GSB#2009-3223, 2010-0613, 2010-0614, 2010-0615, 2010-0616, 2010-0617, 2010-0618, 2010-1484,

2010-1485, 2010-1486, 2010-1833, 2010-1834

UNION#2010-0112-0001, 2010-0112-0005, 2010-0112-0006, 2010-0112-0007, 2010-0112-0008,

2010-0112-0009, 2010-0112-0010, 2010-0112-0012, 2010-0112-0013, 2010-0012-0014,

2010-0112-0015, 2010-0112-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gill)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Ministry of Government Services Legal Services Branch Counsel

HEARING

October 25, November 14, 21 & 22, December 12, 2011, April 16 & 26, May 2, 10 & 23, 2012, February 20, 21, 26 & 27, March 5 & 12, 2013

Decision

The Proceedings

1These matters involve twelve grievances filed by OPSEU on behalf of Ajit Gill. Mr. Gill was employed part time as a Child and Youth Counselor with the Ministry of Children and Youth Services at the Child and Parent Resource Institute in London, Ontario. His employment was terminated on August 24, 2010 following a course of disciplinary and non-disciplinary letters and suspensions. All of the grievances flow out of the steps taken by the Employer to attempt to return the grievor to work following an injury he sustained at home. The Employer concluded that the work he was being asked to do and the hours he was being scheduled to work were within his medical restrictions and his failure to abide by his work schedule was of such a degree of insubordination that it was justified in terminating his employment.

The Facts

2The grievor began working at the Child and Parent Resource Institute, hereafter CPRI, in 2000. He was a regular, part-time employee scheduled to work twenty hours per week. He was scheduled to work three shifts in a row in the first week and two shifts in a row in the second week. He worked one weekend shift per month. In June 2007 he injured his ankle while mowing his lawn at home. The injury did not at first seem remarkable. However, in the result, he was off work and in receipt of long term disability benefits (LTIP) until June 2008 when he returned to work on a modified work program supported by the LTIP carrier. He did not work weekends. He continued to work three days one week and two days the next week for four hours per day. That situation continued until April of 2009, when Connie Griffioen became his supervisor in April 2009. The following agreed statement of facts sets out some details of the grievor’s return to work.

SCHEDULING

Weekends: he worked approx. 1/weekend shift/mo in the pre-injury period, in acc with his dr’s permission. He stopped working weekends when he came back to work in the spring of 2008 on the LTIP sponsored rtw in acc with Dr Wong’s note of May 22, 2008.

of shifts in a row: Immediate pre-injury period: he worked 3 shifts in a row every second week (2 in a row the alternating weeks) and during the LTIP-sponsored RTW as of July 2008 until May 2009.

Modified duties remained same throughout the entire rtw from Spring 2008 to when Cheryl Ann McMullen stopped being his supervisor (i.e. when he was in Thameswood unit) – was always an extra, not part of the staff complement.

• was in the presence of kids, not assigned clients, set table, breakfast prep, dishes, picking up meds from pharm, mail runs, filing, telephone, auditing of casebooks as required, put groceries away, photocopying, organize and top up unit filing cabinet forms, routine chores, ensure office and kitchen are tidy, transcribe in log book notes on clients as noted on daily unit shift sheet. No restraints, assist staff with other related duties, duties as assigned. Not required to respond to kids acting out/give chase to clients.

3Connie Griffioen became the grievor’s supervisor in April 2009, taking over from Cheryl Anne McMullan. Ms. Griffioen supervised him through most of the grievor’s attempt to return to work. She testified as to the attempts to have the grievor return to working forty hours in a two-week pay period. Ms. Griffioen was transferred to new duties and relocated to a different building on April 12, 2012. At that time Cheryl Bachand became Manager of Unit 5 and the grievor’s supervisor. However, for the sake of continuity, Ms. Griffioen resumed responsibility for managing the grievor on May 19 although she remained at her new location. Ms. Bachand remained as Manager of Unit 5 and had daily contact with the grievor.

4The core of the disputes is the grievor’s assertions, supported by his doctor, Dr. Wong, that he could only work two days in a row, needed two consecutive days off per week and could not work weekends. He also said that he could not work a full shift.

5The lead-up to the grievor’s discipline and discharge is found in his return to work. On May 22, 2008, Dr. Wong certified that the grievor could return to work on the day shift, seven a.m. to three p.m., Monday to Friday. Accordingly, from the outset, the grievor was exempted from weekend work. By June 2, 2008, Dr. Wong adjusted that prognosis to be that the grievor could return to work on June 2, at two hours per day, on the day shift, increasing by one hour per day, each week, until he was working eight hours per day. Dr. Wong set out the grievor’s restrictions in notes dated June 9, 2008 and August 8, 2008. On October 18, 2008 Dr. Wong provided a further note setting out the grievor’s restrictions. Like the notes before, the limitations were described as temporary. By March 13, 2009 Dr. Wong said that the limitations were permanent.

6On June 24, 2009 Manulife was recommending an increase in hours worked from two days in the first week then 3 days in the second week at four hours per day, to 4 days in the first week and 5 days in the second week at four hours per day. Dr. Wong had not yet taken a position on that proposed increase in hours.

7By correspondence dated June 26, 2009, the grievor was asked to have Dr. Wong fill out a detailed questionnaire as to the grievor’s condition. That questionnaire summarized the Employer’s understanding of Dr. Wong’s advised restrictions and it described the grievor’s job duties as follows:

• Pre-breakfast prep/and post breakfast clean-up

• Phones

• Put away groceries

• Mail run/drop off/pick up

• Assist staff with other related duties

• Assigned tasks, per manager request

8The questionnaire sought clarification on any restrictions preventing the grievor from performing all or some of his job duties, whether he could work rotating shifts, including the night shift, the medical justification for his inability to work weekends, whether he could work straight nights, whether Dr. Wong had any advice on any accommodations the Employer could provide, what would be the appropriate interactions for the grievor with clients, it being understood that he was not expected to restrain clients, whether he could perform light administrative tasks, whether he was receiving treatment, any work related implications of his treatment and whether there were any barriers to his recovery that the Employer could assist with.

9Dr. Wong did not reply to the questionnaire until November 23, 2009. In the meantime, he provided a number of short, script notes justifying the grievor’s absence from work from June 30, 2009 to August 4, 2009. Both the Employer and Manulife expressed dissatisfaction with the lack of detail in the notes. The Employer gave, and extended, deadlines for the provision of further, and better, medical certificates. On August 7 the grievor left a voice-mail message with his supervisor that he could return to work August 10 on midnights. He and his supervisor, Connie Griffioen spoke by phone on August 10 and scheduled a meeting for August 12 to discuss the grievor’s return to work. The grievor cancelled that meeting on August 11. It was rescheduled for August 18, 2009. That meeting took place and a return to work plan was discussed, which would see the grievor start work on August 21. The insurance carrier met with the grievor and crafted a return to work schedule that would see the grievor return to regular hours in the period from August 21 to September 25, 2009. He did work August 21, 24, 26, 28 and 31, in accordance with that plan. Manulife confirmed the plan by letter of August 28. The grievor was to be back to regular hours by the week of September 21 – 25, 2009. Dr. Wong signed off on that plan three times.

10Notwithstanding the return to work plan with which he had agreed, Dr. Wong provided a note dated September 3, 2009 setting out that the grievor was to perform modified duties, four hours per shift, five shifts every two weeks, day shifts only, to be reassessed in six months. Given the circumstances, the Employer requested that the grievor attend an independent medical evaluation, and that Dr. Wong provide the basis for his most recent opinion.

11On September 5, 2009, the grievor wrote Ms. Griffioen asking to meet for “an open dialogue”. A meeting was scheduled for October 5, 2009. The grievor asked that it be rescheduled pending his assessment at the Fowler-Kennedy Clinic on October 13 in order to receive that clinic’s report. The Employer agreed.

12In the meantime, Manulife determined that the grievor was disabled from his own occupation but not from any occupation. It determined to close his file effective December 4, 2009, the change of definition date, extending benefits to January 14, 2010 on a rehab basis.

13On October 26, 2009, the Employer renewed its request to the grievor that Dr. Wong fill out the questionnaire provided in June and that the grievor fill out the IME forms. On October 30 the grievor replied that the report from the Fowler- Kennedy Clinic was not yet ready. He also objected to the IME process because the Employer had unilaterally selected only one service provider. The Employer promptly provided a selection of three service providers for the grievor to choose from. The grievor then asked for an extension of the time to choose because he wanted the Fowler-Kennedy report to stand as the IME. In the meantime, Dr. Wong put the grievor off work on November 3 for ten days because he was “quite ill”. On November 2 the grievor provided his choice of service provider for the IME and reiterated his desire that the Fowler-Kennedy report be the IME. On November 13, Dr. Wong kept the grievor off work for another week. Both of Dr. Wong’s notes were reviewed by Manulife. It’s decision to close the file effective December 3 was maintained.

14The Employer assessed Dr. Wong’s questionnaire and drew up a schedule that fit its interpretation of Dr. Wong’s answers. The schedule was provided to the grievor on December 3, 2009. He was also given another Health Information Form for Dr. Wong to fill out. The grievor objected to the proposed eight hour and rotating shifts.

15Dr. Wong completed the Health Information Form on December 7, 2009. It said:

Patient has consistently reports [sic] chronic post-injury left ankle pain since ’07, which has gone into a chronic pain syndrome. As such he reports resultant physical impairment. He can’t work >4 hrs/shift. He needs 1 day of rest >2 days of work. He can’t walk and stand >4 hours. He can’t give chase to clients.

16Dr. Wong said that these restrictions were temporary but would last 12 months.

17The schedule provided to the grievor included shifts on Saturday December 19, Sunday, December 27, 2009 and Sunday January 3, 2010. On December 11, 2009, the grievor emailed Ms. Griffioen. He said he was, “looking over the schedule with regards to the dates I am scheduled.” He asked that December 19 be moved pending his appointment with Dr. Wong on December 18. Ms. Griffioen agreed, with the caveat, “Please be advised that there are no weekend restrictions identified for future scheduling purposes.”

18Dr. Wong then provided the following note dated December 18, 2009, reviving the no-weekend shifts restriction:

Ajit with his chronic left ankle pain is to continue his preemployment doing 4 hr. shift x 5 shifts [each] 2 wks. Day shifts only and no wk-ends.

19On the evidence there was never any compelling medical justification for the restriction that the grievor not work weekends. Dr. Wong gave evidence at the hearing. It took far too long for him to grudgingly agree that there was no medical reason that the grievor’s need for two consecutive days off had to be Saturday and Sunday rather than any other two consecutive days. The Employer properly rejected this note as it related to weekend restrictions. A new Employee Return to Work and Employment Accommodation Plan (EREAP) was drawn up, which included five shifts of four-hour shifts over a two week period. It also included weekend work. The grievor refused to sign the Plan document.

20The grievor was scheduled to work Sunday, December 27, 2009. He left a voice-mail message late on December 25 saying he would not be coming in on December 27. He spoke with a Senior Officer on December 26, to the same effect. He said that he could not come in because it was contrary to his doctor’s restrictions. He and Connie Griffioen had discussed his concern the previous week, and she had made it clear that a doctor cannot dictate the days of the week an employee works. After missing the shift, the grievor asked to work a replacement shift for the one he had missed. That request was denied. The missed shift was counted as unauthorized leave.

21The grievor received a non-disciplinary letter of counsel dated January 6, 2010 for missing the shift on Sunday, December 27, 2009. He responded with an email on January 7, 2010, which he intended to be Stage One of the grievance procedure. He also took the position that his current schedule went against his doctor’s orders in that he was also scheduled to work on Saturday, January 9 and Saturday, January 23, 2010. He referenced his doctor’s medical certificates of November 23, December 7 and December 18, 2009.

22The grievor was scheduled to work Saturday, January 9, 2010 from seven a.m. to eleven a.m. The grievor refused to work the shift, and a meeting was held with him and his Union representative. Concurrently, the grievor was notified that a Functional Abilities Evaluation (FAE) had been scheduled for January 20, 2010. At the meeting of January 14 it was agreed that the grievor’s schedule would not include weekends pending receipt of the FAE. A new ERWEAP was drawn up, which the grievor signed. Although the schedule on that plan included a Saturday and a Sunday shift, the grievor did not work those shifts because the results of the FAE had not been received by those dates.

23On January 26, 2010 the grievor filed a grievance stating:

I grieve that my employer has failed to accommodate as per the collective agreement and any other legislation that may apply.

24In her evidence Ms. Griffioen said that she understood the grievance sought to have the grievor’s short term sick leave credits reinstated. They were discontinued because he had not worked the required twenty hours per week. That is consistent with a note sent by the grievor on January 19, 2010. An earlier note, dated January 7, 2010, objected as well to the December 22, 2009 schedule as being a breach of the collective agreement and the Ontario Human Rights Code.

25The FAE report, dated February 3, 2010, was provided to Mr. Dave Worby, Ministry of Government Services. Mr. Worby was an advisor with the Centre for Health and Wellness and had been involved with managing the grievor’s return to work. A copy of the report went to Dr. Wong. Mr. Worby provided a summary of the report to Ms. Griffioen. That summary reads as follows:

Summary

• Mr. Gill is suffering from a bona fide medical condition

• He is not receiving adequate treatment and should be referred to a psychologist and a chronic pain clinic for chronic pain issues.

• If he receives adequate treatment he should be able to work as a CYW2 without accommodation

• He can work as a Child and Youth Worker 2 for 8-hour shifts if the following restrictions and tolerances are met:

1. No lifting from floor

2. Limit bilateral lifting to occasional. (Up to 2.5 hours per day)

3. Limit carrying to rare. (up to 10lbs total, 5lbs left arm, 5lbs rights arm, no more than 40 minutes per 8-hour shift)

4. No crouching, squatting or running activities.

5. Limit stair climbing to rare. (No more than 40 minutes in an 8-hour shift)

• Tolerances are as follows:

1. Majority of 8-hour shift should be sitting (5-hours or more)

2. Standing is occasional, (maximum 2.5 hours per day)

3. If Mr. Gill can sit for most of his shift (5-hours), he can work an 8-hour day. If not he should continue 4-hour shifts.

• There is no medical restriction or limitation preventing him from working Saturday or Sunday if his restrictions are met.

26A meeting was scheduled for February 16 to discuss the FAE report summary. That meeting was rescheduled to February 24 because of the unavailability of the Union. The grievor cancelled the February 24 meeting that day. The next day, Ms. Griffioen sent him his new work schedule, commencing March 8, 2010. Her email provided a summary of the Employer’s expectations, which included that he would be an extra on the unit for the first two weeks and then become part of the staff complement. He was not to participate in the restraining of any clients. He would carry a walkie-talkie. He was to sit whenever possible and not stand for more than 2.5 hours nor use stairs for more than 40 minutes per eight hour shift. Another meeting was scheduled for March 5, 2010 to review the new ERWEAP.

27By all accounts, the meeting on March 5, 2010 was challenging. The Employer told the grievor that they believed the new schedule met his restrictions as set out in the FAE. The schedule included week-end shifts. The grievor was adamant that he could not work weekends as per his doctor’s orders. At the meeting the grievor provided another note from Dr. Wong dated March 3, 2010. That note reads as follows:

Ajit was re-assessed today He still reports ongoing pain and swelling in left ankle and to a mild degree in his (R) foot due to overcompensated usage. Importantly, he reports the (L) ankle pain and swelling are [greater] with continued standing and walking > 10-15’. Hence it is important for him to continue with his recorded 4 hrs/shift and accommodation as provided by the IME report. Also please review my last accommodation dated Dec. 18/09.

28Taking Dr. Wong’s notes of December 18, 2009 and March 5, 2010 together, the grievor’s recommended restrictions were to work five, four-hour, day-shifts every two weeks and no weekends. As per his report of December 7, 2009, the grievor needed a day off after every two days of work.

29The Employer made it clear at the meeting that they considered that the FAE trumped Dr. Wong’s opinions. On March 9, 2010 the grievor sent the following email to Ms. Griffioen:

I have not got a response from you with regards to getting a RTW schedule that follows my dr’s instructions. I sent you an email yesterday requesting a schedule that follows my doctors instructions for my accommodation as he recommends. I cannot attend to shifts that you are scheduling me to go against my doctors instructions. Would you please send a schedule that within the doctors instructions. Thanks in advance.

30Accordingly, the stage was set for the discipline and grievances that followed.

31The grievor refused to work Tuesday March 9 and Wednesday March 10. Those days were marked as unauthorized leaves of absence without pay. He received what the Employer characterized as a non-disciplinary letter advising him of that determination. It also warned him that, “…your failure to report to work and follow your Employee Return to Work and Accommodation Plan may result in disciplinary action up to and including dismissal.” In order to further accommodate the grievor, his schedule was modified. He had refused to work on March 9 and 10 because they were six hour shifts. His schedule was changed to reduce six hour shifts to four hour shifts.

32At that point the grievor’s schedule was to work five days per week, four hours per day, Sunday through Thursday, with Friday and Saturday off.

33On March 16 the grievor sent the following email:

Please note that the shift that you have scheduled me for on Wednesday March 17/10 does not follow my physicians recommendation. As you have asked me to contact you directly with regards to scheduling, I am asking that the Wednesday March 17/10 shift be moved over to Friday March 19/10 which would fall under my doctors instructions. I cannot do the Wednesday March 17/10 shift as that would go against my doctors orders. Also could you prepare a schedule that follows my doctors instructions for the future shifts. Thanks in advance for your time.

34The grievor’s objection was that March 17th would have been his third shift in a row, contrary to Dr. Wong’s orders. He left a voice-mail to that effect on March 17. A meeting was held March 18 to discuss the missed shift with him. There were discussions at the meeting about the content of the FAE and whether David Worby ought to have received a copy of the report.

35The grievor was given a written reprimand dated March 18, 2010 for having missed the March 17 shift. The Employer was of the view that nothing in the FAE restricted the number of consecutive days he could work. Further, he was surplus to count, could sit, stand or walk as tolerated and was only working four-hour shifts. He had been told that the FAE was being preferred to Dr. Wong’s recommendations. His failure to attend was considered to be insubordinate.

36On March 19 the grievor again sent an email to Ms. Griffioen asking for a work schedule that removed Sunday March 21 and any shifts that were more than 2 consecutive days. He repeated that email on March 20. On March 19 he also objected by email to the Letter of Reprimand as step one of the grievance procedure.

37Predictably, the grievor failed to attend work on Sunday March 21 and a meeting was scheduled for March 23 to discuss outstanding matters. That day he received a one day suspension for his failure to attend work. March 24 the grievor emailed Ms. Griffioen to lodge a grievance at Step One. A medical note dated March 26 from Dr. Wong re-emphasized that the grievor could not work weekends. The grievor then failed to report to work on Sunday March 28. A meeting with the grievor was scheduled by Ms. Griffioen for March 30. The grievor received a three day suspension. The letter documenting the suspension noted that, “… additional medical notes supplied by your physician would not be accepted with regards to your current accommodation.” Ms. Griffioen testified that Dr.Wong continued to provide notes and the Employer continued to consider them. On April 7, 2010, the grievor emailed Ms. Griffioen to contest the three-day suspension at Step One of the grievance procedure.

38On April 7, the grievor claimed in a voice mail not to have his schedule for April, which Ms. Griffioen testified had been sent to him March 18. He also advised that he would not be attending work on April 8.

39Also on April 7, there was a meeting between the grievor, the Union and the Employer to discuss outstanding issues. The Union objected to the Employer favouring the FAE report over the notes provide by Dr. Wong. The Employer reiterated that it viewed the FAE report as taking precedence over Dr. Wong’s script notes. The Employer also offered to change the schedule to later start times or longer shifts so that only every second weekend would be worked. The grievor was not willing to negotiate changes to the schedule.

40On April 9 the grievor filed three grievances as follows:

I grieve that my employer has “Failed to accommodate” under Article 3 of the OPSEU Collective Agreement and The Human Rights Code and all other legislation that may apply. The employer has scheduled me to work shifts that go against my medical restrictions/limitations as outlined by my medical physician.

I grieve that my employer has discriminated based on my disability under the Collective Agreement, Article 3, The Human Rights Code, and all other legislation that may apply.

I grieve wrongful reprimand – letter of reprimand with three (3) day suspension dated March 30, 2010 under Article 21 of the collective agreement and all other legislation that may apply.

41Each grievance sought the same remedies, to be made whole and for the “Employer to schedule [him] in accordance with [his] medical restrictions/limitations as directed by [his] physician.” That same day the grievor sent an email to Ms. Griffioen that reads in part, “… I would also like to thank you for your opinion that the schedule meets my restrictions/limitations, however, I would have to disagree on that. I ask that you make a schedule that follows my physician’s orders for my accommodation as he recommends, so that I may get all my shifts in. I appreciate your time.”

42On April 12, 2010, the grievor was suspended for five days for failing to report for his scheduled shifts on Thursday, April 8 and Sunday, April 11, 2010. The letter to the grievor documenting the suspension reviewed the past meetings and communications regarding the Employer’s expectations that the grievor abide by his schedule. It also explained that Dr. Wong’s note of March 26, 2010 did not indicate, “what functional limitations are created by working a day shift on Saturday or Sunday and why two consecutive days off at other times (which you currently receive) are not sufficient”. Ms. Griffioen testified that they continued to receive notes from Dr. Wong and they continued to consider them.

43On April 15, Ms. Griffioen sent the grievor his schedule for the month of May. That day, the grievor also grieved his five-day suspension. On April 21, the grievor refused to work April 22 as that would contravene Dr. Wong’s recommendations, because it would be a third consecutive shift. At 22:40 on Saturday April 24 he called in to say he would not be working on Sunday April 25, because it was contrary to Dr. Wong’s recommendations, because it was a weekend day. He received a ten-day suspension for those absences. That suspension was grieved on May 21, 2010.

44On April 27 a Stage Two meeting was held to consider all the grievances up to and including the five day suspension. The Union took the position inter alia that the schedule was unfair and that the Employer was not seeking out further information. The Employer says that it offered an additional IME to take into consideration any other medical information. It said that the Union declined. There is a dispute as to whether that offer was made.

45Dr. Wong provided another medical note dated May 4, 2010. It reads as follows:

To Whom It May Concern:

Re: Ajit Gill

Mr. Gill is unable to work weekends because of the following active medical limitations that he conveyed to me on May 4, 2010.

1. Chronic Sleep apnea. Uses CPAP. He needs weekends to recuperate his sleep.

2. He has been started on several new medications by orthopedist, Dr. Reid. These meds can cause drowsiness hence he does not take them on week days when he is working but instead takes on the week ends when he is safe at home.

3. He is extremely worried that on the week end shift there is reduced staff working, so that he fears not enough help in case of emergency or any crisis at work.

Mr. Gill feels the above situation renders him incapable of working week ends.

46Clearly, these thoughts are those of the grievor conveyed through Dr. Wong. The Employer replied to Dr. Wong on May 13, 2010, noting that the grievor was off on Fridays and Saturdays, so the requirements of paragraphs one and two were met. Further, it said that the grievor’s duties on the weekends were such that he was surplus to the count and not required to respond to workplace emergencies. It also provided a short questionnaire for Dr. Wong to complete regarding weekend work.

47Ms. Griffioen testified that the grievor was absent from work on May 16, May 19, and May 23, 2010. However, he was not disciplined because the request for information from Dr. Wong was still outstanding. Dr. Wong responded to the questionnaire on May 26, 2010. The information provided was no different than his previous note of May 4.

48As set out above, there was never any substantive reason provided for why the grievor’s consecutive days off had to be Saturday and Sunday rather than Friday and Saturday. The grievor was advised by letter dated June 3, 2010, that he was expected to follow his work schedule. Dr. Wong provided a further note dated June 4 saying that the grievor could attempt a trial period of working weekends commencing June 6. However, he only stayed at work that day for forty-five minutes. He said he felt dizzy so went home. The health nurse reported his symptoms as being “very poor colouring, pain in back of neck, dizzy, nauseated, using cane.” Dr. Wong provided a note dated June 8 in which he attributed the grievor’s indisposition of June 6 to his medications. Accordingly, Dr. Wong recommended no more weekend work until the grievor becomes “healthy and stabilized.” The grievor also left work early on June 8 due to illness. The grievor called in ill on June 9 and on Sunday June 12.

49On June 15, the grievor received a fifteen day suspension for his absences of June 6, 8, 9 and 12. Ms. Griffioen testified that if the medical notes simply had said he was ill, they would have accepted the medical excuse. However, the references to reverting to a no weekend schedule made the absences appear suspicious.

50It seemed apparent to the Employer that once again the grievor was not co-operating in his return to work plan. The grievor’s first day back to work after the suspension was to be Wednesday July 7, 2010.

51On Tuesday July 13 the grievor left a voice mail message that he would not be into work because it would be contrary to Dr. Wong’s orders that he only work two consecutive shifts. The note he obtained later that day from Dr. Wong cited, “increased ankle pain after having worked two consecutive shifts”. On July 15, 2010, the grievor received a twenty-day suspension for missing that shift. His return to work date was to be Sunday August 15, 2010. He grieved the twenty-day suspension on August 29, 2010. On July 16, 2010 the grievor filed a grievance against his fifteen day suspension and a grievance against the rejection of his claim to have been sick on June 6 and June 8, 2010; those were the two days he left work early.

I grieve that my employer has discriminated against me when I took legitimate sick time, leaving work due to feeling ill and taking two (2) days off due to illness. Employer was provided medical documentation following these absences from the workplace dated June 6 & June 8, 2010. I feel that I have been treated unfairly/discriminated against by being reprimanded or taking sick time due to medical concerns. Therefore I grieve discrimination based on Health Status and Disability under Article 3 of the Collective Agreement and all other legislation that may apply.

52On August 11 the grievor provided three doctor’s notes to the Employer. The first, dated July 12, 2010 was from Dr. Wong. It reads as follows:

This is an update on Mr. Gill’s present employment restrictions:

1. No lifting from floor to waist and from waist to chest.

2. No overhead work.

3. Not to carry any items more than 15 pounds.

4. No repetitive bending and twisting of back.

5. Limit stairs and walking on uneven ground.

6. Not to stand in one position more than 20 minutes.

7. No crouching, squatting or running.

These restrictions will be reviewed on a periodic basis every 2 to 3 months or sooner if he worsens.

53The second note was from Dr. Robert L. Reid. It is dated July 16, 2010 and reads as follows:

This man has chronic cervical and lumbar disc disease. I injected a very painful [indecipherable] of his left foot on July 14, 2010 but it has produced very little improvement.

54Another note from Dr. Wong, dated July 21, 2010, was also provided. It reads as follows:

This letter is to give medical evidence that Ajit is unable to work more than two consecutive 4 hour shifts in a row. That is, after working 2 consecutive shifts he needs the third day off in order to rest and recover from the built up pain and spasm in his left ankle and with increased mechanical back pain. The only way he could do the third shift would be for him to be very sedentary, that is to do 80% sitting during the 4 hour shift but this is not possible in his job.

(emphasis added)

55It was Ms. Griffioen evidence that the grievor’s duties did not change from day to day. He was already sedentary 80% of the time on every shift. However, the Employer’s written reply to the grievor of August 16, 2010 indicates that his duties would be changed on the third shift to comply with Dr. Wong’s recommendation. That letter reads as follows:

We acknowledge your physician’s notes of July 12th and 16th and, in particular, your medical note of July 21st in which it states you can work the third shift if you are in a sedentary position for 80% of your 4 hour shift.

This letter is to inform you that you can be accommodated accordingly and we will be making the necessary arrangements to ensure this accommodation is addressed immediately. We will make sure that the manager of the unit is aware of this accommodation today.

56In her testimony Ms. Griffioen described the letter as poorly worded because they had been providing that accommodation all along.

57The grievor reported to work on Sunday August 15, 2010 following his twenty-day suspension. He worked August 15, 16 and 17. The grievor left work at 11:00 a.m. on August 17. At 10:20 p.m. he left a message for Ms. Griffioen and the senior officer in charge that he would not be in on Wednesday, August 18 due to his doctor’s orders. He did work Thursday, August 19, the last shift of that week’s schedule.

58The grievor worked Sunday August 22. A meeting was held on Monday August 23 at which his absence on August 18 was addressed. At that meeting the grievor said he was in great pain after working the third consecutive shift on August 17. The grievor told the Employer that he had gone to a walk-in clinic after work on August 17 and saw Dr. Wong on August 18. He did not have a note from the clinic as they forwarded their report to Dr. Wong. He said he had a medical note from Dr. Wong, but the doctor had put incorrect dates on the note. The grievor wanted to get the note corrected before submitting it, but Dr. Wong would not be back in the office until August 24. The Employer asked for a copy of the note the grievor had; it was provided after the meeting. The grievor also told the Employer that he was now suffering pain in his right foot.

59Ms. Griffioen testified that there was nothing in any of the doctor’s notes that explained why the grievor could not work up to five consecutive four hour shifts on his restricted duties. She had never received a specialist’s medical report with restrictions that were different from those in the FAE summary. The only different doctor involved was Dr. Reid, and his note had no restrictions. In particular, the Employer had never received the Fowler-Kennedy report. She felt there had been no progress or cooperation from the grievor on moving forward with the return to work plan. The grievor was permitted to rest and be off his feet on all of his shifts. He could sit and stand as needed and ice his ankle as required. He was surplus to the count, so was an extra; he was not required to respond to crises. She felt his conduct was culpable because he refused to cooperate and refused to attend his scheduled shifts even though he had very few duties to perform.

60The grievor’s employment was terminated on August 24, 2010. The termination was grieved September 2, 2010.

61As set out above, Ms. Griffioen was the grievor’s supervisor throughout the return to work period with the exception of April 12 to May 19, 2012. During that period the grievor was managed by Cheryl Bachand. She testified that she reviewed the grievor’s modified work plan when she took responsibility for managing Unit 5. She testified that the grievor was surplus to the count and performed the duties discussed above. He was not required to intervene if any of the clients became disruptive. He had a walkie-talkie in case he needed help. He did not have to achieve any particular volume of work, either daily or weekly nor was he expected to maintain any particular pace. He was able to sit or stand as needed and ice his ankle as needed. He was sedentary 80% of the time. She had no recollection of the grievor ever complaining about pain or seeing him in pain. She saw him everyday, but was not in constant sight of him. She had no reason to believe that he was not following the modified work plan or that he was not sedentary 80% of the time.

62The disciplinary letters were signed by Anne Stark, the Director, Children’s Facilities Administrator at CPRI. She testified that the small improvements exhibited by the grievor in beginning to work weekends and having worked a third consecutive shift on August 17 were “too little, too late”. He had been provided with sedentary job duties within his restrictions. It was her view that the note from Dr. Wong relating to the August 18 absence was not a note documenting that the grievor was ill so much as it was a repeated attempt to dictate to the Employer that the grievor was to work no more than two consecutive shifts. She concluded that the grievor had not cooperated in the return to work process and that his absences had been culpable. She also said that the grievor had not cooperated in his rehabilitation because he had not sought out treatment for his pain. She had lost all faith in Dr. Wong’s notes. She did not seek clarification of the note related to the August 18 absence. It was up to the grievor and the Union to provide whatever additional information they had. The onus was on the grievor given the seriousness of the situation.

The Submissions of the Parties

63The Employer submitted that the grievor failed to co-operate in fashioning an accommodation plan contrary to his obligation to do so pursuant to Renaud. It said that is insubordination.

64The Employer also submitted that it was free to give no weight to Dr. Wong’s medical notes because they were replete with the grievor’s preferences, fears and hypothetical situations. Dr. Wong’s opinions were not based on any rational medical factors. For example, it said there was no rational basis for requiring Saturday and Sunday off rather than Friday and Saturday. The grievor and his doctor were trying to dictate to the Employer what schedule the grievor would work. It was not required to follow Dr. Wong’s dictates. The grievor’s failure to cooperate in following his schedule was culpable.

65The Employer said that it was right to follow the findings of the FAE. Further, Dr. Wong’s opinions were based on the grievor misrepresenting to him what the grievor’s job duties were. The sedentary, modified work program was reasonable and suitable. It was insubordinate of the grievor not to follow it. There was no medical justification not to work five consecutive shifts. None of the specialists who saw the grievor said he could not work five consecutive shifts.

66The Employer also submitted that the grievor’s evidence was not credible. He testified to the existence of personal documents and records that never materialized. Yet his recollection of the degree of pain he was in on August 15, 16 and 17 was detailed and precise. He had just come off a twenty day suspension so should have been well rested.

67The Employer said that the reason it received from the grievor that he would not work August 18 was that it was against his doctor’s orders, not that he was in too much pain. The Employer said it was right not to accept Dr. Wong’s note. Further, the clinical notes for that day make no mention of examining the grievor’s ankle, only that his blood pressure was taken and they discussed seeing a pain psychologist. At the meeting of August 24, the grievor made no mention of having taken strong muscle relaxants.

68The Employer said that the grievor knew his schedule and the Employer’s expectation that he would work his schedule. By calling in to say he would not be in on August 18, he implicitly acknowledged that he was scheduled to work and was expected to attend.

69The Employer said that the grievor’s testimony that he was part of the count should be rejected. That contradiction, like so many others, was not put to the Employer’s witnesses. It would be unfair to put any weight on it.

70The Employer said that the graduated return to work plan was reasonable and it was insubordinate of the grievor not to follow it. He was progressively disciplined. The discipline and discharge should be upheld. In the alternative, if the grievor is reinstated, since the grievor was claiming through his LTIP appeal that he was totally disabled, he should receive no compensation. In the further alternative, if the grievor is reinstated, there should be no compensation because the Employer had made sufficient efforts to return the grievor to paid work. It ought not to be required to pay compensation in circumstances where the grievor had been kept on as extra to the count for the length of time he had been.

71The Employer relied upon the following authorities: OPSEU v. Ministry of Community, Family and Children’s Services (Balog Grievance), [2004] O.G.S.B.A. No.73 (Abramsky); Toronto Transit Commission and A.T.U., Local 113 (Tavares Grievance), [2012] O.L.A.A. No. 429 (Howe); OPSEU v. Ministry of Community and Social Services (Barillari), (GSB 2006-1932, Carrier, October12, 2012; Jones and Treasury Board (Department of Transportation) (1981), 1981 CanLII 4384 (CA LA), 29 L.A.C. (2d) 349 (Kates); Complex Services Inc. and OPSEU (unreported, February 22,2012, Surdykowski); Cornwall (City) v. CUPE Local 3251 (Greggain-O’Brien Grievance), [2008] O.L.A.A. No.76 (Kaplan); Prologix Distribution Services v. Teamsters Local Union 419 (Mackovski), [2011] O.L.A.A. No.161 (Kaplan); Toronto District School Board v. CUPE Local 4400 (Maropakis Grievance), [2009] O.L.A.A. No. 45 (Luborsky); Sault Area Hospitals v. S.E.I.U. Local 268(Ainslie Grievance), [2001] O.L.A.A. No. 225 (Whitaker); Capital Health Authority (Royal Alexandra v. United Nurses of Alberta, Local 33 (Schram Grievance), [2006] A.G.A.A. No.60 (Ponak); Baker and York Region District School Board, 2011 HRTO 213, 2011HRTO 213 (Price); Toronto (City) v. CUPE, Local 79 (Portillo Grievance), [2011] O.L.A.A. No. 167 (Randall).

72The Union submitted that although the standard of proof is proof on a balance of probabilities, where there are serious consequences, the evidence should be clear and compelling. It said that discharge from employment was a serious consequence.

73The Union said that Dr. Wong’s note of July 21, which said that the grievor could work a third shift if it was 80% sitting was significant progress towards the goal of returning the grievor to 40 hours per pay period and ought to have been recognized as such. The grievor had also worked weekend days. Accordingly, there was progress on two fronts, being consecutive days and working weekend shifts. With termination hanging in the balance, those two aspects ought to have been factored in. The Union submitted that the Employer’s letter of August 16 saying that the accommodations requested for the third day would be provided was confusing. It reasonably led the grievor to conclude that he would not have to work a fourth, consecutive day. The Union submitted that the Employer should have shown the same flexibility with the number of consecutive days worked with the length of the shifts. It had initially sought to increase the grievor’s shift length but relented and left it at four hours per shift.

74As for the missed shift of August 18, the Union submitted that the best assessment for why he missed the shift is that the reasons are a mix of being medically unfit and needing a day of rest as per Dr. Wong’s recommendations. The Union said that Dr. Wong’s note of August 18 has value. The grievor attended the walk-in clinic on the 17th and saw Dr. Wong on the 18th. The Employer ought to have given greater weight to the grievor’s claim that he was medically unfit to work August 18th. It said that the Employer did not ask for more information from Dr. Wong, nor did it follow-up with the walk-in clinic. The evidence supports that the grievor was too ill to work, and the Employer has not proven that the grievor could work.

75The Union reviewed some of the grievor’s discipline record. It said that the twenty-day suspension (July 15, 2010) was unfair and unjustified. It was reasonable for the grievor to have complied with Dr. Wong’s recommendation that he have a day of rest. As for the fifteen day suspension (June 15, 2010), the Union submitted that the grievor had called in sick, so the Employer should have responded differently. The ten-day suspension (April 27) was said to involve both the issue of not working more than two consecutive days and not working weekends. The Union said that the Employer should have done more than it did. The Union said that the issue of not working weekends had its genesis in the grievor’s sleep apnea. The Union reviewed the FAE report and said that the Employer ought to have sought clarification of some of the answers given to its questions. Most notably, there is no reference in the report to the grievor’s ability to work consecutive shifts. The Union said there was no medical basis to establish that the grievor could work five consecutive shifts in a row. The Union reviewed the testimony of the witnesses and reviewed the authorities provided by the Employer. The Union relied upon the following authorities: Hamilton Health Sciences and O.N.A. 2007 Can LII 73923 (ON LA) (Surdykowski); Canadian Labour Arbitration, Brown and Beatty 7:6142 and 7:3612; Fort James Canada Inc. v. Graphic Communications International Union, Local 100-M (Foote Grievance) (2001) 2001 CanLII 62131 (ON LA), 94 L.A.C. (4th) 423 (Newman); Nelson Laundries Ltd. And Retail Wholesale Union, Local 580 (Champagne Grievance) (1997), 1997 CanLII 25084 (BC LA), 64 L.A.C. (4th) 120 (Somjen); Universal Handling Equipment Co. and United Steelworkers, Local 7204, 21 L.A.C. (4th); Gentek Building Products Ltd. And United Steelworkers of America, Local 1105, 119 L.A.C. (4th); Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 43, 22 L.A.C. (4th); Brown & Beatty re Insubordination 7-3612, 7-3630 and 7-3621; Re Firestone Steel Products of Canada and United Automobile Workers, Local 27, 8 L.A.C. (2d); Re Meat Connection Inc. and United Food & commercial Workers, Local 1105P, 23 L.A.C. (3d); Indusmin Ltd. V. United Cement, Lime and Gypsum Workers International Union, Local 488 (Clute Grievance) [1978] O.L.A.A. No. 7 (Picher).

76In reply, the Employer submitted that every termination case has serious consequences. The standard of proof is proof on the balance of probabilities.

77The Employer agreed that the FAE did not directly deal with the number of consecutive shifts the grievor could work. It did deal with working eight hour shifts. Given that the Employer scheduled four-hour shifts, there was said to be no reason that the grievor could not work five consecutive four hour shifts. It was said that there can be no doubt that the Employer would require better medical information from the grievor to justify not working five consecutive shifts. It said it asked the grievor at the meeting of August 23 if there was any more information. There was no new information.

78The Employer also reviewed the authorities provided by the Union.

Reasons for Decision

79The grievor’s evidence was often impressionistic, vague and unsupported by documents he said that he possessed. The following is a review of some of that evidence and portions of his evidence that establish that he was well aware of the employer’s requirements concerning his schedule.

80The grievor said that he knew he was scheduled to work on August 15, 16, 17, 18 and 19, 2010. His schedule had been brought to his attention in the twenty-day suspension letter of July 15, 2010. His schedule was also posted, and he would have looked at the posted schedule.

81The grievor gave specific evidence of the pain he was experiencing using a percentage scale. He said that on August 15 his pain was 5 out of total of 10. On August 16 it was 6 on a scale of 10 at the start of the shift and 6.5 or 7 at the end of the shift. He said he was totally exhausted. At the start of his shift on August 17 his pain was 65 – 70%. He described it as an accumulation of pain from the previous day. His intention on August 15 was to work the five scheduled days, but at the end of his shift on August 17 he was in extreme pain and determined to wait until the evening to see if he would be able to work on August 18. He stopped at a walk-in clinic on the way home on August 17; he said that he was prescribed a powerful muscle relaxant. He said that he could not make it into work on August 18 because he was in too much pain and had taken the medication between 9 and 10 pm. There was no evidence that the grievor ever told his supervisors on August 17 that he was in increasing pain.

82The grievor said that on the evening of August 17 he called the Senior Officer and his manager, Connie Griffioen. He agreed that the summary of his voice-mail message set out in his letter of termination was probably accurate. That summary reads as follows:

On August 17, you called your manager and left a voice mail message at 10:20 p.m. advising her that you would not be reporting to work the next day on August 18 as per the medical note dated July 21, 2010 which was received by the Employer on August 11, 2010 via e-mail from yourself. The medical note stated the following “This letter is to give medical evidence that Ajit is unable to work more than 2 consecutive 4 hour shifts in a row. That is after working 2 consecutive shifts he needs the third day off in order to rest and recover from the build up pain and spasm in his left ankle and with increased mechanical back pain. The only way he could do the third shift would be for him to be very sedentary, that is to do 80% sitting during the 4 hour shift but this is not possible in his job”.

83The grievor’s assessment was that he would not have been able to work August 18 because too much pain had accumulated. He did not work August 18, but he did work his shift on August 19. He said his pain was 6.5 to 7.0 at the start of his August 19 shift.

84Notwithstanding the grievor’s testimony that he knew he was expected to work five shifts in a row, and had phoned to say he would not be in to work on August 18, he went on to testify that he believed the Employer’s letter of August 16 accepted that he could work a third consecutive shift if it was sedentary and that he would have a day off after the third shift where in the past that would have been after the second shift.

85The grievor said he tried to be more sedentary on August 17 and was pretty close to 80% sedentary. His evidence on this point was reminiscent of the type of concerns expressed through his physician. He said that he was concerned that the 20% of non-sedentary duties could be more intense than the previous day. It did not turn out to be so, but the possibility was there. He testified that, in his discussions with Dr. Wong, Dr. Wong was not happy with him working the third consecutive shift let alone a fourth, but definitely they were working towards a 4th and 5th consecutive shift.

86The grievor also testified as to his experiences in returning to work in June 2008 and the attempt by Manulife and the Employer to increase his hours in June 2009. The grievor said he was off work for much of July 2009 on stress leave, brought about by the way he was treated by Ms. Griffioen. He said she would not talk to him, would throw things at him, saying, “This is for you.” She gave him the cold shoulder, intimidated him at meetings and denied him Union representation. None of these allegations were put to Ms. Griffioen, so no weight can be given to them.

87The grievor also commented on Dr. Wong’s proposal that he could return to work on August 10, 2009 on straight nights. He said that proposal was just swept under the rug, but he could not recall if he asked about it further. The grievor’s rationale, which he gave to Dr. Wong, for working nights, was that the night shift would minimize the chances that he would have to chase the clients. However, the evidence is clear, and I find, that he was not required to chase the clients or respond to emergency situations. The return to work plan of late August, 2009, which would increase his hours over a six-week period, was agreed to by Dr. Wong in correspondence to Manulife dated August 7, August 10 and August 12, 2009. The grievor recalled having agreed to one return to work plan, which was then changed by Dr. Wong. The return to work plan was confirmed to the grievor by letter of August 28, 2009. On September 3, Dr. Wong provided the grievor with a script note reestablishing five four-hour shifts per pay period, to be reviewed in six months. The grievor had no explanation for this about-face.

88A review of Dr. Wong’s clinical notes of visits by the grievor demonstrates that on August 13, the grievor told Dr. Wong that he had noticed that the return to work plan increased his shifts to the point where he would be working a full schedule of shifts. The grievor told Dr. Wong that he felt that would increase his ankle pain so he wanted to work as before, being two shifts per week alternating with three shifts per week. This change of heart was communicated to Manulife by Dr. Wong by correspondence of August 17, 2009 and to the Employer with the script note of September 3, 2009. When the grievor was asked in chief if that note came out of his meetings with Dr. Wong, he said he could not recall.

89It was this abrupt change in Dr. Wong’s opinion that began the discussions about having the grievor attend an IME. I have not set out a detailed analysis of Dr. Wong’s testimony and clinical notes and records. I have however carefully reviewed them and find that the grievor was able to have a persuasive impact on the expression of Dr. Wong’s opinions. By way of the example set out above, in August 2009, Dr. Wong signed off on Manulife’s return to work plan three times. When the grievor expressed opposition to the return to work plan, Dr. Wong produced a script note reverting to his old restrictions for the next six months. The Employer was justified in ignoring that note and proceeding instead with the FAE. Nonetheless, it reviewed all subsequent notes provided by Dr. Wong, but preferred the FAE after having received it.

90The grievor said he agreed to the request for the FAE but objected to the Employer having selected the service provider. He acknowledged that his complaint resulted in his being given a choice of three service providers.

91The grievor testified that he suggested that the report from the Fowler Clinic be used as the IME, but he got no response from the Employer. He never did produce the Fowler report to the Employer. That is likely because the report did not support his contentions. That report did find its way into evidence however because it was included in the medical documents filed as exhibits. The conclusion of the report, dated November 18, 2009 reads as follows:

I really have no explanation for Ajit’s ankle pain. His examination was fairly nonspecific and benign and his multiple investigations do not point to any obvious pathological cause for his pain. He does show some mildly decreased poor balance and perhaps this decreased proprioception is causing some joint irritation overuse of the musculature about the ankle. I think he would benefit from ongoing use of an ankle brace and normalizing his gait. I think he would likely benefit from ongoing physiotherapy with focus on functional rehabilitation, strengthening and balance. He may benefit from a consultation at the Pain Clinic, but I will leave that in your hands.

92With respect to the schedule given to him in December he said it was thrown at him by Ms. Griffioen who said, “Well your LTIP is over today so here’s your schedule.” Again, none of this was put to Ms. Griffioen so no weight can be attached to it. The grievor wrote to Ms. Griffioen protesting the increased hours and rotating shifts. In response, he was put back on his previous schedule of four hours per shift, pending receipt of the FAE.

93The grievor was asked about attending the FAE. He said he was misled all the way through the process as he had expected a medical examination (IME) only to find out it was a FAE conducted by non-medical personnel.

94In all of the circumstances, the Employer was left with few options in managing the grievor’s return to work. Dr. Wong had demonstrated an increasing unreliability in the opinions he was providing. He had clearly agreed to Manulife’s plan to gradually return the grievor to work and then abruptly reverted to his previous groundless restrictions of no weekend work and a day off after every two days of four hour shifts. The grievor was not expected to perform any onerous duties and could sit, rest and ice his ankle as required. When Dr. Wong recanted his agreement with Manulife’s return to work plan the Employer was right to seek an independent assessment. When the grievor objected to the process being taken to choose the assessor the Employer agreed to all of the grievor’s suggestions. He picked the assessor. Although the grievor made much of the fact that it was not a medical examination, it was not inappropriate that he received a functional abilities examination.

95The Employer’s analysis of the FAE report and its conclusions regarding the return to work plan were not unreasonable.

96The grievor kept his participation in the formulation of his return to work plan to a minimum. He was obliged to participate in its formulation, yet his only contribution was to continue to insist on Dr. Wong’s restrictions, which included no weekend work. From Dr. Wong’s testimony, that restriction was based in part on the grievor’s misrepresentation of his duties and unfounded safety concerns relating to the weekend.

97The grievor did not communicate to the Employer that his pain was increasing, he merely parroted the opinions of Dr. Wong, which he had largely contributed to the formation of by providing inaccurate facts upon which the opinions were based.

98There is no doubt, on the evidence, that the grievor experiences pain. There is also no obvious explanation for his pain. In the context of these grievances, he was not being required to fulfill his duties as a Youth Counselor. He could sit as much as he needed to and had few specific duties because he was surplus to the staff complement. He was literally just expected to come to work for four hours per day and perform light duties as tolerated. He failed to meet the schedule, purportedly on the basis of his doctor’s recommendations, which recommendations had been reasonably rejected by the Employer. His steadfast refusal to abide by his schedule was insubordinate. He was disciplined on a progressive basis resulting in the termination of his employment.

99The grievor did engage in the insubordinate conduct alleged. He was properly subjected to discipline for that conduct. Given the length of time over which the grievor engaged in very little participation in his return to work and the progressive nature of his discipline, I cannot conclude that discharge was excessive.

100I turn now to summarize the disposition of the individual grievances.

January 26, 2010 – Failure to Accommodate

101This grievance alleged that the Employer had failed to accommodate the grievor. As set out above, it relates to the grievor’s complaint that he should have his short-term sick credits reinstated. The goal of the return to work plan was to get the grievor up to 40 hours per pay period so that his sick credits would be restored as per the requirements of the collective agreement. It was the grievor’s intransigence that thwarted the return to work plan. There was no violation of the collective agreement or the Human Rights Code by the Employer.

102There was some confusion in the grievor’s account as to what benefits had ceased. He said that he believed it was his supplementary benefits. However, he agreed in his evidence that he had his prescription drugs covered throughout. Nonetheless, he also believed that other benefits, such as physiotherapy, were discontinued. There was no violation by the Employer due to the grievor not claiming coverage for benefits he may have been entitled to. The grievance is denied.

March 29, 2010 – Wrongful Reprimand dated March 18, 2010

103The grievor received a written reprimand for failing to attend his scheduled shift on Wednesday, March 17, 2010. The reason he gave at the time for his failure to attend was that it would be his third consecutive shift and against his doctor’s orders for him to report to work. As set out above, the Employer was correct to ignore his doctor’s orders and instead take guidance from the FAE. The grievor’s work schedule was reasonable. The grievor had also failed to attend his six-hour shifts on March 9 and 10, 2010. He was not disciplined for those absences. Rather, The Employer reduced his shifts to be four hours in length. He was given a letter of counsel on March 12 advising him that he had to follow his schedule. He had previously been counseled on January 6, 2010 to the same effect. I find that his failure to attend work, as scheduled, on March 17, 2010 was deserving of discipline and the letter of reprimand dated March 18, 2010 was a reasonable response, being progressive discipline and the least disciplinary response open to the Employer. The grievance is denied.

March 29, 2010 – One Day Suspension regarding absence on Sunday, March 21, 2010

104At a meeting with the grievor held on March 18, 2010, he was advised that the Employer has the right to set his schedule. He was also told that he was expected to attend work the following Sunday, March 21, 2010. He responded with emails dated March 19 and March 20 advising that he would not attend on March 21, 2010 because it was contrary to his doctor’s orders. As set out above, I have found that there was no justification for the restriction that he not work weekends. Accordingly, he was obliged to report to work as scheduled, but he did not. His refusal to follow his work schedule was deserving of discipline. A one-day suspension was a logical and reasonable progression from the written warning of March 18, 2010. The one-day suspension imposed on March 23, 2010 was just. The grievance is denied.

April 9, 2010 – Failure to Accommodate – Scheduling Shifts against medical restrictions

105This grievance is a general grievance that the Employer’s work schedules are contrary to the grievor’s doctor’s orders, thereby amounting to a failure to accommodate. The grievance had been particularized in an email from the grievor to Ms. Griffioen dated March 29, 2010, which reads as follows:

I am sending you this email with regards to the schedule you/Felicia have given me dated March 12/2010. As noted several times I have asked you for a schedule that follows my doctors instructions, and have thus far only received schedules that go against my doctors orders. This letter is intended as a formal notice of Stage One of the grievance procedure as per The Collective Agreement and The Human Rights Code for Failure To Accommodate under article 3 and any other legislation that may apply.

106For the reasons set out above, the Employer was justified in not following Dr. Wong’s recommendations. There was no violation of the collective agreement or the Human Rights Code. The grievance is denied.

April 9, 2010 – Discrimination based on disability

107This grievance is nothing more than a reiteration of the previous grievance.

108The Employer did not discriminate against the grievor on the grounds of disability. Indeed, it was making significant efforts to accommodate the grievor’s disability. As set out above, it reasonably interpreted the FAE. It reasonably rejected Dr. Wong’s opinions and drew up a schedule of light duties consistent with the grievor’s restrictions. The grievor was obliged to participate in fashioning his accommodation, which he largely declined.

109There was no discrimination contrary to the collective agreement or the Human Rights Code. The grievance is denied.

April 9, 2010 – Three-day suspension for missing Sunday, March 28, 2010

110The Employer met with the grievor on March 23, 2010 at which time he was again told that he was expected to follow his work schedule. He was specifically told that he was expected to report to work on Sunday March 28, 2010. On Friday, March 26, 2010 he submitted a medical note from Dr. Wong, dated March 26, 2010, which reads as follows:

re: Ajit Gill

This note is to re-emphasize that due to his chronic ankle pain and sleep disorder he is not able to work week-ends (Sat. & Sundays) at all.

111This note added nothing to the medical record that could justify not working weekends. The Employer was correct in concluding that the note did not indicate what functional limitations were associated with weekends. It was correct to ignore the note.

112The grievor’s failure to attend on March 28, 2010 was a continuation of his contumacious disregard of his work schedule. It was deserving of discipline and a three-day suspension was a logical and reasonable progression. The grievance is denied.

April 15, 2010 – Five day suspension for missing Thursday April 8 and Sunday, April 11, 2010

113The Employer met with the grievor and his Union representative on April 7, 2010. I accept the Employer’s account that the grievor refused to accept his schedule or negotiate changes to it, such as providing for a later start time. Nothing had changed in terms of new medical information. The grievor refused to attend work on Thursday, April 8 because that would have been a third consecutive shift and on Sunday, April 11, 2010, because it was a Sunday, both shifts being contrary to his doctor’s orders. For the reasons set out above, it was unreasonable for the grievor to absent himself. His behaviour was deserving of discipline. The five-day suspension was a reasonable and proportionate progression of discipline. The grievance is denied.

May 21, 2010 – Missing Thursday, April 22 and Sunday April 25, 2010

114There is little to distinguish these absences from those dealt with in the previous grievance. It is notable that the Employer in both instances gave one discipline for two infractions when it could have progressed the disciplinary response more rapidly.

115The grievor’s continued intransigence in defying his schedule was deserving of discipline. The ten-day suspension was a reasonable, progressive response. The grievance is denied.

July 14, 2010 – 15 day suspension for leaving work early on June 6 and June 8 and missing work June 9 and Sunday June 13, 2010

116On June 6 the grievor reported for work but left early. He had provided a note from Dr. Wong dated June 4, 2010 clearing him to attempt weekend work. He provided a medical note from the “Commissioners Medical and Walk-in Clinic” dated June 6, 2010 stating that he was “medically unfit for work 6/6/10”.

117When the grievor left early on June 8, 2010 he went to see the Employer’s Health Service Nurse. The symptoms observed by the health nurse are set out in an email of June 8, 2010 from Connie Griffioen as being “very poor colouring, pain in back of neck, dizzy, nauseated, using cane.” He saw Dr. Wong that day, who said that the grievor “became ill, likely due to medications.” Dr. Wong added that the grievor should go back to his weekday only schedule. That note was given to the Employer on June 10.

118On Wednesday, June 9, 2010, the grievor left voicemail messages that he was ill and that his Doctor had recommended that he revert to his original accommodation. He called in on Sunday, June 13 and said he would not be in because he was ill.

119In my view, the grievor was justified in leaving early on June 6 with the medical note of the same date. On June 8 he again left early, with symptoms reported that are consistent with illness. Dr. Wong’s note of June 8 certified that he was ill, likely due to medications. That certification was sufficient to cover June 9, 2010 as well, when he called in sick. However, Dr. Wong’s note went on to say that the grievor should return to his usual weekday shifts until he becomes “healthy and stabilized”. There is nothing in the note to tie these medication issues to not working Saturday and Sunday, rather than not working Friday and Saturday. Dr. Wong’s recommendation did not need to be followed.

120It was reasonable for the Employer to conclude that the grievor did not report to work on Sunday, June 13 because it was a Sunday. There is nothing to indicate there was any other reason than that he was following his doctor’s recommendations. Those recommendations had been properly rejected in the past and were properly rejected on this occasion. The grievor’s absence on Sunday June 13, 2010 was culpable and deserving of discipline. His behaviour was a continuation of his previous misbehaviour. It was appropriate and reasonable to progress to a fifteen-day suspension for that absence alone. The grievance is denied to that extent. However, if he suffered any monetary loss for the absences of June 6, 8 or 9, 2010 he should be made whole.

July 16, 2010 – Discrimination based on Health Status and Disability – June 6 and June 8, 2010 absences

121For the reasons set out immediately above, this grievance is allowed.

August 29, 2010 – Twenty day suspension for missing Tuesday, July 13, 2010

122The grievor called in on July 13, 2010 and left a message that he would not be in to work because it would be a third consecutive shift, which would be contrary to his Doctor’s orders.

123For the reasons set out above, that behaviour was culpable and deserving of discipline. The next reasonable, progressive step would be a twenty-day suspension. The Employer was justified in imposing that suspension. The grievance is denied.

September 2, 2010 – Unjust Termination

124The circumstances leading to this grievance are set out in my general reasons above. To summarize, the grievor did work the third consecutive shift on August 17, 2010. He testified that he was in pain that day, but he did not report any difficulties to the Employer until late that evening. He testified that he thought that his schedule had been changed to permit him a day off after three consecutive shifts. However, he knew he was expected at work because he called in to say he would not be there. He also knew that he did not previously have a day off after two consecutive shifts. He had been progressively disciplined for having tried to impose that schedule.

125The grievor well knew he was expected to report to work on August 18. I share the Employer’s conclusion that this was a continuation of his defiance of his schedule. Except for Dr. Wong’s echoing of the grievor’s opinions, no other medical practitioner expressed these non-functional work restrictions. I find that his failure to attend work on August 18 was culpable. It deserved discipline and the next progressive step was termination. There is no basis upon which to interfere with the Employer’s action. Accordingly, the discharge grievance is dismissed.