GSB#2008-2205, 2008-2683

UNION#2008-0506-0004, 2008-0506-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Daniel)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

M.V. Watters

Vice-Chair

FOR THE UNION

Jennifer Fehr Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Counsel

HEARING

April 27, November 23, November 24, 2009, January 12, May 27, 2010.

Decision

1This proceeding arises from two (2) grievances filed by the grievor, Mr. Joseph Daniel, dated May 14 and September 16, 2008, respectively. The grievances, in substance, claim that the Employer arbitrarily changed the grievor’s work schedule and that he was improperly sent home upon returning to work following a short-term sick leave. It is further claimed that these actions, on the part of the Employer, constitute discrimination or harassment against the grievor by reason of his activity in the Union, all contrary to article 3.2 of the collective agreement. This provision reads:

3.2.1 There shall be no discrimination or harassment practiced by reason of an employee’s membership or activity in the Union.

2The grievor is a Highway Carrier Safety Inspector and is classified as a Transportation Enforcement Officer 3. The position description for the job was filed as exhibit #21. The position is hereafter referred to as ‘Auditor’. Simply stated, the grievor’s primary responsibility is the conduct of audits in respect of commercial vehicle operations, such as trucking firms and bus companies. The audits, which are conducted at the operators’ premises, are focused broadly on road safety including vehicle maintenance, drivers’ hours, service records, insurance coverage and accident reporting systems. The results of an audit determine the operator’s safety rating. At all times material to this proceeding, the grievor performed his work out of the York District Office in the Central Region.

3The grievor has a long history of involvement in the Union. He started as a Union Steward in late 2001 and subsequently become President of OPSEU Local 506 in November, 2003. He served in this latter capacity until January 31, 2008. While in this role, the grievor represented employees in five (5) districts of the Central Region, namely York, Peel, Durham, Toronto and Halton. The grievor was actively involved in the Local Employee Relations Committee (LERC) between 2004 and 2008. He is currently the 1^st Vice-President of Local 506 and sites on the Ministry Employee Relations Committee (MERC). There is no doubt, on the evidence, that the grievor throughout this period has been extremely active in representing the interests of employees, be it through the grievance process, WDHP complaints, or speaking out against various Employer initiatives.

4Evidence for the Union was presented by the grievor, Mr. Serge Valcourt and Ms. Helma Britton. Mr. Valcourt has been an employee of the Ministry of Transportation for approximately twenty-three (23) years. He became an Auditor in 1988. In the time period material to this proceeding, Mr. Valcourt worked out of the Hamilton/Niagara District Office. Ms. Britton has been an employee of the Ministry since 1986 and has worked as an Auditor for ten (10) years. She works out of the Peel District Office.

5Evidence for the Employer was presented by Ms. Paula Anderson and Mr. Warren Blackmore.

6Ms. Anderson commenced employment in the Ontario Public Service in 1989 as a Driver Examiner at the John Rhodes Centre. She subsequently became a Senior Examiner and served as Supervisor of the Centre in the period 1995 to 1998. Ms. Anderson then moved to a Shift Leader position in the Enforcement Program in which she supervised a team of three (3) to four (4) Inspectors at the Truck Inspection Centre at Trafalgar Road and Highway #401. In addition to the supervisory function, Ms. Anderson performed mechanical inspections on trucks, wrote out any necessary tickets and attended at Court, when required, as a Crown witness. Between 2001 and 2004, Ms. Anderson served as an Acting Coordinator in the York District. In December of 2004, she became the Coordinator for the Toronto District. Finally, following a reorganization, of which more is said below, Ms. Anderson assumed the new position of Carrier Safety Coordinator for the Central Region in January, 2008.

7As the Carrier Safety Coordinator, Ms. Anderson is responsible for managing the audit program in the following six (6) Districts in the Central Region: York, Peel, Durham, Toronto, Halton and Hamilton/Niagara. In this capacity, she manages between fifteen (15) to eighteen (18) Auditors. More specifically, Ms. Anderson assigns audits to the Auditors, establishes due dates for their completion, ensures that the Auditors have the requisite information to complete their work, and then reviews the audits upon receipt for accuracy and quality. She also monitors the work of her audit staff to ensure compliance with the Enforcement Procedures Guide. Additionally, Ms. Anderson manages attendance and is responsible for health and safety matters. She administers a budget for the Central Region in the approximate amount of $1,500,000.00. The position description for Ms. Anderson’s job describes the purpose of the position in the following terms:

“To provide the full spectrum of management responsibility for direct delivery of the ministry’s carrier safety and enforcement programs within a designated geographic area. To provide program administration as well as leadership and direct supervision of field staff involved in the delivery or support of the motor carrier safety inspection and enforcement activities. To estimate, co-ordinate and manage staff, material and fiscal resources to meet current and future needs. To implement operational plans and regional strategies, including developing initiatives and plans which are consistent with government initiative and ministry business plans in a politically sensitive, litigious environment. To actively participate in regional long term planning and program decisions as part of the regional management team.”

Ms. Anderson has never worked as an Auditor.

8Mr. Blackmore is the Director of the Regional Operations Branch. In this capacity, he directs and oversees driver, vehicle, carrier and enforcement programs, licencing of commercial vehicles and driver examinations. He has previously held a number of senior management positions with the Employer, including Regional Manager for the South West Region. Mr. Blackmore served as the Co-Chair of the LERC for the Central Region for a one (1) year period. This latter involvement brought him into contact with the grievor.

9Prior to January, 2008, each of the six (6) Districts in the Central Region had a Coordinator to whom the Auditors reported. The Employer, for several reasons, elected to change this model, with the result that all Auditors across the Region would be consolidated under a single Manager. I was told that this model had worked well in another Region and that the Auditor General had observed certain deficiencies in operations in the Central Region. As noted, the Employer assigned Ms. Anderson to the Carrier Safety Coordinator position in the aforementioned Region effective January, 2008.

10In mid December, 2007, Mr. Blackmore invited the grievor and Ms. Edie Strachan, the in-coming President, to discuss the upcoming change, including the appointment of Ms. Anderson. On the evidence, it seems that the grievor largely agreed with the nature of the organizational change. He expressed real displeasure, however, when informed that Ms. Anderson would head the new Audit Unit. The grievor testified he told Mr. Blackmore that he was making a mistake with the appointment given Ms. Anderson’s “history”. He asserted that she lacked technical knowledge relating to the Audit Program and that she had a propensity to micro-manage. It was the grievor’s evidence that he said there would be “problems” if Ms. Anderson was appointed to the position. Mr. Blackmore recalled that the grievor remarked there would be “war” should the appointment occur as planned. Mr. Blackmore advised that he was not frustrated by the grievor’s opposition to Ms. Anderson. He noted that the decision to assign a Manager to the Audit Unit was within his prerogative.

11There is no doubt that, at the above meeting, Mr. Blackmore asked the grievor to treat the information disclosed as confidential. There is a dispute, however, as to what was said about when the information could be communicated to affected employees. The grievor testified that Mr. Blackmore asked him to keep the information in confidence for a period of ten (10) days. In contrast, Mr. Blackmore claimed he told the grievor not to disclose any details of the reorganization until he had formally discussed the change with employees. Mr. Blackmore noted that his sharing of the information with the grievor was outside of the normal protocol for disclosure between the parties. He explained that he did so as a courtesy to the grievor. The grievor acknowledged that he communicated the information to others after a period of ten (10) days had elapsed. He stated that, in the interim, members started to contact him about the changes and that some of them appeared to have acquired a lot of specific detail concerning the upcoming reorganization. It is clear that Mr. Blackmore was disappointed by what he perceived to be a premature disclosure and a breach of confidence. Emails between Mr. Blackmore and the grievor in respect of this issue were filed as exhibit #25.

12Mr. Blackmore released the following memorandum on the change to the reporting structure on December 31, 2007:

“As part of the Ministry of Transportation’s commitment to improve Road Safety and customer service the Central Region Enforcement Section will be restructuring its off-road Carrier Safety Program. Central Region will be adopting the successful organizational structure that is currently in place in Southwest Region.

This change will involve the reporting relationship of the Highway Carrier Safety Inspectors. The new reporting structure will allow the Audit Coordinator to effectively manage the Carrier Safety Audit Program workload at a Regional level.

As of January 14, 2008, you will be reporting to the Central Region Audit Coordinator. As this move is an administrative restructuring exercise, there will be no change to your headquarters, salary, duties or working conditions.

The grievor testified that he read the last sentence of the above memorandum as indicating there would be no change to his working conditions, including his schedule. Mr. Blackmore, in his evidence, clarified that he did not intend to make any changes as of the effective date of the reorganization. He observed, however, that going forward he expected his Managers to explore opportunities for introducing efficiencies in the workplace and that this could potentially result in change, as it did here in respect of the schedule.

13Ms. Britton testified that she was upset on learning Ms. Anderson was to supervise all Auditors in the Central Region. As a consequence, she elected to forward the following email to Mr. Bruce McCuaig, the incoming Deputy Minister, on December 31, 2007:

I am quite disturbed about events that will be taking place within Central Regions auditors. I am not opposed to a separate unit for all the auditors in central region, what I totally disagree on is Paula Anderson as the co-ordinator for this unit. I don’t see the logic in taking her out of Metro District, one of the few permanent coordinators we have and assigning Metro District to S.G. in York District a fairly new, inexperienced acting co-ordinator. What about the added work load for the court officer and enforcement enquiry specialist in York? Are you going to give Paula Anderson a crash course on Auditing 101, when we have so many seasoned auditors some of which are being accommodated that would be more suitable for the position, if interested.

I am going to quote Shelly Jamieson’s (sic.) reply on the town hall meetings in which she states:

• there will be better communication of developmental opportunities including short-term assignments
• performance management plans will identify employee strengths and areas for growth to support our commitment to recognizing and developing staff.

This is yet again another example of putting someone in a position through the back door with no discussion with the workers involved. What were the town hall meetings all about? Just another ruse to keep us quite (sic.), I am truly disappointed in the way this has been handled.

Ms. Anderson did not recall getting a copy of the above email. Mr. McCuaig’s email response to Ms. Britton was filed as exhibit #19.

14A meeting with all of the affected Auditors was held on January 8, 2008. Ms. Anderson, Mr. Blackmore and Mr. Peter Valentini, Acting Regional Manager, were in attendance. It is apparent on the evidence that both the grievor and Ms. Britton spoke against Ms. Anderson’s appointment at the meeting. Ms. Anderson was aware that Ms. Britton felt that she was not sufficiently qualified for the Coordinator position.

15Ms. Britton referenced prior town hall meetings in her email of December 31, 2007, reproduced above. One of these meetings was held on November 13, 2007. Approximately five hundred (500) employees attended the meeting, including the grievor, the in-coming President, and most of the Local Executive. Mr. Blackmore, Mr. Valentini and Ms. Anderson were there, as were a number of other members of senior management. The meeting was convened by Ms. Shelly Jamieson, the Deputy Minister. The grievor made a presentation at the meeting in which he spoke of hiring practices, nepotism, favouritism, fair hiring, diversity and problems in the Enforcement Program. He was clearly critical of management’s approach to these issues. The grievor advised that he also provided Ms. Jamieson with a written submission.

16Mr. Blackmore recalled that the grievor made a presentation at the November 13^th meeting. He was unable, however, to recall the specifics of same. Ms. Anderson stated that she heard some, but not all, of the grievor’s remarks. She acknowledged that some of his “criticisms” may have been about her. Ms. Anderson insisted, though, that she was not upset about what he said. In her words, she had no real reaction to his comments. From her perspective, the meeting was a good forum for employees to say what was on their mind.

17The grievor advised that, starting in February 2001, he worked a nine (9) hour day on a compressed work week schedule. His specific hours of work were 6:30 a.m. to 3:30 p.m. On February 26, 2008, the grievor and all other Central Region Auditors received the following Memorandum from Ms. Anderson:

“I have had the opportunity to observe the Audit Program work as a Region since we all came together on January 14^th of this year. What I am finding, in regards to the scheduled work hours, is that they do not all coincide with the hours of the operators that we audit. It is imperative that Auditors are available during business hours to better serve our clients and meet the operational requirements of our program.

Large operators are generally open Monday to Friday from 8 a.m. – 5 p.m. Smaller operators do not exclusively work on week days but still have the 8 a.m. – 5 p.m. daily hours.

In an effort to align the scheduled work hours with the client hours these changes will take effect the week of March 31^st.

The following 3 options are hours that Auditors can chose to work:

• 7 a.m. – 4 p.m.
• 7:30 a.m. – 4:30 p.m.
• 8 a.m. – 5 p.m.

You are required to email or call me by the end of this week (Feb. 29^th at the latest) to let me know your preference of the above hours. Select only one of the 3 options. You will remain on the days you are currently scheduled to work.

18The grievor responded to the above Memorandum by way of the following email to Ms. Anderson on February 27, 2008:

I am in receipt of a memo regarding the introduction of new scheduled hours of work for auditors. While I agree with you that there may be instances we need to adjust our hours of work in conjunction with our stakeholder’s need, I am indeed disappointed that you did not have any prior discussion about this new schedule considering the fact that I have been working on the same schedule for the past 8 years with no adverse impact to our clients as well as to the Ministry. Your suggested schedule would create unnecessary stress in my life as it impacts my wife’s work schedule and travelling needs since we made a residence change last year. ……………………………………………………………..”

19Ms. Anderson responded to the grievor’s email by way of a later email on February 27, 2008. The communication reads:

The memo I sent gives a 4 week timeframe for staff to make arrangements before having to start one of the 3 options of hours given. I am moving forward with the new hours and felt that giving staff a choice of hours was being very flexible. If you feel that you require additional time to adjust to the new schedule then please call me to discuss.”

Following receipt of the above email, the grievor spoke to Ms. Anderson about the matter. He testified that she was prepared to give him an extra two (2) weeks to better enable him to adjust to the schedule. The grievor advised Ms. Anderson that the extension would not address his concerns and, accordingly, declined the offer. The grievor was not aware that he was the only Auditor who was offered additional time to adjust to the new schedule.

20The grievor forwarded the following email to Ms. Anderson on February 28, 2008:

Further to our discussion of today regarding the above noted, please be advised that your inability to accommodate my request to keep me for 6:30 a.m. starting time will impact my home life and work life and I feel very strongly that management is imposing this schedule on me just to harass me, and as such I will be filing a grievance once the new schedule takes effect. Since you are forcing me to choose a schedule out of the three schedules provided, I am choosing the 7 a.m. start time under protest.”

21The grievor started on the new schedule as of March 31, 2008. It was his evidence that, despite the change, he continues to arrive at work at the York District Office at 6:30 a.m. He explained that, due to increased traffic, he has to spend approximately twenty-five (25) more minutes in the car for a 7:00 a.m. arrival time. The grievor referenced the fact that he relocated his residence to Port Perry shortly before the change, and that his wife commutes with him to her job. He advised that his wife now has to wait an extra one-half (1/2) hour at the end of the day for him to finish his work. The grievor added that the later drive home started to adversely affect his health as a consequence of the increased traffic congestion he experienced.

22The grievor noted that Ms. Anderson had previously been his Coordinator in the York District between 2001 and 2004, and that she had never questioned his hours during that period. He also challenged her statement that operators are generally open between 8:00 a.m. and 5:00 p.m. It was the substance of his evidence that operators, both large and small, have hours starting well before 8:00 a.m., and in some cases as early as 5:00 a.m. He stressed that he has more experience that Ms. Anderson in terms of working in the field. From his perspective, her view as to the normal hours of operators, as expressed in the Memorandum of February 26, 2008, is inaccurate. On a related point, the grievor acknowledged that he always arrives at an operator’s location at 9:00 a.m. on the first day of an audit, as he may need to meet with corporate officers or other staff who do not arrive before that time. The grievor explained that once on site, he learns of the working hours of those individuals he needs to communicate with for purposes of the audit. It was the gist of the grievor’s evidence that, after the first day, he usually arrives at the operator’s business site between 7:30 a.m. and 8:30 a.m., depending on their availability. He testified that he tries to arrive on site early in order to conclude the audit in a timely fashion.

23The grievor also outlined the work he performs in the office at the start of the day prior to leaving for an audit. The work includes: logging on to the computer system; logging on to the Communications Centre, with confirmation to Ms. Anderson; reviewing the audit file; retrieving necessary documentation required for the audit; and responding to emails, messages and telephone calls. The grievor testified that, even with a 6:30 a.m. start time, the time spent on these tasks and in travelling to the operator’s location made it difficult to arrive before 9:00 a.m.

24Prior to March, 2008, Ms. Britton’s work day was 6:00 a.m. to 3:00 p.m. It was her evidence that three (3) of the four (4) Auditors working out of the Peel District Office had these hours. Ms. Britton stated that she had worked this schedule for “four (4) years on and off”, and that no prior Manager or Coordinator had ever raised the issue of her 6:00 a.m. start time prior to Ms. Anderson. Similarly, she testified that it was never the subject of a complaint from an operator in the field. Ms. Britton advised that her preference for the earlier start time was premised on traffic patterns. She stated that if she left her home by 5:00 a.m., she could reach the office by 6:00 a.m. Ms. Britton noted, however, that a later departure from home added about one-half (1/2) hour to her commute to the office. She, ultimately, selected the 7:00 a.m. option.

25Like the grievor, Ms. Britton disagreed with Ms. Anderson’s assessment as to the normal working hours of the operators being served by the Audit Unit. It was her evidence that while 8:00 a.m. to 5:00 p.m. may be office hours for reception purposes, the hours do not represent operating hours. She emphasized that a number of larger operators are open on a twenty-four (24) hour basis and that certain of the smaller ones start the day at 7:00 a.m. or 8:00 a.m. Ms. Britton asserted that some operators prefer that the Auditor be on site earlier than 9:00 a.m., as it is then quieter and less active vis a vis the dispatch of vehicles. Ms. Britton said that, in her experience, approximately fifty percent (50%) of audit meetings started before 9:00 a.m. in the pre-March, 2008 period. She advised that she has commenced audits as early as 6:30 a.m. Ms. Britton acknowledged that meetings before 9:00 a.m. were scheduled with the agreement of the operators. She expressed the opinion that the Employer, and specifically Ms. Anderson, did not undertake a sufficient investigation to support the change.

26The grievor stated his belief that his hours were changed because of his active involvement in Union activities. Simply put, the grievor believes he was targeted and harassed because of his efforts to aggressively represent members and for taking and expressing positions contrary to management. Reference has been made previously to his involvement in the grievance and WDHP processes, and to his presentation at the town hall meeting in November, 2007. The grievor asserted that the following also motivated the Employer to act in an improper manner:

i. In mid to late October, 2007, the Employer planned to hire thirty (30) temporary Transportation Enforcement Officers in the South West Region from the Community Colleges on a 529 basis, that is for a period of five (5) months and twenty-nine (29) days. The grievor objected to this hiring as, in his view, it did not amount to fair hiring given that the employer did not have to post the jobs and could retain anyone it liked. The grievor, in response to the initiative, contacted both the LERC and the MERC. The matter was subsequently placed on the MERC agenda for discussion. Ultimately, a decision was made by the Deputy Minister and Assistant Deputy Minister not to proceed with the 529 hiring. Instead, the Employer elected to hire thirty (30) permanent Officers. The grievor believed that the plan to hire thirty (30) temporary Officers was devised by Mr. Blackmore. He furthered stated that senior management were aware that he instigated the opposition to the plan. In cross- examination, the grievor acknowledged that he was not aware Mr. Blackmore agreed with the hiring of permanent staff; and

ii. Following the creation of the new Audit Unit in January, 2008, the grievor expressed concern about a change in policy which required all Auditors to log on with the OPP Communications Centre in Orillia irrespective of whether they were working in or out of the Office. The grievor asserted that the new requirement to log on, even while working in the office, was contrary to existing Ministry Policy and that it created a health and safety risk. It was his belief that the additional log on requirement would make it more difficult for the Communications Centre to monitor and track Officers in the field. The grievor’s opposition to the change was voiced at a meeting of Auditors and Coordinators held on January 21, 2008. According to the grievor, it was also the subject of “a very animated discussion” at a LERC meeting of February 7, 2008 at which both Mr. Blackmore and Mr. Valentini were present. It was the grievor’s perception that the former was upset when he raised the issue. The topic was also the subject of a teleconference between the grievor, Union representatives, Mr. Blackmore and Mr. Valentini on February 13, 2008. It is clear that the issue was discussed at several other meetings with these management representatives. During one telephone discussion, the grievor informed Mr. Blackmore that if the matter was not resolved the members might elect to “exercise other options”. The grievor recalled that Mr. Blackmore then asked if he was threatening him. The grievor advised that his communication with Ms. Anderson on this subject was exclusively through correspondence.

27In a similar vein, Ms. Britton believed that her outspokenness resulted in her hours being changed. It was her view that her email of December 31, 2007, which has been reproduced above, was a contributing factor.

28After becoming Carrier Safety Coordinator for the Central Region, Ms. Anderson asked the Coordinators in the other Districts to provide her with the hours worked by their staff. On the basis of the information received, she discovered that six (6) of the eighteen (18) Auditors in the Region started their day before 7:00 a.m. Three (3) of these Auditors, including the grievor, worked out of the York District. The other three (3), including Ms. Britton, worked from the Peel District Office. After the issuance of her Memorandum of February 26, 2008, Ms. Anderson learned that two (2) of Ms. Britton’s colleagues in Peel actually worked 7:00 a.m. to 4:00 p.m. As a consequence, there were only four (4) Auditors who were ultimately compelled to adjust their work schedule, three (3) from York and one (1) from Peel.

29Ms. Anderson also engaged in a review of notes from Auditors in the Central Region. Prior to January 14, 2008, she reviewed Auditor’s notes from the Toronto District. This review disclosed that ninety percent (90%) of the audits commenced at 9:00 a.m. or after. Following the reorganization, Ms. Anderson looked at notes from Auditor’s across the Central Region. She estimated that she reviewed between twenty (20) and thirty (30) sets of notes. It was her evidence that the review encompassed both single and multi-day audits and that it generated information about the start times for both. Ms. Anderson was uncertain as to whether she reviewed audit notes from each of the Auditors in the Region. She acknowledged that, during the course of this exercise, she did not personally contact operators for their input.

30On the basis of her review, Ms. Anderson concluded that there was a need to better align the Auditors’ hours with the hours of the client base. On her assessment of the information reviewed, Auditors were starting their work at 9:00 a.m. at the operators’ place of business. At the time, she was not aware of operators requesting audit meetings outside of their normal business hours. In Ms. Anderson’s judgment, Auditors should start their audits during regular business hours, as that is when the operators are available to receive them. Ms. Anderson believed that consistency between Auditors’ hours would have been the best result. For purposes of fairness, however, and to allow employees some choice, she decided to provide the three (3) options noted above. Ms. Anderson added that she hoped the change would not significantly impact anyone.

31Ms. Anderson testified that she wanted to align Auditors hours with other activities affecting the Unit’s operation. She cited the hours of Court as an example. In her jurisdiction, those hours are 9:00 a.m. to 4:00 p.m. From her perspective, an early start to the day could result in an overtime cost in respect of Auditors required to attend Court later in the day. Operationally, she wished to minimize the potential for this type of expense. It seems from the evidence that Ms. Anderson did not review overtime requests from Auditors required to attend Court in the period prior to February 26, 2008. During cross-examination, she agreed that she does not receive a lot of overtime claims for Court purposes.

32Ms. Anderson further believed that the change here in issue would make the Audit Unit more efficient and productive. In this regard, she reiterated that the Auditor General had raised concerns relating to audit efficiency in the Central Region. Ms. Anderson testified that the decision to change the work schedule was hers. She stated that she consulted both Mr. Blackmore and Mr. Valentini about the initiative and that they were in agreement with the decision to implement the change to the schedule.

33Ms. Anderson recalled that the grievor was resistant to any change to his hours of work. She stated that the grievor dropped into her office in April, 2008, after the change had been implemented, and that he then informed her of the move to Port Perry and of the fact his wife did not drive. Ms. Anderson testified that, at that juncture, she offered him additional time to make any necessary adjustments. She noted that the grievor replied that he did not want additional time to adjust to the change, rather, he wanted his hours changed back to the way they had been previously.

34Ms. Anderson indicated that she was aware of the grievor’s Union involvement at the time she decided to make a change to the schedule. It was generally the thrust of her evidence that such involvement did not cause her to treat him differently and that it did not impact her decision to effect the change. Ms. Anderson added that she did not introduce the change to target any employee in the York and Peel Districts.

35Ms. Anderson testified that Mr. Blackmore told her of the grievor’s opposition to her appointment just prior to the effective date of the reorganization. She stated that she did not have much of a reaction on being told this, other than thinking it was a shame given that she and the grievor had worked together previously in the York District between 2001 and 2004. Ms. Anderson agreed that the grievor opposed her appointment because he did not think she was qualified for the position. She clearly disagreed with his assessment. Ms. Anderson also stated that the grievor’s opposition, as Union President, did not undermine her credibility with other staff. On her account, there were only two (2) Auditors who felt she lacked the requisite qualifications, namely, the grievor and Ms. Britton. It was her evidence that no other employee voiced opposition to her appointment.

36Ms. Anderson agreed that the grievor believed the new log-on procedure contravened existing policy and posed a health and safety risk, and that he raised these concerns at a meeting of the Auditors and management. After hearing of the grievor’s concerns, Ms. Anderson contacted the Staff Sergeant at the OPP Communications Centre in Orillia and was assured that the requirement of all Auditors to log on, even those working in the District Offices and not in the field, did not amount to a health and safety risk as all of the Auditors could be effectively tracked under the system. It was Ms. Anderson’s evidence that she was not upset at the grievor for raising this issue.

37Mr. Blackmore indicated that after Ms. Anderson became the Carrier Safety Coordinator, she had a discussion with him pertaining to the hours worked by Auditors. Ms. Anderson advised him that, after a review, she determined that a number of Auditors were working outside of the hours of the core businesses being served, in that they were starting their shifts early in the morning. Mr. Blackmore did not recall Ms. Anderson referring to any particular Auditors during the course of the discussion. He testified that Ms. Anderson felt that the current practice was inefficient and proposed a strategy for improvement. More specifically, she recommended that her Unit’s hours be changed to better reflect core business hours. Mr. Blackmore testified that he approved the recommendation, as he believed there was a logical business rationale for the change. It was his evidence, in substance, that his approval had nothing to do with the grievor’s activities in the Union. Indeed, he was unsure as to whether he knew of the grievor’s start time prior to the change. Mr. Blackmore stated that he was not then aware Ms. Britton started work prior to 7:00 a.m.

38Mr. Blackmore did not recall the grievor raising the issue of the temporary hiring of Transportation Enforcement Officers with him. He acknowledged, however, that they may have discussed it. Mr. Blackmore stated that the Union’s concerns about the hiring were raised at the MERC level. It was his evidence that he did not learn until much later that it was the grievor who brought the subject to MERC’s attention. Mr. Blackmore noted that, ultimately, the Ministry decided to hire employees on a permanent basis and that the idea of temporary recruitment was abandoned. Mr. Blackmore testified that he preferred the hiring of Officers on a permanent basis. He further advised that the proposal for temporary hiring was not his idea.

39Mr. Blackmore stated that Ms. Anderson developed the new log-on procedure following her appointment to the Carrier Safety Coordinator position. He was aware that the grievor had concerns about the change, as the latter contacted him to discuss same. Mr. Blackmore recalled that the grievor believed the requirement for all Auditors to log in, even when just working in the Office, was inconsistent with existing policy. Mr. Blackmore did not think that the grievor’s concerns had merit. From his perspective, the change was an enhancement to the status quo, as it was intended to promote and increase employee safety. Mr. Blackmore testified that he told the grievor it was the Employer’s intent to modify Operating Procedures to include the change. The grievor declined Mr. Blackmore’s invitation for him to provide input on the language to be used for this purpose.

40Mr. Blackmore further recalled that this issue was later raised at a LERC meeting during the period when he was Co-Chair. It was his evidence that the grievor there indicated there would be some other form of action taken. He stated that he was unsure what the grievor meant by this. It was Mr. Blackmore’s evidence that he was frustrated, but not upset, by the grievor’s approach to this issue.

41On May 29, 2008, the Executive of OPSEU Local 506 sent a Resolution to the Deputy Minister and the Assistant Deputy Minister. The Resolution, which was adopted by the membership at a General Membership meeting held one (1) week earlier, cited a long list of complaints regarding management in the Central Region. Two (2) of the complaints read:

“WHEREAS RUS field operational management director and his hand picked managers and supervisors continue to practice ‘old school’ mentality by imposing their will by changing policies based on personal agenda while ignoring health and safety concerns raised by the bargaining unit,

WHEREAS despite repeated objection from the bargaining unit, appointed a manager who lacks people skill, and technical knowledge and who has a ‘history’ of harassing female employees, to a position of authority in contravention of Deputy’s four priorities,

It is clear from the evidence that the first complaint was directed at Mr. Blackmore, Mr. Valentini and Ms. Anderson. The second complaint related to Ms. Anderson. The Resolution led the Deputy Minister to later convene a meeting with the Executive of Local 506. The grievor was unable to attend the meeting as he was off work on sick leave. I note that the grievor was one (1) of the signatories on the cover letter attached to the Resolution.

42Ms. Anderson stated that she first saw the Resolution at the workplace in June, 2008. She thought that the Manager referenced in the second of the above-cited complaints was her. Ms. Anderson testified that she did not believe the statements outlined in the complaint were accurate. It was her evidence that she has very good people skills; has the necessary technical skills and knowledge about both auditing and enforcement; and has no history of harassing female employees. With respect to the latter, she stated: “I don’t do that”. Ms. Anderson added that she did not think the Resolution, as worded, was “a fair way of putting something out there”. Ms. Anderson maintained that the Resolution did not make her angry at the Union or the grievor. She indicated, though, that it was upsetting to read it. Ms. Anderson asserted that she harboured no ill-will towards the grievor because of the comments contained in the Resolution.

43On June 23, 2008, the grievor emailed Ms. Anderson to advise that his doctor had instructed him to stay off work for a period of six (6) to eight (8) weeks, effective immediately. The grievor further advised that he would forward a doctor’s note to Ms. Anderson and that he would apprise her of his return to work status prior to the expiry of the medical note. Ms. Anderson subsequently received a note from the grievor’s doctor dated June 23, 2008. The note confirmed that the grievor had been assessed that day and provided a diagnostic impression of his condition. It further indicated that the grievor was being referred to a specialist for assessment and treatment and that the recommended period of leave from work was for six (6) to eight (8) weeks.

44Ms. Anderson subsequently wrote to the grievor on July 3, 2008 to request that he have his doctor complete a Request for Employee Health Information form. The letter reads, in part:

It is the ministry’s policy to support employees whose injury, illness or disability is affecting their ability to do their job and meet job-related requirements. To assist you in returning to work and to address any employment accommodation needs you may have, we require that your medical practitioner complete the attached Request for Employee Health Information form. Please include this letter. I have also attached a copy of your job description to help your medical practitioner understand the requirements of your job.

When I receive this information, you and I will develop an employment accommodation plan. Duties will be assigned to match your ability to do the job and restrictions subject to operational requirements and legislative obligations. We will need to meet to develop and discuss the plan before implementing it.

45Ms. Anderson subsequently received a completed Request For Employee Health Information form dated July 11, 2008 (exhibit #7). The content of the form may be summarized as follows:

i. In Part A of the form completed by the grievor, he indicated that his absence from work because of illness or injury would end on August 15, 2008;

ii. In Part B of the form completed by the grievor’s doctor, the doctor indicated that the duration of the limitation and/or restriction was temporary and that it had an expected duration of four (4) to six (6) weeks;

iii. Question 3 of Part B asks the following: Is employee involved in treatment and/or taking medication that may affect his or her ability to work, including regular attendance, and/or performing certain duties? The grievor’s doctor answered “Yes” and described the impact as, “Drowsiness possible with impact on his work safety”; and

iv. In response to Question 5 of Part B, the grievor’s doctor indicated that the grievor would be reassessed in four (4) to six (6) weeks.

46It was the grievor’s evidence that he did not receive any further correspondence from the Employer in respect of his sick leave. The grievor testified he was never informed that he needed an additional medical note in order to return to work.

47The grievor returned to work on August 18, 2008 at 6:30 a.m. He acknowledged he did not inform Ms. Anderson, in advance, that he would be returning on that day. According to the grievor, he felt fine at the time of his return. It was the grievor’s evidence that Ms. Anderson telephoned him shortly after 8:00 a.m. and told him that he needed a doctor’s note confirming he was fit to return to work, otherwise he would not be able to work. The grievor responded by asking Ms. Anderson where this requirement was in the collective agreement or relevant policies. It was his recollection that she was unable to answer the question and, instead, said it was the practice. The grievor then referenced the return to work date of August 15, 2008 found on exhibit #7. He recalled that Ms. Anderson replied that such date was put on the form by him and not by his doctor. The grievor stated he then told Ms. Anderson that his return was in conformity with exhibit #7, as it was between the four (4) to six (6) week period identified thereon by his doctor. The grievor noted that this explanation was not accepted and that Ms. Anderson demanded a medical note certifying his fitness to return to work. At that point in the exchange, the grievor asked Ms. Anderson if she was sending him home. He indicated that he received an affirmative answer and that he, therefore, left the Office at about 9:00 a.m.

48The grievor estimated that the above interaction with Ms. Anderson was approximately five (5) to ten (10) minutes in length. He described it as “a heated debate”, which left him extremely upset and frustrated. The grievor denied yelling at Ms. Anderson during their telephone exchange on August 18^th. He suggested that Ms. Anderson could have kept him at work that day to do office work and catch-up on what he had missed, on the condition he subsequently supply the requisite note.

49The grievor was able to get in and see his doctor on August 18, 2008 without an appointment. The medical note the grievor received that day indicated that he was unable to work from August 18 to August 22, 2008. It was the grievor’s evidence that his blood pressure was too high, at the time of the medical visit, to permit him to work on that day. He believed that the elevation in blood pressure was attributable to his earlier interaction with Ms. Anderson.

50The grievor received a further medical note from his doctor dated August 22, 2008. The note stated that he was able to go back to work on Tuesday, August 26, 2008. The grievor, in fact, returned on that date. He testified that on his return, he did not meet with Ms. Anderson to develop an accommodation plan. It does seem that there was some related discussion during a meeting held on January 13, 2009. This was not explored at length, however, given an objection advanced by the Employer.

51While off work between August 18 and August 26, 2008, the grievor received short term disability pay at seventy-five percent (75%) of his salary. He advised that the remaining twenty-five percent (25%) was supplemented by vacation pay. The grievor expressed the opinion that, but for his exchange with Ms. Anderson on August 18^th, he would have been well enough to work in the above-mentioned period.

52The grievor stated that he was not aware of any other employees being sent home because of the lack of a medical note on their return. He expressed the belief that Ms. Anderson was targeting and punishing him as a consequence of his opposition to her appointment and his activism within the Union. Simply put, he felt he was singled out by her for these reasons.

53The Employment Accommodation and Return to Work Operating Policy was filed as an exhibit in this proceeding. The section under the heading of Employee Responsibilities contains the following provisions:

“Employees who need disability-related accommodation or are absent from work due to injury or illness are responsible for:

• identifying to the manager as soon as possible any accommodation needs that relate to their ability to perform job duties or participate fully in the workplace;

• cooperating with requests for health information about capabilities, limitations and prognosis, and with independent medical examinations, when required, to provide clear and sufficient information to support employment accommodation or return to work;

• advising the manager promptly of any changes in health/ disability status that may require changes in an existing accommodation/return-to-work plan;

In cross-examination, the grievor agreed that the Employer is obliged to ensure that an employee is medically able to return to work and is properly accommodated. He further accepted that the Employer has a duty to protect an employee’s health and safety. On a related point, the grievor agreed that he drives a Ministry vehicle to get to the audit sites. He acknowledged that exhibit #7 does not specify if or when he ceased taking the medication.

54Ms. Anderson stated she did not receive any advance notice from the grievor that he would be returning to work on August 18, 2008. Indeed, she only knew that he had, in fact, returned after receiving a copy of his log-on. Ms. Anderson said that this lack of notice was contrary to the usual practice of other employees who had been off on an extended medical leave. Given that she was surprised by this development, Ms. Anderson opted to telephone the grievor at the York District Office. On reaching the grievor, she asked if he had a return to work note. It was her recollection that he then asked her what provision of the collective agreement or policy required the provision of same. Ms. Anderson described the grievor as being “very very upset” at the time and stated that he was screaming at her. In her words, some of the grievor’s remarks were “not very nice”. Ms. Anderson testified that she did not immediately respond to the grievor’s inquiry, as she was taken aback by his screaming. Instead, she attempted to focus their exchange on exhibit #7, the completed Request For Employee Health Information form dated July 11, 2008.

55It was Ms. Anderson’s evidence that she wanted a medical note which indicated the grievor was fit to return to work as of a specific date and which identified any necessary restrictions. She believed that she needed this type of documentation to protect the grievor’s health and safety and to eliminate the possibility of the Employer incurring any liability. Ms. Anderson advised that, as a general rule, it is her practice to require an employee, in similar circumstances, to provide such a note on the first day back. In this regard, she acknowledged that there are always exceptions and that “each medical absence needs to be viewed on a case to case basis”. Ms. Anderson believed that the Employment Accommodation and Return to Work Operating Policy, referenced above, was supportive of her request.

56Ms. Anderson did not think that exhibit #7 was sufficient to permit the grievor to return to work on August 18, 2008. She testified that it was deficient in the following respects:

i. The grievor’s doctor did not provide a clear return date. She emphasized that the grievor, and not his doctor, had inserted the date of August 15, 2008 into Part A of the form;

ii. The form indicated that the grievor would be reassessed within a period of four (4) to six (6) weeks and she did not know if such reassessment had occurred;

iii. The form spoke of temporary restrictions and/or limitations and she had no information as to the nature of same; and

iv. The form documented the potential for drowsiness and consequent impact on work safety. Ms. Anderson noted that the grievor works in a safety sensitive position. She stated that without further information, including whether he was still on medication, she was not prepared to put him at risk. On this point, Ms. Anderson acknowledged that she did not ask the grievor about his medication on August 18^th. She explained that, given the nature of their communication that day, she did not have much of an opportunity to do so.

57Ms. Anderson stated that her telephone call with the grievor ended with her reiterating the need for a further medical note. She recalled that the grievor said “fine” and then hung up. Ms. Anderson testified that, after thinking about the nature and tone of their exchange, she wondered whether the grievor was well enough to return to work. It was her evidence that she did not let the grievor stay at work and catch up on emails, as he did not have a return to work date from his doctor. She subsequently permitted him to return on August 26, 2008 on the basis of the doctor’s note of August 22, 2008. Ms. Anderson asserted that she did not send the grievor home on August 18, 2008 because of his Union involvement.

58Mr. Valcourt was supervised by Ms. Anderson between January, 2008 and September, 2009 while he worked as an Auditor out of the Hamilton/Niagara District Office. He was on a medical leave of absence, for reasons related to necessary surgery, in the period December 11, 2008 to April 1, 2009.

59Mr. Valcourt advised Ms. Anderson of the need for a medical leave in October, 2008 and of his surgery date in November, 2008. The relevant documentation submitted to the Employer prior to his return to work may be summarized as follows:

i. A note dated November 27, 2008 from a specialist indicating that his surgery was scheduled for December 1, 2008. The surgery was subsequently rescheduled to December 11, 2008;

ii. A Request For Employee Health Information form dated February 3, 2009 completed by Mr. Valcourt’s doctor. The form noted the presence of temporary limitations and/or restrictions having a duration of three (3) to six (6) months. It also indicated that Mr. Valcourt was in a rehabilitation program and that he would be reassessed in four (4) weeks. The doctor further advised that he did not anticipate additional absences from work;

iii. A second Request For Employee Health Information form dated March 3, 2009. The form documented two (2) restrictions of a temporary nature. Mr. Valcourt’s doctor did not indicate any future date for assessment and answered negatively to the question whether his patient was in treatment, or taking medications, that could affect his ability to work; and

iv. An email from Mr. Valcourt to Ms. Anderson dated March 25, 2009. Mr. Valcourt advised Ms. Anderson that he had received her request for a physical demands analysis but that he could not have it completed by March 27^th, as his appointment with his doctor was on March 30^th. Mr. Valcourt stated he would give the form to the doctor at that visit. He added that he did not know exactly when the doctor would complete the form. The email concluded as follows:

“I am of the opinion that a return to work is to be April 1^st, but must await confirmation from the doctor.

Barring any unforeseen complications I will be at the Stoney Creek office at 7:30 a.m. on April 1^st 2009.”

60Mr. Valcourt did return to work on Wednesday, April 1, 2009, after having seen his doctor on March 30th. He did not, at the time, have a medical note in hand from his doctor declaring him fit to return to the job. On his return, Mr. Valcourt contacted Ms. Anderson by telephone to advise her he was back in the Office. On Mr. Valcourt’s evidence, she did not ask him for a medical note that day. He stated that she broached the need for a note, and whether there were any job related restrictions, in a later conversation that week. Mr. Valcourt advised Ms. Anderson that he would get the requisite note at the time of his next doctor’s visit. It also appears that Mr. Valcourt informed Ms. Anderson that being sent home for failure to provide a note could adversely impact the insurance on his mortgage. While the timing of this sequence of events is not entirely clear on Mr. Valcourt’s evidence, it is common ground that Ms. Anderson permitted him to remain at work to catch up on the backlog of emails which accumulated in the period of his absence. She also instructed him not to do any work outside of the Office.

61Mr. Valcourt subsequently provided the Employer with a medical note from his doctor dated April 7, 2009. The note stated that Mr. Valcourt was fit to return to work as of April 1, 2009 and identified three (3) restrictions.

62In the period material to this dispute, Mr. Valcourt was the Vice President of OPSEU Local 270. He was also the Co-Chair of MERC. Mr. Valcourt advised that he was involved in the opposition to the new log-on procedure at the local level and that he had a telephone conversation with Mr. Blackmore concerning the issue.

63Ms. Anderson testified that she asked Mr. Valcourt on April 1, 2009 whether he had a medical note evidencing his fitness to return to work. It was her evidence he informed her that he had seen his doctor on March 30^th and had received a verbal clearance to return subject to some restrictions, including one prohibiting the wearing of a protective vest. Mr. Valcourt told her that he anticipated getting a note from his doctor the following week. Ms. Anderson stated that, during this telephone exchange, Mr. Valcourt also spoke of a financial problem involving his mortgage and insurance coverage. She advised that this latter matter was addressed at greater length in a telephone conference call later that week between Mr. Valcourt, herself and a representative from Human Resources. Following her discussion with Mr. Valcourt on April 1^st, Ms. Anderson advised him that he could stay in the office and catch up on four (4) months of emails. She prohibited him from performing any work in the field and from driving a Ministry cruiser. Ms. Anderson testified that she was not prepared to have Mr. Valcourt conduct any audits until receipt by her of the appropriate medical documentation.

64During the course of her evidence, Ms. Anderson was asked why she did not send Mr. Valcourt home on April 1, 2009, as she had done with the grievor, given that he then was unable to provide a medical note certifying his fitness to return. Ms. Anderson replied by noting that Mr. Valcourt had received a verbal clearance from his doctor to resume work and that he was not on any medication at the time which might affect his ability to work. She observed that the note dated April 7, 2009 confirmed Mr. Valcourt was fit for work as of April 1, 2009.

65Ms. Britton advised that in one (1) instance she was off work for three (3) months on a medical leave. She was asked whether she provided Ms. Anderson with a note upon her return. I recorded her answer as, “Of course”. Ms. Britton stated that the note in question cleared her to return to work. She agreed that the provision of this type of note was standard practice after a lengthy medical leave. It was her evidence that she had no issues with providing the note.

66Lastly, Ms. Anderson testified that she completed a performance appraisal of the grievor in October, 2008. She stated she then told him that she thought he was a good Auditor and was doing a great job. The grievor did not seriously dispute this evidence.

67It is the position of the Union that the grievor was discriminated against and harassed because of his membership or activity in the Union, contrary to article 3.2 of the collective agreement. Counsel argued that this improper intent informed the decisions to change the grievor’s work schedule and to send him home after his return to the York District Office from sick leave. I was urged to look at the pattern of circumstances existing in this case and draw reasonable inferences that the Employer was motivated by anti-Union animus. By way of remedy, the Union asks for the following: a declaration that the Employer breached article 3.2; (ii) a return to the grievor’s prior work schedule; and (iii) monetary reimbursement for the money lost when the grievor was forced to leave the Office after his return on August 18, 2008.

68Counsel for the Union made extensive reference to the facts of this case during her closing argument. Her submissions may be summarized, as follows:

i. The grievor was actively involved in the Union and such involvement brought him into conflict with Mr. Blackmore and Ms. Anderson on numerous occasions. Reference, in this regard, was made to the assistance the grievor provided to members in the grievance and WDHP processes; his involvement at both LERC and MERC; his comments at the Town Hall Meeting in November, 2007; his opposition to the appointment of Ms. Anderson; his opposition to the log-on procedure and the plan for temporary hiring of Transportation Enforcement Officers; and his participation in the Resolution forwarded to senior management personnel in May, 2008;

ii. Both the grievor and Ms. Britton had start times before 7:00 a.m. and had such a schedule for many years, without any issues being raised. Counsel noted that Ms. Anderson was aware of their hours from her review of the work schedule of Auditors conducted prior to the change. She submitted that it was not mere coincidence that these two (2) vocal opponents to Ms. Anderson’s appointment were among the very few employees negatively affected by the change to the schedule;

iii. It was the submission of counsel that Ms. Anderson’s explanation for the reason for the change in schedule was not sufficient to demonstrate a legitimate business purpose. She referenced the evidence of both the grievor and Ms. Britton that they performed audits for a number of different operators outside of the business hours noted on Ms. Anderson’s Memorandum of February 26, 2008. Indeed, counsel observed that, on the evidence, some operators prefer early audits. She considered it material that the Employer did not present any evidence relating to any problems experienced with the prior schedule, including complaints that Auditors were not available later in the day or that such schedule led to an extensive backlog that could only be addressed through the change;

iv. Counsel also challenged the process used by Ms. Anderson in coming to her decision to effect the change here in issue. She noted that Ms. Anderson failed to obtain input from both the auditors and the operators being served. Counsel suggested that the review of Auditor’s notes, as conducted by Ms. Anderson, was deficient and amounted to a pro forma exercise to give some credence to a predetermined plan. In a similar vein, she argued that there was no evidence of an abundance of overtime claims for Court purposes which needed to be addressed through the type of change implemented here. Counsel stressed that the only overtime claim presented in this case was the grievor’s claim for one half (1/2) hour of time, which was, in fact, made after the schedule was changed;

v. Counsel noted that the grievor returned to work within six (6) to eight (8) weeks of his medical note of June 23, 2008 and within the four (4) to six (6) week period set out on exhibit #7. In substance, it was her submission that these documents did provide sufficient information to the Employer as to when the grievor could return to work. She stressed that the grievor, in fact, did return within the identified periods;

vi. I was asked to conclude that the approach Ms. Anderson applied to Mr. Valcourt demonstrates that she was inclined to engage in differential treatment of the grievor. Counsel observed that both employees are Auditors who returned to work without notes following an extended medical leave. In the case of Mr. Valcourt, he was permitted by Ms. Anderson to remain at work, on the understanding he would subsequently produce a note. In contrast, the grievor was sent home without being provided with this option or the opportunity to perform restricted work. Counsel submitted that the grievor and Mr. Valcourt were in precisely the same circumstances. She argued that an inference should be drawn that the differential anti-Union animus;

vii. Counsel further submitted that I should reject Ms. Anderson’s explanation of why these two (2) employees were treated differently. In support of this submission, she referenced the following: the grievor did maintain contact with Ms. Anderson in relation to his medical condition by way of the medical note of June 23, 2008 and the Request For Employee Health Information form dated July 11, 2008; while Mr. Valcourt might have confronted a financial issue if sent home, Ms. Anderson made no inquiry to determine if the grievor would be similarly impacted; Ms. Anderson failed to ask the grievor if he was still on medication, or receiving treatment, that could cause drowsiness; unlike the situation with Mr. Valcourt, Ms. Anderson failed to obtain information from the grievor that would have allowed him to work, subject to getting a later medical note; and, lastly, there was no reason why the grievor could not have caught up on his emails pending receipt of the note; and

viii. Counsel noted that the grievor felt fine on his return to work on August 18, 2008, but became upset after his heated exchange with Ms. Anderson. She further noted that the grievor was seen by his doctor that day and was experiencing elevated blood pressure. I was asked to accept the grievor’s evidence that this was attributable to his exchange with Ms. Anderson and that the condition delayed his return to work by a week. On counsel’s analysis, the grievor would not have been off work for this additional period, if Ms. Anderson had treated him in a similar fashion to Mr. Valcourt.

69The Union relies on Re Horizon Operations (Canada) Ltd. and Communications, Energy and Paperworkers Union, Local 2000 (2000), 2000 CanLII 50129 (BC LA), 93 L.A.C. (4^th) 47 (Coleman) in support of its position. In accordance with certain of the comments expressed in this award, counsel for the Union observed that anti-Union animus is not ordinarily “advertised” by Employers. Rather, such improper intent must be “pieced together from a pattern of circumstantial evidence”. Ultimately, I was urged to adopt this approach to the circumstances of this case and to conclude that the Employer’s treatment of the grievor was a contravention of article 3.2 of the collective agreement.

70From the perspective of the Employer, this case is not about whether the Employer properly exercised its management rights or whether it had a right to the medical information requested. Rather, the threshold issue is whether the Employer breached article 3.2. It is the position of the Employer that the Union failed, in this instance, to present any clear and cogent evidence that anti-Union animus was the prime motivating factor.

71Counsel for the Employer also made extensive reference to the facts during her closing argument. Her submissions may be summarized, as follows:

i. Counsel acknowledged that the grievor was active in the Union and that he voiced his opposition on numerous occasions to management’s ideas, proposals and plans. She submitted, however, that no evidence was presented to establish that the Employer’s decisions were influenced by the grievor’s involvement in the Union or that the Employer had any animosity towards him. I was asked to accept the evidence of Mr. Blackmore and Ms. Anderson that: they never treated the grievor differently because of his Union activity; they did not discriminate against him; and his involvement in the Union played no role in the disputed decisions. Counsel observed that Ms. Anderson’s positive appraisal of the grievor in October, 2008 is completely inconsistent with the Union’s theory of the case. It was her submission that the grievor’s allegations are totally unfounded. While he may subjectively believe the employer’s actions stem from his Union activity, there is no direct or circumstantial evidence to support the assertion the grievor was treated differently than other Ministry employees;

ii. Counsel submitted that the change to the Auditors’ work schedule was not designed to target or negatively affect the grievor. She stressed that the schedule was changed for all Auditors in the Central Region and that the grievor and Ms. Britton were not the only ones affected. Counsel suggested it is not credible to think that the Employer would adjust the hours of six (6) Auditors (later determined to be four (4)) just to target and discrimate against the grievor. In this regard, she noted that there is no evidence to establish that Ms. Anderson knew anything about the grievor’s or Ms. Britton’s commute times, travel arrangements, or residence locations. In short, she did not know they would be adversely affected. Counsel observed that Ms. Anderson first learned about the grievor’s personal concerns through his email of February 27, 2008 and that, in response thereto, she offered to provide him with additional time to adjust to the change. She argued that this offer is material, as no other Auditor was offered such an opportunity. Counsel stated that the change to the schedule was not extreme and noted that auditors were given three (3) options to select from;

iii. Counsel submitted that there were sound operational reasons to make the change to the Auditors’ schedule. From her perspective, it introduced a new efficiency in the sense it served to better align the scheduled work hours with the client hours. She observed that prior to deciding on the change, Ms. Anderson reviewed the work hours of Auditors across the Central Region and audit notes from a representative group of Auditors. Counsel argued that there is no reason to doubt the results from Ms. Anderson’s initial review which showed that ninety percent (90%) of audits began at 9:00 a.m. or after. Reference was made to Ms. Anderson’s statement that there is no business need for Auditors to commence an audit before 8:00 a.m., and that it is important for them to attend an operator’s facility during regular business hours, as in that period there is usually someone on site who is assigned to assist them. Counsel acknowledged that Ms. Anderson did not engage in a detailed assessment of overtime claims resulting from Court attendances by Auditors. She submitted that while this was a secondary reason for the change, the adjustment would better align Auditors’ hours with Court hours, which potentially could result in an efficiency by way of reduced overtime. In counsel’s words, this was not a “fabricated reason” for the change. In the final analysis, I was asked to prefer the evidence of Ms. Anderson on this aspect of the case;

iv. Counsel submitted that the Request For Employee Health Information form dated July 11, 2008 was an insufficient medical document to support the grievor’s return to work on August 18, 2008. She noted that the form did not set out a specific return date, rather, it identified a four (4) to six (6) week time frame, and that it did not identify any restrictions for accommodation purposes. Counsel argued that, in the circumstances, Ms. Anderson did not have sufficient information with respect to the following: if the grievor was, in fact, fit to return to work; what his restrictions were, if any, and whether he needed to be accommodated; whether the grievor had been reassessed by his doctor; and whether the grievor remained on medication which had the potential to affect his safety at work. Counsel submitted that, given the lack of information on these issues, it was reasonable for Ms. Anderson to require a further medical report certifying the grievor’s fitness to return to work. Indeed, she suggested that such a request was absolutely necessary in order to not put the grievor at risk. Counel argued that the need to take a cautious approach was necessitated, in part, by the grievor’s failure to maintain contact with the Employer while off. She considered it significant that the grievor just showed up at work on August 18th, without giving Ms. Anderson any advance notice;

v. Counsel referenced Ms. Anderson’s evidence that it is standard practice to require a medical note from an employee returning to work after an extended leave. On her reading, the practice is supported by the Employment Accommodation and Return to Work Operating Policy. Counsel also noted that Ms. Britton provided such a note on her return from a medical leave and that she had no issue in doing so;

vi. Counsel submitted that the circumstances relating to Mr. Valcourt were different for the following reasons: Mr. Valcourt maintained contact with the Employer while off and advised Ms. Anderson of his condition and expected return date; while he did not have a medical note on his return to work on April 1, 2009, Mr. Valcourt’s doctor had provided a verbal clearance on March 30, 2009; Mr. Valcourt was clear about his limitations; and he informed Ms. Anderson that he was not on medication. Counsel argued this information allowed Ms. Anderson to properly conclude that Mr. Valcourt could be assigned to office work subject to the mentioned limitations. She asserted that, given the lack of similar information from the grievor, Ms. Anderson was not in a position to know whether the grievor could be similarly assigned to desk work. Counsel submitted that Ms. Anderson’s reasons for requiring a medical note were not fabrications to cover up a decision made for an illegitimate purpose; and

vii. Counsel noted that, like the grievor, Mr. Valcourt was an active member of the Union. She considered it somewhat inconsistent for the Union to rely on the favourable treatment he received to support a claim that the grievor was the subject of anti-Union animus.

72For all of the above reasons, counsel submitted that both grievances should be dismissed. In the alternative, she reserved the right to make representations as to remedy, should I find in favour of the grievor on the return to work issue.

73The Employer relies on the following authorities in support of its position: Re Kerna, 2002-0944 (Briggs); Re Dobroff et al., 2003-0905 (Dissanayake); Re Damani, 1581-95 (Gray); OPSEU (Robert Anwyll) and Ministry of Government Services, Labour Relations Tribunal No. 7/0007-85, March 29, 1989 (Picher); London (City) v. Canadian Union of Public Employees, Local 107, [2004] O.L.A.A. No. 556 (Snow); Expertech Network Installations v. Communications, Energy and Paperworkers Union of Canada (Maddalena Grievance), [2003] C.L.A.D. No. 202 (Keller); Re Horizon Operations (Canada) Ltd., previously cited; Re Johnson, 1885-90 (Dissanayake); Re Amalgamated Transit Union Local 1587 v. Greater Toronto Transit Authority/Go Transit, 1713-02 (Johnston).

74I agree with the approach outlined in the following excerpt from the Dobroff et al. decision:

“……direct evidence of anti-union animus is rarely available, and is not necessary for the union to meet its onus. Nevertheless, there must be sufficient evidence to establish that the employer action was tainted by anti-union animus. If such an animus can be pieced together from a pattern of circumstantial evidence, the union would have met its onus. The issue then is whether the evidence before me provides a sufficient basis to draw the inference the union urges me to make. That is, that the reasons the employer offered at arbitration are mere ex-post facto justifications to cover up a decision made for the illegitimate purpose of taking reprisals against the grievors because of their union activity. In other words, I will have to be satisfied from the totality of evidence that the reasons offered are fabrications, and that the real reason, in whole or part, was an intention to penalize the grievors because of their union activity…… (page 57)

75After considering all of the evidence and submissions, I am unable to find that the Employer discriminated against or harassed the grievor because of his activity in the Union. I note, and accept, the following additional comment in Dobroff et al.:

“……, the fact that a union official carries out the duties of his office with diligence and persistence ………., by itself, does not justify an inference that any employer decision which adversely impacts him, was tainted by an anti-union animus……………………………………………………..” (page 60)

I think that this observation is equally applicable to this case. There is no doubt, on the facts, that the grievor aggressively represented the interests of his members and that, on numerous occasions, he adopted and articulated positions critical of, and contrary to, those taken by management. I sense that at times management, and particularly Mr. Blackmore, may have been somewhat frustrated by the grievor’s approach to certain of the issues outlined above. Nevertheless, I have not been persuaded that the change to the Auditors’ schedule, and the requirement for the grievor to provide a medical note before he would be permitted to return to work, were motivated by an intent to adversely impact the grievor as a response to his Union involvement. The reasons for this conclusion are set out below.

76I note the grievor’s evidence that the issue of starting times was first raised by Mr. Blackmore at the disclosure meeting in mid-December, 2007. It was at this meeting that the grievor first learned of the Employer’s intent to appoint Ms. Anderson as the Carrier Safety Coordinator for the Central Region. While no specific changes to the schedule were discussed at the meeting, it seems that the Employer was at least considering the issue of starting times prior to the effective date of the reorganization and, more importantly, prior to the grievor voicing a lot of his opposition to Ms. Anderson’s appointment.

77In the subsequent Memorandum of February 26, 2008, Ms. Anderson offered the Auditors three (3) options in terms of their hours, namely, 7:00 a.m. – 4:00 p.m., 7:30 a.m. – 4:30 p.m., and 8:00 a.m. – 5:00 p.m. She also provided them with a four (4) week period, prior to the implementation date, to make any necessary adjustments. I find that in offering these options and delaying the effective date of the change for approximately a month, Ms. Anderson was attempting to minimize the adverse affect on Auditors in the Region. In my judgment, it was the fair and reasonable thing to do.

78There is no evidence before me to indicate that Ms. Anderson was aware, as of February 26, 2008, that the change in the schedule would adversely impact the grievor. While she obviously knew of his start time, she did not have any knowledge of how the change would affect the grievor’s commute time or his wife’s daily schedule. The same can be said with respect to Ms. Britton’s travel time. On the evidence, Ms. Anderson first heard of the grievor’s concerns through his email of February 27, 2008 and then later by his further email on the following day. In the circumstances, I must reject the assertion that the change to the schedule was made to target and punish the grievor.

79In her email to the grievor on February 27, 2008, Ms. Anderson offered the grievor additional time, if needed, to adjust to the new schedule. This supports the Employer’s submission that she was not out to get the grievor. Rather, the offer suggests that Ms. Anderson was trying to make the transition easier for him, after making it clear that the change was going ahead. When the grievor called Ms. Anderson back, he was informed that she would give him an additional two (2) weeks to plan for the change. I consider it material that the grievor was the only Auditor who was extended this opportunity. The grievor and Ms. Anderson had a subsequent discussion about the new schedule in April, 2008. During their exchange, Ms. Anderson again offered the grievor additional time to make any necessary arrangements. I am satisfied that she would not have made this offer, if her real objective was to make the grievor’s life more difficult.

80It is apparent that out of all of the Auditors in the Central Region, only those working out of the York and Peel District Offices were affected by the change. At the time she announced the change, Ms. Anderson thought that only six (6) Auditors would have to adjust their schedules, three (3) in York, including the grievor, and three (3) in Peel, including Ms. Britton. I note that Ms. Anderson subsequently learned that two (2) of the Auditors in Peel had switched to later hours some time prior to the change. After considering the matter, I think it unlikely that Ms. Anderson would deliberately act to disadvantage five (5) other employees in an effort to target this grievor. To use the words of Union counsel, I remain unconvinced that Ms. Anderson was prepared to treat them as “collateral damage”.

81In my judgment, Ms. Anderson implemented the change in schedule to address a legitimate operational need, that is, to better align Auditor’s hours with the hours of the operators being served. She believed that the change would make the Audit Unit more effective, while at the same time enhancing service to the client base. Ms. Anderson decided to effect the change after a review of Auditors’ notes, which showed that ninety percent (90%) of the audits were commencing at 9:00 a.m. or after. Clearly, her review process was not perfect. The number of notes reviewed was relatively small; she did not speak to Auditors to solicit their views; she did not question operators about their hours and preferences; and she did not engage in an extensive review of overtime hours claimed for Court attendance. Nevertheless, after assessing all of the evidence, I am satisfied that Ms. Anderson initiated and implemented the change for valid business reasons and not to discriminate against, harass, or target the grievor. I note that the prospective change was discussed with Mr. Blackmore and that he approved of it. He testified that there was a logical business rationale to alter the schedule. Mr. Blackmore was unsure if he knew the grievor’s start time before the change to the schedule. He stated that he was unaware Ms. Britton started before 7:00 a.m. On the evidence, I am unable to find that Mr. Blackmore approved the proposal as a way of getting back at the grievor. In the final analysis, this was Mr. Blackmore’s and Ms. Anderson’s call to make in the exercise of management rights. While, in retrospect, they might have sought more input from the employees affected, the failure to do so does not render their decision unsupportable or invalid.

82I recognize that Ms. Britton was critical of management in general and Ms. Anderson in particular in her email of December 31, 2007. As mentioned, she was one (1) of the Auditors who had to change hours under the new schedule. I am unable, however, to find that there was a connection between the two and that the Employer sought to punish Ms. Britton for her outspokenness. An assessment of her situation has not deterred me from reaching the conclusions set out above relating to the grievor. To reiterate, I have not been persuaded that the Employer’s decision to adjust the schedule was tainted by anti-Union animus.

83The grievor’s email to Ms. Anderson of June 23, 2008, advising her that he would be off work for a period of six (6) to eight (8) weeks, concluded with the following sentence: “I will keep you apprised of my return to work status prior to the expiry of this medical note”. In my judgment, the grievor did not honour this commitment and failed to keep Ms. Anderson informed as to his return to work date. His doctor’s medical note of June 23, 2008 simply referenced a recommended leave from work for six (6) to eight (8) weeks. Similarly, exhibit #7 spoke of limitations and/or restrictions which were described as temporary with an expected duration of four (4) to six (6) weeks. The doctor also noted therein that the grievor would be reassessed within this same time frame. On my reading, exhibit #7 did not provide a clear and specific return date for the grievor. The date of August 15, 2008, set out in Part A of the form, cannot be treated as such, as it was written on the document by the grievor and not his doctor. The lack of a specific return date explains, in part, why Ms. Anderson was surprised to discover that the grievor returned to work on August 18^th.

84Ms. Anderson was concerned as early as July, 2008 about the possible need to accommodate the grievor on his return to work. Her letter to him of July 3, 2008 speaks about their need to meet and develop an employment accommodation plan. As mentioned, exhibit #7 cites temporary limitations and/or restrictions lasting between four (4) to six (6) weeks and that a further assessment would be undertaken. Ms. Anderson was provided with no information, however, as to the results of any reassessment or as to whether the grievor needed to be accommodated upon his return. As a consequence, it is entirely understandable why she would insist on additional medical information before approving the grievor’s return to his job.

85Exhibit #7 also indicated that the grievor was involved in treatment and/or taking medication which could affect his ability to work. As noted, the form states, “Drowsiness possible with impact on his work safety”. Ms. Anderson had no knowledge, as of August 18, 2008, as to whether this was a continuing concern. Given the lack of any information on the point, I conclude that Ms. Anderson was fully entitled to ask for some clarification by way of a further medical note before authorizing the grievor’s return. In so doing, she was protecting the grievor’s health and safety and was complying with her obligations under both the collective agreement and applicable legislation.

86I accept that Ms. Anderson’s requirement of a note certifying the grievor’s fitness to return to work was in accordance with her standard practice. In this regard, I note Ms. Britton’s evidence that she had no difficulty with such requirement in similar circumstances and that the request for a note after an extended medical leave is standard practice. The Employment Accommodation and Return to Work Operating Policy is also supportive of Ms. Anderson’s right to make the request here in issue. I am not convinced that anything material turns on the fact she did not immediately provide the grievor with a specific article in the collective agreement or a policy on which she relied. I accept Ms. Anderson’s evidence that the telephone exchange was heated and that she was not inclined to engage in a lengthy debate with the grievor after telling him he could not return to work without first providing a medical note.

87It is clear that both the grievor and Mr. Valcourt did not have a medical note on the very day they returned to work. Notwithstanding this one (1) similarity, I find that the circumstances surrounding these two (2) employees are distinguishable for the following reasons: unlike the grievor, Mr. Valcourt kept Ms. Anderson apprised of his medical status during his leave of absence by way of several medical notes and an email; Mr. Valcourt provided a return date in his email of March 25, 2009 and informed Ms. Anderson on April 1, 2009 that his doctor had given him a verbal clearance to return that day, with a supporting note to follow; unlike the grievor, Mr. Valcourt did provide advance notice of his intention to return on a specific date; the Request For Employee Health Information form dated March 7, 2009 identified certain restrictions; Mr. Valcourt was able to provide Ms. Anderson with an outline of his restrictions during their discussion on April 1, 2009; there was no reference in the medical reports of Mr. Valcourt receiving treatment or taking medication that could affect his ability to work; the above mentioned Request For Employee Health Information form made no reference to a need for a further reassessment; and Mr. Valcourt advised Ms. Anderson of certain financial complications that could arise if his return to work was delayed. While admittedly after the fact, the medical note of April 7, 2009 confirmed Mr. Valcourt’s fitness to return to work as of April 1^st.

88Ultimately, I am satisfied that Ms. Anderson was in a much better position, in the case of Mr. Valcourt, to assess whether he could be permitted to remain at work on limited duties pending a further medical note. In the circumstances, I accept that Ms. Anderson had legitimate reasons for refusing to allow the grievor to remain at work on similar duties. Simply put, there were too many uncertainties about his fitness to return and of his need for restrictions. In the final analysis, I have been persuaded that this lack of relevant information motivated Ms. Anderson to treat the grievor as she did, and that her decision to send him home was not the product of anti-Union animus.

89As noted earlier, Mr. Valcourt was also actively involved in the Union. He held Union office and, like the grievor, had voiced opposition to the new log-on policy. There is no evidence that Ms. Anderson treated him improperly because of his Union involvement. Indeed, her treatment of Mr. Valcourt suggests that she was prepared to look at the merits of each situation and to exercise her discretion accordingly.

90For all of the above reasons, the grievances are denied.