GSB# 2006-1932

UNION# 2006-0211-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Barillari)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Tim Hannigan Counsel Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Ferina Murji Counsel Ministry of Government Services

HEARING

September 16, 24, October 6, 8, December 2, 10, and December 16, 2009; February 16, March 23, 24, May 7, 10, June 3, 14, and June 21, 2010.

A W A R D

1I have finally to deal with the merits of the grievance of Ms. Rosie Barillari alleging that her termination on October 30, 2006 was without just cause. The matter initially came before me in or about February of 2008; however, several preliminary issues which arose in sequence rather than simultaneously required disposition by way of written award before the matter could proceed on its merits. Consequently, these proceedings did not begin until September 2009 following which there were approximately 15 days of hearing which concluded in the latter part of June 2010.

2Among the first of the preliminary issues raised concerned this Board's jurisdiction and the possible deferral of this grievance to a complaint pending at the Human Rights Tribunal. The following extract from pages 1 and 2 of my decision on that issue which was released on or about April 10th, 2008 provides an outline of the dispute which is now squarely before me for determination:

"Before me is the grievance of Rosie Barillari dated October 30, 2006 alleging that she was "dismissed without just cause" from her position as an Income Support Specialist with the Ministry of Community and Social Services (Ontario). The letter of termination from Mr. Rick Beauchamp, Regional Director (Acting) was dated October 23, 2006. The letter outlines a litany of behaviour which was characterized as insubordinate and/or inappropriate. The conduct related to the Grievor's alleged failure to co-operate in providing medical information and/or attending for an independent medical examination relevant to an absence or series of absences from work. The Grievor, through her Union, has requested that this hearing before the Grievance Settlement Board be deferred pending the hearing of a complaint which was filed with the Ontario Human Rights Commission by the Grievor on or about October 20, 2006, that is, just prior to her termination.

The Employer, represented by George Parris, argues that the matter should proceed before the Grievance Settlement Board. As at the last day of hearing before me, Counsel advised that the Human Rights Commission had not yet scheduled the matter for hearing but was considering whether or not to assume jurisdiction, dismiss or defer the matter to that before the Grievance Settlement Board.

In the circumstances, the Parties ask that I determine:

1. my jurisdiction to deal with the Grievor's unjust dismissal complaint and, in particular, any issues which might arise relevant to the Ontario Human Rights Code.

2. Whether or not to defer the matter before me pending a decision by the Ontario Human Rights Commission concerning the Grievor's complaint filed there.

My decision is set out at page 7 of the Award as follows:

In the circumstances before me, the Union has been reticent to clarify its intent to rely on discriminatory conduct. However, it has confirmed its intent to bring forward every argument and to pursue every issue necessary to show that the Grievor was terminated without just cause. Further, it has confirmed that any rights which the Grievor might have with respect to her termination would not be waived. It is, therefore, clear that the Union will be obliged to pursue and that this Board will be obliged to consider the Employer's conduct and the Grievor's termination in the context of potential violation(s) of the Human Rights Code.

I conclude that this is an appropriate forum to address those issues. Further, since the Commission has yet to confirm its intent to proceed, I direct that the matter be scheduled to proceed before the Grievance Settlement Board."

3At the time of her termination, Ms. Barillari had been employed with the Ministry of Community and Social Services since September 15, 1980. Although the name of her classification had been changed from time to time, her duties as an Income Support Specialist had remained largely the same from the time she was initially hired. Essentially, Ms. Barillari was engaged in providing service and help to the disabled of Ontario. Her principle responsibility was to interview and assess people with disabilities in order to determine whether or not they qualify for income or maintenance support based upon their physical, mental or emotional issues. Those matters would be considered in determining whether or not the applicant would qualify for support or maintenance pursuant to the Ontario Disabilities Support Program Act (the ODSPA).

4While I was not provided with a Record of Employment for Ms. Barillari pre-dating November 2003, it appears that she had since that time received five disciplinary sanctions within the three year period beginning in November of 2003 and ending in April of 2006. The final discipline entailed a suspension of twenty (20) days beginning April 13, 2006 and ending May 10, 2006 inclusive. It is surprising or more correctly disheartening that an employee with over twenty years of service would find herself terminated for purportedly unacceptable conduct over a relatively brief three year period. Be that as it may, the five earlier matters up to and including the twenty (20) day suspension are not presently before me for determination. Rather, they form a backdrop to the course of conduct which began immediately following her twenty (20) day suspension in May 2006 and ended with her termination in October of that year. It was the Employer's view that Ms. Barillari had developed a poor attitude in the workplace which exhibited itself in behavioural issues. She had not and was not responding to progressive discipline. In effect, it was the Employer's view that the "grievor did not get it".

An Overview

5The Grievor's work record included a five (5) day suspension in November 2005 and a twenty (20) day suspension which officially ended on May 10, 2006. The conduct for which she was disciplined on those occasions included inappropriate interaction with her immediate Manager, Ms. Catherine Mulhall, which culminated in the Grievor's having approached her "manager in a manner that has made her feel personally threatened. On two specific occasions you grabbed her arm in a manner that she felt to be aggressive and quite inappropriate." Several months later the Grievor received the twenty (20) day suspension for conduct which included: "verbal and physical intimidation of an Income Support Clerk; hostile confrontation towards a community college student; failure to provide appropriate service to a client; impeding the appeals process by behaving aggressively and failing to co-operate with a Case Presenting Officer; and failure to follow directions from management".

6Against that backdrop, the Grievor was to return to work from her twenty (20) day suspension on May 11, 2006, however, she failed to return to work at that time ostensibly for medical reasons and continued absent thereafter for several months which culminated in her termination. It was the Employer's initial position that she had failed to provide adequate medical documentation to legitimize her absence in spite of several requests for that information. When the Grievor continued off work without providing the requested information, the Employer directed Ms. Barillari to undergo an independent medical examination. Ms. Barillari resisted the I.M.E. and refused to sign the consent forms required prior to the examination. Ultimately, Ms. Barillari sought to return to work on the basis of a medical note from her personal doctor dated July 20th and indicating that the Grievor's condition involving "shingles" was sufficiently under control that she could return to work on August 7, 2006.

7Since the medical note did not speak whatsoever to the initial cause of the Grievor's absence from May 11th, that is stress and anxiety related to the workplace, the Employer declined to put Ms. Barillari back to work. It continued to seek verification:

1. confirming that the stress and anxiety suffered by the Grievor which precipitated her absence from May 11th was such that it legitimately impeded her ability to work;

2. that the stress and anxiety from which she suffered and which caused her to be absent from work had been treated and was resolved such that Ms. Barillari would not pose a health risk to herself and others should she return to her regular duties.

When Ms. Barillari refused to co-operate in any way with these demands, the Employer considered her conduct insubordinate and she was terminated.

8For her part, Ms. Barillari took the position that the consent forms for the IME were vague and inappropriate to the circumstances and could result in an extensive medical examination beyond what was necessary for the Employer's purposes and constitute a violation of her right to privacy.

9In addition to her challenge to the consent forms, Ms. Barillari challenged the manner in which she had been treated in the work place. In particular, it was her view that she had been the subject of a conspiracy amongst several past Managers, her current Manager, as well as the Regional Director. It was her view that she had been targeted for termination and that the Employer's conduct entailed violations of the Human Rights Code. She had, she believed, been discriminated against on the basis of disability or handicap, creed and religion, origin and age. Further, it was her position that the Employer's conduct, in particular with reference to her termination, was an unjustified reprisal against her because of grievances she had filed in the past as well as her application to the Human Rights Commission alleging discrimination by the Employer with respect to her employment.

The Evidence

10Ms. Catherine Mulhall was the Grievor's direct Manager in the Employer's St. Catherine's office at the time or her termination. Ms. Mulhall had assumed that position in June 2005. She was, in fact, the Manager who had felt "personally threatened" by the Grievor's conduct in the latter part of 2005 and for which, amongst other things, Ms. Barillari received a five (5) day suspension. She was also her Manager at the time of her twenty (20) day suspension as well as the termination. Discipline prior to June 2005 which included a two (2) day suspension in 2003, a five (5) days suspension in early January 2004 and a further three (3) day suspension at the end of January 2004 all for inappropriate conduct involved Ms. Mulhall's predecessors. None of that discipline was grieved although Ms. Barillari had been a union steward in recent years and was well familiar with that process as well as arbitration.

11The absence which ultimately precipitated the Grievor's termination began at the time she was scheduled to return from her twenty (20) day suspension which had officially ended on Wednesday, May 10, 2006. Unfortunately, the power failed that day in the St. Catherines building which housed the Employer's offices. Since it appeared that the mechanical failure which caused the power outage could not immediately be repaired, aside from a skeleton staff, employees were instructed on leaving work that night that it would not be business as usual until the following Monday. Since Ms. Barillari was not scheduled to work until Thursday, the day following the power outage, she was unaware of the problem. Consequently, rather than waiting and sending her home on her first scheduled day back to work, Ms. Mulhall phoned the Grievor that Thursday morning, advised her of the power problem and instructed her to stay home until the following Monday. Further, by letter some days earlier, she had instructed the Grievor before starting work to meet with herself and the Program Manager, Pat Schlett, to review the “Standards of Conduct”.

Ms. Barillari testified that she was upset by this turn of events for a number of reasons:

1. When she had received the written advice of her twenty (20) day suspension approximately one month earlier, the Employer had outlined in considerable detail its expectation of her with respect to her future conduct and also included a copy of its "Standards of Personal Conduct" Policy document with the letter.

2. Furthermore, they had been carefully reviewed with Ms. Barillari during the interview with her Program Manager prior to that suspension.

3. Ms. Mulhall had sent her a letter confirming her return to work date following that suspension and instructing her that upon her report to work she was first to attend a further meeting with her Program Manager who would again review the Standards of Conduct Protocol with her.

4. The Grievor felt that the Employer's efforts with respect to the Standards of Conduct Protocol were "overkill" to which she took offence.

5. Upon receiving the call from Ms. Mulhall on the morning that she was to have reported to work, Ms. Barillari, already sensitized concerning her return to work, felt stricken to be told not to report until the following Monday and perhaps reminded again of the pre-work meeting. Additionally, she felt discriminated against since she understood that most staff had been advised the previous day, that is earlier than her, of the office closure whereas Ms. Mulhall's telephone call had come in non-work hours and only moments before she was ready to leave her home in Niagara for work in St. Catherines.

6. Rightly or wrongly these elements led Ms. Barillari to believe she was being mistreated and discriminated against.

12Shortly after that morning phone call, at approximately 9:30 a.m., Ms. Holly Olexy, a co-worker and favoured union steward of the Grievor, arrived at her home to meet with her to review papers relevant to a potential Human Rights Complaint. Although that visit was to have taken place after working hours, it had been rescheduled to the day time as a result of the office closure. That rescheduling according to Ms. Olexy’s testimony took place the prior evening when Ms. Olexy herself was sent home. The Grievor was unclear on the timing of that rescheduling. In any event, the faulty mechanical problem with the heating system was corrected earlier than expected. Accordingly, Ms. Mulhall contacted Ms. Barillari that same afternoon Thursday, May 11th, shortly after five o'clock while Ms. Olexy was still at her home. On this occasion Ms. Mulhall advised the Grievor that the problem had been corrected and to report for work Friday, the next day. Again she reminded Ms. Barillari that they would meet before hand with Ms. Pat Schlett, the Program Director.

13Ms. Barillari did not report for work the next morning as instructed; indeed, as events evolved she never returned to work again. On the Friday, May 12th, she phoned Ms. Mulhall and told her that her telephone call the previous day advising her to report for work had been most stressful and that she felt like there was a "vice on her neck and shoulders". She advised Ms. Mulhall that she was going to see a doctor. She was instructed to provide an update concerning her status and return to work. She was not at that time asked for a doctor's note. In the meantime, Ms. Barillari did not tell Ms. Mulhall that she had seen a physician on May 8th or that he had suggested and she had scheduled a further appointment with her personal doctor for May 19th. Indeed, aside from that brief conversation on May 12th, Ms. Mulhall had no reason to believe that the Grievor was or had been suffering from any particular malady during or prior to her suspension and had no reason to believe there was any impediment to Ms. Barillari's return to work at its conclusion.

14When the Grievor had not called or reported to work Monday, Tuesday or Wednesday the following week, Ms. Mulhall phoned the Grievor to inquire as to her status and when she expected to return to work. When Ms. Barillari told her of the May 19th, doctor's appointment, Ms. Mulhall asked that she be kept up to date and that she would send a Health Information Form by Purolator to be completed by the Grievor and her doctor. Ms. Mulhall followed up with a letter the same day confirming the discussion and enclosing the Health Information Form. In the letter she addressed the following matters:

"Please have your medical practitioner or physician complete the enclosed form, specifically addressing any special accommodations that may be required to assist you in returning to your duties as Income Support Specialist. If there is a charge for this service, please have the invoice forwarded to my attention…

…I am also requesting that you provide me in advance of the date and time that you intend to return to the work place as I want to ensure that I am available to meet with you upon your return…to review the list of conditions of what is expected of you as part of the ODSP team…"

15On May 18th Ms. Barillari left a voice mail message for Ms. Mulhall that the doctor had rescheduled her appointment to May 30th. In the meantime the Employer had been provided with no information whatsoever save for the Grievor's own assertions that her absence from work was necessary for medical reasons.

16Finally, on June 2nd, the Employer received a completed Health Information Form dated May 30, 2006 signed by Dr. B. Rosenberg, the Grievor's personal physician. Ms. Mulhall was not satisfied with the content of the form for various reasons but paid the doctor's invoice in any event. As to the content of the form, it indicated that the Grievor's absence from work was due to "work place induced stress/anxiety". Aside from the absence itself, there was no work related limitation or restriction identified. However, as to the expected duration of the limitation or restriction the doctor indicated that it was temporary "probably until a resolution of current work place problems are settled. Until July 19/06". Furthermore, the doctor indicated that there might be further absences from work "possibly, depending on the outcome of various hearings". Finally the doctor indicated that in the event of a continuing absence his next assessment would take place "after hearings of mid July/06".

17By way of explanation, during the course of the Grievor's absence from work she had been participating intermittently in arbitration hearings exploring complaints of harassment and discrimination filed by her in February and December of 2002. The final three days of those proceedings were to take place on July 12th,13th and 18th of 2006. Accordingly, it was unclear as to whether or not the work place stress to which the doctor referred related to current matters at her office involving Ms. Mulhall or the stress and anxiety induced by the ongoing arbitration hearings. Clearly, the potential duration of her absence was related to the conclusion of the hearings as the Grievor confirmed in her testimony. However a definite return date was left blank because "I did not know when I could return to work". Unbeknownst to the Employer, Ms. Barillari made a follow up appointment with her doctor for July 19th or 20th following the conclusion of the hearings.

18After consulting with her Human Relations Department, Ms. Mulhall addressed a further letter to the Grievor requesting that she have her doctor Rosenberg provide information supplementary to the HIF Form of May 30th. It is my view that the Grievor's failure to adequately comply with the request set out in this letter is critical to my determination in this matter. Accordingly, I have reproduced below the entirety of that letter.

"Dear Rosie:

Please provide Dr. Rosenberg with this letter and the attachments: the Income Support Specialist job specification and the previously completed Health Information Sheet. We ask that Dr. Rosenberg respond to the questions within this letter with information we feel would be critical to facilitating support for a timely return to the workplace. We would like these forms returned prior to July 7, 2006.

Instructions to Dr. Bruce Rosenberg:

Thank you for completing the Employee Health Information Form, dated May 30, 2006, for Ms. Barillari.

A review of the Health Information Form has left the Employer with a number of questions and serious concerns regarding Ms. Barillari's health and absence from work. I am following up with you in order to understand some of the commentary you included in your response and to determine whether Ms. Barillari has any specific return to work or employment accommodation needs related to a medical condition or disability.

The Ministry of Community and Social Services is committed to providing employment accommodation and early return to work support to those employees whose illness, injury or disability affects their ability to meet job-related requirements. Our employee assistance program offers confidential access to information, counselling and referral services and the supplementary health provisions of the employee benefits plan provides with the cost of a wide variety of health services.

Background:

As you may know, Ms. Barillari works as an Income Support Specialist for the Ontario Disability Support Program (ODSP). I have attached a job description for your information. The major task for the employee is to regularly meet with clients or members of the public to determine eligibility and provides information, advice, and assistance to clients.

Current Situation:

In the medical certificate dated May 30th, 2006, you have indicated that Ms. Barillari is unable to return to work as a result of 'workplace stress and anxiety'. You stated that Ms. Barillari is not undertaking any treatment or medication that would impact on her ability to return to work. Your response also indicates that further absence can be anticipated pending the outcome of a hearing on July 19, 2006. This is in reference to a hearing into the employee's grievances, which may take several months before the parties are made aware of the final determination of the hearing.

Request for Information To assist the ministry in evaluating the need for absence from the workplace, developing a return to work plan and in exploring all options for appropriate accommodations, please answer the following questions:

1. Are you the primary treating physician for this employee for the condition of workplace induced stress and anxiety? (Please circle Yes or No)

2. Are there other health care providers (e.g. specialist physicians, therapists, etc.) that would be able to offer additional insight on the condition, functional limitations, prognosis and options for accommodation?

3. In relation to the employee's current absence from work as a result of workplace induced stress and anxiety, please identify the specific medical restrictions or functional limitations that are preventing Ms. Barillari's attendance at work.

4. Are you able to provide a prognosis at this time? If so, please describe clearly, if not, please describe when you expect you will be able to provide a prognosis?

5. Have you recommended a treatment plan to the employee? Please circle Yes or No.

If yes, is the treatment required to assist the employee in returning to work or in attendance at work? Please circle Yes or No.

6. Are there any accommodations or workplace supports that, in your opinion, could facilitate Ms. Barillari's return to work?

7. Please provide your opinion of an expected return to work date, with or without accommodation?

8. Please provide on any other relevant information that may be of assistance to us in exploring return to work and any medical accommodation in the workplace for this employee.

Physician's Name:

Signature:

Date:

Thank you for your assistance.

Please provide your response to Catherine Mulhall, Income Support Manager, Ontario Disability Support Program, Hamilton/Niagara Regional Office. Any changes related to the provision of this information should be invoiced to my attention at the address above.

If you have any questions about our request for information, please contact me at (905) 688-3022 Ext. 60228.

Sincerely,

Catherine Mulhall Income Support Manager"

19I have reviewed and considered the questions outlined in the Employer's letter of June 14, 2006. I am satisfied that the earlier HIS Form of May 30th was inadequate and that the Employer had a legitimate interest in seeking further clarification. In particular, in the Grievor's absence the Employer was obliged to make other arrangements to cover her normal work assignments. Furthermore, while absent at this time, the Grievor was maintained, if not on paid leave at the Employer's sole expense at least on short term disability payments pursuant to health and welfare benefits available to provincial employees. As to the substance of the inquiry, it does not seem to challenge the doctor's May 30th report confirming the Grievor's need to absent from work; rather, it pursues an inquiry as to whether the Grievor's problems might be alleviated through some kind of accommodation in the workplace. In essence, it is designed to find a way to have the Grievor return to work by alleviating what ever stresses might be standing in the way.

20According to Ms. Barillari, she did not act upon this letter when she received it or before the July 7th date as requested by Ms. Mulhall. She believed the Employer would have known from the May 30th Health Information Form that she would be seeing Dr. Rosenberg after the July 19th hearing date. Accordingly, she did not raise the matter with Dr. Rosenberg when she next saw him on June 26th but did bring it to his attention at her appointment on July 20, 2006.

21In the meantime, when Ms. Mulhall had not heard from the Grievor by July 7th she wrote her again on July 13th indicating her desire to return Ms. Barillari to work subject to necessary limitations and with whatever accommodations might be deemed appropriate. She asked Ms. Barillari to contact her immediately "to discuss the delay and to arrange when the documents will be provided". Coincidently and perhaps the letters crossed in the mail, Ms. Mulhall received a letter from a Mr. Pierre Ouellette, a lawyer and member of the Mouradian Group, wherein he enclosed a further copy of the same May 30th Health Information Form. There was nothing further from the Grievor at that time. In the circumstances, there was no contact or further information provided by the Grievor from June 2nd up to and including July 14th and then only a repeat, through Mr. Ouellette, of the same form which had been provided on May 30th.

22The Grievor testified that fundamentally she did not reply or act upon the June 14th letter or the July 13th letter because she had an appointment with her doctor for July 20th. Additionally, she took issue with the Employer's letter for the following reasons:

1. It asked that the reply be provided by July 7th whereas the Health Information Form provided to the Employer had indicated that she would be seeing her doctor sometime later, that is, after the July 18th hearing.

2. The letter enquired regarding possible accommodation needs whereas the Employer had not in her view responded appropriately to her request for accommodation of needs which she had identified in the past.

3. The letter suggested to the doctor the availability of the Employee Assistance Program and Referral Services; whereas, she had her own doctor and could access referrals through him.

4. Finally, she took exception to the fact that the letter and questions inferred that she had a perceived disability whereas her own doctor did not write or suggest that she needed help. None of these concerns were conveyed to the Employer and indeed the Grievor did not make any attempt to contact Ms. Mulhall in response to the July 13th letter.

23From the Employer's standpoint, Ms. Mulhall was beside herself. The Grievor had been off work since April 12th the beginning of her twenty (20) day suspension. Due to confidentiality concerns, staff had not been informed of the nature or basis for Ms. Barillari's absence during the suspension. Furthermore her absence carried on through much of the summer when the department was short staffed thereby causing morale difficulties in the office. Furthermore, Ms. Mulhall was frustrated upon receiving a duplicate of the May 30th Health Information Form after having gone to great lengths to identify to the Grievor the need for additional information. In effect, by this time the Employer was of the view that Ms. Barillari was absent from work without medical substantiation.

24In the circumstances Ms. Mulhall consulted with both her Human Relations Department and the Employee Relations Department. It was determined that a further letter be addressed to the Grievor outlining the Employer's concerns and requesting that she submit to an independent medical examination to support her ongoing absence. The authorization for the Employer to direct such an examination is set out in Article 44.9 of the Parties' collective agreement as follows:

44.9 Where, for reasons of health, an employee is frequently absent or unable to perform his or her duties, the Employer may require him or her to submit to a medical examination at the expense of the Employer."

25At or about the same time Ms. Mulhall was composing the July 20th letter, Ms. Barillari was attending at Dr. Rosenberg. Finally, she showed him the June 14th letter and enclosures but instructed him not to complete the forms. Indeed, produced in evidence was a copy of the June 14th letter with the doctor's handwritten note on the face page stating "Rosie did not want me to complete these forms July 20/06 BR". The Grievor testified that she did not recall why at the time she did not want Dr. Rosenberg to complete the questionnaire. However, she did have him provide her with a doctor's note dated that same day stating that Ms. Barillari "is recovering from shingles. She is not yet fit to return. Return to work date August 7, 2006". According to her testimony, the Grievor developed shingles during her absence from work and they had reached their height in mid June. They were particularly bad on or about June 19th or 20th when she saw her chiropractor who diagnosed her condition and advised her to see her family doctor. For that reason she saw Dr. Rosenberg on June 26th; however, she did not address the June 14th letter with Dr. Rosenberg at that time nor did she provide the Employer with information concerning this new condition. Instead, she waited until July 20th and, rather than replying to the June 14th letter, she provided only the doctor's note concerning shingles. Again, rather than sending the documents herself, she had her independent lawyer, Pierre Ouellette deliver the note directly to the St. Catherine's office.

26The letter of July 20th addressed to Ms. Barillari provides a reasonable summary of the exchanges between the Employer and Ms. Barillari from May 12th when she was to have returned to work and July 20th, the date of the letter. It is also the first time the Employer requested an IME and I have, therefore, replicated the letter below.

"Dear Rosie,

This letter is in regard to your continued workplace absence as well as your failure to respond to the Ministry's request for further information regarding your absence and workplace limitations and restrictions.

You have been absent from the workplace since May 12, 2006. Upon the Ministry's request for information regarding your absence as well as any workplace restrictions and limitations, you supplied a copy of the health information form dated May 30th, 2006 from Dr. Duncan. The form indicated that you were absent from the workplace as a result of "workplace induced stress and anxiety". Your physician indicated that your condition was likely temporary, and that you would possibly return depending on the outcome of your grievance hearings in July. As the information provided was insufficient, and did not contain the necessary specifics regarding your limitations and restrictions, a second request for information was made on June 14th, 2006. You failed to provide any information by the allotted July 7th date. Furthermore, you failed to contact the Ministry to either seek an extension to respond or to explain why you were unable to respond to the request for information.

Consequently, I followed up with you on July 13th and asked you to contact me with an explanation for your failure to respond to the request for information in support of your absence. On July 17th, Mr. Pierre Ouellette, Senior Counsel for the Mouradian Group had delivered a package on your behalf. The package included the original May 30th health information form from Dr. Duncan (sic Dr. Rosenberg). However there was nothing in the package that purported to specifically respond to my June 14th request for information.

In the circumstances, the information submitted to date is not sufficient to support your ongoing absence, nor does it assist the Ministry in understanding the expected duration of your absence or your workplace limitations and restrictions. As well, I must remind you that the Ministry is not in a position to deal with a non-OPSEU bargaining unit representative such as Mr. Ouellette. Given your history and involvement with OPSEU and my previous indications to you, I trust you are aware that as a bargaining unit member the Ministry is obliged to deal directly with you regarding ongoing work issues (or with your OPSEU representative in specific circumstances), and not an external agent. Please be forewarned that the Ministry will refuse to deal with Mr. Ouellette or any other external representative in the future.

Given the current lack of any insightful information relating to your absence and in the interest of facilitating a safe and productive return to the workplace, it is essential that we receive comprehensive information as soon as possible. Accordingly, the Ministry requires you to attend an independent medical examination (IME). Under Article 44.9, the employer has the authority to request this examination to substantiate a period of absence. The IME will be conducted through a neutral and objective third party firm by the name of Vocational Pathways and will be made available to you in the St. Catharines area. The cost of the IME will be covered by the Ministry.

Enclosed are two consent forms for your signature. The first document acknowledges your agreement to allow the Ministry to provide your personal contact information to the physician from Vocational Pathways. It also acknowledges your agreement to directly provide the physician with any relevant documents that may aid in the IME. These documents will not be released to the employer. The Doctor will contact you and outline any documentation they feel is necessary to prepare for the assessment. The employer will also be providing the Doctor with background and other information necessary to facilitate the IME, such as your job description.

Upon completion of their examination/assessment, the Doctor will prepare a report. Also enclosed for your review and signature is a letter of consent in which you agree to allow the Doctor to release a copy of their report to the Ministry. The consent allows the report results to be shared with Pauline Barr, Employee Relations Advisor, who will accept the report on behalf of management.

If you have any other concerns surrounding the IME process, please contact me. Please respond with all the enclosed documentation by Thursday, July 27th, 2006.

Please be advised that the consequences of not taking part in the IME may include the termination of your entitlement to sick leave and/or a declaration of abandonment made as per Section 20 of the Public Service Act if you continue to remain absent without sufficient medical substantiation."

27Having received Dr. Rosenberg's medical note respecting shingles in the meantime, Ms. Mulhall wrote again on July 24th acknowledging that note but confirming the need for the Grievor to attend an independent medical examination. She confirmed again the need for the Grievor to respond with the documentation on or before Thursday, July 27th and enclosed two further copies of the Consent Forms for Ms. Barillari's signature. She closed her letter by inviting the Grievor to contact her with any questions or concerns.

28There followed an exchange of correspondence between the Grievor and Ms. Mulhall. I do not propose to replicate all of that correspondence; however, the first reply by Ms. Barillari dated July 26th is indicative of her position:

This is an acknowledgement of your numerous letters to me. To date you have sent me seven (7) letters which were formally couriered or hand delivered to my home in Niagara Falls. You have also made many phone calls to me, two of which were made during non-business hours.

Your correspondence lists as the following May 10th, May 17th, May 31st, July 13th, July 14th, July 20th and July 24th. It seems that the correspondence has been categorized into two groups.

One group repeated your admonition that upon my return to work I would be required to review standards of conduct and meet a list of conditions. This information was already expounded at length at my suspension on April 11th, 2006. Pat Schlett (Program Manager) advised me of these conditions both verbally in front of my Union Steward, Holly Olexy, and noted them in the letter issued to me on that same date. The repetition of this reprimand is excessive and unnecessary.

The other group relates to your requests for medical information and an independent medical examination. These requirements are unreasonable because neither I nor my physician have requested accommodation in order to return to work. In accommodation the employer must establish that such medical information is reasonably necessary to accommodate the employee. However, I repeat, I have not requested any such accommodation in order to return to work. You have already received information in excess of what is required under the Ontario Human Rights Code in that my physician provided you with a diagnosis of shingles.

In times past there was no requirement to disclose any diagnosis relating any medical condition. I enclose and refer you to a letter by my previous manager Ms. Rebecca DesRoches dated November 22, 2002.

By inappropriately referring to someone else's medical information when you mentioned a "Dr. Duncan" in my letter you violated both of our rights to confidentiality under the Personal Health Information Protection Act.

My regular doctor has been keeping the employer posted of my condition and his professional judgment on this issue should suffice.

This situation has greatly impacted my health and I am not being given the opportunity to recover and properly heal from workplace stress.

This leads me to ask the following questions:

1. Am I being treated differently than other employees who are off work because of illness?
2. How many of my colleagues were requested to submit as many medical notes as I was required?
3. How many of my colleagues were asked to submit to an independent medical evaluation? If any, what were the circumstances?
4. How many of my colleagues were plagued with phone calls and letters from the employer while they were trying to recover?
5. Is the employer taking deliberate action to cause me emotional harm?
6. Has the employer applied the provisions of the Attendance Support Program equally to all employees? How many employees have been permitted to exceed the 11.5 days of absence threshold without being placed on the program?

You have effectively discriminated against me by failing to apply the provisions of the Attendance Support Program. I submit that I am and have complied with the provisions of Section 20 of the Public Service Act. I further submit that you have not given me sufficient time to respond to your demands and that you should not be refusing to receive correspondence on my behalf, whatever the means I choose to convey that communication.

In closing, as reported by my doctor, my return to work will be after August 7th, 2006."

29In her testimony and in a subsequent letter Ms. Barillari clarified her concern with the consent forms which she felt were too broad in terms of the substance or nature of the medical inquiry to be performed. Furthermore, she took issue with the fact that there was no designated time frame set out on the consent forms whereas she believed the investigation should cover only the period May 12th to August 7th, that is, the beginning and end of her absence from work.

30From the Employer's standpoint, Ms. Mulhall testified that the July 20th doctor's note from Ms. Barillari providing a diagnosis of shingles was disrespectful and unsatisfactory. It provided no information whatsoever concerning the original stress and anxiety which had precipated Ms. Barillari's absence from May 12th. Furthermore it did not answer in any way the questions addressed to Dr. Rosenberg in the Employer's June 14th letter. Finally, it attempted to set the Grievor's return to work date on her terms notwithstanding that the Employer was still unclear as to whether or not it would be appropriate to return the Grievor to that atmosphere in the workplace which had caused her absence in the first place. Ms. Mulhall testified further that it was her view that there was insufficient medical information to:

1. Substantiate the Grievor's absence since May 12th;

2. To confirm the Grievor's condition of stress and anxiety was resolved such that her return to work would not continue to be a risk to herself and or others;

3. To identify any limitations or restrictions with respect to the Grievor's work which might be offered to accommodate her; and

4. To indicate that she had received medical treatment in the way of medications or otherwise for her stress and anxiety.

31In effect the Employer did not wish to return her to work without some assurance that she was not being set up for failure. On the other hand, Ms. Mulhall confirmed that she and other members of management with whom she was consulting had always expected that Ms. Barillari would return to work; however, past progressive discipline had not yet appeared to have garnered the Grievor's co-operation. Although further discipline was an option it was not the route the Employer wished to pursue at that time. It was in that spirit that Ms. Mulhall had addressed the July 24th letter to Ms. Barillari without mention of any discipline and in the hope that she would co-operate with the Employer and submit to the independent medical exam or minimally contact Ms. Mulhall with her questions or concerns.

32With respect to the July 26th letter received from Ms. Barillari, Ms. Mulhall testified that it was in her view unsatisfactory. The Grievor responded with her own agenda alleging harassment and complaining that the harassment was impacting upon her health such that she was "not being given the opportunity to recover and properly heal from workplace stress". In the circumstances, the proposed August 7th return to work date appeared counter-intuitive. This comment by the Grievor reinforced the Employer's concern that a return to the workplace might yet be inappropriate without some medical assurances or accommodation. Finally, while the Grievor asserted that she had not had enough time to respond to the Employer's request, she indicated no willingness in her letter to comply.

33In all the circumstances, upon receipt of Ms. Barillari's July 26th letter Ms. Mulhall responded addressing some of the concerns. More importantly she advised the Grievor that notwithstanding her request to return to work on August 8th she would not be allowed to do so until the Ministry had received the results of an independent medical examination. She also cautioned the Grievor that if she did not comply with the IME process by August 7th and complete the consent forms she would placed on an unpaid leave of absence from that date forward.

34On August 3rd the Grievor responded challenging the Ministry's right to probe into her medical information. In that letter she identified her concern that the forms to be signed represented a "blanket consent to release all of my medical information to the Ministry"…further that the Ministry was "not entitled to access to my personal medical information for any period that does not relate to my current absence (May 12th, 2006 to August 7th, 2006) and consent will be justifiably withheld until you provide full disclosure as to the reasons for your request and your intended use of this information. Furthermore, my period of absence from the workplace has been sufficiently documented by my physician and I have complied with each and every request you have made."

On August 18th Ms. Mulhall responded making the following points:

1. The Grievor's medical information would be provided not to the Employer but a physician working with a medical organization, Vocational Pathways Inc., "a neutral firm that is responsible for conducting the IME".

2. She took exception of the tone of Ms. Barillari's letter as well as the allegations that her conduct towards the Grievor was "reckless and abusive".

3. She reminded Ms. Barillari that from August 8th she was on a leave of absence without pay and would continue pending her co-operation.

4. She confirmed the Ministry's intention to facilitate "a productive return to work based on information that would ensure that we address all externalities that would prevent you or cause you difficulty in carrying out your job duties. This is particularly so given the conflicting medical information we have received to this point".

5. She suggested with respect to the proposed I.M.E. that Ms. Barillari “contact a Union representative or an HR Representative so that they may advise you on both employee and employer rights and entitlements under the collective agreement.”

35The Grievor did not respond to that letter. She did not call the Employer nor did she attempt to provide further medical information as requested of Dr. Rosenberg. When asked as to what had precipitated a change in her medical status from May 12th when she booked off work sick due to work place stress and anxiety and August 8th when she sought to return to work, she was unable to recall any specific event. Instead, she referred to her episode concerning shingles and the fact that her symptoms from that had subsided. However, there was nothing further from her or any medical practitioner with respect to the stress and anxiety precipitated presumably within her working environment.

36Instead of responding to the Employer and the Employer's concerns, Ms. Barillari wrote Ms. Mulhall on September 11th requesting vacation time for the weeks of September 11th to September 18th. She acknowledged in her testimony that she knew she did not qualify for vacation but simply wanted to see what kind of a response she would get. As expected Ms. Mulhall responded confirming that she did not qualify for vacation while she was on leave without pay.

37Finally on September 19th Ms. Mulhall wrote a final request that Ms. Barillari co-operate with the IME process no later than Friday, September 29th. She cautioned that her failure to comply would be considered continued insubordination which would necessitate a meeting to discuss her refusals.

38Ms. Barillari again challenged the nature of the consent forms amongst other things. The final two paragraphs of her letter read as follows:

"The Employer has proceeded in my case with an ill-conceived supposition that I require accommodation presumably under the Ontario Human Rights Commission to return to work. The Employer has received no request from my physician for accommodation for the time period of May 12 to August 7, 2006. Therefore, an IME is not relevant to my return to work.

Lastly, with respect to your proposal for a meeting, I would appreciate clarification as to remuneration for myself to attend this meeting."

39On October 12th Ms. Mulhall set out the Employer's position in some detail and provided a date for the meeting. In the final paragraph of her letter she notes the following:

"I am requesting your attendance at a meeting to discuss your continued insubordination and failure to comply with management's direction. Please note that at this meeting you will have an opportunity to respond to management's position regarding your insubordination and to provide whatever information you feel is relevant. After management has had an opportunity to listen to and review your comments, it will advise you of its decision regarding next steps, including any disciplinary action that may be imposed…In response to your request concerning remuneration for the meeting, please be advised that you will be paid for the duration of the day".

40The meeting was arranged for October 23rd and the Grievor attended with her union steward, Holly Olexy. Attending for the employer were Ms. Mulhall and Mr. Michael Symons, from Employee Relations and Pat Schlett, the Program Manager. Ms. Mulhall testified that, although termination was a possibility, the Employer was hopeful that the Grievor would decide to co-operate with the Employer's request so that they might take a different direction. In any event, Ms. Schlett conducted the meeting on behalf of the Employer and reviewed the recent history with Ms. Barillari from May 12th to the then present time. She cautioned Ms. Barillari that should she fail to change course she would be facing potential termination.

41Ms. Barillari herself read from a prepared script setting out her view that the Employer had barred her from the workplace since August 8th because of a "perceived disability" that did not exist. She indicated that the matter of her suspension without pay was currently before the Human Rights Commission and that a termination, if it occurred, would be added to her complaint. She declined to make any further comment or take any further action to comply with the Employer's request.

42At that point the Employer Committee caucused and decided that, since the Grievor gave no indication that she intended to co-operate in any way, termination was the only alternative. Accordingly, the meeting was reconvened and Ms. Schlett delivered a letter of termination which was read out during the meeting. The letter outlined the Employer's rationale for termination which was summarized in the third paragraph as follows:

"Your continuous dismissals of legitimate management requests are tantamount to insubordination. You have directly and flagrantly disregarded management's request for additional medical information, and then failed to comply with numerous requests that you undergo an independent medical examination. Your actions once again represent a violation of the standards of conduct and Ministry expectations as well as a continued lack of response to management counselling."

43The letter then reviewed the Grievor's past history of discipline as well as the Grievor's failure to respond in a positive way to the expectations which were carefully outlined to her when that earlier discipline had been imposed.

44It concluded that the Grievor's failure to respond in a positive way "constitutes severe and irreparable damage to the employment relationship".

45With respect to the Grievor's assertion that she had filed a complaint with the Human Rights Commission, the Employer Committee had not been informed of any such complaint and, during their caucus, had checked with the Commission and determined that no formal complaint had been filed to date. Indeed, the Employer did not receive formal notification of that Human Rights Complaint until January 4, 2007, some 2 ½ months after the October 23rd meeting and termination.

46From her viewpoint, Ms. Barillari testified that her termination was fore-ordained at or before she was suspended without pay. From August to October she focused on completing an Ontario Human Rights complaint and believed, mistakenly, that the Employer was aware of that when they met on October 23rd. She chose not to address the Employer's concerns at that time because she believed that her response would not be heard and felt that the grievance process had failed her in the past. She chose instead to pursue her redress at the Human Rights Commission. She testified also that she chose not to sign the IME consent forms because she felt the tactic was coercive. Also, she testified, that she was concerned with the breadth of the medical inquiry to which she was required to consent. She had not attempted to speak of these matters with Ms. Mulhall but had addressed them in her correspondence.

47Ms. Barillari generally believed that the Employer had set out to terminate her and the reasons for that termination had little to do with any medical issue. To review some of the various issues she identified, it was Ms. Barillari's view that the Employer saw her as a strong opponent who, as union steward, was unafraid of challenging management on her own behalf or own behalf of others. Indeed, on one occasion she invited the police in to the office to investigate a claim of harassment she wished to pursue with respect to one of her Managers. She also believed the Employer was aware of her Human Rights Complaint and suggested that she was using it as a negotiating tool on October 23rd to induce a more fair result than occurred. Furthermore, she believed the Employer took issue with her fundamental Christian beliefs. Although she agreed that there had been no issue respecting religion since April of 2006, the arbitration proceeding which had concluded in July of that year related, amongst other things, to allegations of harassment and discrimination by members of management against her with respect to Religion. In fact, this Board dismissed that complaint later in 2006.

48It was also the Grievor's view that she was being discriminated against here on the basis of disability since she had hearing, neck and eye problems which she had raised in the past. However, she agreed that those issues had arisen some years earlier and not during the relevant timeframe. Nonetheless, she was of the view that the Employer had at that time been reluctant to respond, yet, ultimately had accommodated her problems. In summary, the Grievor believed that the Employer took issue with her for these historical matters, and, that her termination and the Employer's conduct leading to that termination constituted a reprisal against her for all those issues.

49Finally, the Grievor explained that she felt discriminated against because of her Italian ancestry. She had been disciplined in the past for grabbing her Manager's arm. The Employer perceived that conduct as threatening. Furthermore, she recognized that her conduct in doing so had led to the view that she was a risk to the safety of herself and others in the workplace. However, the Grievor was of the view that she was falsely accused. The impugned conduct was indicative only of a demonstrative personality which was typical of her Italian heritage. It should not have been viewed as a risk to anyone. She agreed however that no one in the workplace had suggested that her Italian heritage was a problem in any way or had even referred to her as Italian.

50In cross-examination the Grievor had produced her Bible wherein she agreed that she saw herself in biblical quotations as the "righteous" and the Employer in the person of Ms. Mulhall as the "wicked". She also testified that she believed the scheme to terminate her employment had begun in 2001 and that each successive Manager, (there having been three direct Managers in all from that time) had played a role in that scheme. In particular, she also believed Ms. Pat Schlett, her Program Manager, and Mr. Richard Beauchamp, the Regional Director, who ultimately decided upon her termination, were participants in that scheme.

51Ms. Holly Olexy testified on behalf of the Grievor. However, in some respects her testimony was not of assistance to Ms. Barillari. In particular she confirmed that on May 10, 2006 when the power had failed in the office, she had contacted Ms. Barillari to rearrange her May 11th meeting with her from the evening to the daytime. Accordingly, Ms. Barillari was aware of the office closure on May 10th before she received Ms. Mulhall's telephone call the next morning. In the circumstances, it is difficult to accept that she was sincerely offended and felt discriminated against when she knew in advance of Ms. Mulhall's telephone call that the office had been closed for the day.

52Additionally, through Ms. Olexy it became clear that, although the Grievor did not wish to undergo an I.M.E., technical challenges to the IME consent forms were suggested by Ms. Olexy with further detail being added by Mr. Ouellette, the Grievor's independent lawyer.

53Mr. Richard Beauchamp, the Regional Director who had ultimately decided Ms. Barillari's fate, testified concerning his decision. In making his decision he testified that the primary reasons were as follows: the Grievor had exhibited a pattern of inappropriate behaviour over a number of years which included grabbing her Manager and causing disruptions in the workplace. Her past conduct presented a picture with great potential for ongoing conflict. Mr. Beauchamp was of the view that another lengthy suspension would not lead to any improvement and that alternatives had been exhausted. In the circumstances, preparatory to the October 23rd meeting, a couple of draft letters had been prepared. One of them did not involve termination but rested upon the Employer's request: a) either that the Grievor respond to the need for an independent medical examination or; b) provide more medical information to satisfy their concerns. Unfortunately, Ms. Barillari did not respond positively and they had to consider a disciplinary response. In doing so, they took into consideration:

1. Ms. Barillari's seniority since she had invested much with the Employer; however they felt the needs of the workplace in the circumstances had to take priority.

2. Mr. Beauchamp had no idea of her age, her religious beliefs, her ancestry or any disability. Indeed if a disability had been identified, he would have been happy to have dealt with it. Mr. Beauchamp was unaware of any Human Rights Complaint at the time of her termination. As to her past grievances, they were dealt with in the past based on the evidence that was then available. He had no pressure from local management to terminate Ms. Barillari for any of those reasons.

54With respect to Ms. Barillari's religious beliefs and her grievance regarding discrimination, Mr. Beauchamp had been aware of that at the time it occurred but believed they had moved well beyond that some time earlier. It certainly was not relevant at the time of her termination.

55Essentially, Mr. Beauchamp felt responsible to see that Ms. Barillari's return to work would be successful. He needed to know if the stress and anxiety which was reported and referred to by her physician and herself could somehow be accommodated in the workplace or had been satisfactorily treated and resolved. None of that was forthcoming and the Grievor resisted any attempt to provide the necessary information.

The Analysis and Decision

56It is regrettable that Ms. Barillari after 25 years of service with this same Employer should find herself unemployed. However, in the context of the evidence taken as a whole it is my view that Ms. Barillari was the author of her own misfortune. The Employer over a period of several years beginning at least in 2003 when the Grievor suffered the first of many disciplinary suspensions had good reason to be concerned about the Grievor's behaviour in the workplace. During that earlier period leading up to the events of 2006, the Grievor had exhibited inappropriate conduct and disrespect towards not only her co-workers and members of management but also toward the very clientele she was engaged to serve. It is understandable that Ms. Mulhall, Ms. Barillari's direct Manager, would be concerned about underlying causes when the Grievor at the end of a twenty (20) day suspension for misconduct would report herself unable to work due to workplace stress and anxiety. From Ms. Mulhall's standpoint there was nothing significant in the events of May 11th and 12th that would have precipitated such a dramatic reaction from Ms. Barillari as to keep her from returning to work. Indeed, the power failure affected the entire department and not simply Ms. Barillari. The suggestion by Ms. Barillari that she was discriminated against in relation to other workers because she did not receive notice until the following morning when she was preparing to leave for work was an absurd notion. Furthermore, it was an unacceptable fabrication that she was preparing to leave for work since she knew already from Ms. Olexy that the office was closed and had already rescheduled her meeting with her Union steward for daytime hours on May 11th rather than in the evening.

57This brings me to the period commencing with her absence on May 12th and ending with her termination. If Ms. Barillari was legitimately off sick due to stress and anxiety, it was reasonable for the employer to seek and expect medical information confirming that problem, indicating the treatment being received, the expected duration of the absence and recommendations for accommodation for return to work. The Grievor's continued failure to provide that information exposed her to the possibility of those consequences which she ultimately suffered. On the other hand, if her continued absence was simply a reaction to the Employer's efforts to manage her conduct in the workplace, then her resistance was not legitimate and that behaviour in itself was worthy of discipline. In the circumstances of this case and the history of the Grievor's response to Ms. Mulhall over the many months from May to October, and, in particular in the absence of further medical evidence of some ongoing disability, it is difficult to conclude that the Grievor's continued absence was anything but a deliberate attempt to avoid or delay management of her conduct in the workplace.

There are three prominent issues which must be dealt with in this case:

1. Was it appropriate for the Employer to demand additional medical information following receipt of the doctor's note of May 30?

2. Given the failure of the Grievor to provide that additional information was it appropriate for the Employer to demand that the Grievor attend for an independent medical examination?

3. Did the Employer's conduct in dealing with the Grievor constitute unwarranted harassment or discrimination on prohibited grounds with respect to her employment?

58To begin with, the Grievor's absence which began May 12th was suspect in as much as she was originally scheduled to return to work following her suspension on May 11th and, but for the power failure, would have done so that day. It was surprising that she was unable to do so the very next day especially when there was no reason to believe that she was or had been suffering from any medical condition. Furthermore, she had not been at work for at least twenty (20) days so it could not have been work itself that precipitated her absence May 12th. It was not surprising then that Ms. Mulhall would, shortly thereafter, be seeking some medical confirmation that the Grievor was unable to work. When she finally provided the Health Information Form dated May 30th, as Ms. Mulhall testified, it raised more questions than it answered. For instance, it indicated that the reason for her absence was "workplace induced stress/anxiety"; however, by the time Dr. Rosenberg saw her, she had not been at work for almost two months. Additionally, rather than relating the duration of her limitations to the end of some specific treatment, there is instead a reference to the final days of an arbitration proceeding with a potential for additional time depending on the results. Aside from stating that stress and anxiety had caused her absence, the doctor's note does not indicate the degree or severity of any symptoms which necessitated her absence. In summary, the document was unsatisfactory both in rationalizing that the Grievor's absence was necessary for medical reasons and in indicating a course of treatment undertaken and/or suggesting an accommodation that might be provided to hasten Ms. Barillari's return to work. It was, in the circumstances, reasonable for the Employer to seek further information to satisfy its needs. Furthermore, given the nature of the Grievor's past misconduct and the nature of her behaviour at work which precipitated considerable discipline including a twenty (20) day suspension, it was not unreasonable for the Employer to be concerned that there might be some underlying condition which required treatment, resolution and/or accommodation before returning the Grievor to work. In the circumstances I am satisfied that the Employer's letter of June 14th requesting that Ms. Barillari have Dr. Rosenberg respond to a series of questions was reasonable in the circumstances. Additionally, there is nothing in those questions or the responses which they would have elicited which might have constituted a compromise of the Grievor's rights to privacy.

59Ms. Barillari put her employment on the line when she failed to respond in a positive way to that letter. Although it requested a July 7th reply, she did not make the effort to bring the questionnaire to Dr. Rosenberg at her June 26th appointment. Rather, she deliberately delayed until July20th. Worse still, at that appointment, she specifically instructed Dr. Rosenberg to refrain from completing or answering in any way the questions which had been addressed to him. In the meantime, she had also ignored Ms. Mulhall’s letter of July 13th which requested that Ms. Barillari contact her immediately “to discuss the delay and to arrange when the documents will be provided”. Ms. Barillari’s failure to respond to Ms. Mulhall and to do so in a timely fashion during this period of her absence was cavalier and totally unacceptable. Furthermore, the challenges to the June 14th letter which she outlined in her testimony were never raised with Ms. Mulhall and were, in any event, of inconsequential substance with respect to her medical status at that time. As a union steward she ought to have known better. Minimally, she ought to have given some credence to the adage “obey now and grieve later”.

60With the presentation of the July 20th doctor's note referring to “shingles”, Ms. Barillari was, in effect, thumbing her nose at Ms. Mulhall, her Manager, and the Employer generally. It was an insult for two reasons:

1. It was late. Ms. Mulhall had asked for further information on June 14th and nothing was forthcoming until the July 20th note.

2. Although it purported to clear her for work after August 7th, that note referenced a problem with “shingles”. There had been no previous history of shingles reported by the Grievor or Dr. Rosenberg, and, there was no connection drawn between the Grievor’s “stress and anxiety” and a bout of shingles. More importantly, there was no answer to the information the employer had been seeking, and, in particular, there was nothing to assure the Employer that Ms. Barillari’s return to work would pose no risk to herself or others. Ms. Barillari had chosen to march to her own drummer and not to that of the Employer.

61It was clear by then from her conduct which she confirmed in her subsequent testimony that she had chosen to take the offensive, challenge the Employer’s position, and pursue a Human Rights Complaint. She had enlisted the assistance of Ms. Holly Olexy who was helping her on May 11th, and lawyer, Pierre Ouellette who was assisting her as early as June and July in her dealings with her Employer. In the circumstances, it is clear that the Grievor held the Employer and Ms. Mulhall in disrespect and had no intention of complying with any of the requests and/or directives she might receive.

62It is ironic that Ms. Mulhall and her superiors were seeking ways to refrain from terminating Ms. Barillari because she had devoted much of her life to the Ministry while she was attempting to attack her Employer in a form which she believed would be more sympathetic to her. Indeed, it is my view that the Employer might well have taken more dramatic measures against Ms. Barillari immediately after receiving the July 20th doctor's note; however, having already instigated a new measure by way of requesting the Grievor to undergo an independent medical examination, no disciplinary action was yet taken. On the other hand, after receiving the Grievor's critical and in my view hostile response to the request for an independent medical examination, Ms. Mulhall wrote again questioning the Grievor's tone, rationalizing the Ministry's requirement for an independent medical examination and finally and most importantly cautioning Ms. Barillari that she would be placed on "leave of absence without pay until further notice" if she did not co-operate.

63The Grievor's letter of August 3rd was more audacious than her last. After critiquing the I.M.E. consent forms as being too broad and vague, she went on to assert that she was "ready, able and willing to return to work. Are you still denying me the right and opportunity to do so on August 8, 2006?" Shortly thereafter she goes on to state: "My physician has specified a date for my return to work and has not made any recommendations for accommodation which would require him to provide you with additional medical information. I believe that your conduct as a Manager is reckless and abusive and that your actions are tantamount to a deliberate violation of my human rights. As I indicated to you in my previous correspondence, your relentless harassment during my recovery from my illness can only be seen as an action motivated by ill will".

64It is clear that the Grievor has exhibited in that letter a total disrespect for her immediate supervisor. Furthermore, in keeping with my earlier conclusion, it is my view that the Grievor had abandoned any thought of co-operating with the Employer and was instead preparing to launch an attack at the Human Rights Commission. Although there is some merit to her concerns about the breadth and vagueness of the consent forms, it is my view that they are irrelevant since the Grievor had no intention whatsoever of submitting herself to an independent medical examination regardless of its breadth or nature. In any event, choosing against providing any of the medical information sought by the Employer and refusing an independent medical exam that might have satisfied the Employer's needs, the Grievor set herself up for failure with the Employer. She had, as stated, abandoned that avenue. On September 19th Ms. Mulhall advanced a "final request" for the Grievor's co-operation cautioning her that her refusal would be perceived as "continued insubordination and will have no choice but to schedule a meeting with you to discuss your sustained failure to comply with my repeated requests".

65The Grievor's response to that, after again identifying her concerns with the I.M.E. consent forms, was to confirm, in my view, that she had no intention of taking an IME regardless of the form of consent when she wrote the following:

"The Employer has proceeded in my case with an ill-conceived supposition that I require accommodation presumably under the Ontario Human Rights Commission to return to work. The Employer has received no request from my physician for accommodation for the time period of May 12 to August 7, 2006. Therefore, an IME is not relevant to my return to work."

66Following receipt of that letter, Ms. Mulhall set up the meeting of October 23rd. Ms. Barillari knew and testified that she and Ms. Olexy believed that her job would be on the line at that meeting. Although the Grievor was again, in that meeting, invited to co-operate with the Employer and satisfy its concerns regarding her absence and her safe return to work, she declined. Instead, she followed the route which she had begun sometime earlier and read a prepared statement cautioning the Employer that, if they terminated her, she would expand her Human Rights complaint to include that action as improper in addition to the charge that she had been wrongly suspended without pay from August 8, 2006. It was clear from her conduct at that meeting that the Grievor was entrenched and had no intention then or earlier to co-operate in any way with the Employer.

67Ms. Murji argued for the Employer that the Grievor’s refusal to submit to an I.M.E. was insubordinate conduct. That was so, in particular, since the collective agreement specifically provided for that process.

68Mr. Hannigan argued that the Consent Form was too vague and broad. Therefore, the Grievor should not be penalized for her refusal. Her right to privacy with respect to medical information should be found to trump the Employer’s requirement in these circumstances.

69Although there is merit to Mr. Hannigan’s concerns with respect to the extent of the Consent Form and the nature of the medical inquiry, it is not relevant in the circumstances before me. Since I have found that Ms. Barillari had no intention of subjecting herself to an I.M.E. regardless of the nature of the Consent, it is unnecessary to resolve the question of insubordination as it relates to the character of the Form and the Grievor’s refusal. On the other hand, I would be reluctant to characterize the Grievor’s refusal to take an I.M.E. as insubordination in itself. That may, indeed, be the case, where, as here, the collective agreement specifically identifies an IME requirement. It is, nonetheless, my view that the Grievor could have, in other circumstances and in the absence of that provision, elected to protect her medical privacy without being considered insubordinate. However, in so doing, although the Grievor may not have been found to be insubordinate, she would be, as she is here, subject to the consequences of her refusal and the absence of adequate medical information. Where, as here, the medical information is critical to rationalize an absence and/or to establish guidelines respecting a return to work, the absence of the information may be critical to the employment relationship.

70The consequences in this case led to a situation where Ms. Barillari had been off work for an extensive period of time (May 12 to August 7) without clear medical justification for her absence but with sufficient evidence to raise concerns about her safe return to work in August. That situation did not in any way change up to and throughout proceedings in this matter. There has been no further medical information forthcoming. In the result, the Grievor was off work without leave or medical justification until August 7, 2006. Her continued absence after August 7 was again her responsibility since she had no intention of making any further medical information available to the Employer. In the final analysis, the Grievor’s absence here without leave or sufficient medical documentation was, in itself, culpable conduct. Furthermore, taking into consideration Mr. Barillari’s hostile attitude to management as reflected in:

1. her deliberate delay and refusal to respond to Ms. Mulhall’s legitimate inquiries in May, June and early July and,

2. her disrespectful letters in July and August,

there was ample cause for discipline.

71In the circumstances and taking into consideration her past discipline record, absent any evidence that the Employer's conduct or actions were motivated in some way contrary to the provisions of the Ontario Human Rights Code, the termination of the Grievor's employment at that time was clearly justified and with just cause.

72I have reviewed carefully all of the evidence provided by the Parties including that of the Grievor and have been unable to find a scintilla of evidence indicating that the Employer's motive was a reprisal for legitimate conduct in the workplace undertaken by the Grievor such as her past union activity. Furthermore, there was no mention and no issue relating to religion or Italian ancestry or heritage referred to or mentioned by the Employer throughout the period under review. Furthermore, Ms. Barillari was unable to identify any comment of that nature by any member of management relevant to the issues before me. In the circumstances, I am unable to impugn the Employer's action in terminating the Grievor as a violation of the Ontario Human Rights Code.

73Again, as mentioned earlier in this Award, it is regrettable that an employee with so many years service to this Ministry should now find herself out of that job. As expressed by members of management who testified in this case, it is indeed unfortunate that Ms. Barillari chose the route she did rather than providing some level of co-operation to sustain her job.

74In all the circumstances, the termination must be upheld and the grievance dismissed.