Ontario Public Service Employees Union (Knox) v. The Crown in Right of Ontario (Ministry of Attorney General), 2010 CanLII 72680

GSB#2007-2998

UNION#2007-0102-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Knox)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

FOR THE UNION

Boris Bohuslawsky Eliot, Smith Barristers & Solicitors

FOR THE EMPLOYER

Felix Lau Labour Practice Group Ministry of Government Services Counsel

HEARING

May 4, 2009, January 5, 2010, July 20, 2010, August 10, 2010, October 27, 2010.

DECISION

1On October 14, 2007 the grievor, Jeff Knox, filed a grievance contesting the Employer’s denial of his request for a one-year leave of absence without pay. The grievance states as follows:

Pursuant to Article 24 Leave Without Pay, I requested a leave without pay, commencing Sept. 17, 2007 for one year in order to accept employment with Toyota on a 3 month renewable contract basis. My request was submitted to [Human Rights] Commission management on Aug. 29, 2007. No decision was made by the required date (Sept. 16, 2007) so I was forced to either decline the Toyota contract and remain with the Commission (even though new legislation will end my position) or take the Toyota contract and resign from the Commission (as I believed I could not be paid/employed by the Commission and Toyota at the same time). I stated all of this to Commission management in an email sent on Sept. 16, 2007 and decided to take the Toyota contract, (hoping that my request for leave without pay would eventually be approved). In the email, I also stated that if the Commission declined my request, then I resigned as of the date of my email (Sept. 16/07). On Oct. 2/07, I received an email from Commission Management denying my request. According to Article 24, a Deputy Minister shall not unreasonably deny such request, however it does not appear that the DM made the decision, rather the Commission did so, regardless, whoever denied my request did so unreasonably. I am seeking approval of my leave request by the DM and a letter of apology from the Commission.

As stated in the grievance, the Employer, the Human Rights Commission, denied the grievor’s request for a one-year leave of absence without pay, and as per the grievor’s September 16, 2007 email, accepted his resignation. At issue, as the case was presented by the Union with no objection from the Employer, is the validity of the grievor’s resignation.

Facts

2The grievor commenced his employment with the Ontario Public Service on November 9, 1998 as a Collection Officer with the Ministry of Finance. He held a number of other positions and on February 16, 2004, became a Human Rights Investigator with the Ontario Human Rights Commission.

3In August 2005, the grievor’s aunt was brutally murdered by her ex-husband. The grievor was very close to his aunt and had resided with her, from time to time, as a teenager. As the oldest male cousin, the grievor took on additional responsibilities in relation to the family. At the time, the grievor was married with two young children. The situation created stress and, over time, caused emotional and mental health difficulties for the grievor.

4The grievor continued to work after the murder, but he had difficulty concentrating and difficulty in “dealing with things.” In August 2006, the grievor sought accommodation from the Employer through his family doctor who requested that the grievor have no defined production targets for a three-month period due to excessive pressure. The Employer accommodated this request. It appears that the accommodation continued beyond the initial three-month request.

5The grievor testified that he found the Investigator job to be stressful. He also testified that he was stressed by the transition occurring at the Commission because of Bill 107, announced in February 2006. The proposed changes meant the elimination of the Investigators’ job, and he was anxious about that. He found it depressing “working while waiting for the expected elimination of my job.” In his view, the situation was even worse for the investigators in the London office, where the grievor worked.

6In October 2006, the grievor began looking at other job options. He applied to Toyota, in Cambridge, because he was worried about losing his job. He wanted a job with similar income. He was aware of his surplus rights, but was concerned that any job he might obtain would not be at the same level, or that there might not be any job at all.

7In November 2006, the grievor requested a paid leave of absence to attend the trial regarding his aunt’s murder. The Employer granted this request, and the trial took place from March 26, 2006 to April 13, 2007. The grievor attended every day, except the day of the autopsy. His aunt’s ex-husband was convicted. The grievor was scheduled to return to work on August 16, 2007.

8On Sunday, April 15, 2007, the grievor experienced a panic attack while at church, and he did not return to work as scheduled. He was referred to Dr. Lockhart, a psychiatrist. He was off work for the rest of April, May, June, July and August, and was receiving sick leave benefits. Dr. Lockhart provided monthly notes which the grievor provided to the Commission which simply state that Mr. Knox was “off work for medical reasons.” There was no other evidence that any additional medical information was provided to the Commission.

9The grievor, however, on the evening of April 15, 2007 did send an email to his supervisor, Chris McKinnon, which provided some additional detail. It states:

Chris,

The Trial ended on Thursday night around 9 pm with the accused guilty of first degree murder. I am relieved that this was the verdict. I would have been very disappointed had the accused not received the maximum penalty under the law. However, in the end, the verdict does not bring my aunt back and I continue to struggle with that loss, the horrific nature of the murder, as well as with the emotions of the trial itself and what I saw and heard.

I also continue to struggle with the ongoing job uncertainty, seniority management’s “business as usual” approach and the upcoming changes to the job in the midst of the ongoing job uncertainty. Personally, I believe that the job situation is negatively impacting my health. As you know, I have asked if there is anyway that I can be given my notice at this time. Unfortunately, as you indicated to me, that is not possible.

On March 22, just prior to the commencement of the Trial, I had an appointment with an EAP counselor and she indicated that she believes that I have severe depression and posttraumatic stress disorder. She indicated that while she used to be in a position to make such diagnoses (previous to working for FGI) she does not have the ability to make such diagnoses, while working for FGI’s EAP program. She instructed me to make an appointment with my family doctor to request a referral for a psychiatric consultation.

On March 23, I made and had an appointment with my family doctor. He initiated a referral. I called my family doctor’s office this past week but they are still awaiting a response form the psychiatrist. I was told that such a wait is typical and it can be months before I actually get a consultation.

Today, I experienced a major anxiety/panic attack, while attending a church service. I had to abruptly leave the church and go to the car, where I completely broke down. As a result, my wife Natalie ended up speaking to another family doctor, who, who attends my church, and this doctor came to check on me in the car and spoke to me at length. The doctor believes that it is likely that I am experiencing severe depression and/or PTSD and said that it is urgent that I get help now….not later. As a result, she is going to get me a psychiatric consult ASAP and she hopes it may be this week. She also advised that I should not be going back to work until after I have had such a consult and said that she will provide me with a doctor’s note when needed.

I will keep you updated, as I have further information to share.

10On Monday, April 16, 2007, Mr. McKinnon responded, stating that he was “sorry to hear you are ill and hope that you get well soon.” He also stated that, “[o]f course, the Commission is prepared to accommodate your needs related to any disability.” He advised that his time off would be treated as sick time, and asked for regular medical notes and updates.

11Thereafter the grievor contacted Mr. McKinnon, by email, on April 22 and April 30, and May 8, 2007. In the May 8email, the grievor stated that he had another appointment with his psychiatrist that day and “will keep you posted.” He continued:

Also, on another note, last October I had applied for a Contract Production Worker job at Toyota. As you know, they are building a new plant in Woodstock. Over the subsequent months, I underwent two tests and I had a final interview today. I’m not too certain how well it went. I was asked to provide 3 work-related references from managers/supervisors, whom I have directly reported to. As we have discussed in the past, I provided your name as a reference so I hope that that remains okay and that I can still expect a good reference from you.

If they are interested in hiring me, someone from Toyota will contact you, likely within a couple of weeks. And of course, if they are not interested in me, you will not be getting a call.

As far as Toyota goes, they are very much into Continuous Improvement, Respect for People, A Team Concept, Training and full utilization of all Team Members skills and abilities.

12In late August 2007, while the grievor was still off work, Toyota offered the grievor a “Task and Term” position in Quality Control, for approximately five months, starting September 17, 2007.

13On August 27, 2007, the grievor emailed John Dorian, a manager who was filling in for Mr. McKinnon while he was on vacation, “to submit a formal request for a Leave of Absence Without Pay (Article 24), however, I request some additional information before I do so.” He then set out a number of questions for Mr. Dorian concerning such leaves, including the time frame for the leave request process. Mr. Dorian responded the same day, saying that he would “dig into this tomorrow and see what answers I can come up with.”

14On August 29, Mr. Dorian responded, apologizing for sending the information to the grievor’s work email instead of his home one. He continued:

Jeff, it is difficult to respond to all your questions without more specific information and context. So, to the extent I can here are some answers.

Requests for leaves must go through your manager, not HR. How long you can ask for is a function of why you are asking for it. There is where more information is needed. Depending on the length of time, the approval process goes higher in the organization. Your ability to opt to return to work is part of the additional information as well. Issues around time etc. is a function of the leave request.

I would suggest you simply ask for what you want and let it play out.

15Mr. Knox responded the same day, saying “please allow this email to serve as my formal request for a one year Leave of Absence Without Pay, to commence on September 17, 2007, in order to accept alternative employment of a temporary contract nature in the private sector.”

16The following day, August 30, Mr. Dorian acknowledged receipt and stated that “I am going to do some consulting with HR, determine if there are rules about this kind of request and who has authority to do what.” He noted that Mr. McKinnon would be back next week and he would likely “flip this to him…”

17On September 4, 2007, Mr. McKinnon and the grievor had a telephone conversation which was confirmed in an email from Mr. McKinnon. It states:

Jeff:

It was good to talk to you today. I hope that your health continues to improve.

I want to confirm a number of items:

• You are aware of the proclamation of Bill 107 in June 2008.

• You have received the information for applying for Long Term Income Protection. You did not specify if you applied for this benefit.

• It was recently calculated that if you remain off sick, your short term sick benefit will expire on October 19, 2007.

Your request for an unpaid leave of absence was forwarded to me by John. You indicated that you wish to take a job in the private sector beginning September 17, 2007. As we discussed, we require many more details before it can be fully considered. I have attached some standard questions related to requests for leaves/secondments. Please answer these in detail and return to me as soon as possible. Leaves of this length must be approved by the Executive Director.

Also, in these circumstances, it appears that your health has improved to the extent that you can do at least some work. I will forward by separate correspondence a request for further medical details from your doctor regarding our medical needs related to the position of Human Rights Investigation Officer.

18The attachment concerning leave requests states that “[d]ecisions on granting leaves or secondments are at the discretion of managers and must be based on the specifics of the request compared to operational requirements.” It listed seven questions for the grievor to answer, which the grievor did on September 6, 2007.

19The grievor’s answers state as follows, with the underlined portion supplied by the grievor:

1. Leave position – Quality Control: proposed start date – September 17, 2007; estimated end date – February 2, 2008 potential for it to become permanent – As far as I am aware, there is no potential for the leave position to become permanent. The prospective employer informed me that the leave position is a task and term contract and explained that this means that I will perform a specific task for a specific term, and then the contract will end. However, the prospective employer also informed me that, should I fulfill the task and term contract, I would then move from the employers’ Job Bank to its preferred Job Bank and then I would be offered a subsequent contract, which would likely start shortly following the leave position. I was also told that it typically takes one year or longer for a person to be offered a permanent position with the prospective employer.

2. Please describe the benefits, if any, your secondment will present to the Commission if you return – It is hoped that the benefit that my leave will present to the Commission if I return is a healthier person/employee, who is able to return to work and cope with the Commission’s ongoing climate (e.g., Bill 107 legislative process, the subsequent transition, proclamation, loss of colleagues/friends, workplace stress and low morale, pending loss of current position/notice of termination, teleworker isolation in dealing with climate). I also suspect that I will be able to further improve various job related skills and abilities (for more information see my answer to question five below).

3. Please describe how this leave will benefit you – I find the Commission’s ongoing climate to be detrimental to my health. I believe that the leave will benefit me by allowing me the opportunity to work in a climate that is more positive for me at this time and, in turn, provide me with a better opportunity for improved health.

4. If your request is approved, what will your intentions be upon expiration of the leave? I do not know what my intentions will be upon expiration of the leave. There will be many factors for me to consider at that time and leading up to that time. For example, the status of my health at that time, my job status with the Commission at that time (e.g., will there be any London positions in the new human rights system, have I received notice of termination as a Human Rights Officer) what would be best for my health at that time, alternative job prospects, etc.

5. Your new position may pose a conflict of interest if you are on leave from your Human Rights Officer position at the Commission. In this regard, please provide me with a job description or summary of your duties in your new position. I do not have a job description or summary of duties for the leave position, as the leave position was not posted. Rather, I was in the prospective employers’ Job Bank and they contacted and offered me a task and term opportunity in Quality Control working on a special project related to JD Power awards. The prospective employer told me that the leave position will involve the inspection and testing of the quality and safety of vehicles. I suspect that the leave position will involve elements of data analysis and report writing. The duties in Quality control would not appear to pose any conflict of interest if I am on leave from my Human Rights Officer position at the Commission.

6. Is there any other information you can provide to me to support your request? I would note that while I would like support for and approval of my leave request from the Commission, I admit that I will be very surprised if I receive same, even though it impacts upon my health. I believe that Commission support has been lacking in dealing with other requests made by myself and/or others, including but not limited to health related matters. For example, Commission staff had numerous discussions in monthly Group 2 meetings about job related stress and requested training in this area. However, although staff were told that such training would take place, it never happened. I would also like to note that there are significant drawbacks to the leave position (pay is $12 per hour less than my Commission pay, employer located over a 2 hour round trip away from my residence, as opposed to 20 minute round-trip with the Commission) yet I am still willing to accept the leave position, as I believe that it will benefit me by allowing me the opportunity to move into a work climate that is more positive me at this time, and in turn, provide me with a better opportunity for improved health.

7. What will the impact be on OHRC operational requirements? (personal caseload/ability to have files handled by others/management’s ability to get a back-fill) This is a difficult question for a non-management employee to answer as non-management employees are not privy to the specifics of OHRC operational requirements. I do know that I have no current caseload nor laptop computer. I do know that, when others have left the Commission or been absent from the Commission, management has been able to transfer files. I do know that the Commission has hired contract workers to fill absences which have arisen during the Commission’s ongoing climate. I do know that Commission management advised Group 2 staff that Human Resources can anticipate vacancies and fill them and that at least 20 people qualified from the last round of interviews (as per May 3, 2006 Group 2 meeting). I do know that Commission senior management committed to using all of the Commission available resources to make the transition as smooth as possible for everyone.

20On September 10, 2007, Mr. Knox amended his leave request because a pre-employment test at Toyota revealed that he is colour blind, and therefore he could not work in Quality Control. Instead he was “offered a 3-month renewable contract in their Weld Department” where he would be working with robotic welders. The start and pay remained the same and he would “continue to be offered 3 month renewable contracts, contingent on acceptable performance” and there was “the possibility that I may be offered permanent employment in the future.”

21Mr. Knox testified that he initially applied to Toyota “to keep the doors open if I lost my job.” Later, it was also for health reasons. He stated that he and Dr. Lockhart repeatedly discussed that a physical job would be better for him, because his adrenaline levels were elevated and a physical job would use up some of that adrenaline. There was no notation in Dr. Lockhart’s clinical notes, however, with respect to a “physical” job. Nor did Dr. Lockhart ever test the grievor’s adrenaline level or record that he believed that they were elevated. In contrast to his answer in the questionnaire, the grievor testified that he wanted the physical job “to get better so as to be able to return to work, at the Commission.” It should also be mentioned that the grievor did not mention a physical job or the health benefits it would provide for him in his leave of absence application.

22In terms of the grievor’s ability to return to the Commission, on September 5, 2007, Mr. McKinnon sent the grievor the Employer’s request for medical update by email, which included a Health Information Form for his doctor to complete and a position description. In addition, he requested that the grievor’s doctor answer the following questions:

1. Is the employee able to return to work at this time? Yes or No.

2. If the answer to question #1 is no, when is the employee expected to be able to return to the workplace?

3. If the answer to question #1 is yes, does the employee have any current limitations/restrictions arising from a medical or health condition, which may impact his ability to perform his duties as a Human Rights Investigations Officer? If yes, please specify.

4. For each limitation/restriction, please specify whether it is permanent or temporary. If temporary, for how long is the restriction recommended and how long before a reassessment date would be necessary?

5. Since the employee has been off work since April 2007, if he were able to return to work, would a return to work plan be recommended? If yes, what type of return to work plan is recommended (e.g., gradual return to work)?

23On September 11, 2007, the grievor faxed in the Health Information Form completed by Dr. Lockhart, but advised that the doctor declined to answer the additional questions outlined in Mr. McKinnon’s September 5 letter. Mr. Knox then provided permission for Mr. McKinnon to contact Dr. Lockhart directly.

24The Health Information Form indicated that there were medical/health conditions which account for the grievor’s absences and would affect his ability to perform his duties, and in terms of “restrictions” stated that the grievor needed “a job with minimal stress.” He indicated that the restriction was “permanent.” He also indicated that the grievor was not taking medications that would impact his ability to work. His next assessment would be on October 6, 2007.

25The evidence shows that Mr. McKinnon did speak with Dr. Lockhart on either September 14 or 15, 2007, and received answers to the five questions. Dr. Lockhart advised Mr. McKinnon that the grievor was able to return to work at this time, that he could do so if his stress was reduced by reducing the volume of cases he was required to do, and that the restriction was temporary, not permanent. Dr. Lockhart supported the grievor’s return to work at the Commission with a temporary accommodation in the form of a lower caseload in order to reduce the stress related to performing the job.

26The grievor testified that he was surprised when he learned this information because he believed that Dr. Lockhart did not support his return to work at the Commission. He stated that Dr. Lockhart later advised him that he had spoken with the Employer about his returning to work at the Commission, but that he did so after September 17, 2007, probably at his next appointment which, based on the clinical notes, was November 1, 2007. The grievor missed an earlier appointment that had been scheduled for October 6, 2007.

27About the same time that the Employer was receiving the medical information, the grievor was becoming increasingly anxious to receive an answer to his leave of absence request because the “deadline” of September 17, 2007 was fast approaching. On September 12, he asked for an update regarding his request and inquired “as to when I can expect to receive a decision.” Mr. McKinnon responded on the same day and advised that “[y]our leave request is in process. I have requested an expedited response from the Executive Director (whose approval is required) but have not had any indication yet how long it will take.”

28On Friday, September 14 at 7:15 p.m., the grievor again emailed Mr. McKinnon, stating that he had submitted his formal request for a leave of absence on August 29 but had not yet heard, and asking again “whether the Commission will or will not be providing me with a decision, prior to September 17, 2007 and if the Commission will be providing me with same, advise as to when the decision will be provided to me.”

29Then, on Sunday, September 16, at 8:07 p.m., Mr. Knox wrote the following email to Mr. McKinnon:

Chris:

Given that I have not received a decision from the Commission regarding my formal leave request and given that the requested start date for the formal leaver request is tomorrow (September 17, 2007), it appears that the Commission is forcing me to either continue to wait indefinitely for a decision (in which case I will have to watch the leave position opportunity disappear) OR to resign from the Commission in order to take the requested leave position.

Should the Commission eventually make a decision to approve my formal leave request, please inform me of same.

Alternatively, should the Commission eventually make a decision to decline my formal leave request, please be advised that I resign from the Commission as of this email (September 16, 2007). In this scenario, I will be exploring my legal options.

30On September 21, Mr. McKinnon emailed the grievor that he was sorry, but he still did not have an answer. He stated: “It is an Executive Director decision and there is much to consider. I have forwarded a full briefing but have not been advised of a timeline for a decision.” On September 22, Mr. Knox responded that he was “becoming increasingly upset and frustrated with this situation” and that it was “causing me a great deal of anxiety and mental anguish.” He found it to be “unreasonable that my employer has not provided me with an actual decision by now” and even “more shocking that my employer will not even provide me with a timeline for a decision.” In his view, “it is not fair for the Commission to have me wait indefinitely for a decision” and he would be exploring “other avenues and/or legal options, to obtain a decision.”

31The grievor testified that he and his wife discussed what he should do on September 16, 2007, before he sent the email to Mr. McKinnon. He stated that “in the end, I decided to go to Toyota” because he had to look after his health. He stated that it was a “difficult choice.” He continued, however, to “hope for the best” in regard to the leave of absence request, and he continued to inquire about the Commission’s decision. He also testified that before September 16, he had told Toyota that he was still waiting to hear about his leave of absence request, but that if there was no answer, he would be starting there on Monday.

32Mr. Knox further testified that he wanted the decision about his leave of absence request “so I could decide what I was going to do” and make a fully informed decision. He stated that if the leave of absence was granted, “that made it easy.” If not, however, then “he would have to reconsider.” He realized that he would be “walking away from employment” that he had held for a long time. He felt like he was between a “rock and a hard place” because he did not have all of the information he needed, and that he was forced to make a decision, without knowing about the leave of absence request.

33Mr. Knox commenced work at Toyota on September 17, 2007. He testified that he still felt like an employee of the Commission “until I got a decision.” He further stated, however, that “with the decision regarding no leave of absence, that in essence, finished my employment.”

34Sometime in September, Mr. McKinnon prepared a briefing note concerning Mr. Knox’s request for the one-year unpaid leave of absence for the Executive Director, Nancy Austin. At the time it was written, Mr. McKinnon had not yet spoken to Dr. Lockhart. The briefing note reviewed the position with Toyota and the grievor’s answers to the questionnaire, including the potential health benefits he listed. It then discusses the Ontario Public Service and the Commission’s policies on accommodation. In that regard, the briefing note states:

It would be contrary to this policy and practice to support an employee taking a position in the private sector for “health” reasons without taking the steps required by OPS and Commission policy and practice. In Jeff’s case, the OHRC has not yet taken step one in this regard, i.e., the OHRC has not determined Jeff’s medical needs related to his home position….

It further noted that “[t]he evidence at this stage does not indicate it would benefit Jeff’s health.” The briefing note also discusses the office’s operational needs, including the fact that the existing staff were already significantly overloaded, and backfilling on a temporary contract might not be possible. It then lays out a number of options, recommending option #1, which was to deny the leave request. It also recommends that the grievor’s resignation be accepted.

35The Executive Director agreed with the recommendations. On October 2, 2007, Mr. McKinnon wrote an email to the grievor, advising him of the Commission’s decision and acceptance of his resignation, as well as the letter providing the reasons for that decision The letter states that the leave request was denied for the “following reasons:”

1. There is no benefit to the Commission or Ministry from an employee obtaining this type of outside work experience.

2. OPS and Commission policy and procedure is to accommodate employees with medical needs as required by the Code. The first step in the accommodation process is to consider whether an employee can perform the essential duties of his or her home position with or without accommodation. Where this form of accommodation is not possible, an alternative position should be considered first within the Commission, then within the Ministry, and finally within the entire OPS. While you have cited your health as an important factor in your leave request, the medical evidence you supplied on September 11, 2007 and obtained from your doctor on September 15, 2007 indicated that you were capable of performing the essential duties of your home position with accommodation (i.e., a reduced caseload). As such, approval of this leave would not be an appropriate way to address your medical needs and is not consistent with the criteria set by the Executive Director.

3. The OHRC has significant operational requirements in the southwest and completion of cases would be at risk by approving this leave.

The letter further advised Mr. Knox that the Commission accepted his resignation effective September 17, 2007. The letter ended: “Thank you for your work at the Commission, and we wish you well in your new position.”

36On October 3, 2007, Mr. Knox responded to the Commission’s denial of his leave request in a very long email, taking issue with a number of things including whether the Deputy Minister actually ever decided about his request, the inaccurate medical evidence and the mixing of the issues of medical and the leave request. In terms of his resignation, he states:

[W]ith respect to my resignation, it is my view that the Commission forced same by not providing me with a decision to my formal request for a leave of absence without pay (under Article 24 of the Collective Agreement) by September 16, 2007 (the date that I needed to have the decision). As I informed you, it was my view that the Commission put me in a precarious situation, whereby I had to either decline the Toyota 3-month renewable contract and wait indefinitely for a decision (in which case, I would lose the opportunity to take the Toyota contract) or to resign from the Commission. My view was based on a belief that I could not be employed by two employers and receiving two incomes at the same time. Had I been provided with the Deputy Minister’s decision by September 16, 2007, then I could have made an informed decision. Neither you, or anyone at the Commission, nor anyone at the Deputy Minister’s officer, provided me with any information as to what my options were, should I not be provided with the Deputy Minister’s decision by September 16, 2007.

At no point in his response did the grievor attempt to rescind his resignation or to have the Commission reconsider its acceptance of it. Rather, at the end of it he responds to Mr. McKinnon’s request to contact him to go through the exit process.

37On October 11, 2007, Mr. McKinnon responded, saying that he would not address his concerns through an email, but noted that the “request for an unpaid leave was considered very carefully and the Commission has given you a reply.” He then outlined the exit process, including forms for the grievor to complete. The grievor did so on October 13, 2007.

On October 14, 2007, the grievance at issue in this case was filed.

38In terms of accommodation, the grievor testified that, as a Human Rights Investigator, he was “very familiar with the Code and the accommodation process.” He stated that he did not request accommodation from the Commission, and did not consider it. He testified that he experienced anxiety when he thought of the Commission because he feared losing his job, and it “never dawned on me I could be accommodated outside of the Commission.” He did not “turn his mind to possibilities elsewhere” and would have, if there was an “opportunity in the OPS, if it was secure and not waiting to lose the job.”

39Mr. Knox stated that he stayed with Toyota until May 2008 when he left for another job. He testified that his health improved while there – that the physical activity helped reduce his adrenaline and he was less stressed.

Reasons for Decision

1. Was there a valid resignation?

40The parties agree on the test to apply, but fundamentally disagree on its application to the facts in this case. They concur that arbitrators have developed a two- part test to determine if a resignation is valid – that it must be demonstrated that the employee had a “subjective intention” to resign and that this intention be confirmed by some “objective conduct.” Re Meadow Park Nursing Home and Service Employees Union, Local 210 (1993), 1993 CanLII 16759 (ON LA), 36 L.A.C. (4th) 283 (Brandt).

The two-part test was first articulated in Re U.E.W. Local 512 and Anchor Cap and Closure Corporation of Canada Ltd. (1949), 1 L.A.C. 222, at 223 (Finkelman):

The act of quitting a job has in it a subjective as well as an objective element. An employee who wishes to leave the employ of the company must first resolve to do so and he must then do something to carry his resolution into effect. That something may consists of notice, as specifically provided for in the Collective Agreement or it may consist of conduct, such as taking another job, inconsistent with is remaining in the employ of the company.

A. The Grievor’s Subjective Intent

41The Union asserts that at no point did the grievor have a true or genuine intent to quit his job – at the time of his leave of absence request, the September 16, 2007 email or thereafter. The Union asserts that the grievor was becoming increasingly frantic as the days passed without an answer from the Commission regarding his leave of absence request. It suggests that his emails to Mr. McKinnon indicate an increasing sense of urgency if not desperation. It argues that the grievor did not mean to resign but to force a resolution of the leave of absence issue, and that the conditional resignation in the email of September 16, 2007 was sent for that reason and not because he truly intended to resign his employment. In support, the Union relies on Re Toronto District School Board and Canadian Union of Public Employees, Local 4400 (2003), 2003 CanLII 89635 (ON LA), 117 L.A.C. (4th) 289 (Shime); Re Vernon Jubilee Hospital and B.C.N.U. (1992), 1992 CanLII 14438 (BC LA), 32 L.A.C. (4th) 1 (Bruce); Re Humber Memorial Hospital and OPSEU, Local 577 (1993), 30 C.L.A.S. 326 (Springate).

42The Union argues that the time period between September 16 and the October 2, 2007 denial of his leave request demonstrates, again, that he did not intend to resign. The emails, it notes, refer to the Commission as “my employer” which is not the language, it suggests, of an employee who considers his employment over. It further points to the grievor’s October 3 response which states that he felt “forced” to resign, which again, the Union argues, shows that he felt compelled and did not truly want to leave the Commission.

43With respect, I cannot agree with the assertions of counsel for the Union. The evidence clearly establishes that the grievor intended to resign his employment with the Commission in order to accept the job with Toyota. His resignation was conditional on the Commission’s decision regarding his leave of absence request, but he did intend to leave the Commission should his request be denied, which is what happened. His September 16 email states in relevant part: “should the Commission eventually make a decision to decline my formal leave request, please be advised that I resign from the Commission as of this email (September 16, 2007).”

44The evidence showed that the grievor discussed what he should do with his wife before he sent the September 16 email, and his decision was to “go with Toyota.” He believed that it was the best option for his health, given the “ongoing climate at the Commission.” Consequently, on September 16, although the grievor may have been frustrated and upset that the Commission had not yet provided him with a response to his leave request, his conditional resignation was not a “spur of the moment” or emotional decision.

45There is no evidence to support the Union’s contention that the grievor was solely trying to get the Employer to decide the leave issue. He wanted a decision on the leave so he could decide whether he should accept the Toyota job. As he testified, if the leave of absence was granted, the decision was easy – he’d go to Toyota while still keeping his ties to the Commission. But if it was denied – he’d have to reconsider because he would be “walking away from” his Commission position, which he had held for a number of years. When September 16 came to a close without a decision from the Commission, his email was not a plea to have the Commission decide, it was a complaint that it had not yet decided and that he was forced to decide without knowing the status of his leave request In that email, he was clearly deciding to go with Toyota, and asking the Commission to advise him “[s]hould the Commission eventually make a decision to approve my formal leave request”, and if not, “should the Commission eventually make a decision to decline my formal leave request, please be advised that I resign from the Commission as of this email…”

46The situation in Re Toronto District School Board and Canadian Union of Public Employees, Local 4400, supra, is very different. In that case, a caretaker with the School Board felt, out of family solidarity, that he had no alternative but to resign when his son was fired for alleged misconduct and he was unable to resolve the situation. He wrote a letter entitled “forced resignation” but it was clear that he did not want to resign or leave the School Board’s employ. The arbitrator found that the grievor “became very emotional as a result of the way in which the Board described his son’s conduct” and “felt, wrongly, that nothing would be done.” (117 L.A.C. (4th) at 310). The arbitrator concluded at p. 310-11 that “[t]he resignation … arose because of his emotional state and frustration at not being able to resolve the problem and was more a form of protest than it was a declaration of quitting.” He continued:

Indeed, the grievor referred to the resignation as a “forced resignation” and I assume that means there were events beyond his control that were compelling him to submit his resignation. The use of the term “forced resignation” suggests the grievor did not intent to voluntarily quit his job, but felt compelled by extraneous circumstances to quit a job he loved and in which he performed quite well. …

The arbitrator determined, at p. 311, that the “forced resignation” email was really a “’cry for help’ on the part of the grievor ..[and] signifies that he did not want to quit his job, but really wanted the problem to be resolved.”

47The situation of the grievor differed substantially. The grievor’s September 16 email was not a “cry for help”, nor was it sent to compel a decision on the leave of absence request. By the time it was sent, it was really too late for the decision to matter. The grievor had already decided to work for Toyota. He wanted to remain an “employee” of the Commission – but not work there because he believed it was detrimental to his health. He panicked at the thought of returning to the Commission. He wanted to be on leave of absence status while exploring whether the Toyota job would be good for him and would work out (i.e., if they eventually offered him a permanent position). In that sense only did he want to remain an “employee” of the Commission.

48In Re OPSEU (Kolmann) and Ministry of the Solicitor General and Correctional Services (1997), GSB No. 1372/92 (Mikus), cited by the Employer, the Union argued that an employee who resigned due to ongoing harassment never intended to quit, but only sought to initiate an investigation into her allegations of harassment and to stop the harassment. The Board rejected that argument concluding that “[i]f her only intention was to force the Employer to investigate her allegations, one would have expected her to repudiate her resignation as soon as she realized her Employer had accepted her resignation without question.” The same is true here – if the grievor’s intent was solely to have the Commission decide about his leave of absence request, one would have expected him to repudiate his resignation as soon as the leave request was denied.

49The evidence establishes that it was because of the potential starting date at Toyota of September 17 that the grievor was forced to make a choice between taking the Toyota job or staying with the Commission, without knowing the status of his leave request. He certainly was not “forced” to resign. There was no coercion by the Commission; no threat to terminate him if he did not resign. Quite to the contrary, the Commission was exploring whether the grievor could return to work at the Commission, with accommodation.

50The grievor, moreover, could have tried to get an extension from Toyota, but did not. It may be that Toyota would have said “no”, but he made no inquiries about obtaining an extension. Instead, he asserted that the Commission put him in an untenable situation, forcing him to make a decision about the Toyota job in the absence of full information. It appears to me that the grievor put himself in that situation.

51Further, the evidence shows that the grievor, prior to September 16, advised Toyota that if he still did not hear from the Commission about his leave of absence request, he would be starting at Toyota on September 17. This establishes that the grievor had already made his choice to begin work at Toyota and leave the Commission. No doubt it would have been easier for the grievor if the Commission had made a determination about his leave request. But its failure to do so did not “force” the grievor to resign. That was his choice, in order to accept a position that he believed would be better for his health. On these facts, the evidence clearly establishes that the grievor had the subjective intention of resigning from the Commission in the event his leave of absence request was denied.

52The situation in Re Humber Memorial Hospital, supra, is also distinguishable. In that case, the grievor’s job had been eliminated and that she felt that had no choice but to quit because she felt unqualified for the position offered. She also sought legal advise to try to get her old job back. On these facts, the Board determined that the grievor had no true intent to leave her job. Here, in contrast, the grievor’s job was still available, the Commission was making attempts to have the grievor return, with accommodation, and the grievor made no effort to try to return to the Commission, or to retract his resignation.

53In Re Vernon Jubilee Hospital, supra, the Board held that there was no true voluntary resignation where, after being suspended without pay for allegedly stealing drugs, the grievor resigned while exhausted, distraught and emotionally drained, but later the same day sought to retract her resignation. Similarly, in Re Lewisfoods, Inc., supra, the Board found no settled intent to resign where the employee wrote “I quit” when she was overwhelmed by the work on her shift and was in an emotional and irrational state of mind, then reconsidered her decision within a couple of hours and took steps to rectify the situation.

54The grievor’s decision to accept the Toyota job was not made when he was emotionally overwrought. Nor was it a “spur of the moment” irrational decision. It was based on his assessment that it was better for his health. It was his view that the Commission and its “ongoing climate” was detrimental to his health, while Toyota would be a better choice for him. He discussed what he should do with his wife and decided to “go with Toyota.” He also had advised Toyota, prior to September 16, that if had not heard from the Commission about his leave of absence, he would be starting there on Monday, September 17. Consequently, while the grievor was frustrated, disappointed and angry with the Commission’s lack of response on his leave request at the time that he sent his conditional resignation to the Commission, he was not in the kind of emotional state that would negate his clearly stated intention to resign as occurred in the cases cited by the Union.

55The Union asserts that the grievor’s emails after September 16 to October 2 show that he still thought of the Commission as “my employer.” I disagree. At the time, the grievor’s resignation was conditional – it would only take place if the Commission denied his request for a leave of absence. In his view, as he testified, he was still an employee of the Commission until that decision was made. He was still hopeful that the Commission would accede to his request, or as he phrased it “hoping for the best.” The references to “my employer” during this time period make sense in that context. It does not establish that he did not intend to resign should his leave request be denied.

56Finally, there is nothing in the grievor’s conduct after October 2 to negate his intent to resign. The “legal steps” he referred to in his emails appear to be primarily about seeking to compel a decision from the Commission about his leave request, not to undo his conditional resignation. Again, at no point did he seek to retract his resignation and return to work at the Commission.

57In sum, the evidence clearly establishes that the grievor intended to resign his employment with the Commission if his leave of absence request was denied. He would have preferred to have taken a leave of absence, but when that did not happen in time, he chose to leave his employment with the Commission for the position at Toyota, effective September 16, 2007.

58On a related issue, there was no assertion – and no evidence – that the Commission unduly delayed its decision in regard to the grievor’s leave request. On the contrary, I conclude that the Commission acted appropriately and within a reasonable period of time. Although the grievor “formally requested” the leave of absence on August 29, he did not submit the required information until September 6, after having been provided with the questionnaire on September 4. The email exchange with Mr. Dorian reveals that Mr. Dorian made a real effort to quickly inform himself and the grievor about what information had to be provided and how the process worked for a leave of absence. While the grievor asserted, in his October 3 response, that the Employer should have provided him with the necessary information immediately, I cannot agree. There is no evidence that this type of request is a routine matter that supervisor’s should readily know all about. The email exchange makes it clear that Mr. Dorian did not know what was required but would endeavor to find out. No more can be expected, and the delay until September 4, given the Labour Day holiday, is not unreasonable. Further, the grievor significantly amended his application information on September 10, 2007, and, given the grievor’s assertion that the leave position would be beneficial to his health, the Employer was awaiting information from his physician. It was the Executive Director who had to make this decision, and Human Resources had to be involved. The leave of absence request was a request that had to be considered based on many factors, including the operational needs of the Commission. The amount of time the decision took was not unreasonable in all of the circumstances, and there is no evidence at all that the Commission improperly delayed its consideration of the grievor’s request.

59Finally, there is no medical evidence that the grievor was unable to form the requisite intent to resign because of his disability – post traumatic stress disorder (PSTD). There was no such assertion in Dr. Lockhart’s opinion letter, nor in his clinical notes. The grievor testified that he was “not making the best decisions” at the time, but he did not say that he was unable to make decisions. On cross-examination, he agreed that he had the ability to decide to accept the offer from Toyota. It follows, then, that he had the ability to make the decision to resign from the Commission.

60The situation in Re Ministry of Northern Development and Mines and OPSEU (Sinclair), 89 C.L.A.S. 95 (GSB, Mikus), cited by the Union, is different. In that case, at issue was whether the grievor, who suffered from Bi Polar Disorder, was competent to form the requisite intent to quit at the time he resigned. The grievor had a history of this disease which the Employer was aware of but there was no physician’s report during the critical period of time. Nevertheless, there was expert medical evidence at the hearing that the grievor was suffering from the classic symptoms of his illness at the relevant time. The Board concluded, on the facts there, that the “grievor was exhibiting enough of the classic symptoms of his disease to render him incapable of forming the subjective intent to resign from his position.” In this case, there are no facts from which I could conclude that the grievor was unable to form the requisite intent to quit his employment.

B. Objective Conduct Confirming Intent

61The evidence that the grievor engaged in objective conduct to confirm his intent to resign is overwhelming. First and foremost, he started working at Toyota on September 17, 2007. On October 13, 2007, he completed the exit process at the Commission – signing the required papers and returning the Employer’s equipment. He never recanted his resignation, nor sought reconsideration from the Employer. In fact, he has never refuted his resignation – just asserted that it was forced. It is notable that his grievance does not assert that he was wrongfully or constructively terminated – it just contests the Commission’s decision to deny his leave request as unreasonable under Article 24.

62In my view, under the facts of this case, the conclusion reached by the Board of Arbitration in Re Wellesley Central Hospital and Service Employees International Union, Local 204 (1996), 1996 CanLII 20321 (ON LA), 61 L.A.C. (4th) 433, 448 (Gray) cited by the Employer, applies here:

In short, the grievor clearly expressed the intent to resign and then acted as though he had resigned. Although he was painfully unhappy about his work situation at the time he did so, he was nevertheless capable of forming the intent to resign at the time, and did. In legal terms, his resignation was a voluntary and conscious act, albeit one he later came to regret. His resignation was legally effective….

2. Human Rights Code Issues

63The Union asserts that the Commission failed to provide the grievor with procedural accommodation because it accepted his resignation without offering him an opportunity to return to work, with accommodation. It asserts that the Employer should have given him that option, and improperly cut off the accommodation process by accepting his resignation. It notes that the Employer was aware, at the time, of his mental health issues, and that its acceptance of his resignation constitutes discrimination on the basis of disability. In support of his position, the Union relies on Re ADGA Group Consultants Inc. and Lane et al. (2008), 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425 (Ont. Div. Ct) and Re Kreiger and Toronto Police Services Board (2010), O.H.R.T.D. No. 1359 (Overend).

64In Re ADGA Group Consultants, supra at par. 106, the Divisional Court defines the “procedural duty to accommodate” as follows:

The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to given any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate.

65Applying this definition to the facts of this case, the Commission clearly met its duty of procedural accommodation in this case. When the grievor advised the Commission that he was seeking to work at Toyota, the Commission sought to explore whether the grievor could return to work, with accommodation. It provided a Health Information Form, along with the Position Description, for the grievor’s doctor to consider, and in mid-September received the necessary information from the grievor’s doctor. It obtained information about his current medical condition, his prognosis for recovery, his ability to perform job duties and it “seriously considered” how he could be accommodated at work. The Commission determined, based on the medical information provided, that the grievor could return to the work with the accommodation of a reduced case load.

66In so concluding, the Commission followed its own and Ontario Public Service policies in regard to accommodation, which were accurately outlined in the Commission’s October 2, 2007 denial of his leave request. In relevant part, it states:

OPS and Commission policy and practice to accommodate employees with medical needs as required by the Code. The first step in the accommodation process to consider whether an employee can perform the essential duties of his or her home position with or without accommodation. Where this form of accommodation is not possible, an alternative position should be considered first within the Commission, then within the Ministry, and finally within the entire OPS. While you have cited your health as an important factor in your leave request, the medical evidence you supplied on September 11, 2007 and obtained from your doctor on September 15, 2007 indicated that you were capable of performing the essential duties of your home position with accommodation (i.e., a reduced caseload). As such, approval of this leave would not be an appropriate way to address your medical needs and is not consistent with the criteria set by the Executive Director.

In the Commission’s briefing note, the recommendation stated that “[i]t would be contrary to this policy and practice to support an employee taking a position in the private sector for ‘health’ reasons without taking the steps required by OPS and Commission policy and practice. “

67In my view, the Commission properly followed the requirements of both procedural and substantive accommodation. It gathered the required information and seriously turned its mind to how the grievor could be accommodated. It had no obligation to not accept his resignation or to offer him the option of returning to work with accommodation. The grievor, through the October 2 letter, was advised that it was the Commission’s view that he could return to work, with a reduced caseload. The grievor never indicated that was what he wanted to do. His October 3 response just says that he finds, without further elaboration, “the Commission’s impression of the medical evidence to be very inaccurate.”

68There may be times when an Employer, due to an employee’s disability (particularly a mental health disability) may need to take steps to ensure that the employee understands his actions and is capable of deciding matters before it accepts an employee’s resignation. Re Ministry of Northern Development and Mines, supra. This is not such a case.

69At noted previously, there was no medical evidence that the grievor, because of his disability, was incapable of making decisions. There was no evidence of impairment of his decision-making abilities. While the grievor testified that he was not making the best decisions at the time, there needs to be more than that – some corroborating evidence – to show impaired functioning. There must be more than the fact that the grievor is depressed or has PSTD. Without such corroborating evidence, the Union’s position that the Employer may not accept the employee’s resignation and must offer him a chance to return to work to fulfill its duty to accommodate arguably constitutes a form of stereotyping – it assumes that simply because a person is depressed or has PTSD he or she is unable to make decisions.

70The Union argues that to impose an evidentiary requirement that there be medical evidence of impairment would be irrational, because it would mean that a non-disabled employee could have their resignation overturned because of extreme distress while a disabled employee needs clinical evidence of incapacity. See, e.g., Re Lewisfoods Inc., supra; Re Vernon Jubilee Hospital, supra; Re Ministry of Northern Development and Mines, supra.

71With respect, there is a difference between the two situations. When a board of arbitration finds that an employee’s resignation should be invalidated because of extreme emotional stress, it is on the basis that the employee did not truly intend to resign. As stated in Re Meadow Park Nursing Home, supra at p. 285, the reason for the two-part test in regard to resignations is “[t]he concern…that resignations frequently are offered in the heat of the moment or at times of some personal stress and that they may not express the employee’s real wishes.” With a disability, the issue is whether the employee has the capacity to form intent – whether they are able to make the decision. With a mental illness, the question is usually one of capacity, and for that there needs to be corroborating evidence of impairment.

72Further, although the grievor had been off work at the time of his leave request for over four months, the grievor’s desire to work at Toyota led the Employer to believe that he was capable of performing some work. To that end, it sought additional medical information which was provided in mid-September. The medical evidence was that the grievor could return to work with accommodation in the form of a reduced caseload. There was no medical evidence or any other type of evidence to suggest he was unable to function or make decisions. The evidence was to the contrary. In these circumstances, the Employer properly accepted the grievor’s resignation.

73It was not the Employer who cut off its attempt to accommodate the grievor. It was the grievor’s decision to resign that cut off the Employer’s obligation to accommodate him under the Human Rights Code and the collective agreement. That was why the October 2, 2007 letter to him did not offer a return to work option, with accommodation. He had already accepted a job at Toyota and was working there. Under the facts of this case, there was no obligation on the part of the Employer not to accept the grievor’s resignation and offer him the option of returning to work, with accommodation. The Employer did not discriminate against the grievor on the basis of disability.

3. The Decision Regarding the Leave of Absence

74Finally, it is my conclusion that the Commission did not act unreasonably in denying the grievor’s request for a one-year unpaid leave of absence to accept a job at Toyota. Article 24, Leave Without Pay, of the collective agreement provides: “An employee may request a leave of absence without pay and without accumulation of credits. A Deputy Minister shall not unreasonably deny such requests.”

75The Board’s review of such determinations is very limited. As stated by the GSB in Re OPSEU (Mayers) and Ministry of Correctional Services (1991), GSB No. 1030/90(Kirkwood), at p. 9:

[O]ur role is not to decide whether the employer’s decision was correct, nor whether we would have made the same decision. Our role is to determine whether the request was considered in a fair and honest manner and whether the employer’s decision was reasonable in the circumstances. When considering these objective and the standards above, we must consider both the process that was followed and the facts surrounding the request.

76The standards referred to were the standards outlined in OPSEU (Culkeen) and Ministry of Correctional Services, GSB No. 890/89 (M.R.Wright):

1. The decision must be made in good faith and without discrimination.

2. It must be a genuine exercise of discretionary power as opposed to rigid policy adherence.

3. Consideration must be given to the merits of the individual application under review.

4. All relevant facts must be considered and conversely all irrelevant considerations must be rejected.

77The Commission’s decision in regard to the grievor’s leave of absence request fulfilled the standards outlined by the Board. The evidence showed that the delegate of the Deputy Minister, Executive Director Nancy Austin, made the decision in good faith and without discrimination. She fully considered the merits of the request and Commission’s operational needs. There is no evidence that she considered irrelevant considerations. Indeed, the process followed by the Commission is a model in regard to how such determinations should be made. It was reasonable in all of the circumstances.

Conclusion

78For all of the reasons set forth above, the grievance is dismissed.