off work SInce January 26 1997 and said to hIm "you have a doctor's note statIng I'm off Indefimtely" She said that Mr St. George was one of the LIeutenants who had ordered her to A area In January "who knew I was off, If anyone knew" She said that Mr St. George replIed to her that he was not aware that he dId not know and that he then said "Does that mean you're not comIng In for your mght ShIft tomght?" She said that that dIdn't make any sense, because If she was scheduled for mght ShIft, 1900 to 0700 she would not expect to be asked to work an overtIme dayshIft from 0700 to 1900 as that would reqUIre her to work "24 hours straight" She said that thIS request was made to a person who had been off work due to harassment, and by a caller Mr St. George, who had contnbuted to the harassment. She said that thIS call "had qUIte a bIt of an effect, of no more sleep that a.m " Mr St. George, under cross-eXamInatIOn on Jan. 17 2000 demed havIng called the gnevor on March 22, 1997 and havIng asked her to work overtIme on a dayshIft. He said "I don't know what you're talkIng about." Asked whether he recalled whether Ms 99 LatImer went on an extended sIck leave In the latter part of January 1997 he replIed "No I don't." Asked "You don't remember callIng her at 520 a.m. on March 22, 1997 he replIed "No Not wIthout an Occurrence Report." It was put to hIm that Ms LatImer had responded by askIng hIm why he was callIng when he knew she was on sIck leave and had a doctor's note He said "No" Asked whether he recalled saYIng "Oh, then you won't be workIng your mght shIft?" he said "I'm not saYIng It dIdn't happen. You could look at the overtIme cards" He agreed that he dId not remember anythIng about thIS IncIdent. On or about Apnl 3 1997 the gnevor receIved the folloWIng letter from Mr Chenard, dated Apnl 1 1997 (Ex. 48 P 86) Re. Requested MedIcal InformatIOn Upon reCeIVIng your medIcal certIficate whIch states "ThIS InformatIOn (forms) IS not a medIcal problem It IS a personnel problem." As It appears, you are absent wIthout approved leave therefore, you wIll be removed from the payroll effectIve March 31 1997 Per ArtIcle 20 of the PublIc ServIce Act, an employee who IS absent from duty wIthout officIal leave for a penod of two weeks or such longer penod may be declared to have abandoned hIS or her posItIOn and the person ceases to be a publIc servant. We would lIke to meet wIth you to dISCUSS your employment status and we would expect to hear from you wIthIn seven workIng days If you fall to meet wIth us, you wIll be notIfied of the officIal date that you have abandoned your posItIOn at the Sudbury JaIl SIncerely Roger Chenard Supenntendent (A) cc A. Roberts, DIstnct AdmInIstrator K. Graham, HR Consultant Personnel FIle The gnevor stated that the above letter said "because of thIS they would remove me from the payroll effectIve March 31 1997 That's what they denved from my doctor's note" She demed that management had contacted her to get clanficatIOn of her doctor's note She also said "They asked me to meet wIth them, otherwIse they'd deem me to abandon my posItIOn." She said that she "defimtely" had not Intended to abandon 100 her posItIOn. She said that Dr Pnnce was stIll workIng for the Sudbury JaIl on Apnll 1997 In cross, the gnevor said that she dId not meet wIth Mr Chenard In response to hIS request for a meetIng because "All I got from Mr Chenard was a bunch of threats He dIdn't lIke what my doctor had to say I was off sIck at thIS pOInt." She said that she felt that she could not meet wIth hIm and dId not talk wIth hIm, as a result of whIch she dId not tell hIm that she could not meet wIth hIm She said "I dIdn't see any need. My doctor Informed hIm I was off for stress, somethIng that was caused through the JaIl " On Apnl 4 1997 the gnevor submItted to the employer another note from Dr Pnnce, dated Apnl4 1997 (Ex. 49 P 87) Apnl 4 1997 TO WHOM IT MAY CONCERN Re Ms Noe1la LatImer (address) ThIS IS to certIfy that the above named IS under my care and IS medIcally unfit to perform any of her dutIes at the Sudbury JaIl for an Indefimte penod of tIme I have advIsed her to stay home due to medIcal reasons and wIll contInue reasseSSIng her TrustIng that thIS IS the InformatIOn you reqUIre SIncerely D A. Pnnce, M.D In cross, she agreed that Mr Chenard's letter dated Apnl 1 1997 (Ex 48) prompted her to return to Dr Pnnce and obtaIn the above note She said "Every tIme they requested It, I went back to my doctor's office" Mr Chenard responded wIth the folloWIng letter addressed to the gnevor dated Apnl 7 1997 (Ex. 50 P 88) Thank you for your doctor's note of Apnl 4 1997 ThIS note IndIcates you are medIcally unfit for an Indefimte penod of tIme but does not satIsfy the InformatIOn reqUIrements of the mImstry Please have your physIcIan reVIew the attached Job InformatIOn and provIde you wIth InfOrmatIOn on a prognosIs lIstIng restnctIOns If any by completIng the attached form 101 The above InformatIOn IS requested by Apnl 21 1997 Any charges for provIdIng thIS InfOrmatIOn should be consIstent WIth the OMA fee schedule and forwarded by InVOICe to my attentIOn. FaIlure to submIt thIS report may result In removal from the payroll SIncerely Roger Chenard Supenntendent (A) cc Ken Graham, HR Consultant The above letter IS marked receIved by "Don" Apnl 9 1997 A further Request for InformatIOn From PhysIcIan (Form) was attached to the above letter The gnevor said that she provIded It to Dr Pnnce The gnevor read the second and thIrd paragraphs of the above letter aloud and said "ThIS agaIn. I don't thInk you have anythIng. I receIved an L TIP applIcatIOn, yeah, around Apnl 29 but It was the old ConfederatIOn LIfe forms and they came back later I needed the ManulIfe forms" In cross, the gnevor descnbed the above letter (Ex. 50) as "another threat." She said that she submItted It to her doctor and that she belIeved her doctor filled out the form on May 6 1997 She dId not dIspute that she had not provIded the forms by Apnl 23 1997 The gnevor said that on May 5 1997 she receIved the folloWIng letter dated Apnl 30 1997 (Ex. 51 P 90) from Mr Chenard I sent you a letter dated Apnl 7 1997 requestIng further InformatIOn from you through your physIcIan. In that letter I requested a medIcal prognosIs, lIstIng restnctIOns If any and to complete the forms that I had enclosed. The above InfOrmatIOn was requested by Apnl 21 1997 As of thIS date we have not receIved the InformatIOn requested and you have chosen not to respond to the request, nor have you contacted management at the Sudbury JaIl Therefore, please be advIsed that you wIll be removed from the payroll, effectIve Apnl 21 1997 SIncerely Roger Chenard Supenntendent (A) cc Corpay Personnel File 102 The gnevor said that she found the above letter qUIte upsettIng, as Dr Pnnce had wntten to them (Ex. 49 supra) and told them that she was unable to peform any dutIes at the tIme, and that she was told on May 5 1997 that she would be taken off the payroll as of Apnl21 1997 She confirmed that she was taken off the payroll In dIrect, she said that she saw Dr Pnnce on May 6 1997 and "explaIned the sItuatIOn to hIm" and that she told hIm that the employer dId not want to accept or dId not approve of the answers She said "the employer keeps InSIStIng that thIS Attendance Enhancement Program form be filled out, so would he please fill It out, because If he doesn't, I'm off the payroll And I already was So Dr Pnnce filled out the Attendance Enhancement Program" Dr Pnnce filled out the form, whIch IS stamped as receIved by the JaIl May 8 1997 as follows (Ex. 52, p 94) In your professIOnal OpInIOn. Is the employee's condItIOn temporary or permanent In nature? "unknown" If temporary what IS the expected recovery date? LIne drawn through "expected recovery" Refernng to the attached Job InformatIOn (PhysIcal Demands AnalysIs or PosItIOn DescnptIOn) whIch of the Job demands/reqUIrements IS the employee currently able to perform/meet and whIch of the Job demands/reqUIrements IS he/she not able to perform/meet as descnbed. "none of the above" What are the employee's specIfic medIcal/physIcal restnctIOns (i e functIOnal lImItatIOns) and theIr expected duratIOn's (SIC)? "not able to perform any dutIes at Sudbury JaIl at thIS tIme" Are there any restnctIOns on hours of work? If yes, what IS the recommended ShIft duratIOn (i e 4 6 8 hours) and the medIcal ratIOnale for It? What IS the potentIal for a graduated return to regular ShIftS? "not applIcable" Are any further absences from work (i e for surgery) known or antIcIpated and when may these occur? "not applIcable" Is there any other relevant prognosIs InfOrmatIOn whIch wIll assIst US In develoPIng an appropnate return-to-work plan for thIS employee? "no" 103 "SIgnature" May 6/97 SIgnature of PhysIcIan Date The gnevor said that on May 6 1997 she filed a further gnevance (Ex. 7 p 7) whIch states I gneve that I have been wrongfully demed sIck leave and that such demal IS made wIth malIce and bad faith and forms part of a pattern of harassIng behavIOur In vIOlatIOn of ArtIcles 3 and 44 of the CollectIve Agreement and whIch seeks the folloWIng settlement That my sIck leave benefits be restored and that I be compensated wIth Interest for all losses IncludIng non-wage losses Incurred and that pumtIve damages permIssable (SIC) under the Human Rights Code be assessed agaInst the culpable agents of the Employer On May 7 1997 staff representatIve Mr Slee wrote to Supt. Chenard (Ex. 53 p 92-93) and expressed hIS VIew of the employer's requests for medIcal InfOrmatIOn and of other Issues The gnevor said In cross-eXamInatIOn that she had Informed Mr Slee "the hIStOry and that I was off from stress and reCeIVIng threats of beIng taken off the payroll because my doctor IS not fillIng thIS out" that she had not asked Mr Slee to Intervene or to wnte the letter on her behalf, and that Mr Slee had not shared the response from Mr Chenard wIth her The gnevor advIsed that she receIved correspondence from the Mimstry dated May 28 1997 (Ex. 54 P 94) regardIng the cost of contInuIng her benefits, and that she found It unpleasant to receIve as It told her that she owed money She said that the next correspondence she receIved from Mr Chenard was dated May 30 1997 (Ex. 55 P 98) On Thursday May 8 1997 I receIved our Request for InformatIOn From PhysIcIan (form) that IndIcates that you are not able to perform any dutIes at the Sudbury JaIl at thIS tIme ThIS note does not satIsfy the InfOrmatIOn reqUIrement of the Mimstry In develoPIng an appropnate return-to-work plan. Therefore, In accordance wIth ArtIcle 71 9 of the CollectIve Agreement, I reqUIre that you be examIned by a physIcIan at the expense of the Mimstry to obtaIn a prognosIs of your present and future status as a correctIOnal officer and the specIfics of any accommodatIOn reqUIred. Please submIt a lIst of three (3) physIcIans who are not your personal physIcIan and whom you would agree to be examIned by I wIll choose one of the three and arrange an appoIntment on your behalf To expedIte thIS process, please sIgn the enclosed "MedIcal Release Form" and return 104 It along wIth the names of three (3) local physIcIans, no later than June 13 1997 Once I have receIved the results of thIS mandatory medIcal eXamInatIOn, I wIll hold a meetIng wIth you to develop a return-to-work plan. Should you have any questIOns regardIng thIS request, please contact me I look forward to heanng from you. SIncerely Roger Chenard Supenntendent (A) attach.cc Mr K. Graham, Human Resources Consultant In cross-eXamInatIOn, the gnevor said that she had not responded to the above letter by June 13 1997 because she was off the payroll She agreed that she had Ignored the request. She said "I dIdn't feel they should have any of my medIcal" Quened "Not even the names of three doctors?" she replIed "Why? They dIdn't belIeve me And I wasn't even on the payroll " Mr Slee corresponded wIth Mr Chenard by letter dated June 3 1997 (Ex. 56 P 100) regardIng Mr Chenard's letter dated May 30 1997 (Ex. 55 above) The gnevor said that she had taken the posItIOn that she would cooperate wIth the request for a mandatory medIcal If she was restored to the payroll She dId not dIspute that between January and Apnl, 1997 she had accumulated 6566 sIck days, and said "My employer made me sIck, and I was off SICk." Mr Chenard wrote to the gnevor on June 9 1997 as follows (Ex. 57 p 103) After numerous correspondence wIth your umon representatIve, Mr Peter Slee, and on the commItment that he wIll assIst us In that he wIll Indeed recommend to you, your cooperatIOn, I belIeve that we may be able to resolve your present employment status I have assured Mr Slee, that as a matter of good faith, I Intend to re- Instate your sIck leave benefits as of Apnl 21 1997 I expect that you wIll be In touch wIth me as suggested In my last correspondence to you. When the medIcal exam has been completed and I have had an opportumty to reVIew ItS findIngs, I wIll be In contact wIth you to set up a meetIng In order to dISCUSS a possIble return to work plan. I look forward to heanng from you. SIncerely 105 Roger Chenard Supenntendent (A) cc A. Roberts, DIstnct AdmInIstrator K. Graham, HR Consultant Personnel FIle The gnevor said "At thIS pOInt I was put back on the payroll June 12 comes around. It was payday There's no pay In the bank." She acknowledged that her pay IS automatIcally deposIted to her bank account. She said that she called Mrs Beadman, who told her that her pay would be sent to the JaIl by Purolator The gnevor said that on June 15 1997 that she agaIn called Mrs Beadman, who told her that the cheque would probably be there In a day or two She said that she was anxIOUS, as she had receIved no pay for 1 1Iz months She said that she called agaIn on June 18 [1997] and that Mrs Beadman told her that her cheque was there, but that she had to come In and speak to Mr Chenard first. She said that she told Mrs Beadman that her cheque could not be held and that Mrs Beadman told her to call Mr Slee, her umon representatI ve She said that she called Mr Slee, who came to her home, and that she gave hIm a wntten authonzatIOn to pIck up her cheque, whIch, she said "had been held by Mr Chenard at the JaIl" She said that Mr Slee delIvered the cheque to her home The gnevor said that on June 19 1997 Mr Slee had gIven Mr Chenard the names of three doctors and that on July 2, 1997 she receIved a letter from Mr Chenard regardIng an appoIntment wIth Dr McMullen for the mandatory medIcal eXamInatIOn. Supt. Chenard said that Dr Pnnce had been the Sudbury JaIl's physIcIan SInce 1982, when he (Supt. Chenard) had started to work there He said that It was dIfficult for hIm to say whether by the mId-'90's, Dr Pnnce was pretty famIlIar wIth a CO's Job He said "He may have hIS own vIews" Asked, "DIdn't he have an opportumty to observe CO' s at work?" he replIed "With all due respect to hIm, I've had dIscussIOns wIth hIm wIth regard to what CO s do He hasn't always been SUpportIve of the accommodatIOn program" Asked agaIn, "DIdn't he have an opportumty to observe CO's at work?" he replIed "I'm not sure" He said that Dr Pnnce "presently" 1 e on July 25 2000 IS the doctor at the Sudbury JaIl 106 ThIS arbItratIOn heanng commenced on July 29 1997 After opemng statements were heard, the partIes' representatIves made submIssIOns regardIng the status of the gnevor's then current applIcatIOn for LTIP benefits and the umon's and gnevor's Interest that Mr Chenard would treat wIth utmost confidentIalIty any medIcal InformatIOn contaIned In the part of the mandatory medIcal report, whIch It was antIcIpated he would receIve (whIch does not form part of the eVIdence In thIS proceedIng) On August 6 1997 pnor to the commencement of the heanng of eVIdence In thIS proceedIng, the partIes entered Into a sIgned Consent pertaInIng to those matters The terms of the Consent are contaIned In my First Intenm RulIng dated February 3 1998 It was not In dIspute that Dr McMullen's mandatory medIcal report provIded In 1997 (whIch dId not form part of the documentary eVIdence) IndIcated that the gnevor was unable to return to work for medIcal reasons It was also not In dIspute that the gnevor had expenenced some delay In reCeIVIng LTIP benefits In 1997 due In whole or In part to some Input from the employer to the Insurer whIch was later acknowledged by the employer In the course of thIS heanng. The exact nature of that Input dId not form part of the eVIdence The gnevor returned to work on or about December 1 1997 havIng been absent SInce January 26 1997 ConclusIOns. Mr Chenard had become ActIng Supenntendent of the JaIl by February 27 1997 He had a note from Dr Pnnce, who was In the part-tIme employ of the JaIl, as well as In pnvate practIce, dated February 6 1997 (Ex. 44) whIch stated that the gnevor would be off work "Indefimtely" due to "Illness" Dr Pnnce's note (Ex. 44) dId not IndIcate the nature of the Illness or ItS duratIOn. Mr Chenard dId not gIve eVIdence regardIng thIS specIfic correspondence Consequently hIS reason for requestIng InformatIOn to develop a return-to-work program on Feb 10 1997 (Ex. 61) In VIew of Dr Pnnce's statement that the gnevor would be off work Indefimtely remaInS unclear The gnevor had been absent SInce Jan. 26 1997 a penod of about two weeks Mr Chenard said that the employer usually "revIews" return- to-work plans every SIxty days (see Segment 5) "as a matter of consIstency" The 107 eVIdence dId not establIsh when the first letter SOlICItIng InformatIOn for a return-to-work plan IS sent out. I conclude as a matter of common sense, that If an employee's abIlIty to work IS only partly Impaired, and the employer IS so Informed by eIther the employee or hIS or her physIcIan, then at any tIme, the employer may send out an Attendance Enhancement Program form for the physIcIan to fill out. In thIS case, the employer had a note from Dr Pnnce (Ex. 44) whIch IndIcated that the gnevor would be off work Indefimtely due to an unspecIfied Illness Mr Chenard's letter ofFeb 10 1997 (Ex. 61) IS predIcated upon the unstated assumptIOn that the gnevor was or would shortly be capable of returnIng to work wIth accommodatIOn. NothIng In Dr Pnnce's note IndIcated that the gnevor was ready to return-to-work on a modIfied basIs I Infer on all the eVIdence, that In February 1997 Mr Chenard dId not accept Dr Pnnce's OpInIOn that the gnevor was III I find, on balance of probabIlItIes, that notwIthstandIng Dr Yankowsky' s dIagnosIs of "severe anxIety" and the gnevor's lengthy absence In 1995 Mr Chenard vIewed her onset of symptoms after assIgnment to A area as a transparent and ObVIOUS ruse whIch she had adopted to declIne an assIgnment whIch she felt was unauthonzed, and whIch she dId not wIsh to accept, and suspected that she was eIther dupIng her physIcIan or that her physIcIan was In colluSIOn wIth her I conclude that SInce Mr Chenard had been newly-appoInted to the posItIOn of ActIng Supenntendent, on balance of probabIlItIes he was not yet entIrely famIlIar wIth the lImIted means avaIlable under the CollectIve Agreement of obtaInIng venficatIOn (or dISproOf) of Illness where the employer IS skeptIcal of a claimed InabIlIty to work due to Illness I conclude, from hIS havIng requested on May 30 1997 (Ex. 55) that the gnevor submIt to a mandatory medIcal eXamInatIOn, that by that tIme, but not prevIOusly he was aware of the provIsIOns of Art. 44 9 of the then current CollectIve Agreement Where, for reasons of health, an employee IS frequently absent or unable to perform hIS or her dutIes, the Employer may reqUIre hIm or her to submIt to a medIcal eXamInatIOn at the expense of the Employer and that because of the doubts he harboured as to the accuracy of the gnevor' s doctor's notes, he not unreasonably requested venficatIOn of her Illness from an Independent physIcIan, USIng the usual practIce In order to select one 108 It IS unfortunate that he dId not make that request pnor to May 30 1997 as It IS apparent that hIS correspondence from Feb 10 1997 up to May 30 1997 caused the gnevor much gnef and aggravatIOn whIch mIght have been aVOIded by an earlIer request for a mandatory medIcal eXamInatIOn. I attnbute the delay and the correspondence whIch Intervened, to "the learmng curve" Mr Chenard was expenenCIng as ActIng Supenntendent, and not to any IntentIOn to molest, harass or annoy the gnevor I conclude, on a balance of probabIlItIes, that because the gnevor had not receIved Mr Chenard's letter dated Feb 10 1997 (Ex. 61) untIl Feb 26 1997 for reasons not dIsclosed In the eVIdence, and because by then Feb 24 1997 the date by whIch he had requested to receIve the Attendance Enhancement Program form had passed, Mr Chenard wrote another sImIlar letter (Ex. 45) whIch requested the InfOrmatIOn by March 14 1997 In the second letter he stated that faIlure to provIde the requested report could result In removal from the payroll The gnevor not entIrely unreasonably perceIved that statement as a threat, and as IntentIOnal harassment. In the absence of any eVIdence regardIng the reason for the delay In the receIpt of the Feb 10 1997 letter untIl Feb 26 1997 and In the absence ofMr Chenard's eVIdence regardIng thIS correspondence It IS not possIble to know the reason or motIve for Mr Chenard's statement that faIlure to provIde the report could result In removal from the payroll In hIS letter ofFeb 27 1997 (Ex. 45) I conclude, from Mr Chenard's letter of March 18 1997 (Ex. 46) that the gnevor dId not receIve hIS letter dated Feb 27 1997 untIl March 17 1997 and that consequently he further extended the date by whIch he was requestIng the Attendance Enhancement Program form to March 28 1997 Although he was probably unknowIngly requestIng return-to-work InformatIOn prematurely (as reflected In the Attendance Enhancement Program form prepared by Dr Pnnce on May 6 1997 (Ex. 52)) It was admInIstratIvely responsIble and appropnate for Mr Chenard to have extended the date and to have Informed the gnevor of that extenSIOn. I conclude, on balance of probabIlItIes, that Dr Pnnce's March 11 1997 note (Ex. 47) ThIS InformatIOn IS not a medIcal 109 problem It IS a personnel problem. was less than helpful, m all the CIrcumstances It dId not explam to Mr Chenard that the mformatIOn he was seekmg was bemg sought prematurely because the gnevor was not yet well enough to return to work. I conclude that madvertently It confirmed to Mr Chenard hIS SuspIcIOn that the gnevor was not SICk. I conclude, on the eVIdence before me, and on balance of probabIlItIes, that neIther the gnevor nor her physIcIan was aware of the ImpreSSIOn that the above note gave I conclude, m VIew of Dr Pnnce's letter dated Apnl4 1997 (Ex. 49) and completed form dated May 6 1997 (Ex. 52), as well as the confirmatIOn m Dr McMullen's mandatory medIcal that the gnevor was mdeed unable to work for medIcal reasons, that on balance of probabIlItIes, the above note was an Imperfect effort by Dr Pnnce to convey to the employer that the gnevor's Illness was caused or contnbuted to by events at work. As Mr St. George ultImately said that he was not saymg that hIS call to the gnevor at 5 20 a.m on March 22, 1997 "dIdn't happen" and that he dId not remember I accept the gnevor's eVIdence that she was awakened at that hour by a call from Mr St. George, and that her recall of the conversatIOn was accurate March 22, 1997 fell on a Saturday The eVIdence dId not establIsh that the gnevor's card had been removed from the overtIme file card system for full-tIme CO s after January 26 1997 I conclude, on a balance of probabIlItIes that It had not been removed, and that Mr St. George was, m the exerCIse of hIS responsibIlItIes, callIng through the file cards m order to find a full-tIme C 0 to work that dayshIft on overtIme, lIkely because by Saturday the avaIlable casual C 0 s had all worked theIr maXImum hours before they would have to be paid overtIme The Saturday Duty Roster and C 0 Schedule were not produced m eVIdence If the gnevor's name appeared on them as scheduled for the evemng ShIft of March 22, 1997 and had been hIghlIghted on them, mdIcatmg that she would be absent, Mr St. George's questIOn "Does that mean you're not commg m for your mght ShIft tomght?" would take on the appearance of a provocatIve remark. However m the absence of the Saturday Duty Roster and the C 0 Schedule for that week so hIghlIghted, I conclude that Mr St. George was probably 110 lookmg at a Roster and/or Schedule whIch lead hIm to belIeve that she was scheduled to work that evemng, and took advantage of the fact that he was speakmg wIth her to determme that there was a vacancy on the evemng schedule whIch had to be filled. I apprecIate that on the face of It, It made lIttle sense to ask a C 0 scheduled to work the evemng shIft to work the day ShIft on the same day However It IS possIble that the employer had mtended that another C 0 who was not avaIlable for the dayshIft but could work the mghtshIft, would work m place of the gnevor on the mghtshIft If she agreed to work the dayshIft. I sympathIze wIth the gnevor for the loss of her sleep on the mormng of March 22, 1997 and the apparent aggravatIOn that she expenenced that mormng. I am unable, on the lImIted eVIdence before me, to conclude that Mr St. George's phone call that mormng was mtended to annoy or harass the gnevor or that Mr St. George knew or ought to have known that It would annoy or harass her The gnevor dId not reply to Mr Chenard's letter of Apnl 1 1997 (Ex. 48) m whIch he asked to meet wIth her She dId, however provIde hIm wIth Dr Pnnce's letter dated Apnl4 1997 (Ex. 49) whIch stated that she was medIcally unfit to perform any of her dutIes at the JaIl mdefimtely Mr Chenard made another wntten request dated Apnl 7 1997 (Ex. 50) that her physIcIan complete the Attendance Enhancement Program form That letter mdIcated that she mIght be removed from the payroll If the form was not provIded by Apnl 21 1997 It does not appear on the eVIdence that after Apnl 9 1997 (around whIch date I conclude she receIved the Apnl 7 1997 letter) and pnor to May 6 1997 the gnevor asked her physIcIan to provIde the mformatIOn requested, on the form provIded I apprecIate that that mformatIOn may have appeared redundant and unnecessary to the gnevor However m VIew of the ImpreSSIOn that I conclude had been gIven to the employer by Dr Pnnce's March 11 1997 note (Ex. 47) Mr Chenard cannot be faulted for hIS persIstence I have already concluded that he was seekmg the wrong mformatIOn, and should have been requestmg the mandatory medIcal 111 I apprecIate that the gnevor may have found Mr Chenard's correspondence antagomstIc and threatemng. However Mr Chenard was an ActIng Supenntendent at the tIme I conclude, on balance of probabIlItIes, that In that capacIty he was attemptIng to deal wIth hIS doubts as to her Illness "by the book" wIth the pnmary IntentIOn of protectIng the employer's Interests and wIthout the IntentIOn of harassIng the gnevor I conclude that by not meetIng wIth Mr Chenard, not requestIng the umon to meet wIth hIm In her place, and not obtaInIng the completed form from her physIcIan by Apnl 21 1997 the gnevor contnbuted unnecessanly to the CIrcumstances whIch lead to her removal from the payroll as of Apnl 21 1997 and demal of sIck leave benefits Her eVIdence, and the manner In whIch It was gIven, suggest that she sIncerely and honestly thought that the employer's correspondence was delIberately provocatIve and unwarranted, and that she had not been able to foresee the logIcal admInIstratIve consequences of her faIlure to comply wIth the requests for completIOn of the Request for InformatIOn form. I conclude that Dr Pnnce's responses to the Request for InformatIOn form (Ex. 52) were accurate and complete answers to the questIOns on the form and that Mr Chenard receIved no further InformatIOn as a result of havIng pressed for ItS completIOn than he had receIved In Dr Pnnce's letter dated Apnl4 1997 (Ex. 49)! I am unable to conclude, on the eVIdence before me pertaInIng to thIS matter that the gnevor would have been removed from the payroll and demed contInued sIck leave benefits If she had provIded the completed Request for InformatIOn form by March 28 1997 as requested In Mr Chenard's letter of March 18 1997 The removal of her from the payroll appears to have been as consIstent WIth havIng been done In good faith, Impersonally and consIstent WIth admInIstratIve practIce as It was WIth havIng been done wIth an IntentIOn to retalIate agaInst or pumsh the gnevor The umon' s eVIdence dId not establIsh, on balance of probabIlItIes, that the employer demed the gnevor sIck leave benefits In Apnl, 1997 out of malIce or bad faith. I am unable to conclude on the eVIdence, that the demal of sIck leave formed part of a pattern of harassIng behavIOur The gnevor dId not wIsh her physIcIan to dIsclose her specIfic medIcal condItIOn to the employer It was not unreasonable of her to wIsh to maIntaIn some degree of pnvacy about her medIcal condItIOn as It pertaIned to her emotIOnal health. I find, on a 112 balance of probabIlItIes, that as a result of her wIsh to maIntaIn her pnvacy her physIcIan's notes were very bnef and at tImes CryptIC e g. March 11 1997 (Ex. 47) The Jan. 1 1994 to Dec 31 1998 collectIve agreement does not stIpulate the extent of the employer's nght to the partIculars of an employee's medIcal condItIOn, wIth the exceptIOn of Art. 44 9 and 44 10 Art. 44 9 has been set out above Art. 44 10 provIdes After five (5) days' absence caused by sIckness, no leave wIth pay shall be allowed unless a certIficate of a legally qualIfied medIcal practItIOner IS forwarded to the Deputy Mimster of the mImstry certIfYIng that the employee IS unable to attend to hIS or her officIal dutIes NotwIthstandIng thIS provIsIOn, where It IS suspected that there may be an abuse of sIck leave the Deputy Mimster or hIS or her desIgnee may reqUIre an employee to submIt a medIcal certIficate for a penod of absence of less than five (5) days The eVIdence dId not determIne the nature or content of a document that the Mimstry or Mr Chenard would consIder "a certIficate of a legally qualIfied medIcal practItIOner" In hIS letter dated Apnl 1 1997 (Ex. 48) Mr Chenard IndIrectly IndIcated that because of the content of Dr Pnnce's March 11 1997 note (Ex. 47) he consIdered her to be "absent wIthout approved leave" The eVIdence dId not determIne Mr Chenard's VIew of what constItuted "approved" leave and what constItuted "officIal" leave and what, If any relatIOnshIp "approved" or "officIal" leave bore to the concept of "a certIficate of a legally qualIfied medIcal practItIOner" found In Art. 44 10 of the CollectIve Agreement. I conclude that In hIS letter of Apnl 1 1997 Mr Chenard was attemptIng to convey that as a result of Dr Pnnce's March 11 1997 note neIther he nor the doctor "approved" her absence from work as due to medIcal Illness In hIS letter dated Apnl 1 1997 (Ex. 48) Mr Chenard cIted s 20 of the PublIc ServIce Act as gIVIng hIm the authonty to declare an employee to have abandoned hIs/her posItIOn where s/he IS absent from duty wIthout officIal leave S 20 of the PublIc ServIce Act provIdes A publIc servant who IS absent from duty wIthout officIal leave for a penod of two weeks or such longer penod as IS prescnbed by the regulatIOns may by an Instrument In wntIng be declared by hIS or her 113 deputy mImster to have abandoned hIS or her posItIOn, and thereupon the posItIOn becomes vacant and the person ceases to be a publIc servant. It appears that s 20 authonzes only the deputy mImster to declare a publIc servant to have abandoned hIS or her posItIOn. As the gnevor was restored to the payroll, It IS not necessary to explore the ImplIcatIOns of thIS observatIOn. I conclude, from the employer's acceptance wIthout obJectIOn In 1995 of the bnef notes from Dr Yankowsky that on balance of probabIlItIes, the JaIl's general practIce IS to accept a note from the employee's physIcIan as a "certIficate" In the absence of some external IndIcatIOn that the employee IS not III I conclude, In the CIrcumstances of thIS case, that Mr Chenard was not entIrely unreasonable In relYIng upon the March 11 1997 note of Dr Pnnce to conclude that the gnevor was not III I Infer from Mr Chenard's letter dated Apnl 30 1997 (Ex. 51) In whIch he reIterated that he had requested further medIcal InfOrmatIOn by Apnl 21 1997 and said that In the absence of those forms, the gnevor had been removed from the payroll as of that date, that he consIdered the completed Request for InformatIOn form, not yet provIded, to constItute "a certIficate of a legally qualIfied medIcal practItIOner" and a prereqUIsIte to "officIal leave " I conclude that the March 11 1997 note In the absence of the completed Request for InformatIOn forms, caused hIm to conclude that the gnevor was absent wIthout "officIal" or "approved" leave for a penod In excess of two weeks I Infer from Mr Chenard's letter dated June 9 1997 (Ex. 57) that between May 8 1997 when he receIved the completed Request for InformatIOn form, and the date upon whIch the gnevor IndIcated that she would cooperate wIth the employer's request for a mandatory medIcal (dated May 30 1997 - Ex. 55), he concluded that he was In receIpt of a certIficate whIch complIed wIth Art. 44 10 and JustIfied "officIal leave" under S 20 of the PublIc ServIce Act, and that he could no longer JustIfy the gnevor's removal from the payroll In VIew of all of the foregoIng, I conclude that the employer's removal of the gnevor from the payroll and the resultant demal of the gnevor's sIck leave benefits In Apnl, 1997 arose as a result of mIscommumcatIOn between her physIcIan and her employer and as a result of the employer's non-receIpt of the completed forms Dr Pnnce's authonty to dIsclose In detaIl hIS VIew of the preCIse nature and etIOlogy of her condItIOn was lImIted by the gnevor and/or doctor-patIent pnvIlege ThIS 114 IS reflected In the brevIty of Dr Pnnce's notes The submIssIOns of the partIes' representatIves on July 29 1997 at the outset of thIS proceedIng, IndIcated that the gnevor was very concerned that the InformatIOn pertaInIng to her Illness be treated wIth utmost confidentIalIty and was concerned that It would not be so treated by the employer I attnbute the gnevor's dIfficultIes and delays In June, 1997 In obtaInIng the payment(s) owed to her upon reInstatement to the payroll retroactIvely to Apnl21 1997 largely to Inadvertence on the part of the admInIstratIve staff There IS no eVIdence that the gnevor's cheques were delIberately wIthheld untIl June 18 1997 The gnevor's uncontradIcted eVIdence was that on June 18 1997 she was advIsed that she was reqUIred to speak wIth Mr Chenard before reCeIVIng her cheque The umon' s eVIdence dId not establIsh malIce or any bad faith IntentIOn on Mr Chenard's part at that pOInt. Mr Chenard may have requested an opportumty to speak wIth her at that pOInt sImply for the purpose of commumcatIng wIth her dIrectly He may not have realIzed that the gnevor resented the request and/or dIstrusted hIS motIves, and that she would and dId find a means of obtaInIng her cheque wIthout speakIng wIth hIm. I conclude, on balance of probabIlItIes, that hIS request to speak wIth her dIrectly when she pIcked up her cheque had the umntended consequence of reInforcIng the dIStruSt and SuspICIOn that she maIntaIned toward hIm, ansIng from the assIgnments to A area of Jan. 15 and 26 1997 the five-day suspenSIOn, and the removal of her from the payroll In VIew of Dr Pnnce's notes (WIth the exceptIOn of the note dated March 11 1997) and the outcome of the 1997 mandatory medIcal eXamInatIOn, I conclude, on balance of probabIlItIes, that the gnevor was medIcally unfit to perform any of the dutIes of a C 0 from Jan. 26 1997 untIl May 6 1997 and thereafter untIl December 1 1997 when she returned to work. I conclude, on the basIs of the aforementIOned medIcal InfOrmatIOn provIded by Dr Pnnce, whIch was further confirmed by Dr McMullen, that the gnevor was Inappropnately demed sIck leave as of Apnl 21 1997 and that she IS entItled to be compensated for any losses Incurred thereby together wIth Interest. The gnevance dated May 6 1997 therefore succeeds In part. 115 The gnevor dId not meet wIth Mr Chenard when requested to do so by letter dId not request the umon to meet wIth hIm m her place, and dId not obtam the completed form from Dr Pnnce by Apnl 21 1997 She contnbuted wIthout reasonable explanatIOn to the CIrcumstances whIch lead to her removal from the payroll as of Apnl 21 1997 I conclude that thIS IS not an appropnate set of CIrcumstances m whIch to assess pumtIve damages under the Human Rights Code 116 Segment 5 Events and Correspondence from October 1997 to January 1999 The Return-to- W ork/ AccommodatIOn Plan Mr Chenard said that hIS role In accommodatIng employees wIth medIcal restnctIOns was to supervIse and to delegate He said that he supervIses the admInIstratIOn of the Attendance Support Program through an OperatIOnal Manager or a Deputy and occasIOnally meets wIth an employee to reVIew hIs/her medIcal note He consults wIth Mimstry officIals and a specIalIst In accommodatIOn. He said that "as a matter of consIstency we usually have [an accommodatIOn plan] revIewed every SIxty days or two months, sometImes two days or one week later Unless It'S more of a permanent nature, at whIch tIme we may extend those tIme frames" He said that the doctor IndIcates on the Employee Health InformatIOn form and IndIcates whether the posItIOn IS permanent or temporary and said "Now even at that pOInt, we try to Intervene Because once a person IS IdentIfied as 'a permanent' the collectIve agreement provIdes us wIth the possIbIlIty of havIng that person reclassIfied to a lower Job based on those restnctIOns, whIch affects theIr salary To date, we've always been able to Intervene to make that successful so no one has a reductIOn In theIr salary" He said that "Intervene" referred to dISCUSSIng wIth the doctor what dutIes the employee can perform, and what hours they can work, etc "so that they can do the functIOns of CorrectIOns Officers" The SIxty day reVIew enables adJustment of the accommodatIOn plan In a tImely fashIOn, allows commumcatIOn between employee, doctor and admInIstratIOn, helps the Mimstry to have some control over the attendance of the employee provIdes the employee an opportumty to work In a dIfferent capacIty and feel of value to the orgamzatIOn, and enables the employer and employee to know the next reVIew date ahead of tIme, advIsed Mr Chenard. Mr Chenard sent the gnevor the folloWIng letter dated October 6 1997 (Ex. 74) FolloWIng the evaluatIon of the Mandatory MedIcal results from Dr McMullen, I am pleased to advIse you that In consultatIOn wIth the Semor MedIcal Consultant and Human Resources Consultants, we are able to 117 provIde you wIth a return-to-work plan, whIch would accommodate you In your present medIcal condItIOn. Please have your physIcIan reVIew the attached J ob descnptIOn and modIfied work agreement. ThIS agreement wIll allow you to work In an area of the InstItutIOn that has another staff member workIng wIth you, namely "E" area. Your hours of work wIll be on the day or afternoon ShIftS only (commencIng 7 00 a.m. or 11 00 a.m.) and the duratIOn can be eIther 8 or 12 hour ShIftS dependIng on your physIcIan's request. Once your phYSICIan has revIewed the plan, please contact me at [phone number] no later than October 20 1997 I look forward to heanng from you. The gnevor said that her doctor's note was gIven to the employer the Wednesday [November 26 1997] before her return to work on Dec 1 [1997] Dr Pnnce had wntten the folloWIng note dated Nov 25 1997 (Ex. 58) PatIent's Name Noe1la LatImer ThIS lady IS ready to return to modIfied work, In control, 8 hours per day Steady day ShIft, wIth on entatIOn. She wIll be reassessed In 60 days She could return to work Dec 1 1997 Mr Chenard pOInted out, regardIng the above note, that he had asked for a response no later than October 20 1997 He said "and Instead of fillIng out the Health InformatIOn Form lots of tImes Dr Pnnce does a note" He contInued "Not knowIng why or havIng an explanatIOn." He then said "He changes the posItIOn to Control, 8 hours a day steady days, wIth on entatIOn. The ongInal plan was that she perform dutIes In E area, the new sectIOn." He said that Dr Pnnce "agreed wIth a sIxty-day re-assessment and gIves a date she could start." He said that the determInatIOn that the gnevor could perform dutIes In Area E came from Dr Humphnes and a member of the HR team, "who desIgned thIS plan" and "felt thIS was an appropnate return-to-work plan." The gnevor said that she spoke to Mr KIrby Blais, a ShIft I/C on Fnday [Nov 28 1997] and that he told her she would work eIght-hour ShIftS, Monday to Fnday and that she was to come to hIS office on Monday mormng, Dec 1 1997 When she attended at Mr Blais' office that mormng, she was asked to sIgn "a contract" (Ex. 59b a "Return- to-Work and Employment AccommodatIOn Program" to whIch was attached a Schedule 118 (Ex. 59c) ) whIch, she said, reqUIred her to work eIght-hour ShIftS but whIch reqUIred her to work seven days consecutIvely and on three consecutIve weekends The gnevor said that she asked Mr Blais whether he had personally made her Schedule and that Mr Blais told her that Mr Chenard and Mr Pedron had prepared It. She said that she asked Mr Blais why he had not done her Schedule, as he IS the SchedulIng Officer and that Mr Blais told her that he dId not know of her return untIl recently She said that she told Mr Blais that she was concerned about workIng seven days consecutIvely whIch dId not appear to her to constItute a modIfied work schedule She said that Mr Blais told her that he would see IfMr Chenard or Mr Pedron could change It, and that Mr Blais left and returned and said that he had spoken to Dr Pnnce, but that Dr Pnnce would not gIve hIm an answer because he was dOIng medIcal parade The gnevor said that she told Mr Blais that she would go to her post In Control She said that she was upset and "dIdn't know where to go" but had said that she would go to Control because "thIS IS why I'm here" The gnevor said that later that day [Dec 1 1997] Mr Blais told her "to get a rep" and that Mr Chenard wanted to see her In hIS office The gnevor said "When we went to Mr Chenard's office, Mr Chenard sounded upset. He said he dIdn't thInk I should be workIng In Control because of the medIcatIOn In Part B He said thIS In Dan McDonald's presence Then he said we shouldn't dISCUSS thIS In front ofMr McDonald, after saYIng that. So I said to Mr Chenard, 'why not, you've shared thIS InformatIOn wIth everyone else' He shared It WIth hIS lawyer wIth Dr Humphnes And he said 'yes, and also wIth Human Resources and my I/Cs' I remInded hIm the Consent Order said 'for hIS eyes only' Mr Chenard said 'Human Resources and the I/C had the nght to know' " The gnevor said "I was really dIscouraged. The Consent Order was not workIng. I said 'ObvIOusly you don't perceIve my doctor's note the way the doctor and I understood It. I'll see the doctor and I'll have It clanfied for you.' Then Mr Chenard said 'That's the problem wIth these doctors, they'll wnte anythIng that you want them to It's the same as the Inmates In here They tell them that they can't sleep and If they don't get pIlls from one doctor then they'll get It from the other' He said 'We're gOIng 119 to have to set up a sleepwatch to make sure these Inmates really are not sleepIng.'" The gnevor said that she was upset and "could not belIeve how Mr Chenard could Imply my doctor was so Incompetent." She said that Mr Chenard stated that there had been a meetIng wIth Dr Humphnes and all the doctors, who agreed on the Schedule and that she understood from Dr Pnnce that he had not been Involved In such a meetIng. In re-eXamInatIOn, the gnevor said that she had learned that Part B of Dr McMullen's report had stated that one of her medIcatIOns could Impair her concentratIOn. She said that Ms Basanta, then the employer's representatIve In thIS proceedIng, had conveyed that InfOrmatIOn to her lawyer She concluded that Mr Chenard was In breach of the Consent Order In havIng conveyed the content of Part B of Dr McMullen's report to Ms Basanta. Mr Chenard said that on November 14 1997 he had had a meetIng wIth Dr Pnnce and another doctor and that he had revIewed the form regardIng return-to-work plans wIth them and advIsed the doctors as to the InfOrmatIOn the employer was seekIng on the forms He said that they also dIscussed the medIcatIOn of the Inmate populatIOn. He said that when he met wIth the gnevor and Mr McDonald on Dec 1 1997 he first asked Ms LatImer whether she had any problems dISCUSSIng accommodatIOn In Mr McDonald's presence, and that she had replIed that she dId not. He said that In the meetIng he referred to Dr Pnnce's Nov 25 1997 note (Ex. 58) and tned to explaIn that he thought that the accommodatIOn plan and Schedule matched the restnctIOns In Dr Pnnce's note He said that the persons prepanng the accommodatIOn plan look at the restnctIOns submItted by the doctor and secondly at the operatIOn reqUIrements He said that the gnevor was provIded two weeks of onentatIOn In the Control Module, Monday to Fnday and that the doctor's note had not IndIcated any restnctIOn on the number of consecutIve days or number of hours In a week the gnevor could work. He said "She thought she should work Monday to Fnday" He said that he told the gnevor "If! have a note that says no weekends, no more than 40 hours a week, that's dIfferent" and that the gnevor said that she would get the note changed, and that she dId, and "we changed It." He IdentIfied the folloWIng note from Dr Pnnce, dated Dec 10 1997 (Ex. 60) as the one to whIch he was refernng 120 ThIS lady IS now able to resume her twelve hour scheduled ShIft, on days, In control To be assessed In 2/12 KIndest regards Mr Chenard said "When the second note came In, we made all the adJustments" At another pOInt In eVIdence he said, regardIng the above note "A couple of thIngs stnke me He ImtIally said Nov 25 1997 (Ex. 75) that she could start on Dec 1 1997 workIng 8 hour days She saw hIm and on Dec 10 1997 he says she can do 12-hour dayshIfts and said 2/12 months He also dId a mce lIttle thIng. He said 'KIndest regards' He doesn't always do that." Mr Chenard dIsputed that the gnevor had suggested that she would obtaIn another note from Dr Pnnce He said that Mr McDonald had asked "why I could do It for hIm, and I said she had to get It from her doctor" He demed havIng said that her doctor would say anythIng that she wanted He demed havIng complaIned about the doctors In the gnevor's presence It was put to hIm that the umon' s wItness would say that he had complaIned about the doctors In the gnevor's presence He subsequently acknowledged that he had mentIOned that the doctors would gIve the Inmates "whatever they ask." At a further pOInt In hIS eVIdence, when asked "Have you ever accused Dr Pnnce of beIng a pIll pusher and saYIng whatever a patIent says?" he replIed "Not dIrectly" Asked "You dId so at a meetIng wIth Noe1la LatImer?" he replIed "That's her perceptIOn. " Elsewhere In hIS eVIdence, havIng said that the ShIft Schedule whIch was provIded to the gnevor on Dec 1 1997 satIsfied the gnevor's medIcal restnctIOns, Mr Chenard said that that ShIft Schedule also met InstItutIOn or operatIOnal needs, whIch he descnbed. He said "Weekend coverage IS sometImes dIfficult. Ifwe kept her on straight weekdays, we'd have to pay more overtIme and we would have extra coverage dunng the week, whIch bnngs me to another thought re the SIxty days SometImes we have more than one person on accommodatIOn, and lots are on Control SIxty days allows us to make adJustments So agaIn, we asked Ms LatImer we were Just tryIng to meet the operatIOnal needs and her medIcal reqUIrements I can't be responsIble for how she perceIved that." 121 Mr McDonald said that at the meetIng on Dec 1 1997 Mr Chenard had asked the gnevor whether she wanted to proceed In Mr McDonald's presence, and she had agreed to do so However he later said that Mr Chenard had not asked for the gnevor's consent at the start of the meetIng for hIm [Mr McDonald] to remaIn. He said that Mr Chenard only spoke about hIm remaInIng "In the mIddle" of the conversatIOn, after he [Mr Chenard] had mentIOned medIcatIOn and locatIOn. He said at that pOInt Mr Chenard asked her If It was okay for Mr McDonald to remaIn, because they were gOIng to speak about her medIcatIOn. He said that Mr Chenard had said that because of medIcatIOn, the gnevor could only work certaIn posItIOns In the facIlIty He demed that Mr Chenard had mentIOned medIcatIOn only In relatIOn to the Inmates He confirmed that the gnevor and Mr Chenard were In dIsagreement as to the restnctIOns contaIned In her doctor's note He said that the gnevor said that she would see her doctor and that Mr Chenard had stated In response that that "was fine" He confirmed that the gnevor had asked Mr Chenard how he could accommodate hIm [Mr McDonald] and not her and that Mr Chenard had replIed that they were "two dIfferent stones" He said that the gnevor had said to Mr Chenard that other people knew what was In her file, and that her lawyer and the employer's representatIve had made an agreement that only Mr Chenard "would know about It" and that Mr Chenard had said "Only management and the I/Cs knew about It." He said that he had not asked questIOns, but that he had understood by the words "the I/Cs knew about It" that the I/Cs knew the content of certaIn medIcal forms Mr McDonald said that Mr Chenard had stated "Some doctors gIve notes what theIr patIents want" and that If Inmates don't get what they want from Dr Pnnce, they go to the other doctor and that the Inmates have to be watched. In cross-eXamInatIOn he said that Mr Chenard had complaIned that [the Inmates] were all gettIng medIcatIOn. Mr McDonald said In dIrect that he and Mr Chenard's recall as to hIS restnctIOns had dIffered, and that hIS restnctIOn had been that he was not to work more than five ShIftS consecutIvely He said In cross that no one had become "upset" that he and Mr Chenard had argued about how hIS workplace accommodatIOn arrangements had been determIned, and that they had sImply dIsagreed. 122 In cross-eXamInatIOn, Mr McDonald said that he had not dIscussed hIS modIfied work "arrangement" wIth the gnevor He said that he had told her that If she worked one weekend, she would "be stuck wIth five or SIX In a row" He said "That's what happened to me" He said that he understood from Mr Chenard havIng told them about havIng met wIth the doctors regardIng modIfied work, that Mr Chenard had spoken wIth hIS and wIth the gnevor's doctor He then said that he thought Mr Chenard meant that he had spoken to all the doctors who work at the JaIl He then said he dId not know what Mr Chenard had meant. NotwIthstandIng the foregoIng, It was not In dIspute that the gnevor worked In the Control module from about Dec 1 1997 or shortly thereafter untIl Dec 30 1998 on terms acceptable to the employer to Dr Pnnce, and to her A Return-to-Work and Employment AccommodatIOn Program dated Dec 19 1997 (Ex. 73b) was sIgned by the gnevor and Mr Blais Mr Chenard said "ObvIOusly by now we've Ironed out the lIttle InterpretatIOns, perceptIOns, mIsconceptIOns, whatever you want to call them. ThIS IS a return-to-work plan, to start Dec 15 1997 Once agaIn, a SIxty day follow-up schedule, Control only twelve-hour scheduled ShIft days only" He said that the next Employee Health InformatIOn form was requested by February 15 1998 Correspondence and Assessment Penod The next medIcal documentatIOn provIded to the employer was a typewntten note from Dr Pnnce dated February 6 1998 (Ex. 77) whIch stated TO WHOM IT MAY CONCERN Dear SIr Re. Noe1la LatImer ThIS lady IS dOIng very well workIng In "control" and there IS no doubt that thIS work place has been conducIve to her Improvement medIcally I would apprecIate It If you could maIntaIn her In "control" on 12 hour steady day shIft on her regular schedule I wIll do a reassessment on her In SIxty days Mr Chenard stated, regardIng the above note "AgaIn, not on the nght form, Just a letter" He said that Dr Pnnce said that he would apprecIate maIntaInIng her In Control, 123 twelve hour shIfts He quoted Dr Pnnce's words "her regular schedule" and said "We are dOIng that." He noted that Dr Pnnce said that he would reassess Ms LatImer In SIxty days He said that the prevIOUS AccommodatIOn Plan was extended a further SIxty days on Feb 10 1998 (Ex. 78) By letter to the gnevor dated March 27 1998 (Ex. 79) OperatIOnal Manager KIrby Blais requested an update on her condItIOn and enclosed a Request for Employee Health InformatIOn form for Dr Pnnce to fill out. My second Intenm rulIng In thIS matter dealt In detaIl wIth the eVIdence regardIng the events of March 3 1 1998 It IS sufficIent to summanze that on March 31 1998 whIle In the presence of a student who was accompanYIng the gnevor on her dutIes In the JaIl, the gnevor InqUIred ofMr MroczynskI as to whether she would be attendIng a refresher traInIng course Mr MroczynskI responded by askIng the gnevor whether she was seeIng a psychIatnst, or stIll seeIng a psychIatnst, and IndIcated that he had concluded, on the assumptIOn that the gnevor was seeIng a psychIatnst, that she was not sUItable for the refresher traInIng course The gnevor was greatly upset at the vIOlatIOn of her pnvacy and felt that she was beIng dIscnmInated agaInst In beIng demed the course The umon requested an Intenm rulIng on these matters, allegIng a breach of the partIes' Intenm consent regardIng the handlIng of medIcal InfOrmatIOn. The eVIdence pertaInIng to the gnevances was temporanly recessed on May 25 1998 In order to hear eVIdence pertaInIng to the events of March 31 1998 The gnevor provIded the employer wIth a note from Dr Pnnce dated Apnl 2, 1998 (Ex. 80) whIch stated Please maIntaIn on the eXIstIng modIfied programme that thIS lady IS presently Involved wIth, and I wIll assess agaIn In 6/12 The gnevor dId not dIspute the suggestIOn In cross that her doctor "changed hIS past practIce and now It'S SIX months" She dId not dIspute that In hIS letter to her dated Apnl 16 1998 (Ex. 81) Mr Chenard, who by that date had become Supenntendent of the Sudbury JaIl, had stated that she would contInue to be accommodated for SIxty days "at whIch tIme you wIll be requested to provIde me wIth an update on your medIcal condItIOn." She said that the employer wanted the InformatIOn "so they could mIsuse It." 124 RegardIng the above note, Mr Chenard stated "AgaIn, Dr Pnnce, on hIS lIttle prescnptIOn pad-Instead of the Form that we keep sendIng. On here, to our dIsmay It says 'Please maIntaIn on the eXIstIng modIfied programme' and he wIll reassess her In SIX over twelve So now he wants to change the rules Consequently we were surpnsed, as In hIS Feb 6/98 note (Ex. 77) he said she was dOIng very well now for whatever reason, he says thIS accommodatIOn should go for SIX months" Mr Chenard was asked what he meant by "to our dIsmay" He replIed "Because the last InfOrmatIOn was she was dOIng very well We haven't heard anythIng dIfferent that would alter the pattern we establIshed whIch was SIxty days So we were surpnsed by that, dated Apnl 2, 1998 " In cross-eXamInatIOn, Mr Chenard said that he could not remember whether he had asked Dr Pnnce why he had changed the penod of re-assessment from SIxty days to SIX months He said that he could not remember whether one of the thIngs whIch "caused thIS" was Mr MroczynskI's havIng asked the gnevor on March 31 1998 In the presence of a student, If she was stIll seeIng a psychIatnst. He said that he dId not know whether from a common sense pOInt of VIew there mIght have been a connectIOn between that IncIdent and the SIX month extensIOn of accommodatIOn that Dr Pnnce requested on Apnl 2, 1998 Asked If he doubted that Dr Pnnce's SIX month extensIOn of the accommodatIOn had been appropnate he replIed "There was a two-month polIcy" He then agreed that he thought It had been Inappropnate for Dr Pnnce to have extended her accommodatIOn for SIX months The gnevor filed two gnevances dated Apnl 8 1998 (Ex. 9b and 9c) regardIng the events of March 31 1998 The first alleged Mgt IS In vIOlatIOn of ArtIcle 3 1 of the collectIve agreement and Sec 10 (1) of the Ont. Human Rights Code Re a vexatIOus remark unbecomIng a mananger (SIC) towards myself In the presence of student I was supposed to be traInIng. and requested the folloWIng settlement That dIscIplIne (appropIate) (SIC) be bestowed upon respondant (SIC) (Mr MrocynskI) (SIC) so that thIS sItuatIOn wIll never happen agaIn. And total full redress of all momes & Interest for the duratIOn of the gnevance The second gnevance dated Apnl 8 1998 (Ex. 9c) alleged 125 Mgt IS In vIOlIatIOn (SIC) of ArtIcle 3 1 of the collectIve agreement by dISCnmInatIng agaInst me by not allowIng me the opertumty (SIC) to attend my entItled refresher coarse (SIC) on Hostage NegocIatIOns (SIC) and requested the folloWIng settlement To be sent on refresher and a letter of apology be put on my file for thIS mgt blunder and total full redress for the duratIOn ofthI (SIC) gnevance On Apnl 15 1998 the gnevor submItted a further gnevance (Ex. 9d) allegIng Mgt IS In vIOlIatIOn (SIC) of Art. 21 1 of the collectIve agreement Because they have dIscIplIned me wIthout Just cause 1 e a 5 day suspenSIOn consIstIng of 5 -12 hr ShIftS and requestIng the folloWIng settlement For local mgt to be held accountable for theIr dISpenSIng of unJust dIscIplIne and that I receIve total full redress for all momes and Interest for the duratIOn of thIS gnevance Mr Chenard sent the folloWIng letter dated Apnl 16 1998 to the gnevor Thank you for your doctor's note dated Apnl 2, 1998 whIch IndIcates you are to remaIn on the eXIstIng modIfied program, and you wIll be assessed agaIn In SIX months We wIll contInue to accommodate your medIcal restnctIOns for another SIxty days at whIch tIme you wIll be requested to provIde me wIth an update on your medIcal condItIOn. Enclosed please find a new accommodatIOn for you to sIgn and return by Apnl 23 1998 Should you have any questIOns regardIng thIS letter please do not hesItate to contact me Supt. Chenard descnbed the above letter as one whIch he had sIgned "to show I look at accommodatIOn and supervIse It and we got an Issue We've been reVIeWIng every two months and now It'S SIX months So I told her SIxty days and enclosed a new accommodatIOn form for return and sIgnature by Apnl 23 1998 It's never been sIgned or returned. I also said If she had any questIOns she could contact me It never happened." The gnevor receIved the folloWIng letter dated July 21 1998 (Ex. 82) from Mr Blais 126 On Apnl 6 1998 an accommodatIOn plan was developed and you were placed on a temporary modIfied work schedule for 60 days To determIne If accommodatIOn IS stIll reqUIred, we request an update on your condItIOn and attached you wIll find a Request for Employee Health InformatIOn Form to be completed by you and your attendIng physIcIan. We request the return of thIS report by August 5 1998 In the meantIme, we wIll contInue to ensure that your needs are beIng met. Any charges for provIdIng us wIth the satIsfactonly completed report, should be consIstent WIth the OMA fee schedule and forwarded by InVOICe, to my attentIOn. The gnevor also receIved the folloWIng letter from Mr Blais, dated August 12, 1998 (Ex. 83) On Apnl 6 1998 an accommodatIOn plan was developed and you were placed on a temporary modIfied work schedule for 60 days To determIne If the accommodatIOn plan IS stIll reqUIred, we request an update on your condItIOn. Attached you wIll find a request for Employee Health InformatIOn Form to be completed by you and your attendIng physIcIan. We request the return of thIS report by August 21 1998 In the meantIme, we wIll contInue to ensure that your needs are beIng met. Any charges for provIdIng us wIth the satIsfactonly completed report should be consIstent WIth the OMA fee schedule and forwarded by InVOICe to my attentIOn. Mr Chenard said, regardIng Mr Blais' letter dated July 21 1998 (Ex. 82) "ObvIOusly between Apnl 16 and July 21 1998 It'S greater than two months Due to the fact we were In negotIatIOns and there mIght have been some settlement we contInued her accommodatIOn whIle the process was gOIng on. In July we resumed the same kInd of pattern we had prevIOusly been Involved wIth from the begInmng. We dIdn't want to JeopardIze any of that stuff [the settlement negotIatIOns] so we kept her on her modIfied work program So In thIS letter we asked her to have the form filled out by her doctor and returned by August 5 1998 WhIch, agaIn, It wasn't receIved untIl the 21 8t of August. And we said we'd keep her accommodatIOn In place" Asked how the settlement negotIatIOns affected hIm sendIng out the letter Supt. Chenard replIed "We thought there may not be a reqUIrement for an accommodatIOn If we were successful In negotIatIOn of a settlement. ThIS was July now It had been SIxty days from Apnl " 127 The gnevor provIded the employer a Request for Employee Health InformatIOn form dated Aug. 21 1998 completed by Dr Pnnce (part of Ex. 83) whIch IS stamped receIved August 25 1998 It IndIcated, among other thIngs, that there are "medIcal/health condItIOns that account for absence(s) from the workplace or would affect the employee's abIlIty to perform hIs/her dutIes" and stated "StIll too emotIOnally unstable to return to usual work. Please keep on eXIstIng modIfied program and reVIew In SIX months" He IndIcated that the precedIng "lImItatIOn or restnctIOn" was temporary and dId not IndIcate the expected duratIOn. In cross-eXamInatIOn, Mr Chenard said that he thought the SIX month extensIOn of the modIfied work program at that pOInt was "Inappropnate In a busIness sense We also have the nght to contInue wIth our polIcy There IS nothIng wrong wIth askIng the doctor to reVIew the patIent every SIxty days SIX months IS a long tIme" He agreed that SIxty days IS a gUIdelIne rather than a hard and fast rule Asked whether he would not accept the recommendatIOn to maIntaIn the accommodatIOn for SIX months, he replIed "We would ask hIm In SIxty days to reVIew It agaIn." Subsequently In cross-eXamInatIOn Mr Chenard was asked "DId you respect Dr Pnnce's medIcal OpInIOnS at thIS tIme?" He replIed "Yes, I dId. I stIll do to thIS day" Asked "Was there any necessIty to challenge It every two months?" he said "Yes, there was" He acknowledged that there had been no medical reason to challenge It every two months He said that he was not sure and could not recall whether he had ever consIdenng "laYIng off askIng [for a Health InformatIOn form] every two months" The gnevor agreed In cross that the employer's plan had been to update her health InfOrmatIOn every SIxty days She said "And my doctor's plan was every SIX months" She said that she left to her doctor to determIne the appropnate length of tIme to reassess her and declIned to state an OpInIOn as to whether It was reasonable or unreasonable to be reassessed every SIxty days Asked whether It would have caused her any hardshIp or dIscomfort, she replIed that she could not remember "how I was then." She said that her brother had passed away that month. She acknowledged that she had not gneved management's reqUIrement that she be re-assessed every SIxty days With regard to Mr Blais' letter dated Aug. 12, 1998 and the Employee Health InformatIOn form (Ex. 83) Mr Chenard said "Not havIng receIved a report by August 5 128 1998 as requested, we wrote to Mrs LatImer agaIn askIng for the InformatIOn. We asked at thIS pOInt for It to be returned by August 21 1998 and In the meantIme Said we'd ensure her needs beIng met. We receIved the Form on August 25 1998 It was late, but that's OK. ThIS tIme the doctor actually filled out the nght form. ThIS tIme, somethIng dIfferent. He wrote 'yes' to QuestIOn B (1) - 'stIll too emotIOnally unstable to return to usual work.' -- and asks for SIX months He checks off 'temporary' but doesn't fill out the tIme He said 'no' to QuestIOn 3 He sIgned It August 21 Of course, we had some concern wIth the sIx-month penod agaIn. We had some concerns wIth the statement he made because Mrs LatImer was assIgned to the Control office Nevertheless, we went along wIth what the doctor was recommendIng, except for the SIX month part." Events of Dec. 30, 1998 Mr Pedron had by August, 1998 become Deputy Supenntendent. He wrote to the gnevor on December 4 1998 (Ex. 84) enclOSIng a further Employee Health InformatIOn form for completIOn, and requestIng ItS return by December 21 1998 In a sImIlar format to the prevIOUS letters In 1998 Mr Chenard Said, regardIng Mr Pedron's letter "AgaIn you wIll notIce there's a dIfference In the tIme frames" Asked to clanfy he Said "August 12 to December 4-due to the fact there was negotIatIOns gOIng on." He agreed wIth the suggestIOn that the employer had let "the October deadlIne" slIde due to negotIatIOns He Said "On December 4 we resumed our accommodatIOn plan, agaIn by askIng her to have her physIcIan complete the form by Dec 21 " He Said that Dec 21 had been desIgnated "Because normally the penod we gIve IS ten days and we're stIckIng to It. SO we can prepare the accommodatIOn If there's some changes that have to be made" As the employer had not receIved a reply to Mr Pedron's letter Mr Chenard wrote a letter to the gnevor dated December 24 1998 (Ex 62 and 85) as follows On December 4 1998 correspondence was sent to you wIth regards to provIdIng me wIth medIcal InfOrmatIOn In order to amend or contInue your present work accommodatIOn. ThIS InformatIOn was reqUIred by December 21 1998 129 To date we have not receIved any medIcal InfOrmatIOn. Therefore, In order for me to contInue your eXIstIng accommodatIOn, you must provIde the above forthwIth or contact the undersIgned. In the event that we have not receIved the reqUIred InformatIOn by December 30 1998 I wIll have no other optIOn but to return you to your regular dutIes effectIve January 4 1999 If you have any concerns regardIng thIS letter please feel free to contact us Mr Chenard said, after reVIeWIng the above letter "Once agaIn, not havIng receIved the form I requested by the 2181 I wrote a letter to Mrs LatImer IdentIfYIng I'd sent a letter Dec 4 requestIng It by the 2181 and to date no medIcal InfOrmatIOn and In order to contInue her accommodatIOn we requested she contact us and provIde It. At the end of the year the new schedule comes In. A lot of thIngs happen. We need to proJect and plan. We need InformatIOn to make plans, schedulIng-wIse At thIS tIme, there was a deadlIne Dec 30 LookIng at her schedule her regular dutIes would have been January 4 That's why I put that day down. And also the last InformatIOn we had was August, whIch was qUIte a whIle ago" He contInued "January 4 would have been a good tIme to put her back Into her regular schedule and dutIes That's why that date was pIcked. Now thIS letter was, there's a comment (at the bottom of the letter) receIved December 30 1998" Mr Chenard acknowledged that the date of hIS letter Dec 24 1998 was the day before Chnstmas He said "I realIze It'S gOIng to be dIfficult to get a letter to her I realIze It'S gOIng to be dIfficult to get a letter to her so I left It WIth the OperatIOns Manager to gIve to her and let me know when she's got It so If I need to make any adJustments, I can. I dIdn't check when she was workIng. I forget who the O.M. was at the tIme I left It In the logbook In the lie's office" The gnevor said that she receIved the above letter whIle at work at the JaIl on December 30 1998 whIle she was workIng under modIfied condItIOns whIch she understood were to expIre on February 1 1999 She had not yet receIved the letter dated Dec 4 1998 A copy had not been enclosed wIth the above letter She said that Mr Chenard had seen her and spoken to her many tImes, and that he could have spoken to her about the Dec 4 1998 letter and could have asked If she had receIved It. She said that she receIved the Dec 24 1998 letter "wIth a note on It to respond to hIm the same 130 day Dec 30/98 was no extensIOn, as I dIdn't get the first letter" At another pOInt In her eVIdence she said that she "got from It" 1 e the letter that "It was cancelIng my modIfied posItIOn In Control and the deadlIne to provIde the InfOrmatIOn was Dec 30 1998" She said that the letter was "really upsettIng, made me sIck to my stomach" and that the employer wanted more "unwarranted" medIcal InfOrmatIOn whIch, she said, had been used agaInst her She said that as they gave the letter to her on Dec 30 "I assume thIS was Just another ploy They were tryIng to upset, put me In a bInd where I had nowhere to turn and threaten me to lose my modIfied. I got upset, really nauseous" She said In cross that she dId not speak to Mr Chenard about her concerns, as InvIted In the last lIne of the letter She said "When I got It I became very upset. It said he was returmng me to regular dutIes that day over a request for medIcal InfOrmatIOn I knew nothIng about. And I had to Wait 1 1Iz hours for medIcal relIef I went home SICk. He called me when I got home He refused me relIef and then phoned me and wanted a letter He could have phoned me before sendIng me a threatemng letter" It was pOInted out to the gnevor that the thIrd paragraph ofMr Chenard's letter (Ex. 85) said that she would have been returned to regular dutIes on January 4 1999 She replIed "Yes, but how could I get hIm the medIcal InfOrmatIOn the same day?" She dId not agree that It was "fair of hIm to tell [her] the consequences of a non-reply" and said "not before determInIng whether I receIved the first letter [Ex. 84 Dec 4 1998]" She agreed that Supt. Chenard had extended the tIme for provIdIng the InformatIOn, once she Informed hIm that she had not receIved the Dec 4 1998 letter She pOInted out that "by then" she had "gone home sIck Dec 30 and was off for a month." The gnevor wrote a handwntten reply dated Dec 30 1998 (Ex. 86) to Mr Chenard's Dec 24 1998 letter shortly after she receIved It on Dec 30 1998 whIle she was In Control In her reply she advIsed Mr Chenard that she had not receIved the Dec 4 1998 correspondence, and maIntaIned that the modIfied work penod had been for SIX months, and was to be reassessed In February 1999 and obJ ected to the cancellatIOn of her modIfied work the same date as the date of receIpt of the letter She alleged "contInuIng harassment." The gnevor said that she arnved at work around 7 a.m. on Dec 30 1998 that Mr McGregor gave her Mr Chenard's letter (Ex. 85) some tIme after 7 a.m whIle she was In 131 the Control module, that she wrote her letter In reply and that she became upset and went upstairs for a washroom break, at about 8 30 a.m She said that she had become upset "thInkIng about what he'd done to me" WhIle on her break she asked Mr St. George for a relIef, and told hIm that she was SICk. She called Mr St. George at 8 50 a.m. Inqulflng as to whether he had obtaIned someone to relIeve her said that Mr McGregor called Mr St. George at 8 57 a.m. for the same reason, and that she called Mr St. George agaIn at 9 10 a.m She said that some tIme after 9 10 a.m she heard Mr Moyle offer to Mr St. George to relIeve In Control, and that Mr St. George dIrected hIm to provIde relIef for a washroom break In A area, whIch, she said was not an emergency She said that Mr Lachance relIeved her at 9 25 a.m. by whIch tIme she had become more and more provoked and upset, sImply WaitIng to be relIeved. The gnevor said that she should have been relIeved In fifteen mInutes, and that when she IS upset and cryIng for ten to fifteen mInutes, that It "feels lIke an hour" She stated that It was unreasonable for her to have had to Wait 55 mInutes for a relIef, partIcularly when one C 0 had volunteered to relIeve her Mr St. George was unable to recall on November 18 1999 when he gave hIS eVIdence, whether the gnevor had asked hIm to be relIeved to go home In December 1998 He was shown the Wednesday Dec 30 1998 Duty Roster (Ex. 97) He descnbed as a "gUIdelIne" "a page wIth letters on It IndIcatIng assIgnments and staff assIgned to them" and said that a retIred LIeutenant had descnbed the Roster as "wntten In water- colours" He said that It IS created "to gIve everyone a fair rotatIOn whIch they can see" Mr St. George said that on Dec 30 1998 full-tIme CO s had been reqUIred for three medIcal escorts and one Temporary Absence Program escort, and that as a result, It had been necessary to call In casuals to replace them. He said that he had wntten "cont" besIde the gnevor's pnnted name on the Roster (Ex. 97) and that she had been "marked off sIck 11 00 to 1500 0930 probably She's marked off sIck 1500 to 1900 as well" He agaIn confirmed that he had no recollectIOn of the gnevor havIng asked to be relIeved on Dec 30 1998 Asked "Does, would thIS sheet (Ex. 97) assIst you In determInIng whether you could relIeve a C 0 who asked to leave at 8 30?" he replIed "It does It would be ImpossIble to let that person go home at 8 30 I wouldn't have the complement to do so" 132 He said that the pnnted mImmum complement had been 16 He said that relIevIng someone would have brought the complement to 15 Asked "Does thIS document assIst you In determInIng when Ms LatImer was relIeved to go home?" he replIed "Paul Lachance In Control at 11 Maybe then. But also 0930 besIde her name Could've been 9 30 I don't know" The handwntten entry "SIck 0930" appears besIde the gnevor's name In the 1100 to 1500 column of the Roster (Ex. 97) He said that between 0700 and 1100 Mr Moyle was dOIng showers and Yard Duty He said that Yard dutIes "basIcally run to the end of the day" He said that the C 0 assIgned to doctor's parade also "goes to yard dutIes" and that there are two yards and that two CO s do yard dutIes at the same tIme He said that he sends the Yard Duty C 0 to do washroom leaves, but not sIck relIefs If the C 0 has to go home, unless hIS staff level IS above complement. He said that otherwIse, he has to call someone In. Mr St. George said that Ifhe must call someone In (to relIeve a sIck CO) that It takes one to one and a half hours to relIeve the person. In cross-eXamInatIOn, Mr St. George said that Mr MroczynskI had been "In for SchedulIng" on Dec 30 1998 and that he could not recall whether he had dIscussed wIth hIm that the gnevor was requestIng to be relIeved. He said that he could not recall whether he had asked Mr Moyle to relIeve her Asked whether he recalled who had relIeved the gnevor he said that Mr McGregor had been In Control under 0700 and 1100 and that Lachance was desIgnated as In Control In the 1100 column. He was unable to recall the reason the gnevor had gIven for askIng to be relIeved. He said that he had not wntten an Occurrence Report, that he dId not know whether Mr Chenard had been on ShIft, dId not recall whether anyone had asked hIm to wnte an Occurrence Report, dId not remember an InVestIgatIOn havIng occurred subsequently regardIng the gnevor havIng left work sIck, and could not recall havIng dIfficulty findIng someone to relIeve the gnevor after she had said she was SICk. He said "Not If! can't recall the IncIdent." Mr St. George said that he had been ShIft IIC that mormng. He IndIcated In cross that 18 officers formed the complement between 0700 and 1100 on Dec 30 1998 He was unable to IdentIfy the CO who accompamed the Inmate on funeral TAP from 9 30 to 12 30 ViewIng the ongInal of Ex. 97 (the Dec 30 1998 Duty Roster) he said "So 133 much here It'S confusIng me" Asked whether the escort would have been the TAP officer and Lachance he replIed "more than lIkely" It was then put to hIm that It was understood that Mr Lachance relIeved the gnevor at 9 25 He said that he dId not know who had done the funeral escort wIth the TAP officer Mr St. George said that he dId not recall Mr McGregor havIng confronted hIm as he was leavIng the admInIstratIOn part of the bUIldIng and askIng hIm when the gnevor would be able to leave He said that the dId not recall havIng told Mr McGregor that he would have to talk to Mr MroczynskI, and agreed that Mr MroczynskI would have been the person to speak wIth about relIef, and said "He was dOIng SchedulIng." He said that he dId not recall Mr McGregor havIng told hIm that the gnevor was pretty frustrated and havIng to leave Mr St. George agreed that he dId not know whether he had asked the gnevor for a doctor's note He agreed that he had not sent her a letter requestIng one Mr Chenard advIsed that he had not known that the gnevor had not receIved the Dec 4 1998 letter from Mr Pedron untIl he receIved the gnevor's handwntten letter dated Dec 30 1998 (Ex. 86) He said "I dIg up a copy of the Dec 4 letter and then I make some calls I call Purolator and InqUIre They checked and said 'we stIll have the letter here' I asked them to return It to me WIth a wntten explanatIOn." He said, wIth reference to her statement In her letter (Ex. 86) that her penod of modIfied work was for SIX months and that she was to be reassessed In February 1999 "August and February are a lIttle apart, but that's ok." With respect to the gnevor's complaInt In her letter that the employer proposed to "cancel her modIfied" the same date upon whIch she receIved the letter "because medIcal InfOrmatIOn IS not gIven on the same day" he said "That's why I wanted to know when she receIved my letter It's happened before We make those adJustments The letter dIdn't say we'd cancel, only If we dIdn't get the InformatIOn." With respect to the folloWIng passage In her letter Let me clanfy how ndIculous thIS whole correspondence IS Mr Chenard I see you every day I work at the Sudbury JaIl You've sat In control module for lengthy persons of tIme talkIng to C/O McPherson on other matters You dIscussed your surgery and had plenty of tIme to dISCUSS and partIcIpate In small talk. Why In the whole month penod could you not tell me about thIS so-called correspondence I was to receIve (SIC) Dec 134 4/98? and why do I get thIS letter on the same date you deem to cancel my modIfied he said, "You could look at It two ways In the absence of medIcal InfOrmatIOn I could termInate her modIfied or after SIX months I could reclassIfy her My letter wasn't threatemng In nature I can't be responsIble for her perceptIOns" He then said "There's a pattern here that's been establIshed." Mr Chenard contInued to read from Ms LatImer's letter (Ex. 86) In Sept. 89 you were provIded wIth medIcal InfOrmatIOn to be assessed In SIX months - Sept - Feb IS SIX months and said "I got the InformatIOn In August, not September-that's not the end of the world." The gnevor said that Mr Chenard called her at home at 10 40 a.m. on Dec 30 1998 and that he asked her to dISCUSS the matter wIth hIm a few tImes and that she was so upset that she declIned to speak wIth hIm. Mr Chenard said "Before I wrote to her I made a SIncere attempt to call her She'd gone home sIck the same day she got the letter I reached her at 10 35 on Dec 30 at whIch tIme I tned genuInely and honestly to dISCUSS wIth her what had happened and my findIngs to date She told me she dIdn't want to talk about It and hung up So much for commumcatIOn. So I thought the best thIng I could do was send her a letter 'Cause I was tryIng to take care of the Issue and the thIng that was troublIng her" Mr Chenard wrote a letter to the gnevor dated Dec 30 1998 (Ex. 87) requestIng a completed Employee Health InformatIOn form by Jan. 22, 1999 and stated In It "In the meantIme, we wIll contInue to ensure that your needs are beIng met." RegardIng hIS letter (Ex. 87) he said, "So ObvIOusly now I've repeated the Dec 4 letter and changed the dates and thIS tIme I put a due date of Jan. 22 for the report, due to Chnstmas break." He said that thIS letter (Ex. 87) had been sent by Purolator and that Purolator had been remInded to let the employer know If It had been unable to delIver It "so we could access other means" He said that Purolator had been unable to delIver the letter and returned It on Jan. 7 1999 He said that It was gIven to another carner Dynamex, to delIver Mr Chenard wrote the gnevor a second letter also dated Dec 30 1998 whIch stated 135 On December 30 1998 you receIved a letter from me statIng that I was stIll WaitIng for medIcal InformatIOn whIch was requested by December 21 1998 ThIS correspondence was wntten and sent to you VIa Puralator (SIC) on December 04 1998 As you may well be aware the above firm has been delIvenng correspondence to employees for numerous years on behalf of the Sudbury JaIl From tIme to tIme there has (SIC) been some Issues respectIng delIvenes at whIch tIme we are contacted and advIsed accordIngly Unfortunately In thIS case they faIled to advIse us of the fact that they were not able to delIver the correspondence to you and also faIled to return the letter to us as thIS IS the standard procedure I have requested that they return the correspondence to me wIth a wntten explanatIOn. ObvIOusly there has been a breakdown In the process and through no fault of your own you faIled to receIve the letter In order to rectIfy the sItuatIOn I am sendIng you new correspondence requestIng the InformatIOn we were prevIOusly seekIng In order to contInue or amend your present work accommodatIOn. As for the fact that I have never mentIOned anythIng to you whIle on my rounds or In control dunng small talk, I am of the VIew that you have advIsed me that you do not wIsh to have any Issues concermng your sItuatIOn dIscussed In the presence of other employees and I am respectIng thIS request. If I would have known that the letter had not been delIvered, I would have reIssued It In order to be fair and professIOnal about your personal request. I am also of the VIew that you could have requested to speak to me regardIng thIS sItuatIOn, rather that (SIC) gOIng home SICk. Unfortunately you choose (SIC) not to and you wnte me thIS letter wIth accusatIOns that I belIeve are not warranted. I am always more that (SIC) prepared and wIllIng to SIt down and dISCUSS any Issues you may have and If we cannot resolved (SIC) them, then you may exerCIse whatever optIOns you wIsh. I hope thIS letter wIll help clear up any mIsunderstandIng thIS may have caused you and If you reqUIre addItIOnal InfOrmatIOn, please do not hesItate to contact me Mr Chenard said that he wrote the above letter to the gnevor "SInce I couldn't reach Mrs LatImer on the phone and commumcate wIth her my findIngs of the Issue" He said that Dynamex delIvered both letters (Ex. 87 and 88) to the gnevor on Jan. 8 1999 and referred to a Dynamex InVOICe (Ex. 92) as eVIdence of that delIvery 136 The gnevor said that she receIved Ex. 87 on January 8 1999 and saw Dr Pnnce In response to It. Dr Pnnce wrote to Mr Chenard on Jan. 19 1999 (Ex. 89) as follows ThIS lady recently came Into my office statIng that she was Informed that she would be gOIng back to her regular work In the very near future It was my understandIng that she was covered for her SIX month penod on modIfied work whIch would have run to about the 2ih of February I realIze that you had wntten a letter to her earlIer but thIS somehow became lost wIth Canada Post whIch seems to be a habIt these days However my feelIng remaInS the same that thIS lady has healthwIse Improved a great deal SInce beIng In Control and I would hope that you would allow her thIS preferred work for a further two month penod at whIch tIme I wIll reassess her There IS no doubt that she has Improved tremendously SInce she has worked In Control and I would antIcIpate that she wIll be back up to regular work wIthIn a two month penod of tIme I would hope that you wIll grant thIS further two month extensIOn penod to her ThankIng you In advance Mr Chenard said that Dr Pnnce had telephoned hIm at hIS office between Jan. 8 and 19 1999 and that they had spoken. He said that he faxed Dr Pnnce a copy of the Health InformatIOn form to hIm at hIS office Mr Chenard said, regardIng the above letter "It was not the Post Office, but that's ok. The words 'preferred work' stuck out to me As a preference rather than a medIcal thIng. I found 'tremendously' a strong word SInce nothIng had changed In her dutIes An overstatement, but that's 0 k. He wants a two-month extenSIOn. So I was prepared. A two-month extensIOn, and maybe then we could go back to regular dutIes I wasn't happy about 'preferred' but glad she could go back to work In a couple of months" In cross-eXamInatIOn, the gnevor resIsted the suggestIOn that she had been aVOIdIng letters delIvered by Purolator because she knew that the Mimstry sent letters VIa Purolator and that she had only receIved the Dec 30 1998 correspondence because It had been delIvered by Dynamex Couner The gnevor remaIned off work from Dec 30 1998 to about Jan. 26 1999 An Employee Health InformatIOn form dated Jan. 26 1999 (Ex. 90) was completed by Dr Pnnce, In whIch he replIed to the questIOn regardIng the gnevor's 137 "work-related lImItatIOns and/or restnctIOns" wIth the response "Please contInue eXIstIng modIfied work schedule for another SIX months" stated that the duratIOn was "temporary" IndIcated "6/12" as the "expected duratIOn" and IndIcated that hIS next assessment would take place In "2 - 3 months" The form IndIcates that the gnevor was not "Involved In treatment and/or takIng medIcatIOn that may affect her abIlIty to work, IncludIng attendance, and/or performIng certaIn dutIes" RegardIng the above-mentIOned Health InformatIOn form (Ex. 90) Mr Chenard said "I receIved thIS I was surpnsed. It was a lIttle bIt dIfferent from the letter I'd Just receIved from the doctor" He noted that Dr Pnnce had wntten "Please contInue eXIstIng modIfied work schedule for another SIX months" He said "Now I'm really confused. QuestIOn B2 says the restnctIOn IS temporary 6/12 QuestIOn B3 says no (not Involved In treatment and/or takIng medIcatIOn that may affect her abIlIty to work, IncludIng attendance and/or performIng certaIn dutIes) So I'm a lIttle bIt confused. Assessment In two to three months He sIgns It Jan. 26/99 I had a lot of questIOns but no answers as to what was gOIng on. Nevertheless, we kept Ms LatImer on her modIfied work." ConclusIons. No useful purpose would be served determInIng, on the eVIdence pertaInIng to the Dec 1 1997 meetIng between Mr Chenard, the gnevor and Mr McDonald, exactly who said what to whom and when. I conclude that by mId-December 1997 the gnevor and the employer were able to reach a Return-to- W ork/ AccommodatIOn Plan whIch was satIsfactory to the gnevor her doctor and the employer It IS to the credIt of both partIes that they were able to reach an agreement on that Issue I conclude, on the basIs ofMr Chenard's eVIdence regardIng hIS correspondence wIth the gnevor and the InfOrmatIOn provIded by Dr Pnnce that Mr Chenard was cntIcal of Dr Pnnce's use of notes rather than the Employee Health InformatIOn form. The eVIdence dId not establIsh that the notes, as opposed to the form, caused the employer any admInIstratIve dIfficulty I Infer from Mr Chenard's eVIdence and the manner In whIch he gave It, that he suspected that Dr Pnnce acqUIesced to the gnevor's stated preferences to hIm regardIng 138 her Return-to- W ork Plan. I Infer that he speculated that the gnevor through Dr Pnnce, was determInIng a Return-to-Work Plan whIch was not medIcally reqUIred, or that she and her doctor were colludIng In order to obtaIn for her a Return-to- W ork Plan whIch was not medIcally reqUIred. The changes In Dr Pnnce's notes of November and December 1997 (Ex. 58 and 60) contnbuted to hIS SuspIcIOns I conclude, on a balance of probabIlItIes, that after the gnevor receIved the employer's proposed Return-to-Work Plan and after the Dec 1 1997 meetIng, she consulted further wIth Dr Pnnce I conclude that Dr Pnnce consIdered her Input regardIng 1 the Impact upon her health of certaIn postIngs 2 the length of ShIft that her health permItted her to tolerate, and 3 the Impact upon her health of workIng more than five consecutIve days, and of workIng weekends It would be unusual for a physIcIan treatIng a patIent he had descnbed as emotIOnally unstable not to consIder the patIent's Input on these matters I conclude, on balance of probabIlItIes, and In the absence of any eVIdence to the contrary that Dr Pnnce consIdered the gnevor's VIews I also conclude that he exercIsed hIS Independent professIOnal Judgment as to an appropnate clImcally therapeutIc Return-to- W ork Plan. I conclude, from Mr Chenard's statement that It IS dIfficult for management to staff the JaIl on the weekends, that he and/or the SchedulIng officer would have preferred to be able to schedule the gnevor to work weekends In Control He said that keepIng the gnevor on straight weekdays would result In "extra coverage" dunng the week, and would result In the JaIl havIng to pay more overtIme The eVIdence dId not establIsh the frequency at whIch the JaIl would have "extra coverage" the extent of overtIme expense It Incurred as a result of the gnevor workIng In Control weekdays only or the economI c/ admInI stratI ve consequences I conclude, In the absence of any eVIdence to the contrary that the features of the Return-to-Work Plan devIsed by the partIes In December 1997 whIch placed the gnevor In Control post, weekdays only 12-hour ShIftS, dId not Impose undue economIC or admInIstratIve hardshIp upon the employer I concluded, In the Second Intenm RulIng In thIS dIspute, that on March 31 1998 Mr MroczynskI stated to the gnevor that she would not be sent to a CnsIs NegotIator 139 Refresher Course and eIther asked her "Can you tell me If you're seeIng a psychIatnst?" or asked her whether she was stIll seeIng a psychIatnst, In the presence of a student who was accompanYIng her In the JaIl at the tIme I deconstruct the March 31 1998 events as follows 1 In pressIng Mr MroczynskI for an answer to her questIOn (the reason for not beIng sent on the refresher course) the gnevor umntentIOnally contnbuted to the CIrcumstances In whIch confidentIal medIcal InfOrmatIOn pertaInIng to her mIght be dIsclosed In the presence of a thIrd person. 2 The gnevor on the other hand, dId not antIcIpate and could not have reasonably antIcIpated that Mr MroczynskI's answer would pertaIn to personal medIcal InfOrmatIOn. 3 It dId not occur to Mr MroczynskI that the professIOnal approach to the potentIal embarrassment the gnevor was umntentIOnally InVItIng, was to tell the gnevor that the subJ ect she was broachIng concerned personal InformatIOn and that rather than nsk vIOlatIng her pnvacy he would speak wIth her on the subJect at another tIme when she was not accompamed, or when, at her optIOn, she was accompamed by a umon representatI ve 4 It ought to have occurred to hIm 5 His statement was an unprofessIOnal vIOlatIOn of the practIce In the workplace that an employee's medIcal InfOrmatIOn be kept confidentIal 6 The gnevor was JustIfiably profoundly offended and profoundly embarrassed by Mr MroczynskI's IndIScretIOn. 7 Mr MroczynskI owed the gnevor a personal and professIOnal apology 8 There IS no eVIdence that he gave her an apology 9 The umntended consequence ofMr MroczynskI's IndIScretIon was to reInforce the gnevor's lack of confidence In the partIes' agreement reflected In theIr "Consent Order" that Mr Chenard would maIntaIn medIcal InfOrmatIOn pertaInIng to her wIth utmost confidentIalIty 10 The further umntended consequence ofMr MroczynskI's IndIScretIOn was to reInforce the gnevor' s resolve to dIsclose as lIttle as possIble regardIng her medIcal condItIOn to the employer 11 The umntended consequence of the gnevor's determInatIOn to dIsclose as lIttle as possIble regardIng her medIcal condItIOn was a reInforcement of the employer's lack of confidence In the necessIty for the extensIOns of the Return-to-Work Plan requested by Dr Pnnce 140 12 The employer's decIsIOn to not send the gnevor to the CnsIs NegotIator Refresher Course wIthout requestIng Input from her physIcIan was based on an unstated presumptIOn that she was psychIatncally or emotIOnally unfit to benefit from the traInIng and/or for the employer to realIze any benefit from sendIng her on It. 13 The decIsIOn not to send the gnevor to the Refresher Course was a dISCnmInatory one on the grounds of presumed dIsabIlIty 14 The employer was oblIged, In all the cIrcumstances, before decIdIng that she would not be sent to the Refresher Course, to have sent the gnevor a letter provIdIng detaIls of the course, IncludIng locatIOn, hours, actIvItIes, etc and to have requested her to have her doctor to provIde a wntten OpInIOn as to whether her workplace accommodatIOns or her current health status were a clImcalImpedIment to a) her attendance at the Course, and b) her abIlIty to functIOn as a CnsIs NegotIator at thIS tIme 15 A further umntended consequence ofMr MroczynskI's IndIScretIOn and the dISCnmInatory decIsIOn regardIng the Refresher Course was that It resulted In consIderable stress for the gnevor It also pOIsoned the workplace envIronment for the gnevor 16 On balance of probabIlItIes, the stress generated as a result of the events of March 31 1998 dId not enhance or accelerate the gnevor' s recovery There was no eVIdence that management Instructed Mr MroczynskI at any pOInt, before or after March 31 1998 that It IS appropnate to request a wntten medIcal OpInIOn from the employee's doctor as to whether hIs/her workplace accommodatIOn and/or hIs/her current medIcal condItIOn permIt an actIvIty or preclude It, before concludIng that an employee IS not to engage In the actIvIty I am unable to conclude that Mr MroczynskI breached the confidentIalIty of the gnevor's medIcal InfOrmatIOn wIth the IntentIOn to vex, harass or annoy the gnevor although It certaInly had that effect. There was no eVIdence that the employer dIsclosed that other employees saw or were seeIng a physIcIan of any kInd to thIrd partIes The absence of such eVIdence reflects well on the employer's general respect for confidentIalIty of ItS other employees' personal health InformatIOn. I conclude that Mr MroczynskI's dIsclosure of health InformatIOn pertaInIng to the gnevor In the presence of a thIrd party constItuted a breach of confidentIalIty 141 I conclude that Mr MroczynskI's decIsIOn not to authonze the gnevor to attend the refresher course wIthout seekIng the OpInIOn of her physIcIan was based on a presumptIOn of dIsabIlIty and constItuted dISCnmInatIOn. I dIrect that the employer provIde the gnevor a wntten apology for Mr MroczysnkI's dIsclosure of personal medIcal InfOrmatIOn In the presence of a thIrd party on March 31 1998 and for not havIng requested the OpInIOn of her physIcIan wIth respect to her attendance at the Refresher Course In 1998 pnor to decIdIng that she would not attend the Course I dIrect that the employer acknowledge In the wntten apology that Mr MroczynskI's dIsclosure was IndIScreet and a breach of the confidentIalIty whIch the employer was oblIged to maIntaIn regardIng health InformatIOn pertaInIng to ItS employees I dIrect the employer to acknowledge In the wntten apology that the decIsIOn to not send her on the refresher course wIthout first havIng requested and obtaIned the OpInIOn of her physIcIan was based on a presumptIOn of dIsabIlIty and was dISCnmInatory I conclude that Mr Chenard found unacceptable Dr Pnnce's stated IntentIOn, In hIS note dated Apr 2, 1998 (Ex. 80), to re-assess the gnevor In SIX months I conclude that Mr Chenard found Dr Pnnce's request that the gnevor be maIntaIned on the eXIstIng accommodatIOn plan acceptable In determInIng that a SIX month reassessment was not acceptable, Mr Chenard dId not attempt to Inform hImself as to whether Dr Pnnce had any clImcal or therapeutIc reason for propOSIng to re-assess her In SIxty days I conclude that Mr Chenard's comprehensIOn of emotIOnal Illness was not broad enough to consIder that possIbIlIty and to InqUIre However I conclude that common sense and prudence would have dIctated that before he had InsIsted upon stnct adherence to the two-month reVIew protocol, that he should have made such an InqUIry I conclude, from hIS eVIdence respectIng hIS extensIOns of the two-month penod whIle the partIes were engaged In settlement negotIatIOns, that he had fairly broad dIscretIOn to extend the two- month reVIew protocol It was not In dIspute on Sept. 27 2000 that the Apnl 8 and 15 1998 gnevances (Ex.9b 9c and 9d) had not been filed wIth the Gnevance Settlement Board and were therefore techmcally not properly before me The Apnl15 1998 gnevance IS agaInst a 5-day suspensIOn. No eVIdence was presented regardIng a suspenSIOn In 1998 I 142 conclude that the Apnl 15 1998 gnevance IS redundant of an earlIer gnevance In thIS proceedIng. In the Interest of provIdIng a final resolutIOn of the gnevor's allegatIOns agaInst the employer I have set out my conclusIOns above regardIng the events complaIned of Although the Apnl 8 1998 gnevances regardIng the events of March 31 1998 were not filed wIth the Gnevance Settlement Board, It was not In dIspute that the employer had receIved them. I conclude therefore, that the employer had notIce of her concerns anSIng from those events I conclude, agaIn, that Mr Chenard's comprehensIOn of emotIOnal Illness and the gnevor's health status In partIcular was not broad enough to enable hIm to apprecIate the probable Impact of those events on the gnevor' s condItIOn and recovery I find that In InformIng the gnevor In hIS letter dated Apr 16 1998 (Ex. 81) that the accommodatIOn plan would be contInued for a further SIxty days and that he reqUIred that she be assessed In a further SIxty days, Mr Chenard was somewhat IndIrect. His letter offered the gnevor no reason for reJectIng Dr Pnnce's proposal that she be re- assessed In SIX months Mr Chenard's letter and hIS eVIdence suggest that he felt It was Incumbent upon the gnevor to commumcate wIth hIm If hIS decIsIOn was not acceptable His letter placed the gnevor In the dIlemma of choOSIng between Dr Pnnce's recommendatIOn and Mr Chenard's decIsIOn. I conclude that Mr Chenard's comprehensIOn of emotIOnal Illness was not broad enough to enable hIm to apprecIate the probable Impact on the gnevor' s condItIOn and recovery of placIng her In thIS dIlemma and the resultIng stress on her ThIS IS very unfortunate for both partIes, as the Issue could have been resolved easIly by provIdIng the gnevor wIth a further letter requestIng Dr Pnnce to venfy to hIm whether he had any clImcal or therapeutIc reason for re- asseSSIng her In SIX months, In VIew of the two-month protocol I am unable to conclude that Mr Chenard Intended to harass or annoy the gnevor In decIdIng to InSISt upon a two month assessment. I conclude that he Intended to harass or annoy her doctor If anyone, and that he was reckless or IndIfferent to the stress that hIS reJectIOn of Dr Pnnce's proposed re-assessment penod would generate and the Impact that It would have on the gnevor partIcularly folloWIng shortly after the events of March 31 1998 143 NeIther the gnevor nor Dr Pnnce responded to Mr Blais' July 21 1998 request (Ex. 82) for a further Employee Health InformatIOn form by August 5 1998 I find It commendable of the employer to have contInued the gnevor's accommodatIOn/modIfied work, despIte the lack of a completed form. I conclude on a balance of probabIlItIes, that maIntaInIng the gnevor on the already eXIstIng Return-to-Work/AccommodatIOn Plan was not "Inappropnate In a busIness sense" and dId not result In undue economIC or admInIstratIve hardshIp to the employer It must also be noted that the gnevor's eVIdence was that her brother passed away at some pOInt after March 31 1998 I conclude, on a balance of probabIlItIes, that the employer's conduct was not the only factor contnbutIng to the gnevor's need to remaIn on modIfied work. On Aug. 25 1998 Dr Pnnce stated In a Health InformatIOn form (Ex. 83), among other thIngs, "stIll too emotIOnally unstable to return to usual work. Please keep on eXIstIng modIfied programme and reVIew In SIX months" Mr Chenard's eVIdence was "We had some concerns wIth the statement he made because Ms LatImer was assIgned to the Control office" DespIte hIS concerns, the employer contInued to accommodate the gnevor from August 25 1998 wIthout a request for an assessment In October 1998 untIl December 1998 when further dIfficultIes arose In the absence of any eVIdence to the contrary I conclude that In maIntaInIng the gnevor' s Return-to- Work Plan from August 25 1998 to December 1998 the employer Incurred no economIC or admInIstratIve dIfficultIes or hardshIp Events of Dec. 30, 1998 I accept the employer's eVIdence that Purolator dId not delIver the Dec 4 1998 letter (Ex. 84) to the gnevor and faIled to advIse the employer of the non-delIvery The gnevor suspected that the employer delIberately faIled to delIver the letter The employer suspected that the gnevor had delIberately evaded receIpt of the delIvery Mere SuspIcIOn does not constItute eVIdence The eVIdence dId not establIsh the dates of Purolator's attempts to delIver and whether the gnevor eIther was at home and dId not answer the door or whether she was not In. I accept that the gnevor dId not contact Purolator to pIck up the Dec 4 1998 letter However there IS no eVIdence that her 144 faIlure to pay attentIOn to that optIOn on the NotIce card and to exerCIse that optIOn was as a result of an IntentIon to thwart her own receIpt of the I etter Once she was advI sed of a letter for pIck up at the JaIl, Mr McGregor at her request that mormng, pIcked It up and she receIved It from hIm If she had Intended to evade receIpt, she could have pIcked It up later or not at all The gnevor was reportIng to work at the JaIl In December up to Dec 30 1998 The eVIdence dId not establIsh the reason the employer dId not delIver the Dec 4 1998 letter to the gnevor at the JaIl or ask her to pIck It up there I accept Mr Chenard's eVIdence that when he wrote the Dec 24 1998 letter (Ex. 62 & 85) he had not been Informed that the gnevor had not receIved the Dec 4 1998 letter (Ex. 84) I accept hIS eVIdence to the effect that at the end of the year the employer wanted an updated Health InformatIOn form regardIng her status and need for further accommodatIOn (if any) In order to determIne the Schedule for the New Year As there appear to have been valId admInIstratIve reasons for seekIng the updated Health InformatIOn form, I reJect the gnevor's accusatIOn that the request was "unwarranted." The gnevor dId not receIve the Dec 24 1998 letter (Ex. 62 & 85) untIl Dec 30 1998 The eVIdence dId not establIsh that the delay In adVISIng her of the letter beIng ready for pIck-up untIl Dec 30 1998 was for admInIstratIve reasons, e g. It had been dIctated on Dec 24 and typed on a later date, after the Chnstmas penod, or whether It had been typed on Dec 24 or 25 and the gnevor had not been scheduled to work after It was typed, untIl Dec 30 1998 By the same token, the eVIdence dId not establIsh that the employer delIberately made the letter avaIlable to her only on Dec 30 1998 the date the requested Health InformatIOn form was stated to be due I reJect the gnevor's suggestIOn that the employer had delayed her receIpt of the Dec 24 1998 letter to place her where she had "nowhere to turn." NeIther party's eVIdence establIshed bad faith on the part of the other In the delIvery of the December 1998 correspondence Mr Chenard's eVIdence was that he would have found It more admInIstratIvely convement to return the gnevor to her regular dutIes In January 1999 There IS no eVIdence to suggest that he had Intended to dIscontInue the modIfied work and schedule to whIch she had been assIgned, even If Dr Pnnce had requested It. I conclude that the Dec 24 1998 letter was delIvered on Dec 30 1998 due to a 145 cOmbInatIOn of admInIstratIve accIdent, InattentIOn, bad luck and bad tImIng. The day of delIvery certaInly dId not serve the employer's stated purpose whIch was to obtaIn the Health InformatIOn In order to plan the gnevor' s place In the cycle of the Schedule to commence Jan. 4 1999 I accept the gnevor' s undIsputed eVIdence that shortly after readIng the letter she became upset and "sIck to her stomach" and "really nauseous" It IS not In dIspute that Mr St. George dId not gIve ImmedIate pnonty to the gnevor's request for relIef on the mormng ofDec 30 1998 That IS regrettable There IS no eVIdence, however that he was aware that the gnevor had been "upset and cryIng for fifteen mInutes" and that she was In great dIstress The eVIdence establIshed that Mr MroczynskI, as SchedulIng Officer was the person to speak to about relIef, and It appears that neIther Mr St. George nor the gnevor nor Mr McGregor spoke to hIm Mr St. George was ensunng coverage of all posts as well as doctor's parade, temporary absences and showers wIth a staff of eIghteen before the gnevor was relIeved. The eVIdence raises the probabIlIty that It was so busy a mormng at the JaIl, that neIther Mr St. George nor Mr McGregor had the tIme to speak to Mr MroczynskI, or sImply forgot to The eVIdence does not permIt me to conclude that as a result of her gnevance of the events of Jan. 15 1997 or for any other bad faith reason, Mr St. George dId not accommodate the gnevor's request for relIef promptly The umntended consequence of the unfortunate date of delIvery of the Dec 24 1998 letter and the somewhat belated arnval of relIef for the gnevor was that the gnevor apparently suffered a temporary setback In her recovery and was unable to work from December 30 1998 untIl late In January 1999 I accept that the gnevor stIll recovenng, was unable to VIew the events ofDec 30 1998 as anythIng but harassment. However I conclude that she was mIstaken. I acknowledge and apprecIate Mr Chenard's frustratIOn wIth the gnevor's unwIllIngness to speak wIth hIm on the telephone on Dec 30 1998 I apprecIate hIS frustratIOn wIth the gnevor's wntten response I conclude that Mr Chenard dId not yet understand the medIcal and behavIOuralImplIcatIOns of Dr Pnnce's descnptIOn of the gnevor In August, 1998 as "stIll too emotIOnally unstable " I conclude that Mr Chenard dId not yet understand that the gnevor was probably stIll emotIOnally fragIle and 146 vulnerable to stress, and that that condItIOn mIght lImIt her abIlIty to consIder alternatIve explanatIOns for the events I conclude that as a consequence of that lack of understandIng, he found some of the statements In her letter antagomstIc I conclude that the only "pattern here that's been establIshed" as stated by Mr Chenard, was the pattern of the employer's often Inadvertent and at tImes delIberate actIOns whIch precIpItated umntended consequences of further Illness on the part of the gnevor Mr Chenard had not Informed Dr Pnnce dIrectly that hIS plan In the Aug. 21 1998 form (Ex. 83) to re-assess the gnevor In SIX months was not acceptable ThIS lack of dIrect commumcatIOn IS reflected In Dr Pnnce's statement In hIS letter dated Jan 19 1999 (Ex. 89) "It was my understandIng that she was covered for her SIX month penod on modIfied work whIch would have run to about the 2ih of February " I Infer from Mr Chenard's remarks pertaInIng to Dr Pnnce's use of the words "preferred work" In that letter that he suspected that Dr Pnnce dId not have valId therapeutIc reasons for requestIng that the gnevor be maIntaIned In the Control post. I conclude that hIS remarks reflect hIS SuspIcIOn that the gnevor was determInIng her accommodatIOn, and that Dr Pnnce was sImply her mouthpIece Dr Pnnce's note dId not IndIcate that the work In Control was the gnevor's preference However I Infer from Mr Chenard's remarks, that that was how he Interpreted "preferred work" The eVIdence was as consIstent WIth the InterpretatIOn that the work was Dr Pnnce's clImcal preference, because It was the posItIOn least lIkely to tax the gnevor whIle she was recovenng, as It was WIth Mr Chenard's InterpretatIOn. It IS to Mr Chenard's credIt and he should be commended for havIng maIntaIned hIS professIOnalIsm, despIte hIS SuspIcIOn regardIng the words "preferred work" and hIS stated surpnse and confusIOn regardIng Dr Pnnce's Health InformatIOn Form dated Jan. 26 1999 (Ex. 90) and commended for havIng maIntaIned the gnevor In the modIfied work program recommended by Dr Pnnce In the Jan. 26 1999 form 147 Segment 6 January 26 1999 to May 9 1999 The gnevor returned to work In Control module under a Return-to-Work plan on about Jan. 26 1999 havIng been absent SInce Dec 30 1998 The folloWIng eVIdence pertaIns to the events of March 27 1999 Apnl20 1999 and May 9 1999 March 27 and Apn120, 1999 The gnevor said that on March 27 1999 she understood from a colleague that Mr MroczynskI was about to tell her about an upcomIng CnsIs NegotIator traInIng course As Mr MroczynskI dId not mentIOn anythIng about It to her dunng the course of the day she asked Mr MroczynskI "Is the traInIng comIng up?" She said that he had replIed "Yes, but not for you." She said that Mr Lachance, the OPSEU Local PresIdent, had been wIth her and that they had both asked Mr MroczynskI "Why not?" and that Mr MroczynskI had replIed "You'd better talk to Roger Chenard." The gnevor said that the traInIng course had been held over eIght contInuous hours dunng the day on the Monday after March 27 1999 She later said that she dId not know when the traInIng had started or ended. She filed two gnevances dated March 30 1999 (Ex. ge and 9f) The first gnevance (Ex. ge) stated AgaIn, I gneve that I have been dIscnmInated upon due to medIcal and repnsal due to harassment complaInts As a member of the cnSIS InterventIOn team I was refused traInIng. When I asked Mr MroczynskI (CnsIs Co-OrdInator) about the traInIng beIng avaIlable he said yes but not for you. Talk to Roger Chenard. and requested the folloWIng settlement That thIS dISCnmInatIOn and harassment cease and desIst and that the persons responsIble be made accountable The second gnevance (Ex. 9f) stated I gneve that I was wrongfully demed traInIng In cnsIs InterventIOn whIch was offered to my co-members as overtIme and requested the folloWIng settlement 148 4 hrs overtIme PostIng of any traInIng avaIlable and fair treatment. In cross eXamInatIOn, the gnevor agreed that when her attendance at a traInIng course on a day off IS authonzed by the employer she IS paid overtIme for her attendance She said that her medIcal restnctIOns had been to work In Control only days only workIng the same days, and maIntaInIng the same days off She agreed that Dr Pnnce's note ofDec 10 1997 (Ex. 73) stated that she was to work twelve-hour scheduled ShIftS, days, In control, to be assessed In two months She agreed that she usually worked a twelve-hour ShIft, and added that sometImes she worked an eIght-hour shIft. She said that she was not sure whether the second CnsIs NegotIator traInIng took place at mght. She agreed that It was to take place at CecIl Facer Youth Centre She dIsputed that her medIcal restnctIOns prevented management from sendIng her to the traInIng at mght. She said that she had been offered and had worked overtIme at mght, "up to 11 p.m wIth a day off the next day" She said that the Dec 10 1997 note had been from 1997 and that she had not been asked for a doctor's OpInIOn, when she was demed the refresher traInIng. She said that traInIng whIch took place In the evemng dId not vIOlate her "doctor's restnctIOn" any more than workIng overtIme had vIOlated It. It was put to the gnevor that Mr MroczynskI would say that she approached hIm about negotIator traInIng and that he had said "Talk to Roger" She replIed "Yes" She dIsagreed that that had been all that Mr MroczynskI had said. She said "He said 'there's CnsIs NegotIator traInIng, but not for you.' I said 'Why not?' He said 'Talk to Roger' And Lachance asked 'Why?' " The gnevor said she had not asked Mr Chenard about the traInIng, and that she had put In a gnevance for overtIme, as the traInIng was to take place on her day off, and because of the refusal She demed that Mr MroczynskI had told her that If she obtaIned "a medIcal letter" that he would send her on the traInIng. She said that Mr Chenard had offered to send her on cnsIs negotIator traInIng only If she resumed full C 0 dutIes She dId not dIspute that her employer needs to know her medIcal restnctIOns In order to know "where to place [her] " The gnevor said that at a the end of a Step 2 meetIng regardIng her gnevances, Mr Chenard had said to her that If she wanted to resume regular dutIes, that she Just had to tell hIm and dId not need a medIcal note, and that he would send her to traInIng. She 149 Said that after all the requests for medIcal InfOrmatIOn and havIng taken her off the payroll, Mr Chenard had said that he had the authonty to return her to regular dutIes and send her to traInIng wIthout medIcal InfOrmatIOn. She later said that Mr Chenard had told her that she could not attend the traInIng course because It took place In the evemng. She said that her regular ShIft was from 7 a.m. to 7 p m. and that she had worked four hours overtIme "a few tImes" and possIbly "SIX or seven tImes" between Jan. 16 and May 9 1999 She said that the traInIng was to take place at CecIl Facer Youth Centre, for eIght hours The gnevor said that Mr Chenard had told her that "because of your medIcal" she could only work Control Module She said that the employer had not asked her for any medIcal InfOrmatIOn IndIcatIng whether she could attend the CnsIs NegotIator traInIng She said In cross that she dId not consIder It "more reasonable" to speak to Mr Chenard about the traInIng, "after the laugh In my face at M.S.A. traInIng." The gnevor said that on Apnl 20 1999 she had been dIrected to attend Mimng Supply Apparatus (MSA) or air supply traInIng. She said that she was permItted to leave the bUIldIng to attend the MSA traInIng, despIte havIng prevIOusly been demed the CnsIs NegotIator traInIng course She said that she attended the MSA traInIng "figunng It'S probably Just another ploy to get a reactIOn, from management." She said that Mr UdeschInI gave the traInIng, and Ms Date and Mr Lachance attended It WIth her She said that theIr traInIng had Just begun and she had a mask on, and that Mr Chenard opened the door to the room, looked dIrectly In her face laughed, and closed the door She said that Ms Date said to her "Noell a, he looked nght at you and laughed" and that Mr Lachance said to her "that's nothIng but blatant harassment" and that Mr UdeschInI echoed hIS comment. She said that she concluded that as everyone else perceIved Mr Chenard's conduct as harassment, that It was harassment. In cross-eXamInatIOn, It was put to the gnevor that Mr Chenard would "deny he laughed or make any facIal expressIOn to laugh or mock you" and she was asked "Isn't It possIble he Just smIled?" She replIed "No" She said that she was In a posItIOn to tell why Mr Chenard was laughIng, but offered no InsIght Into Mr Chenard's motIves She 150 subsequently said "I belIeve he was laughIng at me" She was asked whether It was possIble that Mr Chenard was smIlIng and laughIng wIth one of her colleagues She acknowledged that Mr Lachance IS the Local PresIdent. She acknowledged that Mr Chenard had never laughed at her before, and said that Mr Chenard had not been as "blatant" before thIS IncIdent and said that Mr Chenard had "condoned a lot of thIS harassment. " The gnevor agreed that CO S are reqUIred to take M.S.A. traInIng, that CO S use self-contaIned breathIng apparatus for emergencIes, and that beIng able to wear M.S A. apparatus IS a basIc reqUIrement of her Job She said that the IIC had dIrected her to attend the traInIng at the warehouse that day that the traInIng took 4 to 5 hours, dunng the day She said that she dId not obJect to havIng been scheduled for M.S.A. traInIng, whIch, she said, took place annually She said "We have M.S.A. tanks In Control I figured If I dIdn't take the traInIng, I would lose my modIfied work. But Just before that I was refused my CnsIs NegotIator traInIng. It was out of control" In the context of speakIng of dIscussIOn at the end of a Step 2 meetIng, the gnevor said that Mr Chenard had told her that she had been able to take MSA traInIng because she was workIng dayshIfts, dunng whIch tIme the MSA traInIng was offered. Mr Lachance agreed that he attended an MSA safety course In Apnl, 1999 whIch had taken place "In our traInIng warehouse at the back of the JaIl" He said that he saw Roger Chenard and said "At one tIme, he looked In the door looked at Noella, laughed and closed the door" He said "Ms Date told Noella 'He looked nght at you and laughed' Norm said 'If that Isn't harassment, what IS?' or somethIng lIke that. I said somethIng lIke that too" In cross, Mr Lachance said that he dId not know why Mr Chenard went Into the room that day and that he had not been aware that Mr Chenard had been takIng an Informal Inventory In the InstItutIOn that day Asked "What kInd of laugh or smIle?" he replIed "A gnn and not that loud a laugh." He said that he dId not hear Mr Chenard say anythIng. Asked "Can you explaIn why Mr UdeschInI would lInk hIS actIOn wIth harassment?" he replIed "Because he looked In the door laughed, and went away" 151 Asked "Could you have taken It the wrong way?" he replIed "We all had the same perceptIOn." He acknowledged that they had not dIscussed the matter wIth Mr Chenard. Mr Lachance acknowledged that he was aware that Ms LatImer had gnevances about Mr Chenard. Asked "Isn't It possIble that that knowledge could've affected your perceptIOn?" he replIed "Yes, but the others weren't aware of It, to my knowledge" He acknowledged that he dId not know for certaIn that hIS colleagues dId not know about Ms LatImer's gnevances He acknowledged that although he had consIdered Mr Chenard's actIOns to have been harassment, he had not complaIned about It to anyone, and had not spoken to Mr Chenard In hIS capacIty as Umon Steward. He said that he dId not know If a gnevance had been filed. Mr Chenard said that on Apnl 20 1999 he and Secunty LIeutenant Prod and Deputy AdmInIstrator RIchard SmIth were planmng to go out of town to acqUIre certaIn eqUIpment, IncludIng showers, tables and locks, and that they had gone to the staff traInIng room He said that old desks, chairs, computers and computer desks were beIng stored In the garage and In the staff traInIng room, and that If the showers, tables, locks and other eqUIpment were obtaIned, the Items stored In the staff traInIng room would have to be removed to provIde space for the newly acqUIred eqUIpment. He said that he and Mr Prod and Mr SmIth first Inspected the garage for about twenty mInutes, dISCUSSIng how to dIspose of some of the Items, e g. by donatIOn, and then decIded to check the staff traInIng room to see If anythIng In there could be dIsposed of He said that he peeked Into the room and that he had not known that a traInIng seSSIOn was In progress He said that he saw Mr UdeschInI and Ms Date He said "I can't be responsIble for other's perceptIOns I don't go around wIth a long face I dId excuse myself and smIled." He said that he had smIled out of polIteness, and that he had said to Mr UdeschInI, who was at the front of the class, that he would come back later He then said "Some people feel saYIng good mormng IS harassment. Well, I'm sorry I don't go through the InstItutIOn pOIntIng a finger and rantIng and raVIng. I don't know what thIS IS about. I have wItnesses to say what we were dOIng that day How those people could come to these conclusIOns IS beyond me It's an attempt to dIscredIt me People SIttIng at thIS table have attempted to do that on more than one occaSIOn. I 152 Just attend to the busIness" He said that two days later or "maybe even the same day" It came to hIS attentIOn that Ms LatImer was aCCUSIng hIm of harassIng her that he poked hIS head Into the staff traInIng room and was harassIng her He said that he asked Mr SmIth and Mr Prod and the MaIntenance CoordInator to do a report on what he was dOIng In the staff traInIng room He said that he dId not keep tabs on Ms LatImer and Mr Lachance, that he dId not have tIme for that. He said "I don't go out of my way to harass people If! wanted to harass people, I would, but why would I go around dOIng that? I have a lot of busIness to take care of Unfortunately I thInk thIS IS a slander" Asked whether he had anythIng else he wanted to say he replIed "I can produce receIpts that I rented a truck and went down to Toronto and pIcked up stuff after that. I'm wIllIng to SIt down and dISCUSS thIS wIth Mrs LatImer or Mr UdeschInI or anybody" Mr MroczynskI said In dIrect that hIS normal dutIes were InstItutIOnal TraInIng Officer and SchedulIng Officer and that he had been the InstItutIOnal TraInIng Officer (ITO) for 11 months pnor to October 6 1999 He said that the cntena to decIde whether a C 0 receIves traInIng are the "reqUIrements of the person" He contInued "FIrst AId and CPR are mandatory The InstItutIOnal CnsIs InterventIOn Team (ICIT) are voluntary posItIOns, but traInIng IS mandatory Another factor IS the person's accommodatIOns and restnctIOns, whether or not they can go That's all taken Into consIderatIOn. MSA IS Mine Safety Apparatus, air packs, etc " He said that the posItIOn of Hostage NegotIator was a voluntary posItIOn. He said that when the gnevor asked about Hostage NegotIator traInIng, he had told her that she would have to see Mr Chenard "because I knew she wouldn't lIke the response I was gOIng to gIve her whIch would've been no Her accommodatIOns lImIted her partIcIpatIOn." He said that he had seen the form, and that she was on steady days, # 1 ShIft, In Control Module He said that the Hostage NegotIator traInIng IS held In two parts, the basIc course, and the refresher course, and that the gnevor would have attended the refresher course He said that the partIcIpants In that course worked from 8 p m. to 3 153 a.m. "doIng a scenano" He said that he had attended a refresher wIthIn the last several months of the date of hIS testImony (October 6 1999) Asked "When was the next refresher course?" Mr MroczynskI replIed "It was In Bell Cairn. I belIeve It was a week-long course, wIth class tIme and a lot of play-actIng. Even though you're play-actIng your frustratIOns get to you." Asked whether there was any other locatIOn for thIS traInIng, he replIed "Not that I'm aware of' He then said "We do the mandatory stuff locally The Pepper spray and ICIT refresher IS done In Bell Cairn. They also have them In other InstItutIOns" He contInued "They Just dId an ICIT refresher course In MonteIth. I'm not the SchedulIng Officer so I'm not " He agreed that the ICIT refresher course IS not the same course as the Hostage NegotIator Course In cross, Mr MroczynskI said "sometImes I don't remember where [the basIc Hostage NegotIator traInIng] was held." He said that he dId not remember how late he had had to stay up at the basIc traInIng and said that he "stayed up real late at the Armounes In '99" He said "We were watchIng vIdeos One of the Instructors got a call, there was a hostage takIng, sImulatIng realIty" Mr MroczynskI said that the gnevor had asked hIm about CnsIs NegotIator traInIng once or tWIce after he had gIven hIS eVIdence regardIng the IncIdent of March 31 1998 (i e after May 25 1998) He said that he recalled CO Lahaie askIng hIm whether the gnevor was gOIng to attend the refresher course and said, "Then she approached me " Asked In cross, "Had you dIscussed wIth anyone before Lahaie approached you, that LatImer wouldn't go on a refresher?" Mr MroczynskI IndIcated that he had not understood the questIOn. Asked "Only you decIded that?" he replIed "I am the CnsIs NegotIator" Asked agaIn whether only he had decIded that, he said "I don't know" He agreed that he could not recall whether he made the decIsIOn "In conJunctIOn wIth someone else" He agreed that he had sent the gnevor to see Mr Chenard. In re-eXamInatIOn Mr MroczynskI agreed wIth the suggestIOn that he had testIfied earlIer that the decIsIOn regardIng sendIng the gnevor to traInIng was In hIS mInd based on the restnctIOns Asked "DId you speak to anyone before makIng up your mInd?" he said "My mInd was made up pnor to any consultatIOn." Asked "DId you tell Ms LatImer you'd made up your mInd?" he replIed "Yes And to see Mr Chenard." Asked whether 154 he spoke to Mr Chenard about the gnevor gOIng on CnsIs NegotIator traInIng, he replIed, "Perhaps I dId. I told hIm, more than lIkely my decIsIOn not to allow her to go " Asked "When?" he replIed "My mInd IS vague She asked me about It on many occaSIOns PosSIbly I spoke wIth hIm about It more than once" Asked "DId you talk to hIm before or after you spoke to Ms LatImer?" he replIed "I belIeve the last tIme I spoke wIth her and told her no and speak to Mr Chenard, and I'll go talk to hIm after" He said that after he told the gnevor that she would not be able to take the refresher course In Bell Cairn In 1999 he spoke to Supt. Chenard. He said that when Mr Lahaie asked hIm If the gnevor would be attendIng the refresher course, he told hIm "No I don't thInk so " It was suggested to Mr MroczynskI that he "knew that Supt. Chenard knew the reasons for not sendIng the gnevor" on the refresher course He replIed "He was aware of her accommodatIOns," and said "He put It out that he had no reasons to send her" He then referred to "we" havIng made the decIsIOn. Asked "Who IS 'we'?" he replIed "I am We have polIcIes WIth regard to CnsIs NegotIators" He said that the polIcIes were In the ADJ. manual The folloWIng day Mr MroczynskI was asked to consIder the folloWIng sentence under the tItle "MembershIp" In a 6-page document tItled "Adult InstItutIOns PolIcy and Procedures, Safety/Secunty CnsIs NegotIatIOn Team" (Ex. 95) wIth whIch he said he was famIlIar CandIdates shall be In good physIcal condItIOn and sufficIently durable both mentally and physIcally to endure long pen ods of actIve negotIatIng dutIes under stressful condItIOns They must be wIllIng to undergo a complete medIcal and physIcal eXamInatIOn pnor to attendIng the ImtIal traInIng course and annually thereafter at the expense of the mImstry He was asked whether the second sentence provIdes for sItuatIOns In whIch the Mimstry IS concerned that a Team Member IS unable to partIcIpate In traInIng and whether a medIcal and physIcal eXamInatIOn IS "the route" He replIed "They're concerned about theIr medIcal condItIOn." He was asked "So they check by askIng the IndIVIdual to be examIned?" He replIed "I guess that's what It says" Asked whether he had a concern that she was "medIcally unable" he replIed "She was on workplace accommodatIOn." Asked whether he or Mr Chenard had consIdered sendIng her for an eXamInatIOn, he replIed "No she was under her doctor's care" Asked whether her 155 doctor had been asked to address "that" he replIed "It says she was to be In good condItIOn." He dId not dIspute that he dId not know why Ms LatImer was on workplace accommodatIOn. It was put to Mr MroczynskI that he assumed that she could not attend the traInIng wIthout havIng asked her to submIt to a medIcal eXamInatIOn. He replIed "Her doctor has been submIttIng InformatIOn to Mr Chenard. Need we go any further?" It was put to hIm that It had already been alleged that he had breached a Consent Order that he had gIven eVIdence and a breach had been found, and that he was mad, and that that was why there was no traInIng and no Mother's Day off He replIed "Only dogs get mad, humans don't. I dIdn't retalIate That's not the case" Mr MroczynskI acknowledged that he dId not know whether when the doctor IndIcated the restnctIOns, hIS [the doctor's] OpInIOn had been solIcIted as to whether the gnevor could attend a CnsIs NegotIator course He acknowledged that he had not asked her to ask her doctor whether she would be capable of attendIng the CnsIs NegotIator course He said that he dId not know whether anyone In management had approached the gnevor to propose that she find out whether she was capable of attendIng the course Asked whether he took any steps to find out whether she could attend the course, he said "It should be InstIgated from her" When It was put to hIm that he had already made the decIsIOn, he said "She would have to get her accommodatIOn changed" Asked "Can she read mInds?" he replIed "She's a bIg gIrl She never asked us what she could do She's pOIntIng the finger at me for beIng the bad guy" Asked whether he knew that Supt. Chenard knew that she was not gOIng to be allowed to attend the CnsIs NegotIator course he said "He knew her accommodatIOn." Asked "Would he have made the decIsIOn beforehand?" Mr MroczynskI said "I would've hoped he would've agreed not to send her SometImes my decIsIOns are reversed." Mr Chenard said that the traInIng that was the subJect of the gnevor's complaInt IS correctly IdentIfied as Hostage NegotIator traInIng He said that some of the seSSIOns were from 8 p m. to mIdmght, beyond her restncted hours of work. He said "The dIfference between MSA, CPR and Hostage NegotIator TraInIng IS that first aid CPR IS a reqUIrement that goes along wIth the dutIes of a C 0 workIng In Control You have to don the apparatus (MSA) and maIntaIn secunty and control of the InstItutIOn." 156 He said "Hostage NegotIator IS a volunteer program of somethIng outsIde the dutIes of a C 0 assIgned to Control Some of them are maIntenance people and some of them are nurses And I reIterated thIS lOgIC to Mrs LatImer-I'd send her provIdIng I had approval documentatIOn from her doctor I had to have medIcal clearance to remove people from theIr modIfied work. Unless It expIred at whIch tIme I'd ask theIr doctor for further InfOrmatIOn. That's to protect the Mimstry" He said "So there's a consIstent dIfference there In the dIfference In traInIng. MSA traInIng was done on the premIses dunng her work hours and some of the testIng was done In an office adJacent to Control They were dOIng somethIng wIth the masks" Mr Chenard said "I really stressed the pOInt to Mrs LatImer that I was wIllIng to send her on CnsIs NegotIator TraInIng In Toronto or even Timbuctoo I said. All she had to do was get her doctor to say whether she could go on the traInIng and also whether she could do hostage traInIng. So she wouldn't feel dIscnmInated agaInst or harassed or whatever word It IS they keep throwIng at me" He said that he had not been Involved In schedulIng Ms LatImer for MSA traInIng or for overtIme He said "The only Involvement I would have IS where due for mandatory traInIng, I would say 'make sure they get It' Other employees have certaIn restnctIOns and I let them know where It Impacts on theIr abIlIty to take traInIng. So that's why she could take MSA, CPR and FIrst AId If Hostage NegotIator TraInIng was 7 to 7 In the JaIl, I would have let her take It. It's on the premIses, no dIfferent from any other traInIng. The only dIfference IS It'S not reqUIred, It'S voluntary " In cross, Mr Chenard agreed that the medIcal reports dId not deal wIth traInIng courses one way or the other He said that he had asked the gnevor for further medIcal InfOrmatIOn and said "I said I'd make the phone call and get you on the lIst." He said that he never receIved the medIcal InfOrmatIOn, never reduced hIS offer to wntIng, and said that It was hIS understandIng, after the meetIng, that If the gnevor wanted to attend the Hostage NegotIator traInIng, she would have to obtaIn the authonzatIOn of her doctor It was put to hIm that the umon's posItIOn was that he had not mentIOned the need to obtaIn medIcal clearance He replIed "You can take whatever posItIOn you want." 157 In bnef reply eVIdence the gnevor demed that Mr Chenard had requested her to obtaIn further medIcal InfOrmatIOn In order to attend a CnsIs NegotIator course May 9, 1999 The gnevor was scheduled to work from 0700 to 1900 hours on Sunday May 9 1999 She said that on Fnday May 7 1999 she had a lot of banked stat and lIeu tIme and Mother's Day was approachIng and she called Mr MroczynskI, who was then the SchedulIng Officer and asked hIm to permIt her to be off work for the last four hours of her ShIft on Mother's Day Sunday May 9 1999 She said that her three sons were comIng In and that she wanted to pIck up her granddaughter The gnevor said that Mr MroczynskI said to her "O.k. But If someone calls In sIck, I may have to cancel" She said that she told Mr MroczynskI that she had to know "for sure" whether she could have the tIme off, that she had to confirm some plans She said that Mr MroczynskI said to her "Don't worry Noella, I've got you covered." The gnevor said that at 12 50 P m. on Sunday May 9 1999 Mr MroczynskI called her whIle she was In Control office and told her that she would not be able to have those four hours, because Mr BaldellI had booked off SICk. She said "ThIS news made me very nauseated and upset because I was aware that Mr BaldellI had booked off sIck at 4a.m and It was 12 50 I was also aware that Mr MroczynskI sent a casual home at 11 a.m.-Shelley Turgeon-who had not had all her hours" She said that Mr MroczynskI "had let two casuals go at 11 a.m " and that at 12 50 Mr MroczynskI told her that she could not have the tIme "because one booked off" She said that she was shakIng, nauseated, that her chest felt tIght, and that she was havIng "a hard tIme breathIng." She said that she told Mr MroczynskI that she "would lIke to have a relIef" She said "I'm too upset and sIck to stay and could he send me a relIef nght away He said he'd see what he could do " The gnevor said that she was "sIck, shakIng, cryIng, everythIng was happemng" and that because of her condItIOn, she and Mr SullIvan, who was workIng In Control wIth her put In requests for a relIef for her She said that after several requests from both 158 her and Mr SullIvan, Mr MrocyznskI returned theIr calls She said that by radIO she asked Mr MrocyznskI who hIS spare officer was, and that Mr MroczynskI replIed that he would call her by telephone She said that she then "waited for a penod of tIme" The gnevor said that when Mr MroczynskI called, Mr SullIvan answered the phone She said that she dId not want to speak wIth Mr MroczynskI "one to one because of past IncIdents where he thInks I've told hIm thIngs I haven't said." Mr MroczynskI InsIsted upon speakIng wIth her dIrectly She asked Mr SullIvan to put the phone on speaker "so that there would be a wItness" Mr MroczynskI told her that she could not go home, that she was Just upset and that she was not III The gnevor said "by thIS tIme I was Just lIVId and I was screamIng and said "I am fuckIng sIck, I want to go home, I can't stay here now I'm sIck and I have to go" She said that Mr MroczynskI contInued to say to her "You're not sIck, you're upset, and you can't leave" She said that Mr SullIvan told Mr MroczynskI that he was upset, havIng to be on duty wIth hIS co-worker "In thIS condItIOn" and that Mr SullIvan told Mr MroczynskI that "he would have a work refusal" The gnevor said that at Mr SullIvan's request, Fran LaJeunesse, the Nurse on duty that day came Into Control office and that she, the gnevor told her that she was "sIck and upset" She understood Ms LaJ eunesse to have noted that she, the gnevor was unable to breath, and understood that Ms LaJeunesse had determIned that she could not remaIn at work. She asked Ms LaJeunesse to speak wIth Mr MroczynskI She said, "By then I was cryIng uncontrollably havIng a hard tIme breathIng." She said that at that pOInt Mr SullIvan called Mr MroczynskI and told hIm that he now had a work refusal, and said "because I was shakIng and cryIng and the publIc IS comIng In for VISItS" and "because It takes two officers to work Control" She said that Mr SullIvan had said that there would be no VISItS, for those reasons The gnevor said that CO Tom Howard came In to the Control area, and that In response to Mr SullIvan's query said that he was here to relIeve her She said that she asked Mr Howard "If he was my relIef' and that Mr Howard had said that he was and 159 that Mr MroczynskI had sent hIm She said "So I pIcked up my thIngs and went out the door cryIng and happy to get out." The gnevor later said, "They won't let me go home We can't hold an Inmate wIthout a warrant of commIttal, but I can't leave when I'm SICk. I was held agaInst my wIll so I couldn't go home for my medIcatIOn for my treatment. I feel paranOId to go back to work. I'm no longer a free person. When they are fimshed plaYIng theIr games and make me Ill, and then won't let me leave for treatment, I feel lIked a trapped ammal ThIS has gone way too far It's unfortunate that through all of thIS Mr Chenard does not want to own up " The gnevor revIewed Mr MroczynskI's occurrence report, dated 9 May 1999 at 1900 regardIng the events of May 7 and 9 1999 (Ex. 69) The "SubJectINature of Report" IS IdentIfied as "Ms LatImer abandomng her post and Mr SullIvan InsubordInatIOn" The report, dIrected to the Supenntendent, stated On Fnday May 7 199 Ms LatImer phoned me from the control office for some tIme off on Sunday from 1500-1900 hours I told her that I would work on her request but I also asked her to submIt her request In wntIng. I told her that I would try to RelIeve her for that tIme but I also explaIned to her that I could not guarantee her the tIme off because of extenuatIng CIrcumstances such as sIck tIme and not beIng able to get a hold of casual staff I dId explaIn to her that I would not hIre overtIme for thIS SInce It was a last mInute request. At the tIme of her request there were casual hours avaIlable and calls were made I then returned to my other regular dutIes On Sunday May 9 at approx. 0930 hours I remembered Ms LatImers (SIC) request for tIme off I then started callIng casuals to Replace her At approxImately 1245 hours out of consIderatIOn for Ms LatImer I Informed her that I mIght not be able to Grant her request for tIme off (1500-1900 hours) I said to her I would keep callIng casuals to try to get her her tIme off BeIng the weekend and Mothers' Day thIS proved dIfficult, as casuals were not returmng my phone calls When I spoke wIth Ms LatImer and advIsed her that I mIght not be able to grant her request because Mr BaldellI booked off SIck, Ms LatImer became very agItated and argumentatIve and then demandIng to be relIeved to go home because quote "I'm upset I can't work." I told her that she would have to remaIn untIl I could get someone to replace her At approxImately 1330 hours nurse Fran LaJeunesse approached me and stated that Ms LatImer was not well A bnef dIscussIOn took place Between us I Informed nurse LaJeunesse that Ms LatImer told me that 160 she was upset and I would relIeve her to go up to The lunchroom so she could settle her emotIOns and that we could agaIn re-access (SIC) her In 20 mInutes Nurse LaJ eunesse Concurred and I asked her to accompany me to the control Dunng my conversatIOn wIth the nurse Mr SullIvan called and advIsed me to get someone Into (SIC) replace her I asked to speak wIth Ms LatImer but was told that see (SIC) dId not want to talk to me I InsIsted to (SIC) talk wIth her but Mr SullIvan repeated what he had told me earlIer and threatened not to open any door In the InstItutIOn and allow any VISItS He stated that he would put a work refusal In unless she was relIeved. Mr Howard was requested to go to control Mr Howard arnved In control Just before nurse LaJeunesse and I. When I approached the N5 door and called for It to be opened so we could enter the control room Mr SullIvan stated that he would not let me In because Ms LatImer was there Mr SullIvan was ordered to open the N5 door ImmedIately As I fimshed speakIng wIth hIm the control room door opened and out walked Ms LatImer She approached the N4 door It was unlocked from the control office allowIng Ms LatImer to leave Just as the door was opemng I ordered Ms LatImer to stay and not to leave As the N4 door closed the N5 door was unlocked. I dId not proceed any further and heard Ms LatImer ask Mr SullIvan what I had said. Mr SullIvan replIed that he (Mr MroczynskI) was ordenng her to stay Attempts were made to contact causal (SIC) officers Turgeon, Quellette (SIC) and WillIams These were the only officers avaIlable to work wIthout IncurrIng any overtIme Ms Turgeon was workIng the 0700 to 1100 hour ShIft that mormng and refused the hours Mr Quellette (SIC) and Mr WillIams were called and a (SIC) messages left. Mr WillIams dId return my call at 1354 hours But Ms LatImer had abandoned her assIgned posItIOn. She would have been granted her tIme off If she had stayed. Asked whether she had any comments regardIng Mr MroczynskI' s report, the gnevor said "Well, pretty well the whole thIng IS untrue" She agreed that she asked for the hours 1500 -1900 off She demed that Mr MroczynskI had asked her to submIt a request In wntIng and that he said that he would not hIre someone on overtIme for thIS She acknowledged that he had said that If somethIng happens or someone IS sIck, he would not be able to gIve her the tIme off She said that It had not been a last-mInute request, and that Mr MroczynskI "had three days" that she told hIm that she needed to confirm wIth her kIds, In order to have supper wIth them, and that he had said "I've got you covered" She said "He had me wntten In and somebody else takIng my place I 161 don't know who" She said that Mr MroczynskI said he had her "covered and somebody else pencIled In. So I expected I had the tIme off" The gnevor said that although he said to her on Fnday that he had her covered, "It'S surpnsIng that only at 930 on Sunday dId he remember my request" She demed that Mr MroczynskI "said anythIng about that he would keep callIng casuals" and that he said that he might not be able to grant her request because Mr BaldellI booked off SICk. She reIterated that Mr MroczynskI told her that she could not have the tIme off because Mr BaldellI booked off SICk. She said that she had not "demanded" relIef, that she told hIm that she was sIck and could not work, Just before 1330 hours, that he had called control to speak to her Just before 1330 and that half an hour passed and "he would not send me a relIef" She said "He was hopIng to escalate" The gnevor said that Ms LaJeunesse spoke to Mr MroczynskI after she saw her and that she dId not know anythIng about a plan to have Ms LaJeunesse re-assess her She said that after Ms LaJeunesse left, and she remaIned In Control area, she could not work and had been "cryIng and shakIng" and that Mr SullIvan called for relIef She said that the conversatIOn In whIch she dId not want to speak to Mr MroczynskI on the phone took place long before Mr SullIvan summoned the nurse, and before the nurse saw Mr MroczynskI The gnevor said that she was gOIng out the Nl door and had not heard what Mr SulllIvan said. She said that she knew nothIng about Mr MroczynskI havIng ordered her to stay She said that when Mr Howard came, he was her relIef, and she Just wanted to get out. She said that Mr Howard "was there to properly relIeve me I dId not abandon my posItIOn." The gnevor said she dId not know about Mr MroczynskI havIng attempted to contact Ouellette and WillIams She maIntaIned that Ms Turgeon had offered to stay at 11 a.m and had refused hours after 7 p m. In cross-eXamInatIOn, the gnevor agreed that Mother's Day was an Important day to her She said that she had been planmng for It sInce Fnday May 7 1999 "when I got the tIme off' She agreed that the JaIl's polIcy IS that requests for tIme off are to be put In wntIng. She said that It was not the practIce, however to put such requests In wntIng. She acknowledged havIng put In wntten requests for tIme off In the past, but said that she 162 had done so after-the-fact. She maIntaIned that Mr MroczynskI had not asked her to put her request In wntIng. It was put to her that Mr MroczynskI would say that he dId not say he had her "covered" She maIntaIned that he had said that. It was put to her that Mr MroczynskI would also maIntaIn "I've got you covered" meant somethIng else Asked what "I've got you covered" means, the gnevor said that It meant that he had her ShIft covered and that she could have the tIme off The gnevor agreed that If an Inmate had attacked another C 0 Mr MroczynskI would not have been able to let her go She was not responSIve to the suggestIOn that It was unlIkely that Mr MroczynskI would have guaranteed her the tIme off, gIven the possIbIlItIes whIch could have prevented hIm from gIVIng her the tIme off She maIntaIned that Mr MroczynskI had guaranteed her the tIme off and had said that he had her covered. Later In her eVIdence, she dId not agree wIth the suggestIOn that she dId not have a nght to the tIme off on May 9 1999 She said that she requested the tIme off ahead of tIme and had been assured that It was covered, and that nothIng was said to her when she came In to work that mormng. She dId not respond to the suggestIOn that If Mr MroczynskI had "really" wanted to harass or mIstreat her he could have refused her the tIme off Ms LatImer was told that Mr MroczynskI would testIfy that on May 9 1999 he told her that he might not be able to gIve her the tIme off She demed that that was accurate She maIntaIned that he told her that she could not have the tIme, because Mr BaldellI was SICk. She was asked to explaIn why Mr MroczynskI would tell her that she could not have the tIme off when he had two hours to find someone to replace her She replIed that Mr MroczynskI had not told her that she might not be able to have the tIme off at 7 a.m. The gnevor demed that Mr MroczynskI had said to her that he would relIeve her to go to the lunchroom but could not relIeve her to leave the bUIldIng at that pOInt. She demed that Mr MroczynskI had said to her that he could relIeve her to go to the washroom. She demed that Mr SullIvan was refusIng to work when Mr Howard came In to control She said that when the nurse came In and said that she was unfit to work, Mr SullIvan had refused to work. She said that she asked the nurse to speak to Mr MroczynskI and that Mr Howard came Into Control after the nurse saw Mr MroczynskI 163 The gnevor agreed that Mr BaldellI had booked off at 4 a.m. before Mr MroczynskI had come In for a 7 a.m to 7 p.m shIft. She agreed that Mr BaldellI had been scheduled to work the same ShIft as Mr MroczynskI (0700 to 1900) whIch was dunng the tIme penod she wanted off She dId not agree that IfMr BaldellI was sIck from 1500 to 1900 It would affect her chance of gettIng tIme off She said that there were extra casuals and that Mr MroczynskI could have told her of the problem at 7 a.m She agreed that Ms Montgomery a casual, was called In after she left the InstItutIOn. It was put to the gnevor that Mr MroczynskI would say that Messenger (a casual whose name appears In the 1100 and 1900 column of the May 9 1999 Duty Roster - Ex. 72a) had been pre-scheduled to work that day and that he only learned that Mr BaldellI was sIck when he came In. The gnevor agreed that the Duty Roster (Ex. 72a) IndIcated that the complement for 0700 to 1900 on May 9 1999 was 13 and that 14 people had been prescheduled to work 1500 to 1900 when Mr BaldellI became Ill, whIch left a complement of 13 She was not responSIve to the suggestIOn that IfMr MroczynskI had let her leave the staff level would have been below complement. She InsIsted that Mr MroczynskI had faIled to ask Ms Turgeon to "stay" for 1500 to 1900 It was put to the gnevor that Mr MroczynskI had asked Ms Turgeon to return and work at 1500 and that Ms Turgeon had refused. She maIntaIned that he had asked Ms Turgeon to work at 1900 that Ms Turgeon had declIned to work at 1900 and that he had not asked her to work any earlIer than 1900 She later agreed that she had not spoken dIrectly to Ms Turgeon. It was suggested to the gnevor that she had never told Mr MroczynskI that she was "SICk." She replIed that she told hIm her symptoms, and said "beIng nauseated, that's SICk." It was suggested to her that she only told Mr MroczynskI that she was "upset" and she was asked to agree that a person can be upset and not be SICk. She replIed "I don't know" She said that she always has physIcal symptoms when she becomes upset, and theIr seventy depends on the degree of the upset. She dId not dIspute that she had not said to Mr MroczynskI that all she wanted to do was go home and get her medIcatIOn. She said that she dId not thInk that her medIcatIOn was "any of hIS busIness" She was unable to recall whether she had told the nurse that she wanted to 164 go home and get her medIcatIOn. She said that she was cryIng uncontrollably and that the nurse had told her she wasn't fit to be there and that she should leave She said "He was there He seen how upset I was" When It was put to her that she was "perceIved" as "upset" she replIed "The nurse said I should go" She dId not dIspute that the proper procedure regardIng relIef IS "to stay at your post untIl relIeved." She said that when a C 0 IS sIck, relIef IS usually provIded wIthIn 10 to 15 mInutes, and that a Yard Officer relIeves a C 0 who IS III untIl another relIef arnves The gnevor dId not agree that Mr Howard had been "Just at the door" rather than havIng come In to the Control area. She said that she had not been SIttIng at the door that she had been on the other sIde of the room, and that Mr Howard had been nght besIde her She dIsputed the suggestIOn that Mr Howard "could have been there to relIeve Mr SullIvan" She said that she had asked Mr Howard "If he was here to relIeve me and he said yes I wanted to make sure I'd waited close to an hour In thIS state" She dIsputed that It was possIble that Mr Howard was only there to permIt her to go to the lunchroom. She said that he was the Yard Officer She agreed that the Yard Officer has other tasks, and said the Yard Officer IS called to relIeve C 0 s or to take III Inmates to the hospItal She agreed that the Yard Officer does washroom relIef, and added that the Yard Officer also does escort duty She dId not dIspute that IfMr Howard came to replace her there was no C 0 to do washroom relIef or escort duty She said that washroom relIef, escort duty and yard duty would have to be on hold In these CIrcumstances The gnevor was told that Mr MroczynskI would say that Just before she left, he ordered her to stay In the bUIldIng. Asked whether she recalled that, she replIed "No" She was told that Mr MroczynskI would say that he shouted through the door and asked Mr SullIvan "to tell you" She replIed that she heard Mr SullIvan "say somethIng In the Control room, but there are doors and a WIndow I dIdn't hear hIm. I was cryIng. I dIdn't say goodbye I Just lIfted up my hand. I thInk he said take care or somethIng lIke that. " Ms LatImer was asked whether she would agree that It IS management's Job to ensure staff do not leave the bUIldIng In a condItIOn In whIch they mIght InJure themselves or others She replIed that a good manager would ensure that hIS staff was 165 "taken care of healthwIse In all ways and not hold them for an hour to escalate the problem." She agreed that she had some concern about whether she was able to dnve She was asked whether that would have been a reason for Mr MroczynskI to see her before she left. She replIed "He shouldn't have kept me for an hour" When It was put to her that she could have talked to Mr MroczynskI, she replIed "The nurse told me I was sIck" When It was put to her that the nurse was not her Manager she replIed that Mr MroczynskI was not her doctor and said that her chest was poundIng, and that she was cryIng and havIng dIfficulty breathIng. She said that she was fifty years old and that she knew when she was SICk. In re-eXamInatIOn, the gnevor said that she had been off work at the suggestIOn of her doctor SInce May 9 1999 She said that It would not surpnse her IfMr MroczynskI demed havIng said that he "had her covered." She said "Because he'd set me up prevIOusly" She said that her sons were plaYIng In a band untIl 2 a.m. Sunday and were dnvIng In to Sudbury from Sturgeon Falls dIrectly after planmng to sleep upon theIr arnval and to meet her on Mother's Day She said "The others had mothers they had to meet wIth. And could have used the tIme If! couldn't be wIth my sons" Umon Counsel advIsed that C 0 Ron SullIvan had been summonsed to attend the arbItratIOn heanng and that he requested the protectIOn of the EVIdence Act In relatIOn to the eVIdence her gave In thIS proceedIng and that request was granted. Mr SullIvan said that he had receIved notIce of possible dIscIplIne, and produced a letter from Mr Pedron dated May 26 1999 (Ex. 70) He said that he wrote the folloWIng occurrence report dated May 9 1999 and tImed at 1453 hr addressed to Supt. Chenard (Ex. 71) On Sunday May 9 1999 I was workIng the # 1 ShIft and assIgned to the control module At approxImately 1247 hr I wItnessed C/O LA TIMER Inform IIC MROCZYNSKI on the phone that she reqUIred a relIef as she was not feelIng well and was gOIng home SICk. At approxImately 1300 hrs C/O LatImer agaIn called IIC MROCZYNSKI on the radIO and asked about her relIef but stIll had none comIng. At approxImately 1319 hrs I called IIC MROCZYNSKI and asked hIm what was gOIng on wIth her relIef Mr MROCZYNSKI asked to speak to C/O LATIMER who dId not want to speak to hIm I Informed hIm and he said that she would be relIeved to go to the washroom however 166 that she was not beIng relIeved for sIck reasons to go home He agaIn asked to speak to C/O LATIMER at thIS tIme the phone was put on speaker phone mode and Mr MROCZYNSKI repeated what he had told me C/O LATIMER told hIm that she was sIck and needed relIef to go home I then also told Mr MROCZYNSKI that I was lIstemng to the conversatIOn and would be a wItness should the matter be pursued as he had been Informed at least three tImes by C/O LATIMER that she was sIck and wanted to go home and he was holdIng her here agaInst her wIll wIthout any concern for her health or well beIng. At approxImately 1327 hrs nurse Fran attended to C/O LATIMER In control after beIng summoned by myself She stated that C/O LATIMER was In no condItIOn or fit to perform her dutIes I then called IIC MROCZYNSKI at approxImately 1328 hrs and Informed hIm that he had a work refusal and no VISItS were gOIng to take place untIl C/O LatImer was relIeved as nurse Fran was assessIng her and had said she was not fit for dutIes thereby leavIng me alone to do the work In control At approxImately 1329 hrs nurse Fran went to speak wIth IIC MROCZYNSKI regardIng the sItuatIOn WIth C/O LA TIMER. At approxImately 1330 hrs C/O HOWARD arnved to relIeve C/O LATIMER who prepared herself to leave At approxImately 1332 hrs IIC MROCZYNSKI came to the N7 door and I let hIm through as C/O LATIMER was leavIng the area. He came to the N5 door but I dIdn't let hIm through as I was concerned that the sItuatIOn would detenorate and get much worse as C/O LA TIMER was very dIstraught. I let C/O LATIMER leave then let Mr MROCZYNSKI through the N5 door He walked over to the N4 door looked through the glass then turned and walked toward the N5 door statIng I'll deal wIth you later He then proceeded out the N 5 + N7 At approxImately 1410 hrs IIC MROCZYNSKI called me and asked me for a report whIch I am completIng at thIS tIme For your InformatIOn only Mr SullIvan said In chIef that there had been a work refusal on May 9 1999 because the gnevor had been "dIstraught, cryIng In the corner could not do her Job and was not fit to be there" He said that he could not do both her Job and hIS own, and that the work could not be done In the appropnate manner In those CIrcumstances He said that he had not let Mr MroczynskI In because he had been concerned that the gnevor "could have had a stroke or a heart attack or have stabbed hIm wIth a pen." He said that he was concerned for the well-beIng of them both and that Mr MroczynskI was "actIng confrontatIOnal" and that someone could possIbly have been hurt. He said that C 0 s were traIned "to separate problems" and not to "put gasolIne wIth fire" 167 In cross-eXamInatIOn, Mr SullIvan agreed that an "allegatIOn" was comIng up anSIng from the May 9 1999 IncIdent. He later agreed that he faced possIble dIscIplIne He said that he had been accused of dIsobeYIng an order to open the door and was alleged to have assIsted an officer In abandomng her post, thereby JeopardIZIng the secunty of the InstItutIOn. He said that he had not opened the door He said that he had not heard an order that he had told Mr MroczynskI that he would not let hIm In, before he came through the N7 door as he thought Mr MroczynskI was behavIng In a confrontatIOnal and IrresponsIble manner He said that he had concerns for both Ms LatImer's and Mr MrocyznskI's health and safety He said that Ms LatImer was "very agItated" and "anythIng could have happened" He said "She could have had a heart attack or stroke or attacked the man. I know I would have He had provoked It" He said that he saw what happened and that when someone says they are sIck, "they ought to let them go" He said "the practIce IS to Wait for relIef' and that they had both requested relIef for her He said "ThIS gentleman told her she was not gOIng to be relIeved She waited 50 mInutes" He demed beIng on anyone's sIde He demed havIng an Interest In the outcome of the gnevor's gnevance In both dIrect and cross eXamInatIOn, Mr SullIvan acknowledged that he had not heard both sIdes of the May 7 1999 conversatIOn between Mr MroczynskI and the gnevor He said that he had heard the gnevor say to Mr MroczynskI "That's not good enough" and that after the conversatIOn was through, the gnevor had told hIm that she had got the tIme off In cross-eXamInatIOn, he agreed that he had not heard whether Mr MroczynskI had "guaranteed" the gnevor the tIme off that she had been seekIng. He said that he heard the gnevor state "emphatIcally" that she wanted an answer that day and that when he asked her later whether she had got the tIme, she had said "Yes" He said that he had heard her say more than once that she had to know that day Mr SullIvan said that he had heard that Mr BaldellI had booked off sIck before Mr MroczynskI told the gnevor that she could not have the tIme off In cross, he said that Mr BaldellI had booked off sIck at 4 a.m. and said "Surely there was tIme to replace hIm." Mr SullIvan said that he let two casual officers, Sherry Turgeon and Terry Beasley out of the InstItutIOn at 11 a.m on May 9 1999 and had InqUIred of them 168 whether they had been asked to work at 1500 and whether they had been elIgIble for overtIme for those hours In cross, Mr SulllIvan said that he dId not recall havIng gIven a copy of hIS report to the gnevor before the heanng. He said that he was not questIOmng whether Mr MroczynskI had said to the gnevor that he might not be able to get her relIef He then said "But you can always do It. You can cancel yard. They've pulled other Officers off dutIes to accompany Inmates to hospItal" He agreed that It IS Important to maIntaIn the staff level at complement and to keep staff for emergencIes He said that It appeared to have been "okay" to send out three Officers to accompany one Inmate, but that It had not been "okay" to relIeve an Officer He dIsputed the suggestIOn that "a CO 'sJob IS such that they must stay at theIr post, even If they are SICk." He said that the reqUIrement to stay at one's post dId not apply If the C 0 IS SIck, and that he dId not have to drop dead at hIS post. He agreed that the practIce pertaInIng to C 0 s and relIef, IS that the C 0 IS to Wait untIl relIeved, and added "but wIthIn a reasonable amount of tIme" It was put to Mr SullIvan that Mr MroczynskI would say that the gnevor had said that she was "upset," but had not said that she was "sIck" Mr SullIvan said that the gnevor had said that she was "sIck" With respect to the folloWIng statement In hIS report At approxImately 1300 hrs C/O LatImer agaIn called IIC MROCZYNSKI on the radIO and asked about her relIef but stIll had none comIng. Mr SullIvan was asked whether he was saYIng that Mr MroczynskI had said that the gnevor would be relIeved to go the washroom, but not to go home sIck, and whether Mr MroczynskI had repeated that on the speaker phone Mr SullIvan replIed that Mr MroczynskI had not said then that she could be relIeved for the washroom, that at that pOInt, on the speaker phone, Mr MroczynskI had told the gnevor that she could not go home, and that he told Mr MroczynskI that thIS was "wrong" and "If pursued, I would testIfy to that effect." Mr SullIvan said that Mr MroczynskI had not said that the gnevor could be relIeved to go to the lunchroom, but could not be replaced to go home 169 Mr SullIvan was asked to comment upon the folloWIng passage In Mr MroczynskI's report (Ex. 69) At approxImately 1330 hours nurse Fran LaJeunesse approached me and stated that Ms LatImer was not well A bnef dIscussIOn took place Between us I Informed nurse LaJeunesse that Ms LatImer told me that she was upset and I would relIeve her to go up to The lunchroom so she could settle her emotIOns and that we could agaIn re-access (SIC) her In 20 mInutes Nurse LaJ eunesse Concurred and I asked her to accompany me to the control Dunng my conversatIOn wIth the nurse Mr SullIvan called and advIsed me to get someone Into (SIC) replace her he said "That's not exactly how It happened." He said that he called Mr MroczynskI whIle Ms LaJeunesse was In the Control module and that he made the work refusal at that tIme With regard to the folloWIng passage In Mr MroczynskI's Report (Ex. 69) When I approached the N5 door and called for It to be opened so we could enter the control room Mr SullIvan stated that he would not let me In because Ms LatImer was there Mr SullIvan was ordered to open the N5 door ImmedIately As I fimshed speakIng wIth hIm the control room door opened and out walked Ms LatImer She approached the N4 door It was unlocked from the control office allowIng Ms LatImer to leave Just as the door was opemng I ordered Ms LatImer to stay and not to leave Mr SullIvan said that he dId not remember heanng a clear order and that It IS hard to hear anythIng In there He said that Ms LatImer was tryIng to leave the Control module at the tIme, and he dId not remember Mr MroczynskI saYIng that he dId not want Ms LatImer to leave He later said that Mr Howard was In the Control module wIth hIm and that he (Mr SullIvan) was unlockIng the door for the gnevor to leave the InstItutIOn when Mr MroczynskI was outsIde the N5 door He agreed that as the N4 door closed, the N5 door was unlocked. He said that the folloWIng statement In Mr MroczynskI's Report (Ex. 69) was "not correct" I dId not proceed any further and heard Ms LatImer ask Mr SullIvan what I had said. Mr SullIvan replIed that he (Mr MroczynskI) was ordenng her to stay He said that Mr MroczynskI walked through door N5 to N4 saw that Ms LatImer was gone, walked back to N5 and said "I wIll deal wIth you later" 170 Mr SullIvan said that the gnevor had requested relIef, had been kept In the JaIl for over an hour and had only been relIeved as a result of hIS request. He said that the gnevor had been told repeatedly that she was not gOIng to be relIeved to go home for medIcatIOn. He said that she had been properly relIeved when she left. In cross, Mr SullIvan acknowledged that he had said that Mr MroczynskI had said that the gnevor could only be relIeved for the washroom. He dIsagreed that It was "lIkely" that Mr Howard was there to relIeve the gnevor only for a washroom break. He said that by the tIme Mr Howard had arnved, he had told Mr MroczynskI that he would have a work refusal If he dId not replace the gnevor He dIsputed the suggestIOn that Mr Howard had arnved at Control "Just before" Mr MroczynskI and Ms LaJeunesse arnved, and said that Mr Howard had arnved a couple of mInutes before they had arnved. He said that the gnevor had been "In her chair sobbIng, In a corner" when Mr Howard arnved, and that Mr Howard had not remaIned at the door for any penod of tIme before he walked to the gnevor In her chair In cross, Mr SullIvan explaIned that In descnbIng Mr MroczynskI as havIng been "confrontatIOnal" he meant that Mr MroczynskI had been tryIng to enter an area where the gnevor was upset, that she had told hIm that she dIdn't want to see hIm, and that he had told hIm that he would not let hIm enter the area. He agreed that he had never seen the gnevor be vIOlent agaInst anyone and dId not know of her havIng a heart condItIOn or a stroke He acknowledged that he had known that Mr MroczynskI wanted to talk to the gnevor and said that because the nurse was wIth Mr MroczynskI, It was eVIdent that he wanted to enter the area and to see the gnevor He agreed that Mr MroczynskI had asked hIm to open the door He agreed that It dId not make sense for Mr MroczynskI to have come to the Control area wIth the nurse, If he had already relIeved the gnevor and said, as well, that It also dId not make sense to hold her there He said that Mr MroczynskI was "holdIng" the gnevor as "she'd asked for relIef for almost an hour " Mr SullIvan said In cross that he could not recall whether Mr MroczynskI had raised hIS VOIce toward hIm or the gnevor It was put to Mr SullIvan that Mr MroczynskI would say that he told the gnevor not to leave and that she dId not hear hIm and that she asked Mr SullIvan what Mr 171 MroczynskI had said, and that Mr SullIvan had told the gnevor that Mr MroczynskI had told her not to leave He demed that havIng occurred. He said that he told the gnevor to go home and to take care, or words to that effect. Mr MroczynskI said In dIrect that he belIeved that the gnevor had called hIm on May 7 1999 and asked for tIme off on Mother's Day He said "I told her I couldn't guarantee It." He said that It "would depend on overtIme and staff avaIlable" He said "I said I would do everythIng In my power I made a few phone calls and went about my work. SometImes they are already workIng or have plans I have to Wait untIl they return my phone call" Asked whether he recalled Ms LatImer's response when he told her that he could not gIve her the tIme off, Mr MroczynskI replIed "She accepted It. It wasn't a no response She accepted I would do my best to try I dIdn't plan to work that weekend, but I dId. If she had really wanted It, she should've applIed 30 days In advance" He said "I called out for casuals I requested her to put It In wntIng. At my age, you forget thIngs At the next shIft worked, I remembered and made some more calls to try to accommodate her" He advIsed that the next ShIft he had worked after Fnday May 7 1999 had been Sunday May 9 1999 when he had substItuted for an absent ShIft SupervIsor He later said that he was a SchedulIng Officer and InstItutIOnal TraInIng Officer at the tIme, and that he dId not normally work Saturday and could not recall whether he had worked on Saturday May 8 1999 In cross, Mr MroczynskI said "There IS a form to be completed for tIme off," and that he dId not make any notes of hIS telephone call from the gnevor requestIng the tIme off He said "But If procedures had been followed, she would've filled out the form and IndIcated how to charactenze the tIme off That would've been my note" He said "I do belIeve I asked her to submIt the requested form" AdvIsed that the gnevor's eVIdence had been that he had not asked her for a form, and asked whether he maIntaIned hIS eVIdence, he replIed "I request forms from everyone and Noella would be no dIfferent." Mr MroczynskI said "Fnday I made some phone calls" to casuals, after the gnevor made her request, and that he had made the calls wIthout a wntten request, and that he had kept no records of them, and could not recall the number of calls he had 172 made He said "I'm on the phone contInually as a SchedulIng Officer to fill people's requests When someone calls In sIck, I'm on the phone as well I don't make notes of who I call It's a day-to-day operatIOn." He said "Requests are handed to me throughout the day" He said that he dId not recall whether he had been successful on the Fnday In findIng a casual In dIrect, Mr MroczynskI said that he made the calls for the gnevor "Some tIme In the mormng. I was lookIng at the Duty Roster We asked staff to stay behInd. They declIned. I called Ms LatImer and told her we may not be able to accommodate her request, and I'd keep on callIng staff 'tIl I got a response" He said "When I called her she became very agItated, angry She told me she was upset and wanted to go home I told her she'd have to stay 'tIl I got someone to replace her" because "FIrst off, It'S our practIce Mimstry polIcy you don't leave your post wIthout a replacement. We were short-staffed. I could've InvIted Health and Safety refusals Everyone stays Where staff are feelIng III at the start of theIr ShIft, they come to me out of courtesy to the IIC and let me know they may need a replacement. That dIdn't happen at all Ms LatImer was USIng a sIck excuse to accommodate her wIshes" He said "She told me she was upset. She dIdn't say she was sIck untIl I told her I mIght not be able to cover her I ultImately got a casual But she chose to go thIS route" He said "I told her she couldn't go She called me a second tIme and told me she was SICk. I said to her she prevIOusly told me she was upset, and now sIck was a crutch. Once agaIn I told her she'd have to stay untIl I got someone to replace her" He said that If the gnevor had told hIm dunng hIS first conversatIOn wIth her that she was sIck, he would have handled It dIfferently He said "I would've called In another staff person to replace her But I dIdn't belIeve her that she was SICk. If she was truly sIck, she would've Informed me pnor to when I told her I couldn't gIve her the tIme off, that I couldn't guarantee her" He said that Ifhe had belIeved that the gnevor had been sIck on hIS first call to her and no staff had been avaIlable, "She would've had to stay there But If she'd really been sIck, I would've let her go I belIeve she was more emotIOnal than SICk. When I spoke wIth the nurse re her hIStOry we both agreed that she should take twenty mInutes to consIder what she was dOIng. " 173 At another pOInt In hIS dIrect eVIdence, Mr MroczynskI said that hIS first conversatIOn wIth the gnevor had taken place at 12 45 He agreed that she had said that she was "upset" In that conversatIOn. Asked "When was the conversatIOn In whIch she said she was sIck?" he replIed "I don't remember I remInded her she'd said she was upset In our first conversatIOn." Asked whether he had told her "AnythIng else In the second conversatIOn?" he replIed "That she'd have to stay 'tIl I got someone to replace her and I was stIll callIng casuals to accommodate her wIshes" Mr MroczynskI said that after he had spoken wIth the nurse "I asked the nurse to accompany me to Control As we fimshed our conversatIOn, Mr SullIvan told me he was consIdenng a work refusal If we dIdn't relIeve her I vIewed hIS statement as a threat to dISrupt the workplace" He said "We arnved at--gImme a second. He was refusIng to allow any VISItS or open any door In the InstItutIOn. We proceeded to Control As we were fimshIng our conversatIOn, Mr Howard walked In. I sent Mr Howard to Control because ofMr SullIvan's threat. The nurse and I arnved at Control about one mInute behInd Mr Howard." He said that he told Mr Howard "Just to go to Control and Wait there untIl I got there" Mr MroczynskI said that when he arnved at the door to the Control module, Mr Howard was already In the Control room. He said "I asked Mr SullIvan to open the door to let me and the nurse In. He said 'No' I said 'why?' He said because LatImer was there I asked hIm to open the N5 door He dId not, not nght away The door In Control module opens, Ms LatImer walks out, proceeds to the N4 door she's In the process of walkIng out and I loudly say to her I'm not gIVIng her permISSIOn to leave" He agreed that he had been behInd the N5 door as he was speakIng. He said that the N5 door and the N4 door are approxImately 10 feet apart. He said "She proceeds out the door It closes I look through the glass and I lIstened at the speaker hole and I heard [the gnevor] ask Mr SullIvan what I said and I heard SullIvan say that I dId not gIve her permIssIOn." He said that the N5 door was opened after the N4 door was shut. He said "They can't be opened at the same tIme It's a secunty precautIOn" Mr MroczynskI agreed In dIrect that In hIS OpInIOn, Ms LatImer could hear hIm from where he was standIng. He said that he thought that she could hear hIm because he had raised hIS VOIce He said "She was lookIng nght at me as she walked out. She looked nght at me She was aware I had spoken wIth her" 174 Mr MroczynskI was asked In dIrect to read and comment upon Ms LatImer's letter to Mr Chenard dated May 30 1999 (Ex. 67) In response to your letter that was delIvered to my neIghbour by Purolator May 25/99 I'm wntIng thIS report. On May 9/99 I agaIn was subJect to a blatent (SIC) harassIng ordeal I became III and asked for a relIef at approxImately 12 50 to go home At approxImately 1325 several requests later IIC schedulIng officer Mr MrozynskI (SIC) called to Inform me that "I was not sIck, and that I was only upset and was not gOIng to be relIeved to go home Due to my detenatIng (SIC) condItIOn Nurse Fran LaJeunesse was summoned to control by my partner Mr Ron SullIvan. The nurse observed my condItIOn and stated to myself that I was not fit to perform my dutIes In such a state I asked nurse Fran to advIse Mr MrozynskI (SIC) sInce he was denYIng my leave and aggnvatIng (SIC) the sItuatIOn. I was then properly relIeved from my post and went home seekIng my medIcatIOn to assIst me In my dIlema (SIC) untIl I could see my physIcIan. I'm appalled that managements (SIC) posItIOn to confine me agaInst my wIll preventIng me access to my medIcatIOn whIch was prescnbed to me Just a week earlIer due to yet another prevIOUS IncIdent ofblatent (SIC) harassment. Regardless of the many tImes I've pleaded to have thIS unwarrented (SIC) behavIOr cease, I agaIn find myself reportIng to JustIfy my actIOns due to the results of the unJust condItIOns Imposed upon me In consIdertIng (SIC) your next course of actIOn agaInst me as stated In your letter I am requestIng that Instead ofthreatemng me of yet another repnsal that you please consIder a resolutIOn to thIS ongoIng dIlema (SIC) In good faith. He said "I dIsagree wIth 'blatant harassment' I would stay It was stressful I had to deal wIth thIS As a manager I have to say no I belIeve I'm the vIctIm here I've done everythIng In my power to accommodate her as much as I possIbly could. She doesn't mentIOn she'd applIed for any tIme She was ObvIOusly USIng a sIck excuse to get her tIme off She dIdn't ask or tell me at the begInmng of the ShIft or for leave to get her medIcatIOn. She waited for events to unfold and then throws all thIS InformatIOn at me that she could've earlIer In the shIft. I questIOn whether thIS letter would've come by If she'd gotten her tIme off I approached her wIth the nurse We were gOIng to gIve her a 20-mInute tIme out. Mr SullIvan got Involved. She put the onus on management that she doesn't have her medIcatIOn. She could've called someone for It. I'm her employer not her babysItter She should've brought It WIth her The whole IncIdent revolved around no you can't get your tIme off I have responsIbIlItIes to Mr Chenard and the 175 people of Ontano wIthout beIng blamed for blatant harassment. I belIeve I'm a canng employer ApproachIng her wIth the nurse shows I'm concerned for the welfare of my staff" He contInued "She was not properly relIeved from her post. Mr Howard was only sent because ofMr SullIvan's threat. She was not allowed to leave and she dId." Mr MroczynskI was asked for hIS comments on Mr SullIvan's report (Ex. 71) reproduced above With respect to "At approxImately 1247 hr I wItnessed C/O LatImer Inform I/C MroczynskI on the phone that she reqUIred a relIef as she was not feelIng well and was gOIng home SICk." he said "the tIme IS correct." He said "but she told me she was upset and wanted to go home I had called her and told her she mIght not get her tIme off Out of vengeance she told me she was upset and used It as an excuse to go home" With respect to "At approxImately 1300 hrs C/O LatImer agaIn called I/C MroczynskI on the radIO and asked about her relIef but stIll had none comIng, he said "I don't recall the radIO It could've occurred. I recall her havIng called me agaIn and upgraded from upset to beIng SICk." He agreed that he had told Mr SullIvan that Ms LatImer was not beIng relIeved for sIck reasons He agreed that Mr SullIvan's statement He agaIn asked to speak to C/O LA TIMER at the tIme the phone was put on speaker mode and I/C MROCZYNSKI repeated what he had told me was correct. He said, regardIng the folloWIng In Mr SullIvan's report I then also told Mr MROCZYNSKI that I was lIstemng to the conversatIOn and would be a wItness should the matter be pursued as he had been Informed at least three tImes by C/O LATIMER that she was sIck and wanted to go home and he was holdIng her here agaInst her wIll wIthout any concern for her health or well beIng. "Mr SullIvan dId state that" RegardIng the folloWIng statement At approxImately 1330 hrs C/O HOWARD arnved to relIeve C/O LATIMER who prepared herself to leave he said "Mr Howard was sent to assIst Mr SullIvan and not to allow Ms LatImer to leave" He said that he had no other comments regardIng Mr SullIvan's report. 176 Mr MroczynskI agreed that he had wntten hIS Occurrence Report (Ex. 69) at 7 p m. on May 9 1999 He said that he wrote It "To make the Supenntendent aware of what was happemng. I don't belIeve the Officers Involved acted professIOnally And to have a detaIled report descnbIng the events that day" He explaIned that he had not mentIOned a second phone call wIth the gnevor as "Just an oversIght. I'd had other sItuatIOns that day I'm a ShIft SupervIsor I was tIred, I wanted to go home and IJust plaIn forgot. Not to mentIOn It was a stressful day" In cross, he said that Sunday May 9 1999 had been a slow day and said "not a lot gOIng on." Mr MroczynskI was asked when he had attempted to call the casual officers he had referred to In hIS Report. He replIed "Turgeon was workIng 7 to 11 I asked her to return at 1500 She declIned. Ouellette, I called. No response WillIams returned my call, but by then the gnevor had abandoned her post. In my report I stated I started callIng casuals about 9 30 a.m WilllIams-I called at the same tIme These were the only officers I could call where It wouldn't reqUIre overtIme If she'd stayed, WillIams could've worked for her" He said that the rest of the statements In hIS Report were correct. In cross, when advIsed that the umon's posItIOn was that on May 7 1999 he had told the gnevor that she was "covered" Mr MroczynskI replIed "She has her own verSIOn I told her I couldn't guarantee It because of extenuatIng CIrcumstances When It was put to hIm that the gnevor had said that she had made It clear to hIm that she wanted a guarantee, and that he gave It, because of her plans, he replIed" A lot of people had plans Ms LatImer would've been no dIfferent." Asked to clanfy what he had meant by "there were casual hours avaIlable and calls were made" In hIS Report, he replIed "Some had less than 40 hours" Asked "So she could've been covered?" he replIed "Only If I could reach them, and subJect to sIckness" Challenged that he had thrown In "subJect to sIckness" he replIed "BaldellI's sIckness put us In a bInd." Challenged "You dIdn't mentIOn It In your conversatIOn wIth Ms LatImer" he replIed "I can't plan that far In advance" Asked whether at any tIme before the Sunday May 9 1999 ShIft, he had told the gnevor that he had not been able to obtaIn any casuals, he replIed "I told her I couldn't guarantee It. ThIS was very short notIce" He later acknowledged that he had not told the gnevor by 430 p.m on Fnday May 7 1999 that she was not "covered." 177 Asked "DId you tell her before her Sunday ShIft that she wasn't covered?" he replIed "I told her at about noon. I told her I mIght not be able to cover her" He agreed that 9 30 a.m. on Sunday May 9 1999 was the first tIme that he had remembered the gnevor' s request SInce she had made It. Asked whether he started to make calls at 9 30 a.m. he replIed "I asked Ms Turgeon to come back and work for Ms LatImer as It wouldn't have Incurred any overtIme" He said that he had asked Ms Turgeon at "approxImately" 9 30 a.m. He stated agaIn that he had called Ouellette and WillIams, at "approxImately" 9 30 a.m. He InsIsted that on Fnday May 7 1999 he had tned to cover the gnevor's request for 1500 to 1900 the next Sunday and said "Sunday I recalled her request. Then I started callIng. " At a later pOInt In cross, Mr MroczynskI dId not dIrectly dIspute that It was possIble that he had forgotten to get a cover for the gnevor and that he had stIll attempted to cover her on Sunday mormng, but that It looked lIke he hadn't been successful He agreed that he had receIved and approved other requests for schedule changes on Sunday He later agreed that he had only remembered the gnevor havIng asked for the tIme off because he had been on ShIft on May 9 1999 He dId not dIrectly respond when asked whether he had been tryIng to schedule casuals for other reasons and other dates on Fnday May 7 1999 He dId not respond dIrectly when asked to agree that he could not remember who he had called and whether he had called on May 7 1999 In cross, Mr MroczynskI said that he would have been Informed that Mr BaldellI could not work when he came on shIft at 7 a.m and agreed that Mr BaldellI would have been replaced In response to havIng called In sIck earlIer He said "Mr Coppo was workIng 1100 to 2300 Mr Blais asked hIm to work 0700 to 1900" He agreed that the gnevor had wanted 1500 to 1900 off, and that Coppo would have been at the JaIl 1500 to 1900 to cover BaldellI In cross, Mr MroczynskI maIntaIned that In theIr ImtIal conversatIOn on May 9 1999 the gnevor had said that she was "upset" and that she wanted to go home, and demed that she had said that she was not feelIng well He acknowledged that a radIO call referred to In Mr SullIvan's Report as havIng taken place at about 1300 "could have happened" He said that he recalled Mr SullIvan havIng called hIm and asked hIm "what was gOIng on wIth her relIef' and said that he was not sure of the tIme (Mr SullIvan's 178 Report placed the call at about 1319) He recalled havIng asked to speak to the gnevor who dId not want to speak wIth hIm, and recalled havIng said to her that she would be relIeved to go to the washroom. He dId not dIspute that he had Informed the gnevor as stated In Mr SullIvan's Report "that she was not beIng relIeved for sIck reasons to go home" He said "What I was tryIng to convey was that she couldn't leave the bUIldIng. She could go upstairs, SIt down, cool off" He said "I said she wouldn't be relIeved for sIck reasons, yes She'd told me she was upset In our ImtIal conversatIOn and wanted to go home She wanted her way and was gOIng to get her tIme off" He acknowledged that he belIeved that she was pretendIng to be SICk. When It was put to hIm that he had been tellIng her that she could not go home because she was not sIck, he replIed "That was one of the reasons" He agreed that the gnevor had told hIm on the speaker phone that she was sIck and needed relIef to go home He said that he would not dIspute Mr SullIvan havIng said to hIm that I was lIstemng to the conversatIOn and would be a wItness should the matter be pursued as he had been Informed at least three tImes by C/O LATIMER that she was sIck and wanted to go home and he was holdIng her here agaInst her wIll wIthout any concern for her health or well beIng. Mr MroczynskI said In cross that after the conversatIOn on the speaker phone, "SullIvan called me and said he'd dISrupt the InstItutIOn by not opemng any doors" He agreed that Mr SullIvan had not used the word "dISrupt" and that "dISrupt" was hIS InterpretatIOn of the sItuatIOn. He dId not dIspute that Mr SullIvan had called hIm and told hIm that he was eXerCISIng hIS nghts to a work refusal In an unsafe sItuatIOn. He said "I saw no danger to hIS health and safety" He agreed that between 0700 and 1900 two C 0 s work In Control He advIsed that one C 0 handles VISItS, and the other operates the door and the computer He agreed that normally one C 0 IS not to do both Jobs He said that If the CO workIng the doors was dIstracted by VISItorS "They would be placIng themselves at nsk or In a predIcament." He agreed that Mr SullIvan had told hIm that the gnevor was not fit to work and that he could not do hIS Job He then said "He [Mr SullIvan] assumed that." Asked whether he thought that Mr SullIvan had been less than honest wIth hIm when he said that, he replIed "Is he a doctor? The OccupatIOnal Health and Safety Act gIves a person the nght to refuse work where theIr 179 health and safety wIll be JeopardIzed." He agreed that the nght to refuse work Includes sItuatIOns In whIch another CO's health and safety could be JeopardIzed. Mr MroczynskI said In cross that he recalled Mr SullIvan havIng told hIm that he had a work refusal and no VISItS were gOIng to take place untIl C/O LatImer was relIeved as nurse Fran was assessIng her and had said she was not fit for dutIes thereby leavIng me alone to do the work In control He was subsequently asked whether he recalled Mr SullIvan havIng said that Nurse Fran was assessIng the gnevor He paused, then said "No" He said that he dId not recall Mr SulllIvan havIng said that he was beIng left alone, "Just a work refusal and not opemng any door In the bUIldIng." He said that that was reason enough for hIm to expect a dIsruptIOn, and that Mr SullIvan's actIOns would place everybody In Jeopardy Asked whether Mr SullIvan had gIven hIm a reason for hIS work refusal, he replIed "No" Asked whether he had asked Mr SullIvan for a reason, he replIed "I thInk he's tryIng to Imply Mrs LatImer was there and not dOIng her dutIes" He agreed that ultImately no actual work refusal had taken place He said that Mr SullIvan had threatened a work refusal tWIce on May 9 1999 Mr MroczynskI acknowledged, In cross, that he had not told Mr Howard to relIeve the gnevor only for the washroom. He said "I Just told hIm to relIeve In Control I'll be there In a mInute I dIdn't specIfy who He was sent to Control so we could restore normal operatIOns In the JaIl We were nght behInd Mr Howard. I was Just fimshIng up my conversatIOn wIth the nurse" Asked In cross "Were you pretty upset wIth Ms LatImer by that tIme, because she was fakIng sIck and tryIng to get offwork?" Mr MroczynskI replIed "No I was there to assIst Ms LatImer" When It was put to hIm "I've seen you had a temper thIS a.m" he replIed "I dIdn't take two months off' When he was challenged, "Now you're makIng fun of her" he replIed "I'm tryIng to reIterate what a normal person would act lIke" Asked "DId you thInk she was dOIng a bad thIng?" he replIed "She was dOIng everythIng to get her tIme off up to fakIng Illness" It was put to Mr MroczynskI In cross that he was aware that the nurse had seen the gnevor and that he had dIsagreed wIth the nurse He replIed "I Informed the nurse of facts she dIdn't know" It was put to hIm that the nurse's ImtIal assessment was that the 180 gnevor was unfit and should go home, and that her report dId not express any doubt about the gnevor's story He replIed "She concurred a tIme out would be the fair thIng to do" It was put to hIm that the only addItIOnal InformatIOn that he had gIven the nurse was that Ms LatImer had prevIOusly said she was "upset" He IndIcated that he had not understood the questIOn. He was asked "You dId not hear the nurse say that she was unfit and should go to the clImc?" He replIed "No" Asked "Maybe you were so mad?" he replIed "My composure was very well" It was put to hIm "You yelled and hollered at Mr SullIvan to open the door" He replIed "I dIdn't yell at Mr Howard. I was there to assIst Ms LatImer" Mr MroczynskI was asked In dIrect, wIth respect to the Sunday Duty Roster (Ex. 72a) why Mr Messenger had been scheduled to work 1500 to 1900 He replIed "It could've been arranged dunng the day Messenger and Montgomery were not arranged to work before these ShIftS" He said that the gnevor's departure left hIm "one short" for the 1500 to 1900 shIft and "That's why Montgomery was called In." He advIsed, wIth respect to the May 9 1999 Attendance RegIster for UnclassIfied staff (Ex. 72b) that Mr Messenger and Mr Montgomery whose names appear In the Casuals sectIOn of the Duty Roster (Ex. 72a) from 1500 to 1900 each claimed 1 5 hours for one hour of overtIme Mr MroczynskI was asked why "Cuomo vac" appears under "Remarks" on the lIne for Messenger and why "Lachance P L O.A" appears under "Remarks" on the lIne for Montgomery on the Attendance RegIster (Ex. 72b) He replIed "For accountIng purposes It doesn't mean that person replaced the other" Asked "Why do you do that?" he replIed "The Schedules are done well In advance We don't do real bookkeepIng of who replaces who We Just IndIcate the use of the hours For example, we say Turgeon replaced Cuomo on vacatIOn, but I'm Just accountIng for 8 hours of tIme Messenger covered for 4 hours of Cuomo" In chIef, Mr MroczynskI said that he pnnted the May 9 1999 Duty Roster (Ex. 72a) on Thursday Apnl29 1999 In cross, he said that he pnnted the Roster "a month, It could be SIX weeks In advance-whenever I have the tIme" and agreed that It would be standard for such a Roster to be pnnted 4 to 6 weeks ahead. In cross, asked what the yellow hIghlIghtIng on the Duty Roster (Ex 72a) represented, Mr MroczynskI replIed "I put It on as a SchedulIng Officer" He said that he hIghlIghted requests for changes In 181 green, when he receIved them He said that he hIghlIghts requests for stat days when he receIves them thIrty days In advance He dId not dIspute that a form IS not reqUIred for requests for tIme off on short notIce, and said "I always ask for It." In cross, Mr MroczynskI said that he had not marked the blue hIghlIghtIng whIch appears on the Duty Roster (Ex. 72a) He said that on Fnday May 7 1999 he had known that he would be workIng on Sunday May 9 1999 and that he could have known earlIer In the week. Shortly after that, he said "It's very possIble" that he had been called on Saturday to work for Mr Bergeron on the Sunday He said that It was "very possIble" that he had called Ms Turgeon on Fnday to cover for Ms LatImer on Sunday and said "I don't keep records" It was put to hIm that he dId not know whether he had called Ms Turgeon on Fnday He replIed "Who I called, I don't know" He demed that casuals Turgeon, Beasley Messenger Montgomery WillIams, and Sabo had been workIng on Sunday May 9 1999 because they had been called In to cover for the gnevor Asked whether anythIng explaIned the replacement of Ms LatImer on May 9 1999 he replIed "No I don't see It" Asked to agree that the Attendance RegIster (Ex. 72b) dId not record Ms LatImer's absence as caUSIng overtIme, Mr MroczynskI replIed "Not on thIS sheet. Just the Duty Roster We have over the complement." Asked "Where, on the Duty Roster does It IndIcate overtIme was Incurred on behalf of Noell a LatImer" Mr MroczynskI replIed "You have to look at the Attendance RegIster" When It was put to Mr MroczynskI "But the Attendance RegIster doesn't IdentIfy her" Mr MroczynskI replIed "Well, we dId" Later In cross-eXamInatIOn, he agreed that "we don't really know who IS covenng for who by the UnclassIfied Attendance RegIster (Ex. 72b) " He said "It accounts for tIme We are tryIng to correct our bookkeepIng." He agreed that the records as of Fnday May 7 and Sunday May 9 1999 do not dIsclose whIch casuals were neanng the "40-hour mark" Mr MroczynskI said that he asked Ms Turgeon to cover 1500 to 1900 He was advIsed that the Umon's eVIdence would be that Ms Turgeon offered to stay on at 1100 but dId not want to leave at 1100 and return at 1500 for the 1500 to 1900 shIft. Mr MroczynskI said "Why would I ask her? I dIdn't need her untIl 1500 " At a later pOInt, he was advIsed that Ms Turgeon would say that he had only asked her to come In at 1900 and not at 1500 In re-eXamInatIOn, he said that Ms Turgeon had been "wIllIng to 182 work 1100 to 1500 but It wouldn't have helped LatImer" He also said that he dId not belIeve that he asked Ms Turgeon to work 1900 to 2300 and that he dId not recall havIng asked her to work those hours He said that It would have been to the JaIl's advantage to have done so as she had not worked 40 hours, and could have been paid straight tIme In re-eXamInatIOn, M. MroczynskI said that Mr Messenger was called In and sIgned In at 1400 to replace Ms LatImer He said that Ms Montgomery worked from 1500 to 1800 and was paid overtIme, and that Mr Messenger "stayed behInd." He then said that Mr WillIams came In and worked 1800 to 1900 because Ms Montgomery left at 1800 and contInued another ShIft to 2300 He said, "IfMrs LatImer hadn't left, Mr Messenger Ms Montgomery or Mr WillIams wouldn't have needed to be called In." Asked agaIn In re-eXamInatIOn to clanfy who had replaced Ms LatImer Mr MroczynskI said "Messenger 1300 to 1500 Ms Montgomery came In at 1500 to replace LatImer She worked tIll 1800 Then WillIams worked 1800 to 1900 to replace her" Asked who replaced BaldellI, he replIed "Messenger from 1400 to 1500" Asked who first replaced the gnevor when she left, he replIed "Mr Messenger" Asked "Why?" he replIed "Because I have 1400 to 1500 besIde hIS name With LatImer gone he would've been the thIrteenth person." AgaIn asked "Why?" he replIed "Because Mrs LatImer IS not pencIled out." Asked "Who IS replacIng BaldellI?" he replIed "We had an overage We had an addItIOnal person at that tIme" He said that the InfOrmatIOn under "Remarks" on the Attendance RegIstered for the UnclassIfied staff (Ex. 72b) "Isn't the real reason why they were called In" wIth the exceptIOn of the tImes In and out. In cross, Mr MroczynskI said that on May 9 1999 he called Mr Chenard regardIng the gnevor because "he was the on-call person." He said that he first called Mr Chenard at 12 45 when, he said, "Ms LatImer first started to act up that IS, be demandIng." He agreed that he was refernng to the conversatIOn In whIch he "told her she was not gOIng to get her tIme off" He then said "That there was a possIbIlIty If procedures hadn't been followed." He said that he had taken no notes of hIS conversatIOn wIth Mr Chenard. He said that he told Mr Chenard "That Ms LatImer told me she was upset and then told me she was SICk." He said that Mr Chenard told hIm that the gnevor should remaIn at work. He subsequently said that he had told Mr Chenard that the 183 gnevor wanted to go home, that he dIdn't thInk that she should go home, and that Mr Chenard "concurred" wIth hIm. He said "There may have been two or three conversatIOns," then said that In hIS first conversatIOn wIth the gnevor on May 9 1999 she had said that she was "upset" and that In hIS second conversatIOn wIth her she told hIm she was "sIck and wanted to go home" He said that he could not recall havIng had a conversatIOn wIth her over the radIO He acknowledged that he had not been able to observe the gnevor when she said she was sIck and had not spoken to the nurse before he spoke wIth Mr Chenard. Mr MroczynskI said In cross that he spoke to the gnevor bnefly at 1245 and told her that her request for tIme off mIght not be granted, and that she became upset at that pOInt. He said that the gnevor called hIm "no more than 10 mInutes later" He said "probably after the second phone call I spoke wIth Mr Chenard." He agreed that he was not sure about when he had spoken wIth Mr Chenard. Mr MroczynskI said that at 12 55 p.m the gnevor Informed hIm that she was sIck and wanted to go home, and that he dId not belIeve her because she had told hIm that she was "upset" In hIS first conversatIOn wIth hIm. He agreed that he called Mr Chenard between the first and second call, or after the second call He said that Mr Chenard had concurred wIth hIm that the gnevor should remaIn "untIl we got someone to replace her" He said that Mr Chenard had not expressed the VIew that he, Mr MroczynskI, was wrong or suggested that he mIght possIbly be wrong He said that he had spoken wIth Mr Chenard after the gnevor had left the InstItutIOn to advIse hIm as to what had occurred. Mr MroczynskI agreed that If someone remaInS on sIte at the JaIl aWaitIng theIr replacement, that assumes that they are there to carry out theIr dutIes as a C 0 Asked "What purpose does It serve If they are too sIck to carry out theIr dutIes?" he replIed "We hadn't establIshed that. She should've said at the begInmng of the shIft." He contInued "I have responsIble staff who tell me they're sIck, but wIll try to hang on." He agreed that there are Illnesses, heart attack, sudden trauma, whIch cannot be antIcIpated. He said "We know there are symptoms of a heart attack. We once took someone out on a stretcher No we dIdn't say we'd reassess them In twenty mInutes, not wIth a lIfe- threatemng Illness" Asked "She wouldn't have known she would become Ill, would 184 she?" Mr MroczynskI replIed "I have FIrst AId traInIng." Asked "Had you seen her when you decIded she wasn't Ill?" he replIed "You can look at her hIstOry " Mr MroczynskI agreed In cross-eXamInatIOn that the nurse IS present In the InstItutIOn to provIde health care to Inmates and staff and that In the absence of a doctor on sIte, on May 9 1999 Ms LaJeunesse was the most semor medIcal staff on sIte He agreed that 1330 was 45 mInutes after the gnevor's first request to go home and 35 mInutes after she had told hIm that she was sIck and wanted to go home He dId not dIspute that In hIS first conversatIOn wIth the gnevor he had told her that he would not let her go home, because he dId not belIeve that she was SICk. He said "I dIdn't have anyone to relIeve her" He agreed that he assumed that she had been dOIng her dutIes after theIr telephone contacts and that It was therefore acceptable for her to remaIn at her post. Mr MroczynskIImtIally dId not dIspute In cross that Ms LaJeunesse had told hIm that the gnevor was not well He later demed that Ms LaJeunesse had told hIm that the gnevor was unfit to work, should go home, and see a physIcIan at the clImc The statements, "I reported to Mr MroczynskI that she was unfit to work. Ms LatImer should go home and see a physIcIan at the clImc" were read to Mr MroczynskI from Ms LaJeunesse's Report (Ex. 96) He said "I can't recall that" and acknowledged that It was possIble that she had said that to hIm. He said there was no reason that she would lIe when wntIng those words Asked whether he understood that the nurse thought that the gnevor would recover In twenty mInutes, he replIed "I Informed the nurse as to what transpIred and she re-evaluated her posItIOn. There was no argument at all " He agreed that he had been In charge of the JaIl at the tIme, and that the nurse reported to hIm. Mr MroczynskI agreed In cross that at all tImes he had Intended to gIve the gnevor her tIme off He was told that the gnevor had said that he had told her that she could not have her tIme off because BaldellI was SICk. He replIed "If I o.k.' d the tIme, there'd be a form Whatever she says, she's lYIng. She knew It was Mother's Day and the possIbIlIty of gettIng the tIme off was dIcey If she was granted the tIme off, where's the procedure?" In re-eXamInatIOn, Mr MroczynskI said that there had not ever been a sItuatIOn In whIch he had let someone leave wIthout replacIng them He said "Staff members know 185 they are part of a team and they Wait for a replacement. I've never had a staff member come up and say Richard, I'm sIck and gOIng home now They've always been good." Ms Turgeon was advIsed that a Summons would be Issued to her nunc pro tunc and that she could consIder herself gIVIng her eVIdence as If under a subpoena. She had been a casual COat the Sudbury JaIl, and had worked there on May 9 1999 from 0700 to 1100 She understood that she had been replacIng Mr BaldellI She said that Mr MroczynskI approached her at about 10 45 outsIde hIS office and asked her whether she wanted to come back to work at 1900 and she declIned. He asked her a second tIme to return at 1900 and she declIned agaIn, and told hIm that she had a babysItter then, but not for 1900 She said that she was not asked on that day or on any day pnor to work from 1500 to 1900 She said that she had an answenng machIne and had not receIved any messages askIng her to work the Sunday May 9 1999 1500 to 1900 shIft. In cross-eXamInatIOn, Ms Turgeon said that she recalled the conversatIOn wIth Mr MroczynskI and that he had asked her whether she would work from 1900 to 2300 because he asked her a second tIme, and usually she IS asked only once She said that she hoped to be asked to work 1100 to 1500 because she could have asked her babysItter to remaIn. She said that IfMr MroczynskI had asked her to work 1500 to 1900 she would have had to InqUIre as to whether her babysItter could work straight through, and If the babysItter could not, she would not have accepted the 1500 to 1900 shIft. She said that she had not been asked to work the 1500 to 1900 shIft. She said that If she had been called on Fnday and asked to work 1500 to 1900 on Sunday that would have been a splIt ShIft, and that she would have remembered havIng been so asked, as she would remember havIng had to try to get a babysItter for the splIt shIft. She said that If she had been able to make babysIttIng arrangements, she would have been able to work the 1500 to 1900 ShIft on May 9 1999 She acknowledged that she was not certaIn as to whether she had receIved any calls to work 1500 to 1900 on Sunday May 9 1999 after she had left work. She said that she assumed that she was replacIng BaldellI SInce she had been posted to E area, to whIch BaldellI had been posted In pnnt on the Duty Roster (Ex. 72a) She said that she had worked splIt ShIftS between May 9 1999 and August of 1999 AdvIsed that 186 Mr MroczynskI had testIfied that he had asked her to work the 1500 to 1900 ShIft, and asked to confirm or deny that, she replIed "He dIdn't ask me to work the 1500" She confirmed that Mr MroczynskI had not asked her to work the 1100 to 1500 shIft. Ms LaJeunesse was IdentIfied as a wItness for the Board, rather than for eIther party She advIsed that she IS a classIfied regular part-tIme nurse at the Sudbury JaIl LookIng after staff who warrant medIcal attentIOn IS one of her dutIes She recalled attendIng to Ms LatImer on Mother's Day May 9 1999 She IdentIfied her Occurrence Report (Ex. 96) whIch she had wntten on May 9 1999 at 1615 She advIsed that she had wntten It at Mr MroczynskI's request and that she had submItted It to hIm the same day The Report, addressed to Supt. Chenard IS tItled "Re CON oella LatImer FeelIng Unwell" It states Dear SIr On Sunday May 9th of 1999 at approxImately 1315 hrs I was In the new sectIOn where I was about to dIspense my noon medIcatIOn to the Inmates I receIved a call from C 0 Ronald SullIvan from control requestIng that I go & assess CO Noella LatImer who was not feelIng well I left the area to go to control where Noella was also workIng. I found her SIttIng at the VISItS receptIOn desk tryIng to catch her breath, cryIng & shakIng. She was ObvIOusly qUIte dIstraught & all I could get from her was that she was unable to contInue her tour of duty Upon asseSSIng Noella, I found her respIratIOn to be rapId & qUIte shallow pulse was 112 strong and regular I advIsed her to slow her breathIng down but she seemed unable to do thIS and kept cryIng uncontrollably I left to speak wIth the I C (Mr Richard MroczynskI) re thIS CO's condItIOn. I reported to Mr MroczynskI that I felt C 0 LatImer was unfit to work & should go home & see a physIcIan at the clImc The I C suggested C 0 LatImer be relIeved from her post to go to lunchroom to rest for approxImately 20 mIn when she could be reassessed. I though that was fair At about 1330 we proceeded together to control area to Inform C 0 LatImer of the decIsIOn. Before we could enter the area and speak wIth her she was leavIng. Respectfully Ms LaJeunesse said that It had been very dIfficult to get anythIng else from the gnevor other than that she was unable to contInue her tour of duty as she was cryIng, shakIng and breathIng qUIte rapIdly She explaIned that a 112 pulse "strong and regular" 187 meant "she had a pulse more rapId than someone at a restIng phase 'Regular' means no cardIac/heart Involvement, though I'm not saYIng she dIdn't have a heart problem 112 means somethIng happemng wIth the body Upset or paIn wIll do that. CardIac wIll, but 112 was strong." She said that she had left the Control area to speak wIth Mr MroczynskI because she "wanted to make hIm aware of what was gOIng on wIth Ms LatImer I can't tell her she IS not well, go home I don't have the authonty I Just have a say In the decIsIOn." She said that the Officer In Charge, Mr MroczynskI, had the final decIsIOn as to whether a C 0 may go home and said "Mind you, If thIS was a lIfe- threatemng sItuatIOn, e g. I needed an ambulance, and If he said no I could overrule and call one On the whole, It'S usually a JOInt decIsIOn between the Officer In Charge and the medIcal person." She said that she had not consIdered the gnevor's condItIOn to have been lIfe-threatemng, and added "but unable to contInue the dutIes" because she was "unable to functIOn as CO-unable to talk, catch her breath. She was cryIng. She could not, at that pOInt, make a ratIOnal decIsIOn, assess anyone comIng In, control the panel, deal wIth " Ms LaJeunesse said that she had thought It was "fair" to relIeve the gnevor for approxImately twenty mInutes, after whIch she could be re-assessed because "For one, whatever was happemng In Control whIch was upsettIng her remOVIng her from It was a good way to treat her" She described her conversatIOn wIth Mr MroczynskI as "Very relaxed. He dIdn't appear upset. He was calm." She said that when Mr MroczynskI suggested that the gnevor go to the lunchroom, she knew that It would not change anythIng. She said that she dId not know why the gnevor was "dIstraught" and that she said to Mr MroczynskI that the gnevor "cannot work the way she IS now" She said that Mr MroczynskI "said send her to the lunchroom for twenty mInutes I said I thought that was fair I said I'd re-assess her before she went back." She said that she understood that Mr MroczynskI "thought that after a rest In the lunchroom, she would be fit to go back." She recalled Mr MroczynskI havIng said to her that the gnevor was not sIck, that she Just wanted to go home, and that she had said "She's SICk." She said that Mr MroczynskI said "She's not. You don't know the whole story" She said that she told hIm that the gnevor "wasn't fit, I'd re-assess her" Asked "DId you ever at any pOInt accept Mr MroczynskI's statement that she was not sIck, Just wanted to go home?" she replIed 188 "No" Asked later "WhIch, In your OpInIOn, would have been preferable? Let her go? Or gIve It a try?" she replIed "Let her go" She confirmed that Mr MroczynskI's demeanour had been "very relaxed" when he had told her that the gnevor was not SICk. Ms LaJeunesse said that when she arnved In Control, she could not see anybody Asked "DId you see her leavIng?" she replIed "Yes" She said that she heard Mr MroczynskI ask for the door to be opened "and the answer was 'No'" She said that she then heard Mr MroczynskI say "I order you to open the door' She said "And then that was It. I looked at Mr MroczynskI and said 'What do I do from here? ThIS IS not for me to deal wIth' And I said 'bye-bye' and I left." She said that at that pOInt Mr MroczynskI's face was flushed and hIS VOIce was louder She said that he was "defimtely more upset than he was earlIer when I went In to speak wIth hIm" Ms LaJeunesse said that about tWIce a month, C 0 s who complaIned of beIng sIck had to be assessed. She said that she had done such assessments on other occaSIOns aSIde from Mother's Day 1999 She descnbed the normal procedure for relIevIng such Officers as "We bnng It to the I/C and dISCUSS It WIth hIm. More often than not they come In wIth a headache congestIOn, paIn here and there I've not had to send anyone home It would be the Officer In Charge, and I tell hIm so-and-so cannot stay" She said that how the I/Cs go about relIevIng a C 0 who complaIns about beIng sIck, "depends on the CIrcumstances It's hard to say They'll call someone In or order someone back or have someone come In. It all depends" Asked, In her observatIOn, how long a COIn the gnevor's condItIOn would expect to be relIeved, Ms LaJeunesse replIed "I've never seen anythIng lIke thIS I've never seen a delay but I've only been there two years" She said that she understood from Mr MroczynskI "His suggestIOn that she go to the lunchroom and then go back to work told me he wasn't gOIng to send her home" She said that she had been surpnsed that the gnevor was leavIng, because "I dIdn't expect her to walk away She dIdn't know what we were gOIng to say" She acknowledged that she had not known whether the gnevor had known that she was at the door 189 Supt. Chenard acknowledged that he had been on call on May 9 1999 and that he had been called more than once by Mr MroczynskI that day He said, ofMr MroczynskI, "He was SchedulIng Manager at the tIme He was fillIng In on Sunday He told me she'd approach hIm re tIme off and he'd told her he'd slot somebody In except If someone was SIck, and someone was SICk. He Informed her he may not be able to let her go He said she was upset. I told hIm to explaIn you'll try to get someone to cover her He dIdn't explaIn to me that her state of mInd was cntIcal " Asked, "Is that your total recall?" he said "the other I/C that took over for hIm reported to me she was gone" Asked "DId MroczynskI tell you that he'd spoken to the nurse?" he replIed "Not that I can remember" Asked whether he recalled Mr MroczynskI havIng asked hIm whether he should allow the gnevor to leave, he replIed "I don't recall" He said that he dId not recall whether Mr MroczynskI had told hIm when he learned that an Officer had called In SICk. Post May 9, 1999 It IS not In dIspute that the gnevor has not returned to work SInce May 9 1999 On May 13 1999 Mr McGregor delIvered to the employer a note from Dr Pnnce dated May 11 199 (Ex. 94) whIch stated "ThIS lady IS III and wIll be off work for 2 - 4 weeks" In response to the employer's request for further InformatIOn, Dr Pnnce completed an Employee Health InformatIOn form on May 31 1999 (Ex. 68 & 94) It IndIcated that there were "medIcal/health condItIOns whIch would account for absence(s) from the workplace or would affect the employee's abIlIty to perform dutIes" and stated "wIll be off work for 2 - 3 months for medIcal reasons whIch are confidentIal" He IndIcated that the duratIOn was temporary and the expected duratIOn "unknown at thIS tIme" He IndIcated that she was "In treatment and/or takIng medIcatIOn that may affect her abIlIty to work and stated "MedIcatIOn may cause drowsIness and InabIlIty to concentrate" In response to the questIOn as to whether he antIcIpated further absences at thIS tIme, he checked "yes" and wrote, on the lIne preceded by "please specIfy" the words "further InstIgatIOn" He said that he would assess the gnevor In one month. The next medIcal InfOrmatIOn regardIng the gnevor's health that forms part of the eVIdence IS a form tItled "Part B FunctIOnal AbIlItIes, completed by Dr Pnnce and 190 dated March 17 2000 (Ex. 106 & 107) Dr Pnnce stated on the form "DIagnosIs precludes her returmng to work untIl those stressors have been relIeved." In answer to the questIOn "In addItIOn to the above, are there any other restnctIOns pertInent to the Job? If yes, please lIst restnctIOns," he wrote "unknown and not applIcable" In answer to the questIOn "If temporary what IS expected duratIOn" he wrote "unknown." He IndIcated that the gnevor was "Involved wIth treatment and/or medIcatIOn that mIght affect her abIlIty to work and/or undertake sensItIve responsIbIlItIes" and that there was no other "relevant InformatIOn whIch wIll assIst the employer In develoPIng an appropnate return to work plan/employment accommodatIOn for employee" and that he would assess her In another month. On May 15 2000 as part of a mandatory medIcal eXamInatIOn requested by the employer Dr McMullen completed a "Part B FunctIOnal AbIlItIes" form In whIch he stated "EmotIOnal status precludes return to work untIl employment dIspute settled - at least In present settIng." He IndIcated that the condItIOn was temporary and of Indefimte duratIOn. He IndIcated that he antIcIpated further absences and stated "MaJor problem IS anXIety/pamc 2ndary to employment dIspute" The heanng In thIS matter proceeded thereafter In June, September October November and December 1999 and the gnevor remaIned off work dunng that tIme In about August, 2000 the gnevor's specIalIst(s) IndIcated that she was not well enough to attend Young Offenders Act traInIng wIth a VIew to transfernng to CecIl Facer Youth Centre as a C 0 The heanng contInued In January March, Apnl, July and September 2000 The gnevor has remaIned off work to date, subJect to the terms of the FIfth Intenm RulIng In thIS matter ConclusIons. The gnevor returned to work on or about Jan. 26 1999 havIng been absent SInce Dec 30 1998 As she contInued to work under the terms of the pre-exIstIng Return-to- Work plan, I conclude that she was not recovered sufficIently to resume her regular dutIes 191 On March 27 1999 the gnevor learned from Mr MroczynskI, the InstItutIOnal TraInIng Officer that she was beIng demed the 1999 CnsIs NegotIator refresher course whIch was about to take place ThIS decIsIOn had apparently been taken wIthout consultatIOn wIth the gnevor or her physIcIan. Mr MroczynskI stated that he was famIlIar wIth the Mimstry's PolIcy and Procedures In the "Adult InstItutIOns PolIcy and Procedures, Safety/Secunty CnsIs NegotIatIOn Team" (Ex. 95) CandIdates shall be In good physIcal condItIOn and sufficIently durable both mentally and physIcally to endure long pen ods of actIve negotIatIng dutIes under stressful condItIOns They must be wIllIng to undergo a complete medIcal and physIcal eXamInatIOn pnor to attendIng the ImtIal traInIng course and annually thereafter at the expense of the mImstry I conclude, on the basIs ofMr MroczynskI's own eVIdence and on balance of probabIlItIes, that he belIeved In 1999 and SInce March 31 1998 If not earlIer that the gnevor was not "sufficIently durable mentally to endure long penods of actIve negotIatIng dutIes under stressful condItIOns" as set out In the above polIcy I conclude on balance of probabIlItIes, that because he belIeved that, he saw no pOInt to sendIng the gnevor on a refresher course or to requestIng her to undergo a complete medIcal and physIcal eXamInatIOn as IndIcated In the above polIcy I conclude, from Mr MroczynskI's statement regardIng Mr Chenard "He put It out that he had no reasons to send her" that Mr Chenard agreed wIth Mr MroczynskI that the gnevor would not be sent on the CnsIs NegotIator refresher course In spnng, 1999 Whether Mr MroczynskI or Mr Chenard made the decIsIOn not to send the gnevor on the refresher course IS of lIttle Importance The decIsIOn not to send the gnevor on the course In 1999 was made wIthout first requestIng the OpInIOn of her physIcIan as to whether eIther her workplace accommodatIOn or her current health status were a clImcalImpedIment to her attendance at the course, and to her abIlIty to functIOn as a cnsIs negotIator at that tIme and over the next year As stated In Segment 5 wIth regard to the March 31 1998 demal of the refresher course 1 The employer's decIsIOn to not send the gnevor to the CnsIs NegotIator Refresher Course, wIthout requestIng Input from her physIcIan was based on an unstated presumptIOn that she was psychIatncally or 192 emotIOnally unfit to benefit from the traInIng and/or for the employer to realIze any benefit from sendIng her on It. 2 The decIsIOn not to send the gnevor to the Refresher Course was a dISCnmInatory one on the grounds of presumed dIsabIlIty 3 The employer was oblIged, In all the cIrcumstances, before decIdIng that she would not be sent to the Refresher Course, to have sent the gnevor a letter provIdIng detaIls of the course, IncludIng locatIOn, hours, actIvItIes, etc and requestIng her to have her doctor express an OpInIOn as to whether her workplace accommodatIOns or her current health status were a clImcalImpedIment to a) her attendance at the Course, and b) her abIlIty to functIOn as a CnsIs NegotIator at thIS tIme I apprecIate that Supt. Chenard and Mr MroczynskI had confidence In theIr own Judgment. I conclude that they sIncerely belIeved that the gnevor was not a sUItable candIdate for the refresher course In August, 1998 Dr Pnnce had descnbed her as "stIll too emotIOnally unstable to return to her regular work." As recently as Dec 30 1998 for reasons prevIOusly examIned, the gnevor had become symptomatIc and was unable to work for approxImately four weeks I conclude that Supt. Chenard and Mr MroczynskI were of the belIef that she was not In sUItable condItIOn emotIOnally to attend the refresher course, or functIOn for the employer as a CnsIs NegotIator I conclude that the employer had no Interest In sendIng her on traInIng from whIch, they assumed, It could not take the benefit. Mr MroczynskI and Mr Chenard acknowledged that the Health InformatIOn forms dId not elIcIt InformatIOn regardIng that specIfic actIvIty and that Dr Pnnce had not been asked to consIder that specIfic Issue An up-dated and specIfic medIcal OpInIOn was reqUIred In order to fairly determIne whether the gnevor should attend the refresher course It was the employer's usual practIce to request up-dated medIcal InfOrmatIOn by letter to the gnevor wIth an Employee Health InformatIOn form enclosed. The employer departed from that usual practIce The eVIdence establIshed that the gnevor had InqUIred about the refresher course before March 27 1999 No busIness or admInIstratIve reason was offered as to why the employer had not sent such a letter to the gnevor before the course was to be held. It appears that the refresher course was held annually at about the same tIme, late March or early Apnl As InstItutIOnal TraInIng 193 Officer It IS unlIkely that Mr MroczynskI dId not know well In advance when the traInIng would be held. It makes lIttle dIfference whether or not the employer verbally conveyed to the gnevor that It would consIder her physIcIan's OpInIOn If she provIded It. The eVIdence dId not clearly establIsh that the dIscussIOns In whIch thIS may have been verbally conveyed to the gnevor took place before the refresher course was held, and conveyed sufficIently In advance of It to have enabled the gnevor to have obtaIned the OpInIOn. I accept the gnevor' s eVIdence that In 1999 when the InstItutIOn reqUIred extra staff, management requested the gnevor to exceed the hours stIpulated In her Return-to- W ork/ AccommodatIOn Plan, wIthout regard to the Plan and she worked extra hours In thIS context, It was somewhat InCOnsIstent for the employer to have fallen back on the restnctIOns In that Plan as JustIficatIOn for havIng demed her the refresher course It must be said, however that the gnevor knew In 1999 that In 1998 the employer had assumed that her health status and workplace accommodatIOn precluded her attendance at the refresher course, however unreasonable and unfair she may have vIewed the employer's conduct. It was open to her to have consulted wIth her physIcIan(s) regardIng whether she was medIcally able to perform the dutIes of a CnsIs NegotIator for the employer and whether her medIcal status or her workplace accommodatIOn precluded her from attendIng the refresher course and provIdIng the employer a benefit from her attendance It was open to her to have obtaIned a further note or letter from her physIcIan(s) In antIcIpatIOn of the 1999 refresher course The fact that she dId not do so suggests that the dIspute on thIS Issue, although not tnvIal, IS a symbolIc one I am, however oblIged to conclude that on March 27 1999 the employer through the actIOns of Mr MroczynskI and Mr Chenard, by declImng to send the gnevor on the CnsIs NegotIator refresher course wIthout seekIng the OpInIOn of her physIcIan, agaIn dIscnmInated agaInst the gnevor on the basIs of presumed dIsabIlIty I conclude that the employer knew or ought to have known that It was oblIged to request further medIcal Input from the gnevor's physIcIan before decIdIng whether the gnevor would attend the spnng 1999 refresher course In faIlIng to request the OpInIOn, It demed the gnevor the respect and dIgmty of equal treatment regardIng traInIng opportumtIes In 194 relatIOn to other C 0 s ThIS constItuted a vIOlatIOn ofs 5(1) of the Human Rights Code and a breach of Art. 3 1 of the collectIve agreement. The umntended consequence of ItS faIlure to request the OpInIOn, and of ItS decISIOn not to send her to the refresher course was to heIghten or sharpen the gnevor's sense of unfair treatment and SuspICIOns that she was beIng delIberately "played wIth" by the employer ThIS exacerbated an already tense sItuatIOn between the gnevor and management staff The umon and the gnevor dId not establIsh on balance of probabIlItIes that If the gnevor had obtaIned her physIcIan's wntten OpInIOn, It would have establIshed that she was able to provIde servIces to the employer as a CnsIs NegotIator and that her workplace accommodatIOn would not have precluded her from attendIng the course In the absence of such eVIdence, the claim for lost overtIme cannot be consIdered. The remedy for the employer's breaches of Art. 3 1 In 1998 and 1999 wIll be a declaratIOn of those breaches In addItIOn, I dIrect the employer to provIde the gnevor a wntten apology statIng that In faIlIng to make a wntten request to the gnevor of her doctor's OpInIOn, pnor to decIdIng that It would not send her on the CnsIs NegotIator refresher course In 1998 and 1999 the employer dIscnmInated agaInst her on the basIs of presumed dIsabIlIty and that such actIOns constItuted a breach of Art. 3 1 of the CollectIve Agreement. Re Apnl 20, 1999. The eVIdence provIded by the umon dId not establIsh on balance of probabIlItIes that on Apnl 20 1998 Mr Chenard laughed at the gnevor or that he Intended to harass her The gnevor's eVIdence was maInly her re-statement of the conclusIOns of her colleagues, Mr UdeschInI, Ms Date and Mr Lachance, 1 e hearsay The accuracy of Ms Date's and Mr UdeschInI's conclusIOns could not be tested, as they dId not gIve eVIdence The accuracy ofMr Lachance's conclusIOns was effectIvely challenged through cross-eXamInatIOn. 195 I accept Mr Chenard's eVIdence that whIle lookmg for storage space, he opened the door to the stafftrammg room, unaware that It was occupIed for a trammg seSSIOn, and that when he saw that the room was occupIed, looked at the occupants, mcludmg the gnevor and smIled. It IS possIble that he laughed, m surpnse and embarrassment, as he was not expectmg to encounter an MSA trammg class It does not matter I conclude that the gnevor smcerely and honestly belIeved that Mr Chenard had mtended to harass her I conclude that she was mIstaken. Regardmg Mother's Day, May 9, 1999. I conclude, on the baSIS ofMr MroczynskI's eVIdence, that on May 7 1999 the gnevor phoned hIm and asked hIm to find another C 0 to cover the 1500 to 1900 portIOn of her 0700 to 1900 shIft on Mother's Day May 9 1999 I conclude, on the baSIS of hIS and the gnevor's eVIdence, that he assured her that he could have another C 0 to cover that portIOn of her ShIft, except If someone got SICk. I conclude that m so mdIcatmg, he was attemptmg to convey to the gnevor however Imperfectly that If unforeseen CIrcumstances arose such that he lost complement, that he could not gIve her the tIme off I conclude that when he spoke WIth her he smcerely had the full mtentIOn offindmg someone to replace her and conveyed that to her I conclude that the gnevor mIstakenly concluded that a replacement C 0 for 1500 to 1900 on May 9 1999 was a sure thmg. I conclude, on hIS eVIdence that some tIme after her call, he forgot about It, and remembered for the first tIme on Sunday May 9 1999 at about 930 a.m. that he had mtended to find someone to replace her By sheer comcIdence, Mr BaldellI had called m SICk. From 0700 to 1100 casual C 0 Ms Turgeon replaced Mr BaldellI m E area, and casual C 0 Beasley made up the complement. I accept Mr MroczynskI's eVIdence that he made some calls that mormng to find someone to cover for the gnevor from 1500 to 1900 I also conclude, smce he had 13 staff mcludmg the gnevor m the mstItutIOn for 1100 to 1500 and smce the complement was 13 that at 930 a.m he dId not need extra staff for the 1100 to 1500 shIft. There was no admmIstratIve need for hIm to have asked 196 any of the casuals who had worked from 0700 to 1100 to have stayed at 1100 despIte the gnevor's suggestIOn that that was what he should have done I accept Ms Turgeon's eVIdence that before 1100 Mr MroczynskI asked her to work at 1900 rather than 1500 I conclude that before 1100 Mr MroczynskI was aware that there was a shortage of staff for the 1900 shIft. There was no explanatIOn In Mr MroczynskI's eVIdence as to why he had not asked Ms Turgeon to work agaIn at 1500 I conclude, on balance of probabIlIty that It sImply dId not occur to hIm to ask Ms Turgeon to work those hours I accept hIS eVIdence that he made some calls that mornIng to find someone to cover for the gnevor from 1500 to 1900 I conclude that In addItIOn to those calls regardIng 1500 to 1900 he was tryIng to find an extra C 0 for the 1900 to 2300 shIft. I conclude that by 1245 P m. Mr MroczynskI's calls to casuals had not resulted In a replacement for the gnevor from 1500 to 1900 and that he felt oblIged to warn her that he was havIng dIfficulty obtaInIng a casual to cover her shIft and mIght not be able to gIve her the tIme off In so adVISIng her he dId the reasonable thIng. It IS unfortunate and all too human, that to the gnevor he attnbuted the dIfficulty to Mr BaldellI havIng called In sIck, rather than to hIS havIng forgotten. In Mr MroczynskI's report, and InItIally In hIS eVIdence, he said that In hIS first conversatIOn wIth the gnevor on May 9 1999 he told her that he might not be able to gIve her the tIme off However later In hIS oral eVIdence, he said "If she was truly sIck she would've Informed me pnor to when I told her I couldn't gIve her the tIme off, that I couldn't guarantee her" ThIS statement raises the pOSSIbIlIty that he said to the gnevor that he could not gIve her the tIme off, rather than might not Whether he said the former phrase and not the latter or whether he said both phrases, does not matter much. I conclude, on balance of probabIlIty that the gnevor stIll mIstrustful of Mr MroczynskI as a result of hIS deCISIOn not to send her to the refresher course WIthout havIng sought the OpInIOn of her phYSICIan, and stIll In recovery from the condItIOn whIch Dr Pnnce had descnbed as "emotIOnally unstable" heard that she was not gOIng to get the tIme off she had requested. She then Jumped to the conclusIOn that Mr MroczynskI had delIberately faIled to obtaIn someone to cover her and that he had done so In order to delIberately provoke her ThIS resulted In her expenenCIng shortness of 197 breath, uncontrollable sobbIng, etc RecognIzIng her symptoms, she called hIm back and told hIm that she was SICk. I conclude, from hIS statement "If she was truly sIck she would've Informed me pnor to when I told her I couldn't gIve her the tIme off, that I couldn't guarantee her" that Mr MroczynskI dId not comprehend that hIS IndIcatIOn to the gnevor regardIng her requested tIme off could result In her expenenCIng symptoms after he conveyed the status of her requested tIme off to her He said that In hIS second phone call WIth the gnevor whIch was about 12 50 P m. she started to "act up and be demandIng." He jumped to the conclUSIOn that she was chIldIshly fakIng symptoms of Illness In order to obtaIn the tIme off, and told her that he would provIde her a relIef only In order for her to take a break, but that he would not provIde her a relIef In order to go home as he dId not thInk that she was SICk. The UnIntended consequence ofMr MroczynskI's statement to the gnevor of hIS IntentIOn re her request for relIef and of hIS belIef that she was not SIck, was that her symptoms were IntenSIfied. Her eVIdence was that she was sobbIng uncontrollably and shakIng, and, as a result, unable to work. There IS no eVIdence that these symptoms were clearly conveyed to Mr MroczynskI by eIther the gnevor or Mr SullIvan, untIl Mr SullIvan started to express to Mr MroczynskI that he would have a work refusal, as the gnevor was unable to perform her dutIes I find, on balance of probabIlItIes, that Mr SullIvan conveyed that InformatIOn to Mr MroczynskI around 13 15 around the tIme that Nurse Lajeunesse receIved a call from Mr SullIvan (as IndIcated In her report (Ex. 96) ) I conclude, from her report, that Nurse Lajeunesse probably assessed the gnevor some tIme between 13 15 p.m and 13 20 P m. and formed the profeSSIOnal OpInIOn that the gnevor was clInIcally unwell and unable to work, and left to speak to Mr MroczynskI I conclude, from her eVIdence, that her profeSSIOnal OpInIOn was that there was no reasonable expectatIOn that the gnevor would recover and be able to work after a break. I conclude that Mr MroczynskI gave lIttle weIght to Nurse Lajeunesse's profeSSIOnal OpInIOn, stIll belIevIng that the gnevor was falsIfYIng symptoms In order to get the tIme off that she had requested. I conclude that Nurse Lajeunesse IndIcated to Mr MroczynskI that she would go along WIth hIS preference to relIeve the gnevor only 198 temporanly because Mr MroczynskI was her supenor and because It was not a matter of lIfe and death The CIrcumstances precedIng the onset of the gnevor's symptoms and claim of beIng sIck appeared SUSpICIOUS to Mr MroczynskI, and I do not doubt that he sIncerely belIeved that the gnevor was not III and that he was actIng In the employer's best Interests I conclude, on hIS and Mr Chenard's eVIdence, that both he and Mr Chenard shared hIS VIeWpOInt, and that Mr MroczynskI belIeved that he was actIng wIth Mr Chenard's full and Informed agreement. Unfortunately Mr Chenard was not gIven the benefit of Nurse Lajeunesse's assessment of the gnevor's condItIOn. I am oblIged to accept Ms Lajeunesse's OpInIOn as to the abIlIty of the gnevor to contInue to work, as only she, and not Mr MroczynskI, saw the gnevor and observed her symptoms, and because she and not Mr MroczynskI, was medIcally qualIfied to form such an OpInIOn. There was no eVIdence that Mr MroczynskI made any attempt to provIde the gnevor temporary relIef untIl after Nurse Lajeunesse spoke WIth hIm, and after Mr SullIvan called hIm and told hIm that he had a work refusal because the gnevor was unable to perform her dutIes There was no eVIdence that Mr MroczynskI made any attempt to provIde the gnevor temporary relIef untIl Mr Howard walked Into hIS office I conclude, on balance of probabIlIty that Mr Howard walked In to hIS office at about 13 25 p.m The eVIdence dId not establIsh that he had done so as a result of a call from Mr MroczynskI I conclude, on the eVIdence, that Mr MroczynskI dId not Instruct Mr Howard that he was only to relIeve In Control temporanly and dId not telephone Mr SullIvan and adVIse hIm that he had sent Mr Howard to relIeve the gnevor temporanly That lack of InstructIOn was pIvotal to the events whIch followed. I conclude that Mr Howard proceeded to Control and entered the Control area one to two mInutes before Mr MroczynskI and Nurse Lajeunesse arnved. I conclude that when he arnved there Mr SullIvan and the gnevor not unreasonably assumed, In VIew of the gnevor's contInued state as assessed by Nurse Lajeunesse and In VIew of the fact that Mr Howard was the yard officer that day that Mr Howard had been sent to relIeve the gnevor I conclude that the gnevor assumed that at that pOInt she could leave 199 the JaIl, and dId so eXItIng through door N4 The eVIdence was that door N4 IS approxImately 10 feet from doorN5 and that Mr MroczynskI was behInd doorN5 when he made hIS statements As the gnevor was stIll unwell when she left through door N4 I am unable to conclude, on the eVIdence, that she saw Mr MroczynskI and/or heard what Mr MroczynskI said. I therefore conclude that the gnevor dId not abandon her post on May 9 1999 I acknowledge that the gnevor's departure from the InstItutIOn left the JaIl one C 0 under complement. Mr Howard replaced the gnevor In Control at about 1330 and there was no eVIdence that he was relIeved from that post. The May 9 1999 Duty Roster (Ex. 72a) IndIcates that Mr Howard worked In Control Module from 1500 to 1900 The Duty Roster (Ex. 72a) does not IndIcate that Mr Messenger was aSSIgned to Control from 1400 to 1500 I conclude that from 1400 to 1500 Mr Messenger brought the complement up to 13 and that from 1500 to 1900 eIther Mr Messenger or Ms Montgomery brought up the complement up to 13 Mr MroczynskI's eVIdence WIth respect to who had replaced the gnevor and Mr BaldellI on May 9 1999 was lengthy confused and contradIctory I find, on balance of probabIlItIes, that for purposes of maIntaInIng complement, Mr Messenger replaced the gnevor from 1400 to 1500 Thereafter eIther Mr Messenger or Ms Montgomery replaced her untIl 1800 Ms Montgomery worked from 1500 untIl 1800 and claimed overtIme for 1700 to 1800 AccordIng to the UnclasSIfied Attendance RegIster (Ex. 72b) Mr Messenger worked from 1500 untIl 1900 the balance of the gnevor's pre-scheduled hours, and claimed 1 5 hours overtIme for 1800 to 1900 Only one person could have replaced the gnevor from 1500 to 1900 I conclude, on balance of probabIlIty that Mr Messenger replaced the gnevor from 1500 to 1900 I conclude, therefore, that the employer Incurred the expense of one hour at overtIme rate to replace the gnevor on May 9 1999 As well, In the absence of any eVIdence that the gnevor's absence resulted In a breach of secunty I conclude that none occurred. I apprecIate that the secunty needs of the InstItutIOn reqUIre the staff level to remaIn at complement. I apprecIate that thIS IS partIcularly Important on weekends, when the desIgnated complement IS lower than on weekdays However when a C 0 IS not 200 capable of performIng hIs/her dutIes, the secunty needs of the InstItutIOn may be compromIsed to the same extent as they would be compromIsed If the staff level IS one below complement. At such a pOInt, In the absence of an ImmedIate secunty need requmng the contInued physIcal presence of the III officer there does not appear to be much benefit to requmng hIs/her contInued presence Dr Pnnce's May 11 1999 note (Ex. 94) hIS May 31 1999 Employee Health InformatIOn form (Ex. 68 & 94) as well as hIS March 17 2000 Part B FunctIOnal AbIlIty form (Ex. 106 & 107) Dr McMullen's May 15 2000 Part B FunctIOnal AbIlIty form (Ex. 109) and a post-heanng letter from Dr Pnnce dated Nov 9 2000 constItute the medIcal eVIdence pertaInIng to the gnevor after May 9 1999 From them, I Infer that the employer's conduct on May 9 1999 preCIpItated thIS last absence The gnevor had prevIOusly been descnbed to the employer by Dr Pnnce as "emotIOnally unstable" and she was performIng modIfied work whIle stIll In recovery from that condItIOn. Mr Chenard knew or ought to have known that Dr Pnnce had so descnbed her although the eVIdence was not clear that Mr MroczynskI was aware of that descnptIOn. By May 9 1999 Mr Chenard knew or ought to have known that In part due to the unfortunate tImIng of the delIvery of hIS letter and In part due to the delay In proVIdIng her a relIef on that occaSIOn, the gnevor had been greatly stressed on Dec 30 1998 and unable to work for about a month. The eVIdence was not entIrely clear as to what Mr MroczynskI told Mr Chenard, when he was In phone contact wIth hIm. However when Mr MroczynskI called hIm, I do not thInk Mr Chenard had to be told that the sItuatIOn was cntIcal, In order to have exerCIsed Independent judgment and to have Instructed Mr MroczynskI to proVIde her relIef to permIt her to leave the InstItutIOn. I conclude that the employer knew or ought to have known 1 that the gnevor was emotIOnally vulnerable, 2 that a statement to her that she was not SIck, but only upset, and a deCISIOn that she would be relIeved only temporanly and 3 faIlure to proVIde relIef for about 45 mInutes after she requested It, would stress, annoy and provoke the gnevor and exacerbate the condItIOn from whIch the gnevor was suffenng. Its conduct demed the gnevor the dIgmty and respect to whIch all employees who are SIck and unable to carry out theIr dutIes are entItled. 201 I conclude that Its conduct on May 9 1999 sIngled the gnevor out for very exceptIOnal and unfavourable treatment, reflected poor judgment and constItuted both harassment and dISCnmInatIOn. I also conclude that ItS conduct on May 9 1999 made the workplace envIronment at the Sudbury JaIl tOXIC for the gnevor Postscnpt. EVIdence re March 17,2000. On March 13 2000 a FIfth Intenm RulIng was Issued provIdIng the partIes dIrectIOns whIch would enable them to obtaIn a medIcal OpInIOn from the gnevor's physIcIan and, If certaIn condItIOns were met, from Dr McMullen by way of a Mandatory MedIcal eXamInatIOn at the expense of the employer On Apnl 26 2000 I heard eVIdence from the gnevor Mr McGregor Anne Beauchamp and Supt. Chenard regardIng the events of March 17 2000 With the partIes' agreement, I delIvered an oral rulIng on Apnl 26 2000 whIch essentIally amended the tIme lImIts WIthIn the DIrectIOns In the FIfth Intenm RulIng and dIrected the partIes to otherwIse comply WIth those DIrectIOns I also dIrected the employer to pay the gnevor her salary from March 17 2000 WIth benefits and Interest untIl she began to receIve C.P.P dIsabIlIty or L T.I.P benefits (at whIch tIme adjustments mIght be In order) or untIl the final resolutIOn of the dIspute(s) before me, whIchever occurred first. The eVIdence gIven by the umon on Apnl26 2000 was, stated bnefly that the gnevor had delIvered the reqUIred Employee Health InformatIOn form to the employer and that the employer had faIled to request a Mandatory MedIcal of the gnevor WIthIn the tIme frame In the FIfth Intenm RulIng. The eVIdence gIven by the employer that day was, stated bnefly that the gnevor had faIled, through delIberate removal of the Employee Health InformatIOn form when she had had It photocopIed In the employer's office, to proVIde the employer WIth the ongInal form, and that therefore the tIme WIndow to request the Mandatory MedIcal eXamInatIOn never opened. The employer presented eVIdence regardIng ItS SuspIcIOn of mIsrepresentatIOn on the part of the gnevor 202 as to what happened to the form The UnIon presented eVIdence regardmg Its SuspICIOn that the employer was mIsrepresentmg that It had not receIved the form. It was not m dIspute that the gnevor had gIven the completed Employee Health InformatIOn form to Ms Beauchamp to photocopy on March 17 2000 The gnevor's eVIdence was that she left the ongmal of the form wIth Ms Beauchamp for delIvery to Supt. Chenard Ms Beauchamp's eVIdence was, essentIally that she photocopIed the document the gnevor gave her gave her the duplIcated documents and the gnevor left. She belIeved she returned the ongmal to the gnevor but dId not have any specIfic recall ofhavmg done so No one testIfied that they saw the gnevor receIve or retneve the ongmal form after It was photocopIed. As a result, the eVIdence was as consIstent WIth the form havmg been lost or mIslaid after the gnevor had gIven It to Ms Beauchamp for copymg, or the gnevor havmg unknowmgly receIved the ongmal back WIth the copy and havmg lost It, unknowmgly as It was consIstent WIth the gnevor havmg secretly removed the ongmal form from Ms Beauchamp's possessIOn or the copIer or havmg knowmgly receIved the ongmal from Ms Beauchamp and havmg duplIcItously mamtamed that she had left It WIth Ms Beauchamp Each party alleged that the other had engaged m deceptIOn and delIberate non- complIance WIth the FIfth Intenm RulIng. The mabIlIty of eIther party to recognIze that they could not establIsh theIr allegatIOns and theIr mSIstence upon leadmg eVIdence to establIsh them, demonstrates the extent to whIch the mutual mIstrust of the partIes contmued as late as March 17 2000 It underscored the mabIlIty of both partIes to accept that the cIrcumstances, and the lack of concrete proof, as opposed to mere SuspICIOn, of delIberate deVIOusness or deceptIOn on the part of one or the other or both, were such that they should have "moved on" and complIed voluntanly WIth the mtentIOn of the Fifth Intenm RulIng. It mdIcated that as of March 17 2000 the level of mIstrust and SuspICIOn of each party remamed as hIgh as ever Remedy. 203 ThIS IS a case In whIch the gnevor's nght to pnvacy regardIng her preCIse medIcal condItIOn and the factors that caused and/or contnbuted to that condItIOn came smack Into conflIct WIth 1 the employer's InabIlIty to comprehend the fact that ItS conduct was contnbutIng to the gnevor's condItIOn and was tnggenng physIcal and emotIOnal symptoms that made her unable to work, and 2 the gnevor's assumptIOn that the employer understood her condItIOn and the Impact of ItS conduct on her condItIOn. The gnevor feared at the outset of these proceedIngs that her personal medIcal InfOrmatIOn would not be kept stnctly confidentIal, and would not be dIsclosed only to Mr Chenard. Mr MroczynskI's dIsclosure In 1998 of confidential medIcal InfOrmatIOn In the presence of a student, IrrespectIve of ItS source IS an Iromc example of the conduct that the gnevor feared If more than the bare mImmum of medIcal InfOrmatIOn was provIded to the employer She feared IndIScretIOn, mISInterpretatIOn and mIsuse of the InfOrmatIOn by management staff and others She was entItled to rely upon the lImIts of dIsclosure of medIcal InfOrmatIOn In the collectIve agreement and on doctor-patIent pnvIlege to protect her pnvacy and dIgmty If the partIes can agree that to amend the collectIve agreement WIth respect to dIsclosure of medIcal InfOrmatIOn would be mutually beneficIal, and If they can agree on amended proVIsIOns, they may do so Such amendments are not WIthIn the jUnSdIctIOn of an arbItrator In part because of her not unreasonable deSIre to protect her pnvacy the gnevor's physIcIans, IncludIng Dr McMullen, were unable to provIde the employer much InfOrmatIOn regardIng her condItIOn, such as a dIagnOSIS, or an IdentIficatIOn of the symptoms sIgmfYIng an onset or exacerbatIOn of her Illness ThIS InformatIOn could have provIded a clear thorough explanatIOn as to what conduct caused and/or contnbuted to or aggravated her condItIOn. SpecIfic dIrectIOns mIght have been provIded whIch the employer could have gIven to management staff to aVOId aggravatIng her condItIOn. ThIS lack of InformatIOn left management staff "In the dark" and at tImes amused, and at other tImes antagomzed by the gnevor's conduct. As well, unfortunately the occaSIOnally CryptIC InformatIOn dIsclosed by her physIcIan(s) WIth the best of IntentIOns, contnbuted 204 to the mIstrust and SuspICIOn of the employer as to the realIty of the gnevor's medIcal condItIOn. I conclude that the gnevor was and may stIll be unable to entertaIn even the possIbIlIty that the employer lacked comprehensIOn of her condItIOn. She was and may stIll be, qUIte understandably angry and dIstrustful of the employer and certaIn members of management staff at the Sudbury JaIl In partIcular Even though the employer lacked detaIled InformatIOn pertaInIng to the gnevor's condItIOn, It stIll appeared to dIsplay a surpnSIng lack of understandIng of emotIOnal InstabIlIty and emotIOnal vulnerabIlIty It presumed that the gnevor's symptoms were an "act" she put on In order to obtaIn preferentIal treatment, e g. -aVOId the postIng she objected to -obtaIn relIef more promptly than the employer belIeved It could proVIde and than the employer belIeved she was entItled to -maIntaIn a desIrable Return-to-Work plan and postIng In Control weekdays only wIthout, In the employer's VIew adequate medIcal JustIficatIOn. The employer had some IndIcatIOn of the medIcal condItIOn from whIch the gnevor suffered. Dr Yankowsky had descnbed It as "severe anxIety" Dr Pnnce had descnbed her as "emotIOnally unstable" If the employer had wIshed to learn more about these condItIOns, and how to aVOId exacerbatIng them and aVOId further absences of the gnevor from work, It could have sought professIOnal medIcal adVIce regardIng these symptoms, whIch was avaIlable to It In the commumty or through the Mimstry There was no eVIdence that the employer attempted to so Inform Itself wIth a VIew to aVOIdIng further conflIct WIth and stress upon the gnevor I conclude that the employer through management staff, partIcularly on January 15 and 26 1997 and on May 9 1999 conducted Itself wIth reckless dIsregard of the gnevor's emotIOnal vulnerabIlIty The Oxford EncyclopedIC DIctIOnary defines "harass" as follows 1 trouble and annoy contInually or repeatedly 2 make repeated attacks on (an enemy or opponent) Its applIcable defimtIOn of "dISCnmInate" IS 205 intr make a dIstInctIOn, especIally unjustly and on the basIs of race, colour or sex, intr (foll by against) select for unfavourable treatment. "DISCnmInatIOn" IS defined thereIn as unfavourable treatment based on prejUdICe These defimtIOns must be kept In mInd and the dIsputed events must be consIdered as a whole In order that they be gIven theIr appropnate weIght and sIgmficance The eVIdence as to the motIves behInd the employer's conduct on those occaSIOns was somewhat elUSIve Beanng In mInd those defimtIOns In relatIOn to the events of January 15 and 26 1997 I conclude that the appropnate Inference to be drawn IS that the employer conducted Itself out of a cOmbInatIOn of 1 dIsrespect for and IrntatIOn WIth the gnevor for contInuIng to pursue her gnevances regardIng the aSSIgnments to A area, and 2 dIsbelIef that the gnevor had actually become SIck and unable to work on those occaSIOns Both ItS actIOns and theIr effect on the gnevor constItute harassment and dISCnmInatIOn WIthIn the defimtIOns above, and were contrary to both ArtIcles 3 1 and 3 2 After the gnevor returned to work folloWIng a lengthy absence In 1997 the employer maIntaIned ItS vIew of her purSUIt of her ever-growIng number of gnevances, and dId not completely accept that she suffered from a medIcal condItIOn whIch entItled her to the accommodatIOn she was reCeIVIng. In March 1998 and 1999 It Interpreted her Return-to- W ork plan stnctly and WIthout seekIng Input from her phYSICIan. Yet, on May 9 1999 It proceeded on the baSIS of a belIef that she was not SIck, and on that occaSIOn dId not accept the nurse's recommendatIOn. On these further occaSIOns the gnevor was SIngled out for unfavourable treatment both In employment opportumtIes and In relatIOn to her health needs The employer's conduct, and the unexplaIned InCOnSIstencIes apparent In It, lead to the unaVOIdable Inference that the employer so conducted Itself because 1 It was less than pleased that the gnevor was purSUIng her gnevances 2 It was skeptIcal of the realIty of her Illness and her need for accommodatIOn, and 206 3 It dId not belIeve that her condItIOn JustIfied provIdIng her prompt relIef on May 9 1999 ThIS conduct, and the InCOnsIstencIes reflected In It, Infnnged upon the gnevor' s nght to a workplace free of dISCnmInatIOn and harassment, and agaIn constItuted VIOlatIOns of Art. 3 1 and 3 2 The employer conducted Itself on the basIs of presumptIOns, and exercIsed poor judgment on a number of occaSIOns I am unable, however to conclude that the employer's conduct was motIvated by malIce or VIndIctIveness These contInuIng gnevances have remaIned unresolved for a penod In excess of 5 years dunng whIch many regrettable thIngs were Said and done by both partIes As well, the gnevor has remaIned off work for about two years It IS lIkely that the gnevor would find the ImposItIOn of dIscIplIne on management staff or ordenng a transfer of certaIn management members out of the Sudbury JaIl a just and fair dISpOSItIOn of the matter However the CIrcumstances of thIS case, partIcularly In VIew of the mutual mIsunderstandIng that has charactenzed many of the events complaIned of, do not JustIfy makIng such orders Such orders would not address the underlYIng problem, whIch I have found to be the lack of comprehenSIOn of the gnevor's Illness and the belIef that the gnevor was "fakIng It" Further the ImposItIOn of dIsCIplIne remaInS WIthIn the dIscretIOn of hIgher Mimstry management. I make no recommendatIOn In that regard. The purpose of thIS proceedIng has been to arnve at conclUSIOns of fact, and to determIne what, If any breaches of the collectIve agreement occurred. That has been done In the ConclUSIOns In thIS and each of the precedIng segments of thIS deCISIOn. It may be useful to reVIew the major pOInts of those ConclUSIOns A. Re the events of March 1 and May 10, 1995 and the dISCIPlIne Imposed. 1 The gnevor was not wrongfully dIrected to work In A area on March 1 1995 2 On March 1 1995 the employer through the remark ofMr Pedron "because you're the only babe on duty" dIscnmInated agaInst the gnevor on the baSIS of her sex, contrary to Art. A of the collectIve agreement. 207 3 The remark, made In Mr Parent's presence, humIlIated and demeaned the gnevor and pOIsoned the gnevor's work envIronment, and undermIned her trust and confidence In both Mr Pedron and Mr Parent. 4 Mr Pedron's assIgnment of the gnevor to A area and hIS Isolated remark to her on March 1 1995 dId not constItute a course of conduct or a course of vexatIOus comments Therefore the events of that date dId not constItute harassment and dId not vIOlate Art. 27 10 5 I conclude that Mr Parent's assIgnment of her to A area on May 10 1995 had not been planned. The gnevor jumped to the Incorrect conclUSIOn that It had been planned, In part because of her pnor expenence of March 1 1995 wIth Mr Pedron, In Mr Parent's presence 6 I conclude that on both March 1 1995 and May 10 1995 after beIng aSSIgned to A area and whIle questIOmng the assIgnment, the gnevor expenenced a state of Intense anxIety whIch Included physIcal symptoms, and that she was unable to work on those occaSIOns 7 I conclude that the dIscIplIne ImtIally determIned on May 17 1995 and scheduled In the notIce ofMr March dated October 1995 (Ex. 27) was not men ted, as the gnevor became too III to work on March 1 and May 10 1995 AccordIngly the gnevance dated October 18 1995 succeeds 8 The gnevor IS to be compensated for all wages, Interest, benefits and credIts lost as a result of the ImpOSItIOn of dIscIplIne floWIng from Supt. Chevner's letter dated May 17 1995 and Mr March's letter dated October 1995 B) Re Dec. 22, 1995. 1 I appreCIate that the gnevor may have seen the events ofDec 22, 1995 as a contInUatIOn of a course of conduct known to be unwelcome to her However the ultImate decISIOn to ask her to work A area was Mr Moxam's He had had no prevIOUS expenence wIth her and the Issue of A area, other than that he had heard that she had been asked to work A area and had gone home SICk. He had receIved no InstructIOn on the subject. There IS no eVIdence to suggest that he knew or ought to have known that she would VIew hIS assIgnment of her to A area as wrongful, or harassment. 2 I am unable to draw an Inference on the eVIdence before me, that Mr St. Jean faIled to schedule a female casual to work the 1900 shIft on Dec 22, 1995 because he wIshed to provoke or harass the gnevor or denve some amusement from her reactIOn, or for any other bad faith motIve 3 I am unable to draw an Inference on the eVIdence before me that Mr Moxam faIled to call In a female casual before the gnevor left because he wIshed to provoke or harass her or denve amusement from her reactIOn, or for any other bad faith motIve 208 4 I therefore conclude that the assIgnment to A area on Dec 22, 1995 was unfortunate and troublIng for the gnevor but that It was neIther dISCnmInatory on the basIs of sex, nor harassment. C) Re August 1996. 1 Some tIme In August, 1996 Mr Pedron asked the gnevor to wnte an Occurrence Report IndIcatIng the reason she had been absent from E area for four or five mInutes I conclude, on the facts provIded, and on balance of probabIlIty that Mr Pedron belIeved that It would be prudent to have a wntten record as to why there was a tIme lapse however bnef, between the tIme the other officer Issued a radIO request for a key to the area, and the tIme the Inmate was removed to a medIcal segregatIOn cell and then to hospItal It was Mr Pedron's deCISIOn to make and It was the gnevor's responsIbIlIty to comply WIth hIS request. 2 I conclude, on the eVIdence before me, that the request for an Occurrence Report In these CIrcumstances was reasonable, and that It was not "part of a harassment ploy" on Mr Pedron's part. D) Re the events of Jan. 15 and 26, 1997 and the letter of dIsCIplIne (5-day suspenSIOn). 1 The employer's conduct on Jan. 15 and 26 1997 constItuted harassment. The gnevances dated Jan. 28 1997 (Ex. 5 and 9a) succeed on thIS baSIS 2 NeIther Mr St. George nor Mr Chenard was establIshed to have been a deSIgnee of the Deputy Mimster They requested a medIcal certIficate under Art. 52 10 WIthout the authonty to make the request. Consequently the Jan. 20 1997 gnevance (Ex. 4) and the second gnevance dated Jan. 28 1997 (Ex. 9a) succeed. 3 The gnevor was III when she left work on Jan. 15 and 26 1997 Consequently the 5-day suspenSIOn Imposed upon her cannot be JustIfied and the gnevance dated F eb 5 1997 (Ex. 6) succeeds The gnevor IS to be compensated for all wages, Interest, benefits and credIts lost as a result of the ImpOSItIOn of the 5- day suspenSIOn. E) Re February to May, 1997 and removal from payroll Apr. 21, 1997 1 I conclude, on the baSIS of the medIcal InfOrmatIOn proVIded by Dr Pnnce, whIch was further confirmed by Dr McMullen, that the gnevor was Inappropnately demed SIck leave as of Apnl 21 1997 and that she IS entItled to be compensated for any losses Incurred thereby together WIth Interest. The gnevance dated May 6 1997 (Ex. 7) therefore succeeds In part. 209 2 The gnevor dId not meet wIth Mr Chenard when requested to do so by letter dId not request the umon to meet wIth hIm In her place, and dId not obtaIn the completed form from Dr Pnnce by Apnl21 1997 She contnbuted wIthout reasonable explanatIOn to the CIrcumstances whIch lead to her removal from the payroll as of Apnl 21 1997 I conclude that thIS IS not an appropnate set of CIrcumstances In whIch to assess pumtIve damages under the Human Rights Code F. Re March 31, 1998. 1 I conclude that Mr MroczynskI's dIsclosure of health InformatIOn pertaInIng to the gnevor In the presence of a thIrd party constItuted a breach of confidentIalIty 2 I conclude that Mr MroczynskI's decIsIOn not to authonze the gnevor to attend the refresher course wIthout seekIng the OpInIOn of her physIcIan was based on a presumptIOn of dIsabIlIty and constItuted dISCnmInatIOn. 3 I dIrect that the employer provIde the gnevor a wntten apology for Mr MroczysnkI's dIsclosure of personal medIcal InfOrmatIOn In the presence ofa thIrd party on March 31 1998 and for not havIng requested the OpInIOn of her physIcIan wIth respect to her attendance at the Refresher Course In 1998 pnor to decIdIng that she would not attend the Course I dIrect that the employer acknowledge In the wntten apology a) that Mr MroczynskI's dIsclosure was IndIScreet and a breach of the confidentIalIty whIch the employer was oblIged to maIntaIn regardIng health InfOrmatIOn pertaInIng to ItS employees and b) that the decIsIOn to not send her on the refresher course wIthout first havIng requested the OpInIOn of her physIcIan was based on a presumptIOn of dIsabIlIty and was dISCnmInatory G. Re Dec. 30, 1998 1 I conclude that the Dec 24 1998 letter was delIvered on Dec 30 1998 due to a cOmbInatIOn of admInIstratIve accIdent, InattentIOn, bad luck and bad tImIng. 2 The eVIdence does not permIt me to conclude that as a result of her gnevance of the events of Jan. 15 1997 or for any other bad faith reason, Mr St. George dId not accommodate the gnevor's request for relIef promptly 3 The umntended consequence of the unfortunate date of delIvery of the Dec 24 1998 letter and the somewhat belated arnval of relIef for the gnevor was that 210 the gnevor apparently suffered a temporary setback In her recovery and was unable to work from December 30 1998 untIl late In January 1999 4 I accept that the gnevor stIll recovenng, was unable to VIew the events ofDec 30 1998 as anythIng but harassment. However I conclude that she was mIstaken. H. Re March 27, 1999. 1 On March 27 1999 the employer through the actIOns ofMr MroczynskI and Mr Chenard, by declImng to send the gnevor on the CnsIs NegotIator refresher course wIthout seekIng the OpInIOn of her physIcIan, dIscnmInated agaInst the gnevor on the basIs of presumed dIsabIlIty 2 I conclude that the employer knew or ought to have known that It was oblIged to request further medIcal Input from the gnevor's physIcIan before decIdIng whether the gnevor would attend the spnng 1999 refresher course 3 In faIlIng to request the OpInIOn, It demed the gnevor the respect and dIgmty of equal treatment regardIng traInIng opportumtIes In relatIOn to other C 0 s ThIS constItuted a VIOlatIOn of s 5(1) of the Human Rights Code and a breach of Art. 3 1 of the collectIve agreement. 4 The remedy for the employer's breaches of Art. 3 1 In 1998 and 1999 wIll be a declaratIOn of those breaches 5 In addItIOn, I dIrect the employer to provIde the gnevor a wntten apology statIng that In faIlIng to make a wntten request to the gnevor of her doctor's OpInIOn, pnor to decIdIng that It would not send her on the CnsIs NegotIator refresher course In 1998 and 1999 the employer dIscnmInated agaInst her on the basIs of presumed dIsabIlIty and statIng that such actIOns constItuted a VIOlatIOn of s 5(1) of the Human Rights Code and a breach of Art. 3 1 of the CollectIve Agreement. I. Re Apnl 20, 1999. For the reasons gIven above, I am unable to conclude that the events on thIS date constItuted harassment. L Re May 7,1999. 1 I conclude that the employer knew or ought to have known that 1 the gnevor was emotIOnally vulnerable, 2 a statement from non-medIcal management staff to her that she was not sIck, but only upset, and that she would be relIeved only temporanly and 211 3 faIlure to provIde relIef for about 45 mInutes after she requested It, would stress, annoy and provoke the gnevor and exacerbate the condItIOn from whIch she was suffenng. 2 I conclude that the employer's conduct demed the gnevor the dIgmty and respect to whIch all employees who are sIck and unable to carry out theIr dutIes are entItled. 3 I conclude that ItS conduct on May 9 1999 sIngled the gnevor out for very exceptIOnal and unfavourable treatment, reflected poor judgment and constItuted both harassment and dISCnmInatIOn. 4 I also conclude that ItS conduct on May 9 1999 made the workplace envIronment at the Sudbury JaIl tOXIC for the gnevor The functIOn of a remedy where there have been VIOlatIOns of an employee's nght to be treated wIth dIgmty and respect, IS to attempt to restore dIgmty self-respect and self-worth to the employee One aim, In so dOIng, IS to lessen the paIn. Another IS to detOXIfy the workplace The functIOn of such a remedy IS to educate the employer not to pumsh. The vanous declaratIOns of breaches and the dIrectIOns re compensatIOn and other matters above and to follow are Intended to acknowledge and redress the losses the gnevor Incurred, to acknowledge and address the CIrcumstances whIch contnbuted to those losses and to restore the gnevor to a posItIOn of greater respect. A basIc pnncIple oflabour relatIOns between these partIes IS that management has the nght to assIgn staff (see Art. 2 of the collectIve agreement) However Board and arbItral junsprudence has establIshed that such assIgnments must not be arbItrary dISCnmInatory or In bad faith. An assIgnment whIch IS made for an Improper purpose IS consIdered to have been made In bad faith. In VIew of all of the foregoIng 1 It IS declared that on Jan. 15 and 26 1997 March 31 1998 and March 27 1999 and May 9 1999 the employer's conduct In relatIOn to the gnevor constItuted harassment and dISCnmInatIOn and VIOlated Art. 3 1 and 3.2 of the collectIve agreement. 2 The gnevor IS to be compensated and made whole, wIth Interest, for all loss of salary benefits and semonty she Incurred (WIth the exceptIOn of the claim for overtIme ansIng out of the employer's decIsIOn not to send her on the refresher course In March 1998 and 1999) IncludIng but not lImIted to the dIfference between her regular pay and the Short 212 Term SIckness Plan benefits she receIved folloWIng the Jan. 15 and Jan. 26 1997 IncIdents and the May 9 1999 IncIdent, and for losses anSIng as a result of the ImposItIOn of dIscIplIne I wIll remaIn seIsed wIth respect to quantum. 3 The employer IS to remove from the gnevor's personnel file and from any other files pertaInIng to the gnevor now In ItS posseSSIOn and control, all letters, memoranda, papers, reports and documents, whether wntten or In computenzed form, pertaInIng to dIscIplIne of or warmngs to the gnevor In relatIOn to these gnevances 4 The employer IS dIrected to take steps to ensure that the gnevor IS not aSSIgned to A area In order to see how she wIll react, or for any other Improper motIve ThIS order and dIrectIOn shall not preclude the employer from assIgmng the gnevor and other female full-tIme CO s from the male schedule to A area for admInIstratIve and busIness reasons, when no female casual C 0 has been scheduled, provIded a) that the employer has taken all steps pOSSIble short of Incurnng overtIme to schedule a female casual C 0 to cover A area and b) that aSSIgnments from the male schedule to A area are shared eqUItably among all female full-tIme C 0 s on the male schedule and c) that In extended penods of tIme dunng whIch there IS only one female full-tIme CO workIng on the male schedule, such that there are no other female full-tIme CO s among whom the aSSIgnments from the male schedule to A area can be dIstnbuted eqUItably the employer shall gIve pnonty to schedulIng female casual C 0 s to A area, IncludIng Incurnng overtIme, If necessary 5 The employer shall notIfy ItS SchedulIng Officers and ShIft SupervISors and ActIng ShIft SupervISors, In wntIng, to comply WIth the order and dIrectIOn In the prevIOUS paragraph. 6 The employer IS to compensate the gnevor for paIn and suffenng, loss of dIgmty and mental angUIsh as a consequence of ItS actIOns I wIll remaIn seIsed WIth respect to quantum If the partIes are unable to agree Paragraphs 4 and 5 above, are of course, predIcated on the assumptIOn that the gnevor wIll be returmng to work at the Sudbury JaIl The partIes are urged to address, In a local E.R.C meetIng, the most effiCIent method of ImplementatIOn of paragraph 4 above IncludIng the Impact and feaSIbIlIty of hmng more female casual C 0 s They are also encouraged to reVIew theIr records and determIne the actual number of tImes per 213 month or year that IndIVIdual female full-tIme CO s on the male schedule have been asked to work A area over the past three years, and determIne, wIth Input from those female full-tIme C 0 s, whether the dIstnbutIOn of such assIgnments has been eqUItable ThIS InformatIOn should be shared wIth the gnevor so that she wIll know the approXImate number of occaSIOns that she can reasonably expect to be assIgned to work A area. Another constructIve element whIch wIll assIst In detoxIfYIng the workplace In cases of harassment IS to reqUIre both partIes to formally acknowledge responSIbIlIty for theIr own conduct and theIr own assumptIOns Without such acknowledgment, the resentment and mIstrust can only contInue, and the partIes wIll be unable to work sIde by sIde I therefore order that 7 The employer IS to provIde the wntten apologIes descnbed In paragraphs F 3 and H. 5 above 8 The employer IS to provIde the gnevor a further wntten acknowledgment and apology statIng that on May 9 1999 It knew or ought to have known that by a) statIng to her after she reported that she was sIck and requested a relIef, that she was not sIck, but was only upset, and that she would only be relIeved temporanly and by b) requmng her to remaIn at her post and by faIlIng to proVIde her relIef for a penod of approxImately 45 mInutes, 1) It was engagIng In a course of conduct that vexed, harassed, annoyed and provoked her and 11) exacerbated the symptoms the she was expenenCIng and 111) pOIsoned the workplace envIronment for the gnevor On a number of occaSIOns, the gnevor's behavIOur was confrontatIOnal and as such, contnbuted to some extent to the mutual mIstrust between the partIes As I am satIsfied, from the medIcal documentatIOn proVIded, that the gnevor was suffenng from a medIcal condItIOn whIch may have affected her judgment, I am reluctant to compel her to apologIze for her own actIOns and/or behavIOur I InVIte her however to reVIew my conclUSIOns carefully and to proVIde certaIn staff personal wntten apologIes regardIng events about whIch I have determIned that she was mIstaken regardIng theIr motIves 214 A further matter whIch reqUIres remedIatIOn IS the repeated determInatIOn by the employer of matters whIch should be determIned by medIcal professIOnals ThIS conduct must not contInue I therefore order that 9 The employer shall take steps to ensure that management staff refraIns from makIng determInatIOns regardIng the gnevor' s health a) partIcularly as such determInatIOn pertaIns to provIdIng her prompt relIef when requested, wIthout seekIng the OpInIOn of the most semor medIcal person on staff at the InstItutIOn at the tIme, and beIng gUIded by that OpInIOn, and b) as to whether she wIll be authonzed to attend certaIn traInIng programs, wIthout seekIng the OpInIOn of her phYSICIan, pnor to deCIdIng whether to authonze her to attend the programs 10 WithIn four weeks of the date of thIS decISIOn, the employer wIll proVIde the gnevor wIth a wntten undertakIng that In future, If she IndIcates that she IS sIck and reqUIres a relIef, and If the employer belIeves that the gnevor IS not SIck, that It wIll so advIse the gnevor and eIther the employer or the gnevor may request the ImmedIate attendance of the most semor medIcal personnel then at the gnevor' s place of employment to assess the gnevor and relay that assessment and hIs/her recommendatIOns to the employer and that the employer wIll follow the recommendatIOn of the attendIng medIcal staff member 11 The employer shall follow the recommendatIOn of the attendIng medIcal staff member In such CIrcumstances 12 WithIn four weeks of the date of thIS decIsIOn, the employer wIll proVIde the gnevor a wntten undertakIng that If there are certaIn programs she wIshes to attend, whIch It belIeves may be restncted by any Return-to-Work Plan/AccommodatIOn Plan she may be under It wIll proVIde the gnevor substantIally In advance of the program, wIth a detaIled letter InVItIng her to obtaIn the wntten OpInIOn of her phYSICIan as to whether her Return-to-Work Plan/AccommodatIOn Plan or her medIcal status would restnct her from attendIng such program. The employer IS dIrected to comply wIth ItS wntten undertakIng. 13 In the CIrcumstances contemplated In the prevIOUS paragraph, the gnevor IS dIrected to promptly proVIde the employer wIth her physIcIan's wntten OpInIOn. 14 The employer IS to eIther comply wIth the wntten recommendatIOn of the gnevor's phYSICIan or If It has substantIal reasons In good faith to doubt the relIabIlIty of the recommendatIOn of the gnevor's phYSICIan, to promptly request the gnevor to attend a Mandatory MedIcal eXamInatIOn at the employer's expense and request her to proVIde the 215 names of three phYSICIans of whIch the employer wIll select one In the event of a conflIct between the recommendatIOns of the gnevor's physIcIan and the physIcIan who performs the Mandatory MedIcal eXamInatIOn, the partIes may use the gnevance procedure and/or medIatIOn to resolve any Impasse Another constructIve element whIch wIll remedIate the mIsunderstandIngs between the partIes, IS to dIrect them to obtaIn educatIOn and InfOrmatIOn, where that IS lackIng. As prevIOusly IndIcated, the employer dIsplayed a surpnSIng lack of comprehensIOn of emotIOnal InstabIlIty and emotIOnal vulnerabIlIty and thIS lack of comprehensIOn, together wIth ItS SuspICIOn that the gnevor was "fakIng It" resulted In the employer havIng conducted Itself In ways that I have found exacerbated the gnevor's condItIOn. On balance of probabIlItIes, that lack of comprehensIOn IndIrectly but substantIally contnbuted to the delay In the gnevor' s recovery and to her InabIlIty to take In her stnde and tolerate admInIstratIve "glItches" and delays anSIng from, e g. beIng provIded Inappropnate Insurance claim forms, correspondence anSIng from undelIvered correspondence I note that problems emerged on more than one occaSIOn as a result of non-receIpt of correspondence The employer not unreasonably was reluctant to speak to the gnevor In the workplace about matters of medIcal documentatIOn. The eVIdence dId not dIsclose why In VIew of the dIfficultIes In delIvenng correspondence to the gnevor the employer dId not leave correspondence requestIng medIcal documentatIOn for the gnevor or the umon to pIck up at the workplace as a general practIce, and/or contact the umon when the gnevor dId not respond to correspondence the employer had sent. By the same token, the gnevor made a number of surpnSIng assumptIOns regardIng whether her pOSItIOn encompassed aSSIgnments to A area. It must be noted that although the August 1990 agreement WIth respect to the hmng of extra casuals In order to reduce the need to aSSIgn full-tIme female C 0 s to A area appears to have been acted upon, It was not reduced to wntIng. As a result, WIth the turnover of Supenntendents, the hIStOry of the complaInts of female full-tIme CO s on the male SIde regardIng aSSIgnments to A area and the fact of the agreement eluded Supt. Chevner 216 As well, the pnontIes and pnncIples attested to In eVIdence by SchedulIng Officers and I/Cs as the ones whIch gUIded them In workIng out schedules and assIgmng posts on a dally baSIS were not reduced to wntIng, nor was the order of the pnontIes and pnncIples establIshed, e g. the local agreement that A area wIll be staffed only by female CO s from 0700 to 2300 equal dIstnbutIOn of hours among casuals over a certaIn penod of tIme female casuals C 0 s to replace female C 0 s scheduled to work A area, overtIme IS to be aVOIded, CIrcumstances In whIch overtIme wIll be authonzed, full-tIme permanent C 0 shave nght of first offer/refusal (overtIme card system) of overtIme hours when all avaIlable casual C 0 s have reached theIr non-overtIme maXImum number of hours In a certaIn tIme penod, thereafter casuals may be called In, CIrcumstances In whIch full-tIme female CO s on the male schedule may be assIgned to A area. I therefore order that 15 WithIn two months of the date of thIS deCISIOn, the employer IS to proVIde a detaIled traInIng program(s) regardIng the symptoms of emotIOnal InstabIlIty and severe anXIety and the nature and type of behavIOur WIth extenSIve examples, whIch wIll aggravate or exacerbate those condItIOns and shall reqUIre the attendance of all management staff at the Sudbury JaIl, IncludIng the Supenntendent and ActIng ShIft SupervIsors at the program(s) The employer IS to proVIde the attenders wntten matenal regardIng the content of the program and to Instruct them that behavIOur whIch wIll aggravate or exacerbate those condItIOns may constItute a dIscIplInable offence and to Instruct them not to engage In such behavIOur The employer shall proVIde the gnevor and the umon WIth a copy of an outlIne of the program and of the wntten InfOrmatIOn and Inform them of the date(s) upon whIch the program(s) took place 16 WithIn two months of the date of thIS deCISIOn, the employer IS to prepare and delIver to the umon a wntten detaIled statement IndIcatIng the pnontIes, pnncIples and polICIes whIch management staff follow In the schedulIng of casual employees, and the pnontIes, pnncIples and polICIes regardIng the schedulIng of the staffing of A area and the aSSIgnment of full-tIme female CO s to A area, havIng regard to the pnontIes, pnncIples and polICIes attested to In thIS proceedIng, and havIng regard to paragraph 5 above If any of the pnontIes, pnncIples and polICIes change In future the employer should proVIde the umon the busIness reasons behInd such changes at an ERC commIttee meetIng and engage In dISCUSSIOns WIth the umon regardIng such changes, and proVIde the umon an amended statement. EIther party 217 may post the statement In a conspICUOUS place for all staff to read, and/or may dIstnbute IndIVIdual copIes of It to staff Hopefully thIS wIll enable the staff to read and understand the lOgIC and reasomng behInd the assIgnments of casual and full-tIme C 0 s, partIcularly to A area. 17 The employer IS to take steps to ensure, before It sends the gnevor correspondence adVISIng her that she wIll be removed from the payroll or that any benefit to whIch she IS entItled wIll be dIscontInued e g. modIfied work, that It has contacted the gnevor through the OPSEU Staff RepresentatIve or through a representatIve of the Local, and determIned that she has receIved any related pnor correspondence I have determIned that the workplace envIronment had become pOIsoned for the gnevor on more than one occaSIOn, the most recent havIng occurred on May 9 1999 The gnevor IS entItled to be able to work In an envIronment free of harassment and dISCnmInatIOn, partIcularly by management. NeIther the Board nor the employer can compel the gnevor to return to work In a workplace whIch IS not free of harassment and dISCnmInatIOn. To do so would Infnnge her nghts under the Ontano Human Rights Code and the collectIve agreement. The employer IS oblIged to proVIde a workplace free of harassment and dISCnmInatIOn. The purpose of the foregoIng orders IS to detoxIfy to some extent, the relatIOnshIp between the gnevor and management staff at the Sudbury JaIl, and enable the employer to proVIde a workplace enVIronment free of harassment and dISCnmInatIOn. They have been gIven WIth the IntentIOn of enablIng the gnevor returmng to work as a COat the Sudbury JaIl In some degree of confidence that she wIll receIve the same respect and dIgmty enjoyed by other CorrectIOns Officers They cannot pOSSIbly address all the outstandIng Issues between the gnevor and Mr Chenard and Mr MroczynskI In partIcular It may be that the relatIOnshIps between the gnevor and Mr Chenard and Mr MroczynskI and other management staff are Irretnevable However If the gnevor's phYSICIan IS of the OpInIOn that the gnevor can return to work at the Sudbury JaIl, I strongly recommend that the partIes seek the servIces of a skIlled thIrd party profeSSIOnal, at the expense of the employer to medIate between, counsel, and aSSIst the gnevor and 218 Mr Chenard and Mr MroczynskI, and other management staff, to address and lessen the conflIct and mIstrust that charactenzes theIr InteractIOn. The partIes may wIsh to engage the servIces of the thIrd party professIOnal before seekIng the gnevor's physIcIan's OpInIOn as to whether she can return to work at the Sudbury JaIl The gnevor has been unable to work, In the VIew of her physIcIan(s) for medIcal reasons, SInce May 9 1999 The medIcal InfOrmatIOn before me, as well as before the employer regardIng her past condItIOn, has been qUIte lImIted. There has been some suggestIOn from the employer that the gnevor IS only unable to work at thIS tIme due to the uncertaInty of the outcome of these proceedIngs, and for that reason, the employer's oblIgatIOns to the gnevor should termInate as of thIS deCISIOn. That suggestIOn IS based on the assumptIOn that the gnevor's physIcIan(s) have determIned that she IS currently able to return to work. That IS not clear on the eVIdence before me Not to put too fine a pOInt on It, I am unable, on the eVIdence before me -to conclude that the gnevor IS unable to work at thIS tIme only due to the uncertaInty of the outcome of these proceedIngs -to conclude In these cIrcumstances, that If the gnevor IS unable to work at thIS tIme only due to the uncertaInty of the outcome of these proceedIngs, that that fact should result In a final determInatIOn of the employer's oblIgatIOns to the gnevor at thIS tIme -to conclude that there IS sufficIent medIcal InfOrmatIOn regardIng the gnevor's current health status and abIlIty to work to permIt a complete and final deCISIOn to be fashIOned at thIS tIme, whIch wIll address the gnevor's CIrcumstances and nghts and the employer's admInIstratIve realItIes and lImIts An unusual case reqUIres an unusual remedy ThIS case has many unusual features, not the least of whIch IS the fact that management stafflacks comprehensIOn of the gnevor's condItIOn, suspects that the gnevor IS "fakIng It" and has conducted Itself In the workplace on the assumptIOn that the gnevor has been "fakIng It." UntIl some of the orders and dIrectIOns have been Implemented, the gnevor's physIcIan(s) may be unable to express an OpInIOn as to whether she can return to work, and If so In whIch settIng. ThIS IS not a matter of SImply reInstatIng the gnevor 219 The gnevor' s current state of health and abIlIty to return to work, and the tIme frame In whIch a return to work can be effected are hIghly relevant and Important consIderatIOns In fashIOmng an appropnate remedy both practIcally In terms of the employer's admInIstratIve reqUIrements, and therapeutIcally In terms of the accommodatIOn the gnevor may reqUIre The gnevor' s health status IS not a statIc matter ThIS Board cannot proceed on assumptIOns To do so would be precIpItous and could result In further compromISIng the gnevor's health and recovery It IS not known whether the above orders and dIrectIOns applIed In conjUnctIOn WIth the gnevor' s health wIll successfully permIt her to return to work at thIS tIme It IS not known whether her doctor wIll recommend that she return to work at the Sudbury JaIl, or that she work In some other enVIronment WIthIn reasonable dIstance, e g. the CecIl Facer Youth Centre or another InstItutIOn or Mimstry enVIronment. (The partIes may WIsh to explore any and all of these optIOns) It IS not known whether the employer IS contInuIng to pay the gnevor's salary or whether her claim for CPP dIsabIlIty or L TIP benefits has been honoured. As a result, It IS essentIal to proceed cautIOusly on a step-by-step baSIS 18 WithIn one week of the date of thIS deCISIOn, the employer shall provIde the local umon a Part B FunctIOnal AbIlItIes form or an Employee Health InformatIOn form (or ItS current eqUIvalent) and complete wntten documentatIOn regardIng all postIngs/assIgnments at the Sudbury JaIl and at CecIl Facer Youth Centre and wntten InfOrmatIOn regardIng dates and tImes and other detaIls pertaInIng to Young Offenders Act traInIng, together WIth a letter to the gnevor requestIng that her physIcIan fill out the form In as much detaIl as pOSSIble The umon wIll promptly provIde same to the gnevor and umon counsel 19 WithIn SIX weeks of the date of thIS deCISIOn, umon counsel (and not the gnevor) IS to provIde the employer's counsel the wntten OpInIOn of her physIcIan(s) as to whether she can return to work at thIS tIme or If not, the date by whIch s/he or they antICIpate that she can return to work, If any and, If so whether s/he or they recommend that she return to work at the Sudbury JaIl If the wntten OpInIOn(s) respond(s) to each of the Issues In thIS paragraph and to the questIOns on the form, the OpInIOn may be provIded In the form of a letter or a note, or on the form proVIded by the employer In the physIcIan(s)' dIscretIOn. 220 20 Employer's counsel IS authonzed to dIsclose the contents of the physIcIan(s)' wntten OpInIOn only to the Supenntendent of the Sudbury JaIl and to Dr Humphnes, Semor MedIcal AdvIser for the Mimstry NeIther the Supenntendent nor Dr Humphnes nor employer's counsel shall dIsclose Its contents, WIth the exceptIOn of recommended specIfic workplace accommodatIOns, to any other management staff wIthout the wntten authonzatIOn of the gnevor or of the Board. 21 If the gnevor IS not reCeIVIng CPP dIsabIlIty or L TIP benefits, the employer IS to contInue to pay the gnevor's salary pendIng final determInatIOns as to remedy In requestIng the OpInIOn of the gnevor's physIcIan(s) the physIcIan(s) wIll be advIsed that the optIOn IS avaIlable for the gnevor to work as a COat the CecIl Facer Youth Centre If she IS unable to work at the Sudbury JaIl The physIcIan(s) should be advIsed -that the gnevor would be reqUIred to attend Young Offenders Act traInIng, at the employer's expense, dunng whIch tIme her regular salary as a C 0 would be paid, -provIded that the gnevor completes the traInIng and passes the course, the employer could make the next full-tIme CorrectIOns Officer vacancy anSIng at CecIl Facer Youth Centre avaIlable to the gnevor WIthout requmng her to enter a competItIOn for the pOSItIOn, -If no such vacancy was ImmedIately avaIlable the employer could employ her as a full-tIme "overage" CorrectIOns Officer WIthIn one week of her successful completIOn of the course or later If wIthIn such penod was not admInIstratIvely feasible WIthout cessatIOn of her salary and benefits If the gnevor's physIcIan(s) determIne(s) that she IS able to return to work as a COat thIS tIme, the partIes may be able to work out the detaIls on theIr own. If the gnevor's physIcIan(s) determIne(s) otherwIse, the partIes are free to explore other employment optIOns WIth the Mimstry If the gnevor IS not able to return to work at thIS tIme, and If her phYSICIans are unable to IndIcate an approXImate date upon whIch she wIll be able to return to work, the gnevor IS dIrected to proVIde, WIthIn eIght weeks from the date of thIS deCISIOn, a detaIled wntten medIcal OpInIOn of her specIalIst(s) proVIdIng -a current dIagnOSIS and prognOSIS 221 -what, If any other workplace settIng she could perform In, currently or wIthIn any other speCIfied frame of tIme -the dutIes she could undertake, and accommodatIOn, If any she would reqUIre -If she IS unable to work In any context, the detaIled reason(s) for same and theIr OpInIOn as to the extent to whIch the employer's conduct, as well as other non- work-related stressors, If any have caused or contributed to the gnevor' s current condItIOn and the gnevor' s current InabIlIty to work; thIS may be expressed as a proportIOn or percentage AgaIn, such report(s) shall be proVIded by umon counsel to employer counsel, subject to the lImItatIOns In para. 20 above If such OpInIOn IS receIved by the partIes, an alternatIve remedy or remedIes can be addressed. I wIll remaIn seIsed wIth respect to alternatIve remedIes In the event that the partIes are unable to agree It IS dIfficult to antICIpate a realIstIC tIme frame for the provISIOn of medIcal OpInIOnS from medIcal personnel If the gnevor or umon counsel, for reasons beyond theIr control, are unable to proVIde the completed FunctIOnal AbIlItIes or Employee Health InformatIOn form and/or the detaIled wntten medIcal OpInIOn of her specIalIst(s) wIthIn the tIme pen ods that have been dIrected, umon and employer counsel may extend the tIme penod by mutual consent, In wntIng. FaIlIng agreement to an extenSIOn, and before the expIry of the reqUIred tIme penod, the umon may request an extenSIOn on wntten submISSIOns and affidavIt eVIdence IndIcatIng the reasons whIch may be ImpedIng theIr abIlIty to proVIde the form or the OpInIOn In the reqUIred tIme penod. WithIn three weeks of reCeIVIng the Part B FunctIOnal AbIlItIes form, Employee Health InformatIOn form, phYSICIan's letter or the OpInIOn(s) of the gnevor's specIalIst(s) the employer may request In wntIng that the gnevor attend a mandatory medIcal eXamInatIOn and If so shall InVIte her to submIt the names of three phYSICIans acceptable to her WithIn ten days of reCeIVIng the employer's request, the gnevor wIll proVIde the employer the names of three phYSICIans The employer wIll promptly arrange an appoIntment WIth the phYSICIan It has selected from the names proVIded by the gnevor In consultatIOn WIth the gnevor as to a convement tIme and date for the 222 appOIntment. Both partIes wIll accommodate the doctor's schedule as much as possIble and the gnevor wIll accept the earlIest offered appoIntment, barnng emergencIes If the umon and gnevor provIde a detaIled wntten medIcal OpInIOn of her specIalIst(s) IndIcatIng that the gnevor IS unable to return to work, the employer may request the gnevor to provIde the names of three specIalIsts acceptable to her for a mandatory medIcal eXamInatIOn. The specIalIst selected by the employer for a mandatory medIcal eXamInatIOn may be asked to express hIs/her OpInIOn regardIng the Issues addressed by the gnevor's specIalIst(s) I wIll remaIn seIsed WIth respect to all Issues pertaInIng to remedIes, IncludIng whether the gnevor's salary wIll be contInued. I wIll remaIn seIsed WIth regard to the ImplementatIOn of the precedIng orders and dIrectIOns and WIth regard to the balance of the remedy If the partIes are unable to reach agreement. Dated at Toronto thIS 24th day of May 2001 Susan D Kaufman, Vice-Chair 223