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HomeMy WebLinkAbout2006-1918.Magee.10-05-12 Decision Commission de Crown Employees Grievance règlement des griefs Settlement Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2006-1918 UNION#2006-0310-0017 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Magee) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Barristers & Solicitors FOR THE EMPLOYER George Parris Ministry of Government Services Counsel HEARING March 19 and April 26, 2010. - 2 - Decision [1]Mr. Ian Magee, (?grievor?) a Conservation Officer, was employed at the Ministry?s Aurora Office. In a decision dated May 20, 2008, the Board dealt, inter alia, with a grievance filed by him, where the issue was whether the employer was entitled under article 44.9 of the collective agreement to require the grievor to submit to an independent medical examination, and to restrict him to clerical duties until he did so. In its decision dated May 20, 2008 at p. 24, the Board concluded as follows: In summary, the evidence does not establish that there were reasonable and probable grounds for the employer to be concerned that the grievor was unable to perform full field duties as a CO by reason of health. Therefore, the employer did not in the circumstances meet the conditions of article 44.9 to be entitled to require that the grievor submit to an IME. The employer is therefore directed to cease its requirement that the grievor submit to an IME, and to forthwith restore him to full duties of a CO. I remain seized of all outstanding matters that arise from these grievances. [2] The union subsequently took the position that the employer had failed to comply with the Board?s direction. The employer responded that the obligation to restore the grievor to full duties was no longer in force as a result of certain intervening events.Following a hearing, the Board ruled orally on March 17, 2010, that the Board?s order to return the grievor to full duties remained in force, subject only to the terms agreed upon by the parties in Minutes of Settlement dated March 2009 (?the MOS?). In its written reasons dated March 19, 2010 at para 22-23 the Board wrote: [22] While the foregoing determines the narrow issue put to me, i.e. that the Board order to return the grievor to full duties remains in force, for the guidance of the parties I make the following observation. In my ruling dated March 17, 2010 I held that while the Board?s order to return the grievor to full duties remained in force, it was subject to the terms agreed upon in the MOS. The Board?s order was that the grievor be restored to full duties ?forthwith?. It may well be, as employer counsel asserted, that the parties had agreed in the MOS that the grievor would be restored to full duties, but only after certain agreed upon conditions are met and certain steps taken, to facilitate that return to full duties. If there was such an agreement, that would have the effect of amending the Board?s order that the grievor be restored to full duties ?forthwith?. The employer?s obligation then would be to return the grievor to full duties of a conservation officer upon the satisfaction of the conditions agreed upon. Whether such conditions were agreed upon and if so, whether the conditions have been met, remain to be addressed, and I make no finding in that regard. - 3 - [23] I remain seized with jurisdiction to deal with all matters outstanding between the parties as to the implementation of the Board?s direction in its decision dated May 20, 2008. The hearing will continue for that purpose as scheduled by the Registrar. [3] The instant hearing was convened to deal with a further allegation by the union that the employer had continued to deny the grievor full duties. After considerable discussion at the hearing, the following positions were clarified and agreed to. (a) That the MOS included certain conditions which the grievor had to meet before entitlement to ?full duties?, and that the grievor had met those conditions. (b) That to date the grievor had not been returned to full duties of a Conservation Officer. The employer took the position, however, that even though it had not returned the grievor to full duties as ordered by the Board, and contemplated in the MOS, it had justifiable grounds for not doing so, and further that while its goal always was, and still is, to return the grievor to full duties, it had been unable to do so because of intervening events. It was agreed that the employer would provide particulars with respect to its position, and that the union would respond. [4] Following the exchange of particulars, the union brought the instant motion that the employer?s particulars do not make out a prima facie case justifying its failure to comply with the Board?s order and the MOS. This decision deals with that motion. [5] The employer?s particulars (with appendices omitted) are as follows: Employer?s Statement of Particulars 1. The Employer understands that the Union?s requested order relates primarily to the March 20, 2009 Memorandum of Settlement. Specifically, that by May 4, 2009 the Grievor should have been assigned to the ?full duties? of a Conservation Officer. The Employer is not taking the position that any Party has breached the March 20, 2009 MOS. The Employer takes the position that the Grievor is performing the duties of a Conservation Officer, however, it is conceded that he is not performing every duty that can be performed by a Conservation Officer, nor is he currently performing every duty that he has performed prior to July of 2006. The Employer has not accepted that it bears the onus of demonstrating why this the Union?s requested order should not be issued by the Board. Without prejudice to - 4 - position, the Employer has agreed to provide the following particulars but reserves the right to amend, supplement or clarify, and/or rely upon additional facts in the hearing: i.e. the Union bears the ultimate burden in this case. The Employer also does not accept that it breached the May 20, 2008 decision of the Board and is of the view that the November 5, 2008 Return to Work Protocol supplants addresses the events post-dating that decision. Further, the Employer takes the position that the March 20, 2009 MOS disposes of any and all matters between the Parties that predate the MOS, and that no matters arising prior to the MOS, including the implementation of the May 20, 2008 decision, may serve as a foundation for the order sought by the Union. 2.Post May 21, 2008, the Employer did not interpret the May 21, 2008 decision of the Board to mean that management would be precluded from management the workplace difficulties that were created by Mr. Magee. 3.By the time the decision was released, Mr. Magee had not performed field for nearly two years, and he would need to complete initial firearms and use-of-force certification before he could carry a sidearm and perform the full suite of CO duties. On May 26, 2008, a letter was sent to Mr. Magee advising of the need for training. A subsequent letter was sent on June 3, 2008 directing Mr. Magee to continue with his office duties as assigned until he completed the required training. 4.Mr. Magee was to attend initial use of force training on June 10 through 13, 2008. On June 24, 2008, the training unit reports that Mr. Magee?s overall level of competency was below average for both handgun and pistol and recommended a full initial training course. 5.On July 18, 2008, Mr. Tim Moody becomes aware of a health a safety work refusal with respect to Mr. Magee submitted by Aurora COs. On July 21, 2008, Mr. Magee was directed to remain out of the workplace until after his August vacation. Neither the Union nor Mr. Magee objected to this direction. 6.On July 22, 2008, Mr. Brad Gerrie was requested to investigate the health and safety complaint. 7.After August 18, 2008, Mr. Moody had Mr. Magee report directly to him rather than Mr. Bill Lafferty as Mr. Lafferty had also raised health and safety concerns along with the other Aurora COs. 8.On September 4, 2008, Mr. Moody became aware of a complaint from Aurora staff that Mr. Magee was persistently bothering them despite the many warning by managers and the staff themselves not to do this. 9.On September 8, 2008, Mr. Gerrie submitted his report that although there was a legitimate cause for concern, the threat was not imminent and therefore the wording of the OHSA did not support a work refusal. - 5 - 10.Given the difficulties that were being experienced by Magee and his co-workers, and explicitly acknowledged by the Union, as set out below, on September 25, 2008, Mr. Magee was asked to remain at home with pay until things were resolved. Mr. Magee thanked Mr. Smith for his efforts. The Union never objected to this course of action, and later clearly supported management?s response. 11.In November, 2008, the Union and the Employer agreed to the Return to Work Protocol. 12.On December 15, 2008, Ms. Stensrud of OPSEU indicated to Tim Moody that there had to be an open extension to the return date of Mr. Magee and that it was impossible to return him to work until more ground work was done. She further stated that moving ?the problem? was not a solution. 13.On January 6, 2009 the Union and management met with the Aurora staff to discuss how the parties could move forward in creating a positive and healthy work environment. There were 35 attendees at the meeting many of whom indicated that they felt threatened by Mr. Magee, that they have physical safety concerns and that Mr. Magee had issues with women. Mr. Ken Hord of OPSEU indicated that the issues were ?larger than the arbitrator?s decision? and that it was a ?no win situation.? Mr. Hord also queried what Mr. Magee could do to show that he has changed. Ms. Doreen Stensrud of OPSEU indicated that Mr. Magee would like to come back to work and get a new start but that there would be terms and conditions. Ms. Stensrud further indicated that Tim Moody had developed a process of gradual reintegration over a six-month period which set out the roles of employees including how complaints would be handled. Mr. Hord also spoke of a poisonous work environment ?when a certain individual come back.? 14.Further on January 6, 2009, Ms. Stensrud and Mr. Hord advised Dan Smith, Lois Deacon and Tracy Smith that OPSEU acknowledged management?s efforts and that neither system was working. She further indicated that she did not see him working in Aurora anytime soon. There was also agreement between all present, including Ms. Stensrud and Mr. Hord that moving Mr. Magee to Vineland was not a solution. Ms. Stensrud also advised that she had an awkward conversation with Mr. Magee wherein he stated that the reason he had WDHP complaints in Aurora was that the women complained because ?he wouldn?t date them? and they ?wanted him.? 15.On January 21, 2009, Judy Storey of OPSEU indicates via email to Tim Moody and Doreen Stensrud of OPSEU that ?the workplace is a poisoned workplace and returning Ian will not be an easy task.? The email was in response to a return to work document that had been drafted by Mr. Moody and referenced by Ms. th Stensrud at the January 6 meeting, and was nearly identical to the return to work document Mr. Magee signed on May 4, 2009. Both of these documents have already been provided to the Board. 16.At no point in time was it suggested by the Union to the Employer that Mr. Magee should be performing full duties. - 6 - March 20, 2009 MOS 17.In the March 20, 2009 MOS, it was agreed that the Grievor would return to work on Monday, May 4, 2009. Paragraph 4 of the MOS states as follows: ?The Grievor will return to work on Monday, May 4, 2009. He will report on that day to the Guelph office and will meet with his supervisor Jeff Columbus who will assign him his duties at the Vineland office?? 18.On April 9, 2009, a CO representative, Mark Clock, advised Mr. Jeff Columbus that local Union members had serious health and safety concerns working with the th Grievor. Mr. Clock said there was a meeting on April 15 with Guelph District COs and their Union to create something in writing with respect to a work refusal regarding Mr. Magee. At that time Jeff Columbus did not know Mr. Magee was coming to the Vineland office, so the Union had to have advised them of Ian?s arrival. It was later learned by Mr. Columbus through Mr. Aaron Barber that at the th April 15 meeting the Union advised the COs that Mr. Magee was starting on May 4, 2009. 19.Given the concerns of the District COs, Mr. Columbus had a meeting on April 27, 2009 with Brad Gerrie to discuss the need for some background knowledge regarding Mr. Magee. Mr. Columbus was concerned that there was no plan in place to address the concerns of District COs as well as reintegrating Mr. Magee as a CO given the past events (which would include all the subject matter of the past litigation). 20.On April 30, 2009, the Back to Work Agreement designed to gradually reintegrate Mr. Magee was agreed to in a meeting with Mr. Columbus, Brad Gerrie, Dan Smith and Tim Moody, Ian Hagman, Joad Durst, Area Supervisor for Vineland. The plan was to gradually restore Mr. Magee to the full duties of a CO including providing him with a side arm. Mr. Magee was also scheduled for use of force training on May 12 and 13, a requirement before he could perform field duties or carry a sidearm. A sidearm was ordered for Mr. Magee and it was expected to be ready on th or about May 15. 21.Mr. Columbus expected that Mr. Magee was going to be integrated with the Vineland group following the gradual return to work process - get his training done, get more comfortable with their TIPS as well as other duties and functions. Unfortunately, the integration was constantly delayed by various incidents that kept occurring. 22.On May 4, 2009, Brad Gerrie, Regional Enforcement Operations Manager and Jeff Columbus, Enforcement Supervisor, met with the Grievor and presented him with a ?back to work? document (attached as Appendix X) which set out the principles of facilitating a successful return to work and management?s expectations of both the Grievor and his co-workers. The document specifically set out under the heading ?Principles? that ?The intent of this process is to facilitate a successful return by Ian Magee to full duties and responsibilities as a field Conservation Officer? and also - 7 - indicated that it would be in effect for 6 months unless abridged or extended by the Enforcement Supervisor. 23.The duties of a CO are not unconditional and are assigned in large part as a result of training, competency and ability. Other important factors determining the duties assigned are ability to work with others and ability to deal with members of the public (see attached Job Demands documents). The ultimate goal was to gradually increase the duties that Mr. Magee was assigned until he was performing the full duties and responsibilities of a field Conservation Officer. Given past events and the concerns that were being expressed by COs, in addition to not having performed field duties since late 2006, working with others and the public was seen as an area that needed much work. th 24.The May 4 document also directed that the Grievor was not to have any contact with OPS staff, particularly other COs in Guelph District during working hours except with the prior approval of a supervisor. The Grievor was given as much time as he needed to review the document with whomever he desired. After consulting with his parents, Mr. Magee signed the letter acknowledging his understanding of the return to work process. The Grievor was also advised on May 4th regarding the need to wear his uniform while on duty and the proper use of his notebook. In response, Mr. Magee advised that he would. th 25.As of May 4, 2009, Mr. Columbus was unaware of the terms of the March 20 MOS. 26.Also on May 4, 2009, a Guelph District Conservation Officer Aaron Barber indicated a health and safety concern in regards to working with the Grievor and further indicated that there could be a work refusal if he was directed to work with the Grievor. Subsequently, all other Guelph District Conservation Officers indicated the same concern. 27.On May 5, 2009 Mr. Columbus spoke with CO Aaron Barber regarding the concerns the District COs had in working with Mr. Magee. He indicated that the COs did not feel safe and did not feel that management had taken appropriate steps in ensuring that events similar to those that took place at Aurora would not take place again. Mr. Columbus emphasized that the goal was to have Mr. Magee integrated in their unit and to be a fully effective member of the unit. 28.On May 6, 2009, Mr. Columbus spoke to Mr. Clock and advised that the COs would have to decide where they stood with respect to the threatened refusal to work. Mr. Columbus reiterated his intention to have Mr. Magee become a fully effective member of the unit. As well, Mr. Columbus advised that the COs would be ordered to work with Mr. Magee. 29.On May 6, 2009, the Grievor arranged for a marine patrol with NRP and Lake Ontario CO Randy Tippin. The Grievor?s actions were not related to a Conservation Officer duty assignment or responsibility. When confronted regarding - 8 - this and when reminded of the back to work arrangement that was agreed to 2 days earlier, the Grievor responded ?My mistake?. th 30.Also on May 6, Mr. Columbus was advised by Mr. Magee that he met with Mr. th Barber on May 5. Mr. Magee described the meeting as a good meeting. Later on th May 6, Mr. Columbus contacted Mr. Barber to discuss his meeting with Mr. Magee. Mr. Barber indicated that he initiated the meeting and that he met with Mr. Magee at a Tim Hortons but that Mr. Magee had not changed. Mr. Barber further indicated that Mr. Magee had difficulty speaking and putting more than four words together at a time, and then he only talked about how everyone was trying to get him and how he did nothing wrong in relation to the past events while a CO at Aurora. Mr. Barber then told Mr. Magee that he did not want to work with Mr. Magee and that he did not feel safe around Mr. Magee. Mr. Columbus could not understand how it could have been described as a good meeting after speaking with Mr. Barber. 31.On May 7, 2009, an amended return to work documents was provided to Mr. Magee (attached as Exhibit X). 32.Throughout May, June, July and August, Mr. Magee was provided with a number of assignments to complete (attached as Exhibit X). All of the assignments assigned to Mr. Magee were assignments routinely performed by COs. 33.On May 7, 2009, the Grievor was not in uniform and seemed unsure when confronted by Mr. Columbus that he was to be in uniform despite specifically being th told on May 4. Also regarding the NRP marine patrol he tried to arrange on May 6th, the Grievor indicated that he knew the Sergeant at NRP, and kept saying he knew the Sergeant, but when confronted with the statement ?Ian, you called a guy you didn?t know?, Mr. Magee responded ?ya? and shook his head. The Grievor also appeared confused when he was reminded that he was not to have contact with other officers except with prior supervisory approval in relation to his having contacted COs Waite, Clock and Pegg. On May 8, 2009, the Grievor was sent a letter regarding the above. 34.On May 15, 2009, Mr. Gerrie indicated to Mr. Columbus that he would pick up the th side arm for Mr. Magee from Peterborough if it was ready on May 20. However, Mr. Columbus expressed concerns that Mr. Magee was not yet ready to perform field duties and there were still issues regarding re-integration. 35.On May 20, 2009, in relation to an assignment given to the Grievor (the TIPS occurrence database), the Grievor indicated that he had only been assigned one, which he never completed. Brad Gerrie showed the Grievor that he had actually th completed 25. As well, on May 15, the Grievor indicated first that he never used the TIPS database and that he did not know anything about it, then, he was unsure if he ever used the TIPS database, then he indicated he had used the database but some 3 years earlier. In addition to appearing unknowledgeable regarding the basic use of the TIPS database, the Grievor appeared confused and unable to understand th what was being asked of him. Further, on May 20, Mr. Columbus discussed Mr. - 9 - Magee?s progress with TIPS and discovered that Mr. Magee had only looked from January 2009, when he should have been looking since January 2008. As well, Mr. Magee indicated that he only found 6 TIPS when there were 94 from January 2009 to May 2009 (for Guelph) and well over 200 from January 2008. th 36.On May 20 it was also learned that the Grievor had yet to complete any notes in th his notebook in accordance with the policy that was emphasized on May 4. Although Mr. Magee indicated on his first day that his notebook was at home he then indicated he did not have a notebook even though he would have had one from Aurora. Upon being provided with a new notebook, Mr. Magee indicated that he did not have a clear understanding of what he needed to record ? the recording of daily notes in the notebook documenting the COs daily activities is a basic requirement of every CO and is a part of basic training. Mr. Magee was then provided with the policy to refresh himself on minimum entry requirements. Mr. Magee was also advised of importance of logging on to the OPP com centre as is required of COs ? particularly where driving marked vehicles, etc. On May 21, 2009, the Grievor was sent a letter regarding the use of the notebook, CAVRS and logging on to the system. th 37.Also on May 20, Mr. Columbus spoke to Mr. Magee regarding the fact that it had come to his attention that Magee was working on a business case for COs to obtain Blackberry communication devices. At first Mr. Magee was confused and did not know what Mr. Columbus was talking about. In fact Mr. Columbus had been advised that Mr. Magee and Mr. Joad Durst had already had a brief conversation th relating to the blackberry issue on May 15 and that Mr. Magee had also spoke to OMAFRA staff for this purpose. Mr. Columbus advised that Mr. Magee was not to speak with OMAFRA staff particularly in regard to a non-directed activity. Mr. Magee said he did not know what Mr. Columbus was talking about. Then Mr. Magee said he remembered but then spoke in circles, not making any sense, and without admitting that he shouldn?t have been contacting people. Mr. Magee was clearly challenged in communicating his thoughts to Mr. Columbus. th 38.Later on May 20 it was decided that Mr. Magee would not require the use of his sidearm at that time given the difficulties that Mr. Magee was experiencing in returning to work. 39.On June 1, 2009, Mr. Columbus advised Mr. Magee to continue working on policy review. Mr. Magee agreed and advised that he could use a few more days on it. Also that day Mr. Columbus advised Mr. Magee that he was being re-integrated and that Mr. Columbus wanted him to be fully prepared but that there were some shortcomings. Mr. Magee did not dispute that he was not yet ready to perform the full range of CO duties. th 40.On June 15, 2009, Mr. Magee was assigned 3 Niagara Escarpment Commission (NEC) investigations. 41.On June 15, 2009, Mr. Columbus was advised of a WDHP complaint by the Vineland Office Manager, the details of which were learned of later. - 10 - 42.On June 18, 2009, the Grievor produced a very poor synopsis of the NEC investigations. It was clear to Mr. Columbus that Mr. Magee was not able to properly produce a synopsis from the investigation files, something that is a basic requirement of a CO. Mr. Magee is provided with an example synopsis top assist him in understanding what is required. 43.On June 19, 2009 Mr. Barber contacts Mr. Columbus to advise that Mr. Magee is continually going to the work area of Mr. Barber and the other COs and discussing things such as ticket books and cleaning offices with them. Mr. Barber indicates that he finds this to be very frustrating. 44.On June 19, 2009, Mr. Columbus is advised to look into the WDHP issue and investigate and potentially move into the WDHP process. 45.On June 19, 2009, the COs of the Guelph District Enforcement Unit sent a letter of concern to the Joint Health and Safety Committee of the Guelph District Office th (received on June 25) alleging that the Employer has ?not taken every precaution reasonable for the protection of the worker? in relation to the Grievor, referencing s.25(2)(h) of the Occupational Health and Safety Act. 46.On June 22, 2009, Jeff Columbus met with the Grievor to discuss what was required with respect to the NEC investigations synopsis. The Grievor was also advised with respect to concerns of work refusals from other COs and the need to move forward with training and integration. The Grievor then indicated how he thought the GSB was ridiculous and that the incidents considered in the May 20, 2008 GSB decision were laughable and no big deal. He further stated that the gun in the trunk incident was no big deal in that ?coppers do stuff like that all the time? and that it was his ?birthday and he was out partying all night.? On June 23, 2009 a letter was sent to Brad Gerrie expressing management?s concern with respect to the Grievor working in the field with a pistol. nd 47.Also on June 22, it was indicated by the WDHP complainant that the Grievor had asked her out, called her while she was on her holidays in British Columbia, listened to her telephone calls and continually came into her office. In speaking with the individual, who works with OMAFRA (the name will only be disclosed th with an order from the Board), on June 24, she advised that she had significant anxiety and that she had concern for outside contact with Mr. Magee. She also advised that she now takes additional steps such as not allowing herself to be in the office alone with Mr. Magee. 48.On June 25, 2009, the health and safety letter of concern from Guelph District COs was received. The Grievor was also given a letter suspending him with pay in relation to the WDHP complaint. The Employer also committed to an arms-length investigation with respect to the health and safety concern. 49.On June 25, 2009, the Union Local President Doug Peebles, Linda Freeman and Laura McLean), representative COs (Nark Clock and Mark Halley), HR (Cindy - 11 - Whitehead, Marilyn Everingham) and local management (Brad Gerrie and Jeff Columbus) held a meeting to discuss the workplace issues regarding Mr. Magee (see attached Exhibit X). In that meeting the Union was again made aware that the timeline for fully integrating Mr. Magee dependent upon management being comfortable that Mr. Magee was capable of doing the job and that the positive work environment issues were addressed. At no point did the Union object to this approach or suggest that it was in breach of the Board?s May 21, 2008 decision. The COs advised that their concerns are that Mr. Magee has not changed and that what happened in the past would continue to happen. 50.On July 6, 2009, the WDHP complaint is brought to a close as the complainant retracted her complaint. The Grievor is advised by Mr. Columbus and is returned to work. Mr. Magee is scheduled for first aid training on the following Tuesday, Wednesday and Thursday to help bring him up to speed on this aspect of the job. 51.On July 10, 2009 the Grievor attends the office without his uniform shirt on. The grievor is apprised and responds ?oh ya, with the uniform stuff and showing up to work, ya ya.? The Grievor then indicates that it is ?fucking bullshit? in the office and that people are jealous of him. 52.On July 13, 2009, management met with COs at the Vineland office to advise that Mr. Magee would soon be integrated in the unit and that they would be working with him. The officers then advised that they would give their work refusal today if Mr. Magee were integrated prior to the completion of the arms length investigation and engage in a work refusal if they were assigned to work with the Grievor or be in a situation where they could work with the Grievor. 53.On July 14, 2009, the Grievor was advised by Jeff Columbus that the matters to be dealt with prior to the Grievor?s integration was dealing with the health and safety investigation and workplace restoration. Mr. Magee inquired about when he would do field work with tools and a sidearm. Mr. Columbus advised that he would hold off for now and Mr. Magee was agreeable. th 54.Later on July 14, Mr. Columbus had a telephone conversation with Odette Rittner, assistant to the District Supervisor at Vineland. She advised of an incident she had earlier that day with Mr. Magee. She advised that she walked by Mr. Magee?s office and asked him if he had a good vacation, indicating that the weather was not great. She then continued upstairs to her office. Mr. Magee followed her upstairs to her office and sternly stated that he was not off on vacation but was off due to a WDHP complaint. Mr. Magee was stern and agitated. Ms. Rittner also had a student in her office at the time who agreed that Mr. Magee looked angry. Ms. Rittner responded that it was not her. She advised Mr. Columbus that she was afraid that he would ?march back up.? Ms. Rittner asked Mr. Columbus to not discuss the issue with Mr. Magee. 55.On July 15, 2009, CO Ron Arnold contacted Mr. Columbus to advise that he was quite upset with Mr. Magee going into the work area of the other COs daily and engaging in strange and bizarre conversations and then abruptly leaving. Mr. - 12 - Arnold advised that he would be submitting a work refusal. Mr. Columbus spoke to Mr. Magee later that day to again advise him to not approach the other COs pending the health and safety investigation. 56.On July 20, 2009, the Grievor was again advised that the matters to be dealt with prior to the Grievor?s full integration was dealing with the health and safety investigation and workplace restoration. The Grievor indicated that he would not participate in workplace restoration. He further advised that he would move forward with three grievances: 1) the letter regarding wearing a uniform and th adhering to the May 4 agreement, 2) not yet in full duties, and 3) inappropriate WDHP investigation. 57.On July 21, 2009, Mr. Columbus discussed completing briefs and doing Small Vessel Regulations research to see what is required on the boats used in the District. He also assigned a TIPS assignment. 58.On July 24, 2009, management met with Guelph District COs and were again advised verbally by COs of a potential collective work refusal. 59.On July 28, 2009, the investigator looking into the health and safety concern/complaint, Kurt Oldenburg, met with Magee, Barber and Arnold at Vineland for interviews. 60.On July 31, 2009, in a conversation with Mr. Columbus, Mr. Magee stated that he did not say he would not participate in workplace restoration. Mr. Columbus then asked Mr. Magee if he would participate in workplace restoration and Mr. Magee advised that he ?would have to talk to people? and that he ?did not think he was required to do it.? Mr. Magee then stated that his fellow officers ?have a hell of a lot more issues than I do? and that maybe he would have to expose them. 61.Later on July 31, 2009, Mr. Magee leaves a message on Mr. Columbus? voicemail indicating that he would be proceeding with the Union to be put in the field. 62.On August 6, 2009, the Grievor met with management at the Guelph District office to review his PDP. At that time he was advised that based upon management?s observations he was in need of communications training with respect to both oral and written communications. It was indicated that the Grievor would be working with Catherine Mossop in order to complete this training. The Grievor disagreed with the need for training and instead suggested that the Enforcement Supervisor, Jeff Columbus needed communications training. 63.On August 6, 2009, Marg Simmons of corporate OPSEU indicated to HR and Mr. Columbus that the required communications training was ?bordering on harassment? and that this coaching was ?extremely excessive?. This was later followed by an email from Local Union President Karen Clark on August 19, 2009 advising that ?Ian is looking forward to participating in these courses.? Ms. Simmons also did not suggest that Mr. Magee ought to have been restored to full duties by that point in time. - 13 - 64.On August 7, 2009, the Grievor was scheduled for communications training, but refused to attend based on counseling from the Union. Mr. Kerry Jennings advises th Mr. Columbus via voicemail that Mr. Magee would attend on August 10. 65.On August 10, 2009, the Grievor is again scheduled for training in Guelph. He attends with a Union representative but again refuses to participate. 66.The Grievor files a grievance dated August 10, 2009 alleging that the requirement to undergo the training is a breach of the March 20, 2009 MOS. 67.On August 12, 2009, an additional day of training is cancelled by the Employer as a result of the Grievor?s refusal to comply with management?s request. 68.On August 18, 2009, the Union requested that matter of the training be addressed by the GSB by way of conference call, alleging that ?the Employer has failed to th comply with Vice-Chair Dissanayake?s decision dated February 4 2009 and/or the th Memorandum of Settlement dated March 20 2009.? A conference call with the VC is scheduled for August 24, 2009. 69.On August 19, 2009, the Grievor is provided with a letter advising of the need and requirement to attend communications training. Mr. Magee advised that if directed he would attend the communications training. Mr. Columbus then asked if we would attend, to which Mr. Magee responded that he would ?have to talk to my lawyer.? The Grievor then denied that he refused to attend as he felt he had attended. The Grievor also indicated after meeting with the communications trainer, Catherine Mossop, that she had told him that 1) she was not sure why she was there, 2) did not agree with it and 3) that it was wrong. The trainer did not state these things to the Grievor. The grievor also stated that people are lying and jealous of him. Also on August 19, 2009, Karen Clark advised Mr. Columbus via email that ?Ian is looking forward to participating in these courses.? 70.On August 20, 2009 Jeff Columbus discussed willsays with the Grievor and it was clear that the grievor had very poor knowledge of what is required or what can be written in a willsay. It was also clear that the Grievor was still unable to extrapolate data from the TIPS database, so Columbus attempted to assist the grievor with using the program but found doing so extremely challenging as the Grievor had difficulty following simple direction. 71.On August 24, 2009, the Board convened a conference call that the Union had initially requested to deal with the training issue. It was determined that a hearing date would be set to deal with the Union?s allegations. 72.On August 31, 2009, Mr. Magee attends SAR training in Guelph. 73.On September 3, 2009, Mr. Columbus and Mr. Gerrie meet with Ms. Mossop to discuss what if anything had been achieved when she met with Mr. Magee. Ms. Mossop advised that Mr. Magee has an inability to filter stimuli and that he reacted - 14 - without thought. She also indicated that she had concern with respect to Mr. Magee?s ability to be a CO. 74.On September 3, 2009, Mr. Magee attempted to discuss with Mr. Columbus an interaction with the OPP where they came to Vineland. He then advised that they were not looking for information, only providing it. Mr. Columbus could not understand what Mr. Magee was trying to say about the interaction with OPP as Mr. Magee?s words were not being put in logical sentences and his sentences were not making any sense. 75.On September 8, 2009, CO Ron Arnold again contacted Mr. Columbus regarding an interaction he had with Mr. Magee, and advised that he was encountering significant stress as a result. Mr. Columbus then in speaking with Mr. Magee was advised by Magee that he called Mr. Arnold in the morning asking why he was not in work yet and what he was doing that day. At one point they were cut off and Mr. Magee called Mr. Arnold back and stated ?Are you hanging up on your partner?? Mr. Magee was again advised of the sensitivities that existed. 76.On September 8, 2009, Mr. Columbus spoke with Ms. Mossop regarding the training for Mr. Magee. Ms. Mossop advised that it appeared that Mr. Magee has a cognitive/audio disorder and that some form of accommodation could be required. It was suggested that Mr. Magee have two more meetings with her. Mr. Magee was later advised that day that additional training was to take place. 77.On September 9, 2009, Mr. Magee advised Mr. Columbus that he would not be attending training scheduled for September 10 and 11, 2009, but that maybe he would attend ?down the road when I get back to field duties.? Mr. Columbus then directed Mr. Magee to attend, at which point Mr. Magee replied that he never stated thth that he would not attend, just not on the 10 and 11. When Mr. Columbus requested a detailed explanation of why Mr. Magee was refusing to attend on the thth 10 and 11, Mr. Magee replied that he would be taking the afternoon off as a sick th day and that he would address the refusal on the 10 ?after speaking with union representation.? Mr. Magee did not advise Mr. Columbus of any response until th September 14. 78.On September 14, 2009, Mr. Magee advised Mr. Columbus that he had apparently set aside the week for report writing training. Mr. Columbus did not schedule Mr. Magee for any such training nor was he aware of any such training. Mr. Magee further advised that Mark Barclay of OPSEU told him on the 11th that he no longer had to attend communications training but that he would complete the writing skills training identified in his PDP. Magee was scheduled to attend communications training the previous week on September 10 and 11. This was despite an email from Local Union President Karen Clark on August 19, 2009 advising that ?Ian is looking forward to participating in these courses.? Ms. Clark also stated that ?Further, I wish to advise that we are looking forward to you returning Ian to field duties in accordance with the Arbitrators [sic] decision.? Ms. Clark was well aware that the Employer expected workplace restoration and training to take place before Mr. Magee was restored to full duties. No suggestion was made by the Union that - 15 - the management of Mr. Magee was somehow in breach of the Board May 21, 2008 order. 79.On September 15, 2009, Mr. Columbus advised Mr. Magee that there would be no further direction to attend training with Ms. Mossop but that if he would like to attend, it would be arranged. It had been determined that forcing the training may not be of assistance. 80.On September 22, 2009, Mr. Arnold advised Mr. Columbus that Mr. Magee has no th ability to rationalize or comprehend reality. On September 24 Mr. Columbus is advised that Mr. Arnold has sought medical attention in relation to his interactions with Mr. Magee. 81.On or about September 25, 2009, Mr. Magee was pulled from firearms training in October as Mr. Arnold was scheduled for the same training. 82.On October 9, 2009, Mr Doug Peebles, Local Union President advised HR assisting management that he and Mr. Kerry Gennings would be supporting as Union representatives the Vineland members and that Mr. Magee would be required to deal with corporate OPSEU for the handling of his grievances. He also advised that the Union was very interested in workplace restoration. 83.On October 9, 2009, Brad Gerrie advises the COs of the outcome of the health and safety investigation and advises that there was no basis at the time that Mr. Magee posed an immediate threat to health and safety. 84.On October 15, 2009, then former Local Union President Doug Peebles sent an email to HR advisors for the Employer and OPSEU representatives stating as follows: From: Doug Peebles [mailto:doug@peeblesnet.ca] Sent:October 15, 2009 12:52 AM To: 'Karen Clark'; Kerry Gennings ; Marg Simmons (OPSEU); Laurie Chapman ; Everingham, Marilyn (MGS); Mark Barclay; Whitehead, Cindy (MGS); Macklem, Scott (MGS) Cc: Mark Halley (H); Mark Clock (H); Linda Freeman (H) ; Freeman, Linda (MNR) Subject: MNR Workplace Intervention Training Sensitivity: Confidential Hello All, This message is being sent to HR Ontario HR Advisor/Employee Relations and OPSEU Staff working on the reintegration of Ian Magee back into the workplace ? more specifically the field. It is being sent on behalf of the members who are part of the work environment that the Employer is trying to reintegrate Ian back into that do not have standing at the GSB (on Oct 21 when this matter comes up again) ? though have concerns that need to be heard by the parties and the Arbitrator. - 16 - For everyone?s benefit ? Karen Clark is the President of OPSEU Local 212 in Vineland the office that Ian Magee reports to. I am (Doug Peebles) Past President of OPSEU Local 232 representing the Conservation Enforcement Officers based out of the Guelph District Office who would be in field situations with Ian. Further to my discussions with Karen Clarke, we would suggest that even though the Arbitrator has ordered Ian returned to the field forthright. Given that nature of the work that the Conservation Enforcement Officers perform and the tools used (side arm) in the field to carry out the duties of the position, that?s not an easy task to implement given the history (as we understand it) of bad judgment of varying degrees that has occurred, and continues to occur as we understand. Our intention is to bring the Employer together with OPSEU to find the best solution for all those concerned with Ian?s full reintegration back into the field and the effect (impact) that will have on the work environment ? in particular the well being (Health and Safety) of all our members. Has there been any thought by the parities (that?s supported by the parties) to exploring creative solutions that would give Ian job satisfaction/fulfillment in a related position, a position that would also ensure the well being of others in the work environment? holistic approachintervention Furthermore what?s required are a and/or supported by the parties to reintegrate Ian back into the work environment in whatever capacity is determined. We would suggest as follows: What?s Required The Employer in conjunction with OPSEU put on a training course to promote the rebuilding of trust and understanding in order to prepare the members and Ian Magee for his successful reintegration to full duty in the field. The course needs to involve trust building, mediation and communication skill building for the members of Locals 212 and 232 in Vineland and Guelph who work directly or indirectly with Ian. Background In order for our members to feel safe and have the trust that they do feel safe working with Ian in the field, there needs to be some sort of intervention/holistic approach to build that trust (this is the gap the Arbitrator may not have taken into account) before there?s going to be that trust. The lack of trust will create an increased risk as stress levels will be unduly heighten more so than necessary. The members in Guelph have filed a complaint under Health and Safety as they believe there to be a hazard in the workplace. They?ve asked the Employer to investigate, and report back. As Mark Barclay, Grievance Officer suggested to me that the members maybe prejudging the situation in the field with his return. I would concur that may very likely be the case, though given the nature of the work in the field and it?s the trust that?s need among the members, they haven?t been provided with any information that would help to rebuild their trust in the field, they may be very well be prejudging what may or may not happen in the field ? it?s their own personal health and safety at stake. All they have is information from the past, the training they are - 17 - provided with (past behaviour being a predictor of future behaviour), plus recent questionable bad judgment, as I understand it, that Ian has exhibited on his return to the workplace. For Ian to go back to the GSB and request full reinstatement to the field forthright (which he?s legally entitled to do) ? the effect on the workplace (until some type of intervention can be done) is like the analogy of taking a hammer to drive a square peg into a round hole in piece of wood. The square peg won?t fit - the wood and the peg will be damaged unless there?s some work done to change (lathe, sand) the peg and hole to allow the peg to fit properly. In this case there needs to be some work done to ensure the successful reintegration of Ian Magee into the workplace, more specifically into the field with existing staff (Conservation Enforcement Officers). Regards, Doug Peebles (Past) President, Local 232? 85.Following the email, a call was set up between HR and Mr. Peebles and Ms. Clark to discuss the proposal for the joint training session Mr. Peebles raised in his email. th On October 19 Mr. Peebles advised that the discussions were cancelled at Laurie Chapman?s request. 86.Further, regarding the above email, at no point did any of the Union representatives listed as recipients of the email object to the statement from Mr. Peebles that he and Ms. Clark had a joint understanding that Mr. Magee could not be given the full duties of a conservation officer forthwith easily. 87.On October 30, 2009, Mr. Arnold advises that Mr. Magee came up to the CO office said a few words, then said people are lying and then walked away. 88.Also on October 30, 2009, Mr. Magee advises Mr. Columbus that he could not get into the TIPS programs and was having difficulty explaining his circumstances. Mr. Columbus then noticed a rolled up piece of paper in the corner of Mr. Magee?s office and asked if it was his TIPS assignment. Mr. Magee responded that it was not and that it was ?a hunting thing?. When asked where his TIPS assignment was he then pointed to the rolled up piece of paper and stated ?oh yah, right there.? 89.On November 4, 2009, Mr. Magee attempted to discuss a turkey call with Mr. Columbus. Mr. Magee had a very difficult time explaining the incident and from when the particulars were received and what action taken. 90.On November 24, 2009, Mr. Magee is placed on leave pending the completion of a HIP form and certain questions by his physician. The request was made based upon the observation of Mr. Columbus as well as the findings of Ms. Mossop communicated both orally as well as in her report, which has since been provided to - 18 - the Union and form a part of these particulars. When Mr. Columbus met with Mr. Magee, Mr. Magee indicated that everyone is lying, that it was a good thing as he could now go about his personal business that he had started, that he ?could kick the shit out of 80% of the population?, that he was karate trained and wrestled in high school, and that he was a good person and that his good or best friend was the Deputy Commissioner of the OPP. 91.In addition to what is set out above, the Employer relies on the evidence presented at the hearings that culminated in the May 21, 2008 decision as particulars, and the documents referenced serve as additional particulars. [6] The union advised the Board that it disagreed with, and would be vigorously challenging many of the facts asserted in the employer?s particulars, should the Board deny its motion. However, counsel agreed that for the purposes of this motion the Board may assume all of the facts in the particulars to be true. The parties agreed that regardless of the disposition, the Board should provide reasons for the decision. [7] The employer?s primary position was that it would be inappropriate for the Board to consider the union?s motion in the particular circumstances, and that it should be dismissed on that basis alone. In the alternative, counsel submitted that the particulars relied upon by the employer more than adequately establish a prima facie case that it had justifiable grounds for not being able to return the grievor to full duties of a CO. [8]Appropriateness of dealing with the motion Employer counsel did not take the position that the Board lacked jurisdiction to deal with the instant motion. Rather, the argument was that the Board ought not deal with it in the particular circumstances. [9] The union relied upon the following decisions of the Board as setting out the principles that govern a motion for a declaration that particulars provided by a party do not disclose a prima facie case. (Hereinafter referred to as ?prima facie motion?). Re Pinazza et al, [2004] 131 th L.A.C. (14 ) 132 (Herlich), Re Ladouceur et al, 2002-2393 (Briggs); Re Bono, 2000-1615 (Gray);Re Monk et al, 1990-2758 etc. (Gray); Re Difederico, 2008-0868 (Dissanayake). - 19 - [10] Counsel for the employer pointed out that none of the foregoing decisions involve an allegation by one party that the other had failed to comply with a Board Order or Minutes of Settlement. He asserted that he could not find a precedent for the instant motion in the arbitral jurisprudence. He noted that in all of the cases relied upon by the union the motion was brought against the party with the legal onus. In the instant case the legal onus is on the union to establish that the employer had failed to comply with the Board order and/or the MOS. Thus the party bearing the onus is bringing the motion. Counsel submitted that the Board has never entertained such a motion before, and should not do so here. [11] Secondly, employer counsel submits that it is too late in the proceeding for the union to bring a prima facie motion. He points out that in all of the past cases, such motions were brought at the outset of the proceeding. Here, the union had the onus of establishing non-compliance by the employer. Non-compliance was agreed upon, so that the union did not have to lead any evidence in that regard. The motion was made at the point where the employer was about to lead its evidence as to the reasons for non-compliance. In effect, therefore, the motion was made after the union had closed its case. Counsel submitted that the Board should decline to entertain the motion brought in the middle of the case. [12] As a third reason for declining to hear the motion, counsel pointed out that the union has asserted that as a result of the employer?s failure to comply with the Board order/MOS, the grievor had been subjected to stress and pain and suffering, and has sought damages. Therefore, the union would be obliged to lead evidence as to the impact of the employer?s alleged conduct on the grievor. Counsel submitted that dealing with the instant motion allows the union to bifurcate its case. He argued also that the evidence the union would be required to lead with respect to the impact on the grievor would overlap with the union?s evidence in response to the employer?s explanation for non-compliance. Therefore, no efficiency is to be gained by dealing with the motion. [13] Section 48(1) of the Crown Employees Collective Bargaining Act provides that the Board ?shall determine its own practice and procedure, but shall give full opportunity to the parties to any proceeding to present their evidence and to make their submissions?. The absence of a precedent only suggests that the Board has not been previously called upon to hear ?a prima facie? motion in similar circumstances. Therefore, in the exercise of the statutory power to - 20 - determine its own practice and procedure, the Board must decide whether or not it is appropriate to entertain the motion in the particular circumstances before it. [14] In the normal course, a union filing a grievance has the onus of proving its case. The union would be obligated to particularize its case against the employer. Therefore, it is not surprising that typically it is the employer that brings prima facie motion. However, the employer has not pointed to any decision by the Board standing for the proposition that such a motion may only be brought against the party with the legal onus. The present case is analogous to a discipline case, where the union bears the initial onus of establishing that the grievor was employed by the employer, was covered by a collective agreement with ?just cause? protection, and that the grievor had been disciplined. In the vast majority of cases, the foregoing is agreed to. Then the onus shifts, in some jurisdictions by statutory provision, to the employer to establish just cause for the discipline. In the present case, the onus on the union was to establish the existence of a legal obligation on the employer to return the grievor to full duties upon the satisfaction of certain specific conditions, and that the employer had not fulfilled that obligation. It is the employer that has asserted justifiable grounds for non-compliance and only the employer would know what those grounds may be. Even in the absence of statutory provision, once that was established (by agreement in this case), the onus shifts to the employer to provide justification for its non-compliance. It has provided a statement of particulars (supra para. 5) which consists of ninety one paragraphs, together with six appendices, in support of its position. [15] A quick review of the employer?s particulars reveals references to numerous events involving many individuals, both bargaining unit employees and members of management. The employer was ready to proceed with its evidence to establish the assertions made in its particulars when the motion was presented.The union has given notice that it would be contesting many of the facts asserted by the employer. Therefore, it is reasonable to conclude that the hearing will be a lengthy one. At the end of that lengthy hearing the best the employer can achieve is to prove through its evidence the facts asserted in its particulars. Then the parties would make submissions as to whether the facts proven constitute justification for the employer?s failure to return the grievor to full duties. - 21 - [16] The Board is satisfied that in the circumstances it ought to hear and determine the motion. Since the motion would be argued on an assumption that all of the facts asserted in the employer?s particulars are proven as true, there is no prejudice to the employer. On the other hand, if the motion is allowed, a lengthy hearing would be avoided, resulting in significant saving of resources for all concerned. [17] The motion is not rendered inappropriate by its timing either. This case is distinguishable from Re Deprophetis, 2008-3994 (Dissanayake). There the grievance alleged that the employer had subjected the grievor to harassment and discrimination contrary to the collective agreement and/or the Human Rights Code. On the first day of hearing the union led its evidence through the grievor and his examination-in-chief- had not been completed. The prima facie motion by the employer was brought at the commencement of the second day of hearing. The Board held that it was too late in the proceeding to make such a motion, ?in the middle of the union?s case?. The Board, however, left it option for the employer to ?non-suit? the union after the closing of the union?s case. Employer counsel argued that in this case also, in effect the motion was made in the middle of the evidence, since the union had already established, albeit by agreement, that the employer had a legal obligation which it had not complied with. I disagree. In Re Deprophetis, the union had the onus of proving that the employer violated the collective agreement and/or the Code, and it had commenced leading its evidence towards that end. In the present case in contrast, the union already had a Board order and the MOS in its favour and the employer had conceded its non-compliance. Unlike in Re Deprophetis, here once the union satisfied its initial onus of establishing the non-compliance the onus shifted to the employer to explain. The substantial issue in dispute is whether or not the employer had justifiable reasons for not complying. The evidence in that regard had not commenced. [18] The Board concludes also that entertaining the motion does not result in the ?splitting? or bifurcation of the union?s case. The union?s ?case? is to the effect that the employer failed to comply with the Board order and/or MOS with no justification. That is the subject of the motion. The union?s assertion that the employer?s non-compliance resulted in stress and pain and suffering to the grievor are issues going to the union?s claim for remedies. There is nothing inappropriate about bifurcating issues of remedy from the issue of liability. In a hearing on remedy the focus would be on the impact of non-compliance on the grievor. While there may be - 22 - some overlap in the evidence relating to the remedial issues, and that going to liability, the Board is satisfied there is potential for gaining significant efficiency by dealing with the motion. [19]The merits of the motion The issue to be determined in the instant motion is whether the facts alleged by the employer, if proven true, justified on a prima facie basis the employer?s failure to comply with the obligation it had, flowing from the Board order and the MOS, to return the grievor to full duties of a CO upon his satisfying the conditions set out in the MOS. [20] The facts asserted by the employer may be divided into several broad categories. The first is the need for use-of-force and communications training. It is to be noted that in the hearing that culminated in the Board decision dated May 20, 2008, the union?s sole remedial request was for an order that the grievor be restored to full duties forthwith. The employer did not submit that if the union?s remedial request is granted, it should be made conditional upon the grievor undergoing any kind of training. Subsequently, on March 20, 2009 the employer entered into the MOS with the union, including certain specific conditions which in effect amended the requirement in the Board order to restore the grievor to full duties ?forthwith?. The MOS does not include a condition that the grievor must complete use-of-force or communications training before returning to full duties. Having agreed to restore full duties upon the satisfaction of certain specific conditions, the employer cannot subsequently unilaterally impose additional conditions for the grievor?s return to full duties. This is more so because while the employer in its particulars state that the managers decided that the training was required, no policy was relied upon to the effect that any CO who had been away from work beyond a certain period must undergo any particular training before returning to full duties as a CO. [21] Employer counsel submitted that the Board order nor the MOS has the effect of denying the employer?s right to manage the grievor as necessary. I agree. If circumstances arise after the grievor is returned to full duties as required by the Board order and the MOS, the employer has the right to exercise its management rights in accordance with the collective agreement in order to respond to them. However, it cannot avoid compliance with the Board order and the MOS by resorting to its management rights. The management rights the employer generally has under the collective agreement are limited by the specific legal obligation it had under the Board order and - 23 - the MOS. As I have noted at para. 25 infra, the employer has recognized exactly that in its own particulars. [22] The employer has also set out a number of alleged incidents of inappropriate conduct on the part of the grievor. It has also raised some performance issues. Some of the alleged incidents of misconduct on the part of the grievor pre-date the MOS. The employer entered into the MOS with the knowledge of those incidents. It is not now entitled to resile from the terms of the MOS by relying on events that pre-date the MOS. [23] As for incidents of inappropriate conduct attributed to the grievor, including failure to follow directions and policy, that post-date the MOS, and the performance issues, the same reasoning applies as those set out above with respect to training. The employer is entitled to respond to the grievor?s misconduct in accordance with its legal rights.Thus if the grievor engages in conduct that constitutes just cause, the grievor may be disciplined. If it determines that coaching, counselling, training etc. is required to address performance issues, the employer may respond by resort to its management rights. The particulars refer to confusing and erratic discussions on the part of the grievor. If the grievor engages in conduct that comes within article 44.9 the grievor may be required to submit to a medical examination. All of the above responses by the employer, of course, would be subject to the grievor?s rights under the collective agreement. What the employer may not do is, respond to these concerns by refusing to comply with the Board order and the obligation it undertook in the MOS. Nothing in the Board order or the MOS affects its normal rights to manage the grievor following his return to work in compliance with the order and the MOS. [24] The final broad category of facts relied upon by the employer relates to complaints by the grievor?s co-workers. The complaints consist of a WDHP complaint and expressions of concern that the grievor poses a health and safety risk, including actual or threatened work refusals by co- workers. I read the particulars in this regard as establishing, if true, that the co-workers in question anticipate, based on the grievor?s past conduct, that they would be exposed to health and safety risks if the grievor is returned to full duties. That past conduct of the grievor has been addressed by the employer. In some cases the grievor was disciplined. As the employer?s particulars at para. 1 notes, ?the March 20, 2009 MOS disposes of any and all matters between the parties that pre-date the MOS?. - 24 - [25] It must be repeated that the MOS obligated the employer to return the grievor to full- duties by a specific date. It did not do so, but returned the grievor at best to partial duties. If it had complied, and subsequent conduct on the part of the grievor gave rise to health and safety issues or WDHP concerns, the employer would have been entitled to react by resorting to its management rights. The employer failed to comply, and is in effect attempting to justify its non- compliance by pointing to subsequent events. It is not entitled to do so. [26] In any event, it is significant that the employer has not asserted that it did not comply because it had concluded that the grievor posed a threat to his co-workers. This is not surprising because the particulars do not assert that any finding was made to the effect that following his return to partial duties, the grievor had engaged in any conduct which reasonably gave rise to health and safety or the WDHP concerns. To the contrary, the WDHP complaint was retracted by the complainant, and it was concluded that there was no legal basis for the work refusal by the grievor?s co-workers. There is no particulars asserting that the grievor was disciplined. [27] The Board does recognize, and has tremendous sympathy for the very difficult position the employer finds itself in. It is subject to a legal obligation to return the grievor to full duties. If the employer complies, the grievor would be working alongside his co-workers. Some co- workers have indicated very strongly that they do not wish to work with the grievor. However, despite the difficulties faced by the employer it is not entitled to circumvent its legal obligations on that basis. The dilemma faced by the employer is no different from a situation where co- workers take a similar position about having to work with an employee who is at work performing full duties. It is up to the employer to investigate and assess the conduct of the employee concerned and the actions of the co-workers, and exercise its management rights to respond to the situation. The non-compliance by the employer deprives the grievor of his legal entitlement to be returned to full duties as per the Board order and the MOS. Moreover, it compromises the integrity and binding nature of Board orders and the sanctity of agreements executed by the parties themselves. Non-compliance is not a response open to the employer in dealing with the difficult situation it faces. [28] The particulars also allege that the grievor and/or the union did not object to steps taken by the employer to facilitate a gradual return to full duties. It is alleged that the union did not object or demand that the grievor be returned to full duties without any delay, but agreed with the - 25 - employer?s plans. Particular reference was made to what counsel referred to as ?an agreement? dated May 4, 2009 signed by the grievor. The union argued that the particulars do not indicate that any of the individuals who may have agreed with the employer?s conduct had authority to act on behalf of the union. Similarly, it was submitted that the party to the Board order and the MOS was the trade union, and that the grievor cannot give up the benefits flowing from the Board order or the MOS on his own. [29] It is unnecessary for me to determine the merits of the foregoing arguments. The simple fact is that the particulars do not indicate that the grievor or the union at any time agreed to give up the right of the grievor to be returned to full duties. The particulars only suggest that all of those involved recognized the difficulties faced by the employer in complying with its obligation, and were prepared to cooperate and provide input and suggestions. The May 4, 2009 ?agreement? is not an agreement at all. The grievor has signed it, but only to acknowledge that ?I have read and understand the above?. Even if it is accepted as an agreement between the employer and the grievor, and that it is a binding document, it does not have any provision which affects the obligation the employer had to return the grievor in accordance with the Board order and the MOS. To the contrary it provides explicitly that the intent of the process set out there is ?to facilitate a successful return by Ian Magee to full duties and responsibilities as a field Conservation Officer? and ?to facilitate a healthy and professional working relationship between Ian Magee and his co-workers?. The document then sets out ?expectations specific to Ian Magee? and ?expectations specific to all employees including Ian Magee?. The employer?s efforts in this regard are commendable. However, it does not provide a basis for not complying with its legal obligation. [30] For the foregoing reasons, I conclude that the particulars provided by the employer do not establish a prima facie case that it had justifiable grounds for not complying with its obligation under the Board order dated May 20, 2008 and the MOS dated March 20, 2009. The employer is hereby directed to restore the grievor to full duties of a CO as soon as it can be arranged, and in any event no later than fourteen calendar days from the date of issuance of this decision, subject only to any extension of time that may be agreed upon between the parties. - 26 - [31] I remain seized with jurisdiction to deal with all outstanding issues related to this matter. th Dated at Toronto this 12 day of May 2010. Nimal Dissanayake, Vice-Chair