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HomeMy WebLinkAbout2021-0792.Gore.23-03-31 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-0792 UNION# 2021-0526-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gore) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Brian McLean Arbitrator FOR THE UNION James Sommerville Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING February 22 and 23, 2023 - 2 - Decision [1] This is a discharge grievance. The Grievor, with sixteen years equivalent service working at the court at Queen Street in Toronto as a part-time clerk/registrar, was deemed to have abandoned her employment on May 18, 2022. By that date, she had been off work for a significant period of time and, in accordance with the collective agreement, the Employer had advised her to provide information on an ongoing basis as to the reason for her absence. She did not do so, and in fact was out of contact with the Employer for several months before her employment terminated. The Union’s claim is that the Grievor was so disabled by mental health and other issues that she was incapable of providing information to the Employer and responding to it when it warned her that, unless information was provided, she would be deemed to have abandoned her employment. Accordingly, the Union argues that the Employer’s claim that the Grievor abandoned her employment was contrary to law and she should have been accommodated by maintaining her employment despite the fact that the conditions for a finding of abandonment were present. [2] The parties led evidence through a combination of an agreed statement of facts, oral evidence given by the Grievor and certain medical documents. The agreed statement of facts is: Introduction 1. The grievor, Cassandra Gore (the “grievor”), was a Flexible Part-Time Court Clerk and Registrar with the Court Services Division of the Ministry of the Attorney General (MAG). She worked at the Courthouse located at 60 Queen St West, Toronto, ON. Her CSD was January 9, 2006. At the time of the termination from her employment, she had 16 years of full-time equivalent service with the Employer. 2. She was declared abandoned pursuant to s.42 of the Public Service of Ontario Act (PSOA) on May 18, 2021 and filed a grievance on May 20, 2021. The Grievance states, “My illness prevented me from reporting my status to the Employer”. Declaration of abandonment and grievance are attached as Appendix 1 and 2, respectively. - 3 - Legislative and Collective Agreement Provisions 3. S. 42 of PSOA provides: Abandonment 42 (1) If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or her employment by the Crown is terminated. 2006, c. 35, Sched. A, s. 42 (1). Effect of termination (2) When a declaration with respect to a public servant is made under subsection (1), the termination takes effect and the public servant ceases to be employed by the Crown. 2006, c. 35, Sched. A, s. 42 (2). 4. Under article 71.10 of the OPSEU collective agreement, part-time employees are required to provide a medical certificate after 5 days of absence to substantiate entitlement to Short Term Sickness Plan (“STSP”) credits. Where an employee’s absence caused by sickness exceeds a calendar week, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the employee’s manager, certifying that the employee is unable to attend to his or her official duties. Notwithstanding this provision, the employee’s manager may require an employee to submit a medical certificate for a period of absence of less than a calendar week. 5. However, if the employee has not provided sufficient information to demonstrate that he or she is entitled to use STSP credits, the employee may qualify for leave without pay under article 24 of the collective agreement, depending on the circumstances. 6. Regardless of STSP entitlement, employees are required to attend work unless they are excused from doing so by the granting of a leave of absence, whether paid or unpaid. Facts leading to the filing of the grievance 7. The Grievor’s last day at work was March 13, 2020. She had been absent from the workplace as of March 16, 2020. 8. On July 17, 2020 the employer sent her a letter by Purolator asking her to provide further medical information to substantiate her absence no later than July 31, 2020 at 4 pm (Appendix 3). 9. On July 30, 2020 the grievor emailed a photograph of a medical note dated July 17, 2020 that indicated she may return to work. However, she did not return (Appendix 4 and 4a). - 4 - 10. On July 31, 2020 her manager, Amy Shulist, Supervisor, Court Operations (“Ms Shulist”) sent the grievor an email (Appendix 5) indicating that since the July 17, 2020 medical note indicated she could return to work pending further assessment by an ENT specialist, she would be scheduled for work and was expected to return to the workplace on Tuesday August 4, 2020 at 9am. She did not attend on this date; however, she called in sick on that day, and on Wednesday August 5, Friday August 7 and Monday August 10, 2020 and left voicemails on the group leader’s phone indicating that she was ill and would not be attending the workplace. 11. Since she did not attend the workplace on August 4, 2020 and did not provide further medical justifying her absence, those absences were marked as leave without pay. 12. On August 11, 2020, Ms Shulist sent the grievor a letter requesting medical information justifying her absence from work and in order to qualify for STSP, to be provided by August 25, 2020. The letter warned that absence without approved leave may lead to discipline up to and including dismissal and/or a declaration of abandonment pursuant so S. 42 of PSOA. The letter is attached (Appendix 6 and 6a). 13. On September 14, 2020 the Grievor returned to the workplace without notice and without medical clearance following what had been an extended absence. The period from August 4 to Sept 14th was unaccounted for, in that she had not provided any medical information substantiating her absence from work for medical reasons during that period. Given that she had been off work since March, the employer’s position was that she needed to obtain medical clearance prior to returning to work. 14. As a result, on September 15, 2020 she, along with her union representative, met with supervisors of court operations, via teleconference. At that meeting she was informed that she had not provided up to date medical information clearing her to safely return to the workplace and that she must submit sufficient medical information clearing her to safely return. The employer provided her until October 21, 2020 at 4 pm to return the required information. (Ms Shulist’s notes of the meeting are at Appendix 7). 15. Meanwhile, on October 6, 2020 Ms Shulist sent the grievor a letter via Purolator stating that the usage of Short-Term Sickness Plan (STSP) credits would not be authorized unless sufficient medical information was received by October 21, 2020 at 4 pm. In that letter the Grievor was also notified that she may be placed on an unauthorized and unpaid leave and that a continued absence from the workplace without approved leave may lead to discipline up to and including dismissal and/or a declaration of abandonment (Appendix 8). 16. On November 20, 2020, Shulist sent the Grievor another letter via email indicating that she had been put on an unauthorized absence and she was given one final opportunity to either (1) return to work with sufficient medical clearance or (2) provide sufficient medical information to explain her absence from the workplace (Appendix 9 and 9a). The Grievor did not respond to that letter and the employer made the following communication attempts: a. On December 9, 2020 Ms Shulist sent an email to her with the November 20, 2020 letter attached again, asking her if she had received the letter (Appendix 10). - 5 - b. On December 11, 2020 Shulist sent her a letter by email asking her to either (1) return to work with sufficient medical clearance or (2) provide sufficient medical information to explain her absence from the workplace (Appendix 11 and 11a). 17. On December 21, 2020 the grievor sent an email with a medical note attached as a PDF which was dated October 12, 2020 from the emergency department at North York General Emergency Department. The letter indicates that she “should refrain from walking or prolonged standing.” It also said that she “needs to take time off work due to these restrictions” (Appendix 12 and 12a). 18. On December 29, 2020 Shulist sent the grievor a letter via email and registered mail asking her, again, to return to work or provide sufficient medical information to justify her absence from work. In the letter, Shulist told her that the note of December 21st was not sufficient to justify her prolonged and continued absence. The note did not authorize her to be off work, nor did it provide medical justification for her being off work. It was the employer’s position that based on the limitations and restrictions set out in the note, she could have been accommodated in the workplace had she provided it in a timely manner (Appendix 13). 19. On December 31, 2020 the grievor provided a medical note dated December 28, 2020 that indicated she had been disabled with various conditions from performing her duties since March 16, 2020 and that she had a reassessment with her doctor scheduled on January 14, 2021 (Disability Accommodation Specialist’s summary of medical note is at Appendix 14). Appendix 14 states: Date: December 30, 2020 Employee’s Name: Cassandra Gore Type of Medical Documentation: Medical Script Medical Information completed by: General Practitioner • Signed and dated December 28, 2020 Nature of Illness: Physical and Psychological/ Cognitive Summary of Doctor’s Letter: Cover Letters: • GP (Dr. Quirante-Flora) states that Cassandra has been under her care since 1994. • Due to the same chronic condition and new injury, Cassandra was totally disabled since Mar. 16, 2020. • She will be reassessed on Jan. 14, 2021. Mar. 16, 2020: • Cassandra was sick with physical health symptoms for 2 to 3 weeks. - 6 - • Unable to perform her activities of daily living (ADL). • Unable to go to work as she could not perform her job duties. • She stayed home with medication, increased fluid intake and rest. • Isolated herself per Telehealth advice and public health pandemic protocols • Shortly after, she developed additional symptoms; a recurrence of 2013 and 2018 symptoms for which she took over-the-counter medication. Apr. 3, 2020: • Cassandra called ambulance for a more serious set of physical symptoms following the sudden death of her maternal aunt and a close friend both of whom died of COVID-19. Apr. 5, 2020: • Cassandra called ambulance for serious physical symptoms. • EMS told her to follow up with her MD. • Symptoms got worse until the first week of May. May 13, 2020: • Went to North York General Hospital (NYGH) due to severe physical symptoms. • Unable to perform her ADL and unable to go back to work. • Underwent CT-Scan and was referred to Dental and ENT Specialists. • Took over-the-counter medication. May 28, 2020: • Was seen urgently at a dental office. • After x-rays, she was asked to return for surgery but was referred to another dental office due to COVID-19 outbreak. June 9, 2020: • Was seen for consultation at the dental clinic by Dr. Chin. June 11, 2020: • Underwent surgery. • Unable to perform her ADL and unable to go back to work. • Waited for ENT referral from NYGH. • Was initially seen by this MD for a series of symptoms and was prescribed with medication to take when needed. June 13, 2020: - 7 - • Severe symptoms. • Was seen by Dr. Chin for follow-up and prescribed with medication. • Unable to perform ADL and unable to work. June 19, 2020: • Telephone consult with this MD. • Severe physical symptoms. • Awaiting ENT Specialist referral. • Unable to perform her ADL and unable to go back to work. • Reported mental health issues due to the death of her aunt and friend. • Referred for medical tests and possible referral to psychological and psychiatric specialists. • Advised to follow-up with dentist and ENT. July 17, 2020: • At NYGH emerge. • Sent for ENT assessment. • Dr. Chin’s office had COVID-19 outbreak. Aug. 24, 2020: • Seen by ENT Specialist. • Told to have a test done and follow up. • Still manifested physical symptoms. • Unable to do ADL and unable to work. Oct. 10, 2020: • Fell and sustained physical injuries. Oct. 12, 2020: • Seen at NYGH ER. Sent home and referred to orthopedic clinic at same hospital. Oct. 14, 2020: • Fitted with an orthopedic brace and referred for therapy. • Follow up in Jan. 2021. Nov. 25, 2020: • Telephone consult with NYGH. - 8 - • Told to follow up in Jan. 5, 2021. • Awaiting therapy referral and ENT test. • Symptoms and restrictions include pain, dizziness, occasional recurrent headaches and inability to weight-bear (left leg) Dec. 18, 2020: • Telephone consult with GP. • Complained of the same physical symptoms • Advised to repeat the medical tests done in June 2020. • Still awaiting therapy referral and ENT test. • Unable to do ADL and unable to work due to her symptoms. Dec. 21, 2020: • Medical blood work done and probable referral to specialist for probable organ failure. Dec. 28, 2020: • Telephone consult with GP. • Referred to psychological therapy. • Referred to organ specialist. • Advised to follow-up with orthopedic clinic, physiotherapy. • Given home exercises while awaiting hearing test and ENT reassessment. • Unable to do ADL and unable to work. • To be reassessed on Jan. 14, 2021. DAS Observations/Recommendations/Next Steps: - The letter covers most of the points that we normally expect a medical note to cover. - Regarding the severity of Cassandra’s disability, the narrative appears to be based on Cassandra’s self-reports rather than GP’s direct knowledge and assessment. - There are other areas of the narrative that may require clarification now or after the next assessment date. - I suggest a quick call to discuss further. 20. No medical information justifying her continued absence was provided following January 14th, 2021. - 9 - 21. On April 21, 2021 Shulist provided the grievor with another letter asking her to return to work or provide sufficient medical information for her ongoing absence by 4 pm on May 5, 2021. In this letter she was notified that a continued absence from the workplace without approval may lead to discipline up to and including dismissal and/or a declaration of abandonment (Appendix 15). 22. The Employer did not hear from the Grievor by the deadline of May 5, 2021. Therefore, in accordance with s. 42 of the Public Service of Ontario Act, 2006, she was declared to have abandoned her position with the Ontario Public Service and under Section 44 of the Public Service of Ontario Act, 2006, the Director declared that her employment with the Ontario Public Service was terminated effective May 18, 2021 (Appendix 16). 23. Two days later, on May 20, 2021, the Grievance was filed (Appendix 2). 24. Prior to February 15th, 2023, no medical information had been provided by the grievor supporting her comment on the grievance that her “illness prevented [her] from reporting [her] status to the Employer.” The parties disagree as to whether the provided medical provides such support. [I note that in the end the Union decided not to call the physician to prove the disputed evidence and therefore it is not before me]. 25. The union does not dispute that, but for her medical condition which it says wholly prevented her from responding to the employer within the timeframe set out in the April letter (and as set out in PSOA), the employer has met the requirements for abandonment under PSOA. [3] The Grievor spent much of the time in her evidence explaining how she was feeling at the time of the various medical episodes that are set out in the agreed statement of fact. It is not required to recount this evidence except to the extent it might explain her mental health at a given time. Suffice it to say, she had a great number of physical ailments during the first phase of the pandemic and into 2021 and found it difficult under those trying circumstances to navigate the health care system in order to have her ailments resolved. This caused her stress, and she was in a lot of pain during this timeframe. - 10 - [4] In addition, she had an aunt who died of COVID-19 near the beginning of the pandemic and a close family friend who also died from the virus. She testified that these deaths affected her gravely because those were the people she depended on if she wanted to talk to someone. She was asked whether she had anyone else with whom she could speak. She replied that she did not as due to the pandemic “no-one was seeing or calling anyone”. I also conclude from her evidence that, unsurprisingly given what had happened to her aunt and family friend, the Grievor was hesitant to work during the pandemic especially since employees in her department were working in-person and meeting the public in order to provide essential court services. I note that she wrote the following to the Employer by email in July of 2020: “I am still unwell and would appreciate you give me the time to recover during this Covit [sic] pandemic”. [5] Long prior to these events, she had been diagnosed with depression, panic attacks and anxiety. She stated that these conditions arose following a car accident in 2013. It was unclear the extent to which these issues remained present at the start of the pandemic. However, except the year her father died, mental health issues did not appear to affect her attendance at all. She also got COVID-like symptoms at the start of the pandemic but was not officially diagnosed. She said that the symptoms lasted for a long time. However, it does not appear they continued into the relevant period in April and May of 2021. [6] In June 2020 the Grievor’s doctor prescribed her an anti-anxiety medication which she was to use as needed. The Grievor gave no evidence about how often she took this medication or whether her prescription was re-filled. Later that month, her doctor said he would like to refer her for psychological or psychiatric treatment for anxiety and depression. Nevertheless, as can be seen from the description of her medical issues in the agreed facts, the mental health issues she was facing did not appear to interfere with her ability to attend doctor’s appointments or the hospital when necessary. - 11 - [7] The Grievor testified that on July 17, 2020 she went to a hospital emergency department for a physical ailment. She was in a great deal of pain. The emergency doctor wrote her a note that was confusing. It said: “May return to work: until further assessment ENT specialist”. For reasons that are not clear, the Grievor only gave that note to the Employer on July 30, 2020. Not surprisingly, as the agreed facts indicate, the Employer understood that note to mean the Grievor could return to work immediately. There was no suggestion in the note that psychological issues prevented the Grievor from returning to work. Indeed, when the Grievor was scheduled for work and was expected by the Employer to return to the workplace on Tuesday August 4, 2020 at 9am, she called in sick on that day, and on Wednesday August 5, Friday August 7 and Monday August 10, 2020 and left voicemails on the group leader’s phone indicating that she was ill and would not be attending the workplace. Again, whatever psychological issues the Grievor was suffering did not seem to prevent her from dealing with the Employer at this time. [8] Given her ongoing absence despite the note on August 11, 2020, Ms. Shulist sent the Grievor a letter requesting medical information justifying her absence from work, which would also qualify the Grievor for short term disability benefits. Ms. Shulist asked that the information be provided by August 25, 2020. The letter warned that absence without approved leave may lead to discipline up to and including dismissal and/or a declaration of abandonment pursuant so S. 42 of the PSOA. [9] The Grievor did not respond to this letter or provide the required medical information within the set time. Instead, on September 20, days after the medical information was supposed to have been provided to the Employer, she attended the workplace without warning and without additional medical clearance to be there. She testified that because of the pandemic she could not see a doctor to provide the required medical information so she went to work to let the Employer know she was still sick. - 12 - [10] The Employer was surprised to see her at work. The Grievor was sent home and a teleconference meeting was arranged for the next day for which the Grievor had a Union representative. That representative was not called as a witness to give evidence about the Grievor’s stated reasons for her continued absence from work. The main purpose of the meeting was to advise the Grievor that she needed to provide medical clearance before she could return to work. The Employer also advised the Grievor that, in its view, the July 17 note made it clear that she was fit to work. It is apparent from the notes of the meeting that the Grievor vigorously opposed the viewpoint that the July 17 note cleared her to return to work; this argument occupied a considerable portion of the meeting. She also stated that she did not get the August 11 letter which was emailed to her because she could not open the pdf of the letter. There was no explanation of why she did not call to ask what was in the PDF. There was also no explanation as to why the courier package which contained the same letter was returned to the Employer other than her claim that she did not see the courier package. I also note that during the meeting the Grievor advised her Union representative that she would scan the letter and send it to her, again suggesting there were no severe limitations to her ability to communicate for work. The meeting concluded with an apparent joint understanding that the Grievor would go see a doctor as soon as possible to get clearance to return to work. [11] On October 6, 2020, Ms. Shulist sent the Grievor a letter via courier and email stating that the usage of Short-Term Sickness Plan credits would not be authorized unless sufficient medical information was received by October 21, 2020, at 4 pm. In that letter, the Grievor was also notified that she may be placed on an unauthorized and unpaid leave and that a continued absence from the workplace without approved leave may lead to discipline up to and including dismissal and/or a declaration of abandonment. [12] On October 10, 2020, the Grievor fell and sustained injuries to her leg. Two days later, she went to a hospital emergency department and was seen and referred to the orthopedic clinic at the same hospital. On October 14, 2020, she was fitted - 13 - with a medical device and referred for outpatient physical therapy. At emergency on October 12, she was provided with a note which set out work restrictions: “Patient was seen in the emergency department on October 12, 2020 due to medical reasons. She should refrain from walking or prolonged standing. She needs to take time off work due to these restrictions”. Interestingly, the last sentence of the note originally said, “She may need to take time off…” but the words “may need to” were crossed out and replaced with the word “needs”. For reasons that were not explained, the Grievor did not send this note to the Employer until December 21, 2020. The Grievor advised the Employer that she thought she had sent the note before, although the Employer has no record of receiving it and I have no email before me attaching the note. [13] On November 20, 2020, Ms. Shulist sent the Grievor another letter via email indicating that she was on an unauthorized absence, and she was given one final opportunity to either return to work with sufficient medical clearance or provide sufficient medical information to explain her absence from the workplace. The Grievor did not respond to that letter and on December 9, 2020, Ms. Shulist sent an email to her with the November 20, 2020, letter attached again, asking her if she had received the letter. Then on December 11, 2020, Ms. Shulist sent her a letter by email again asking her to either return to work with sufficient medical clearance or provide sufficient medical information to explain her absence from the workplace. [14] On November 25, 2020, the Grievor’s family doctor had a consultation with the orthopedic doctor that had seen the Grievor. He noted that she was in quite a bit of pain and had other symptoms which prevented her from doing the activities of daily living and from working. There was no suggestion of psychological problems being a significant factor in this. [15] On December 21, 2020, the Grievor testified that she sent an email with the October 12, 2020, medical note attached as a PDF. As noted, the note indicated that she “should refrain from walking or prolonged standing” and that she “needs to take time off work due to these restrictions”. The Grievor also attached a note that - 14 - she handwrote that stated: “My apologies. Thought I sent this before. My scheduled appointment at [the Hospital] was cancelled due to an outbreak of covid. My next scheduled appointment is set for January 14/21”. [16] On December 31, 2020 the grievor provided the Employer with a medical note dated December 28, 2020 that indicated she had been disabled with various conditions from performing her duties since March 16, 2020 and that she had a reassessment with her doctor scheduled on January 14, 2021. That was the last time the Employer received medical information from a doctor or the Grievor until the lead up to this hearing. [17] During the period of the early part of 2021, the Grievor had no income. She was living off her savings which ran out after a few months. She said that during this time she was suffering from severe depression. She had sleepless nights and anxiety. She claimed that she just stayed inside and would not go anywhere. She says she stayed in bed for days. [18] In her doctors note, the Grievor’s doctor advised that she had a follow-up appointment for January 14, 2021. However, she did not attend that appointment. She said that she was in a deep depression. She reiterated that she did not go anywhere or talk to anyone. She did not clean, and she stayed at home. Her evidence was that she was in a dark place. [19] Nevertheless, the Grievor did attend a specialist appointment on January 5, 2021, and had an MRI on January 25, 2021. There was no evidence regarding how she was able to make these appointments but was unable to make the January 14 appointment with her family doctor who was supposed to see her to, among other things, treat whatever psychological issues she was then experiencing. Under cross examination, she acknowledged that in order to get to these appointments (and others during this period) she had called a co-worker and asked for a ride. That fact seems inconsistent with the Grievor’s evidence that she stayed at home, did not go anywhere, or talk to anyone. - 15 - [20] Similarly, under cross- examination the Grievor agreed she attended a dermatology appointment in February 2021 and had various imaging done at an appointment on March 11, 2021. Each of these appointments would have required the Grievor to speak to people on the phone to be notified of the dates and times and whatever instructions were given to her. The Grievor would have also to call a co-worker or someone else and arrange a drive to and from the appointments. None of these 2021 appointments were identified by the Grievor when she testified in examination in chief. However they all occurred during times when the Grievor testified that she was suffering from completely incapacitating psychological and physical issues. [21] In examination in chief, the Grievor gave scant evidence about her condition and what happened in April and May 2021. She was asked whether she recalled receiving the April 21, 2021, letter. She answered that she could not recall that. She denied reading the letter but in giving her answer it was pointed out by the Union that there was an agreed fact that she had read the letter. However, that is not (strictly speaking) true. The agreed fact on this point is the following: 21. On April 21, 2021 Shulist provided the grievor with another letter asking her to return to work or provide sufficient medical information for her ongoing absence by 4 pm on May 5, 2021. [22] The agreed fact was therefore that she was provided the letter, not that she had read it. [23] She was then asked about the May letter, and she testified that she did not recall reading any letter around this time because she was “in a depressive state”. She testified that her son was “here”. He lives in Vancouver but appears to have been visiting in Toronto at the time. He came to check on her. He saw the May letter. He told her she “has to get on top of this”. The Grievor called a co-worker who called the Union representative who then contacted her. The Grievance was filed. - 16 - [24] Her evidence that the reason she did not contact the Employer at any time between January 1, 2021 ands May 18, 2021 was because she was in a bad place. She “wasn’t in a good place”. She was “so depressed and had sleepless nights”. After she was terminated, she was “numb”. She “went into a depressive state”. She was “not feeling well”. [25] Finally, she was asked whether she ever obtained any mental health treatment. She did. She testified that she called “a doctor” in May and was referred to a clinic. While this seems likely to have been true, given the fact that she was referred to a clinic for a July appointment, no record was provided of which doctor she called and when she called. However, the July report is addressed to the Grievor’s family doctor. Decision [26] The GSB case law is clear that if the requisites for abandonment under Section 42 of the Public Service Act of Ontario, 2006, are established, the Board has no further jurisdiction to review the matter. Section 42 of the PSAO states: If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or her employment by the Crown is terminated. [27] The Employer therefore argues that the GSB has no jurisdiction to relieve against the operation of s.42 of the PSOA. It operates after the employee has been absent without leave for more than two weeks. The provision does not even require an Employer warning; it only requires that the employee be absent without leave for the required period and the Commission act on that absence. In support of that position the Employer relies on the GSB decision of Robert Roy GSB No. 6/78 (Brunner) [1978] where the Board stated: - 17 - Neither the Collective Agreement nor The crown Employees Collective Bargaining Act, nor The Public Service Act nor the Regulations thereunder give a right to grieve against a declaration issued by a Deputy Minister pursuant to Section 20 of The Public Service Act. We are accordingly of the opinion, that the grievance fails on the ground that we have no jurisdiction, statutory or otherwise, to entertain it. It fails on the additional ground that it has not been shown that the grievor was dismissed from his employment as alleged by the grievance. Indeed, as stated, we have found that there was no dismissal from employment. He simply ceased to be a public servant on November 4, 1977 by reason of the declaration of the “Deputy Minister under Section 20 of the Public Service Act”. [28] In Re OPSEU (Baldeo), GSB No. 1270/93 (Finley) supra at p. 20, the Union argued that it was unreasonable for the Employer to issue the notice of abandonment prior to the outcome of her LTIP grievance. The Board stated, however, that “there is no requirement for reasonableness in invoking Section 20 [the predecessor provision regarding abandonment].” The Board continued: The question is not whether the Employer should have invoked Section 20, nor is it whether the Employer was reasonable in invoking section 20, or whether its decision to do so was timely. The question is…whether or not the Employer was entitled to invoke section 20. In other words, had it met the four prerequisites set out in the section. The Board finds that in the case of the Grievor, it met the prerequisites and was therefore entitled to apply Section 20 of The Public Service Act. The result of this is that in the normal course the Board is without jurisdiction to consider the matter further and the grievance would be dismissed. [29] There is no dispute that the requisites of Section 42 were established in this case. The Grievor was a public servant appointed by the Commission. She was absent from work without approved leave for more than two weeks (in fact more than sixteen weeks). The person who signed the abandonment letter, Rosanna Giancristiano, who had the proper delegated authority, declared in writing that the Grievor had abandoned her position and that her employment with the Crown was - 18 - terminated. Under these circumstances, I have no authority to interfere with the termination of the Grievor’s employment on any grounds other than incapacity. [30] The only issue before me therefore is whether the Grievor was medically incapable of contacting the Employer at the relevant time and relatedly, whether the Employer discriminated against the Grievor because it should have known she was disabled and incapable of providing the medical information the Employer asked her for. [31] The challenge for the Grievor is that she has no medical evidence about her psychological condition at the relevant time (being April/May 2021) when the Employer advised her that her employment was at risk and when it actually advised her that she had abandoned her employment. In fact, even the most relevant medical evidence she does have, which arises out of December 2020 and July 2021, while supporting the fact that she was having psychological issues, is not specifically supportive of the fact that she was completely incapable of responding to the Employer or advising the Employer of the reasons for her continued absence from work. There is no medical evidence before me at any time that the Grievor was incapable of responding to the Employer by email or telephone. There is also no medical evidence before me that the Grievor was incapable of asking one of her co workers to speak to the Employer or the Union on her behalf, perhaps even while one of them was driving her to a doctor’s appointment. [32] Moreover, the Grievor’s evidence of her mental state from December to May 2021 was both highly general and not especially reliable. The Grievor repeatedly testified that she was in a “dark place” and could not get out of bed. What was missing were details about what her life was like on a day-to-day basis. She was clearly eating. Did she get groceries and, if so, how? There was no suggestion that she was unable to leave the house to get groceries. Did she call people on her cell phone? If not, where are the records that prove that? What did she do all day? In the absence of contemporaneous medical support for her claims, these - 19 - are the types of details that might support her claims, but I have nothing of this sort. It is not enough for the Grievor to simply say “that she was in a dark place”, especially since before December she also said that she was in a dark place but was able to do a number of things to ensure she maintained her employment. [33] There were also no details whatsoever about her discovery of and reaction to the two letters she received in April and May. I gather she did not read the April letter, but provided no explanation for that other than she did not see it. As for the May letter, how did she see that? Did she read the email version or the couriered? Was she reading her email at the time? How soon after she read it did, she speak to her son? [34] That conclusion is reinforced by what happened after the Grievor received the letter dated May 18, 2021. The Grievor’s evidence was that she showed the letter to her son who said, “you should get on top of that”. The conclusion I draw from that, in the absence of a more detailed account or evidence from her son, was that the Grievor received the letter and understood that it was bad news. She then showed it to her son who told her to do something about it. She then called a co- worker, and a grievance was filed after she discussed the matter with her Union representative. That Union representative was not called as a witness to give evidence about what the Grievor told her and/or whether he advised her to immediately go to the doctor. [35] As noted, there is an agreed fact that the Grievor received that Employer’s April 2021 warning letter. However, there is no evidence before me that the Grievor saw the letter but was incapable of acting on it. That is the critical point. On the contrary, despite the agreed fact, the Grievor actually testified that she did not read the Employer’s April letter. Given that, what is missing is any direct evidence that the Grievor was incapable of acting on the letter or that the Grievor was incapable of opening a courier package or e-mail. - 20 - [36] Furthermore, perhaps because the Grievor’s evidence was so general, some of it turned out not to be true. To give one example, her acknowledgement that she had called co-workers to obtain rides to medical appointments was completely at odds with the testimony she had given throughout. The Grievor also testified that, other than 2013 when she was in a serious car accident, she had an excellent attendance record prior to the events which are discussed in the agreed statement of facts. She claimed that she was “only absent for minimal things”. This turned out not to be true. In 2017, she was absent for 74 days. She explained in cross- examination that her father had died in 2017 which led to the high number of absences that year. [37] Finally, while the Grievor did attend an appointment to receive mental health treatment, that only took place in July, nearly three months after the termination of her employment. While that program was described as applying to individuals with mild to moderate mental health issues, she was found to have severe depression (22 on a scale of 27, with severe being a score 20 and above). However, she reported that her depression and other mental health issues started at the beginning of the pandemic but “became worse” when she lost her job. In light of that unsurprising result and the passage of time generally, the July assessment provides little evidence for the Grievor’s complete inability to deal with the Employer in April and May. [38] I have little doubt that the Grievor was going through a very difficult time after March 2020. She had a number of physical problems that, in part because of pandemic restrictions, were not necessarily being treated promptly. I also have little doubt that the Grievor was also having psychological problems. What I do have doubt about is whether those psychological problems were so severe that they actually interfered with her ability to respond to the Employer’s requirement to provide information. Quite simply, I have very little evidence before me that that was the case. Regretfully, I am unable to find on the evidence before me that the Grievor was medically incapable of responding to the Employer’s request for information. - 21 - [39] Finally, I am satisfied there was no real chance the Employer could have determined that the reason the Grievor was not in contact was because she was incapacitated. While the Grievor had on occasion been derelict in providing medical information to the Employer, she always came through in the end by meeting the Employer’s imposed deadlines. There was also never a suggestion to the Employer or in the doctor’s medical notes that the reason she was having this difficulty was because of her psychological issues. In addition, there is little doubt that the focus of the medical information provided to the Employer was on the Grievor’s physical ailments. I note that when it was suggested in the summer of 2020 that the Grievor might be capable of returning to work that was because of an improvement in her physical condition, which was provided while waiting for an ENT appointment. [40] On December 21, 2020, the Grievor sent an email with the medical note attached. The note indicates that she “should refrain from walking or prolonged standing.” It also said that she “needs to take time off work due to these restrictions”. There was no suggestion that psychological issues prevented her from working. Indeed, on October 14, 2020, she was fitted with an orthopedic brace and referred for therapy. On November 25, her doctor had a telephone consultation with the hospital’s orthopedic surgeon. Her symptoms and restrictions at that time included pain, dizziness, occasional recurrent headaches and inability to weight-bear (left leg). Again, there was no suggestion that what prevented her from working were mental health problems. In fact, the Employer’s reaction in December was that it could accommodate the work restrictions set out in the medical note because she could work without walking or prolonged standing. [41] Taken as a whole, the Employer correctly, in my view, based on the evidence before me, believed that the primary reason for the Grievor’s absence from work were physical ailments. It knew also that she was having some mental health issues but would have no way of knowing what, if any, role they played in her absences or how severe they were. I note that I am in the same position as the - 22 - Employer was then; there is no medical information that at any time the Grievor was prevented from working due to psychological issues. [42] It might be asked, why would the Grievor risk her job if not for psychological problems? That is not a question I need to answer as the onus is on the Grievor to explain why she did not respond to the Employer’s inquiries. However, it is possible she just missed the April letter or that she was afraid to come to work during the pandemic. Only the Grievor knows for sure why this sad and unfortunate event occurred and why she did not contact the Employer for more than four months. [43] Given the fact that I cannot find on a balance of probabilities that the Grievor was incapacitated and thereby prevented from communicating with the Employer and that the Employer did not have a duty to accommodate her in the circumstances, I must regretfully dismiss the Grievance. Dated at Toronto, Ontario this 31st day of March 2023. “Brian McLean” ____________________ Brian McLean, Arbitrator