GSB#2012-0173

UNION#12-14

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Canadian Union of Public Employees - Local 1750 (Grievor)

Union

• and -

The Crown in Right of Ontario (Workplace Safety and Insurance Board)

Employer

BEFORE

Richard M. Brown

Vice-Chair

FOR THE UNION

Jim Morrison Canadian Union of Public Employees – Local 1750 National Staff Representative

FOR THE EMPLOYER

Eric Kupka Workplace Safety and Insurance Board Counsel

HEARING

January 28, February 22, March 18, 20, 25 and 27, September 27, November 4, 15, 18, 22 and 27, 2013

Decision

1The grievor began working for the WSIB in 1991. She received a two-day suspension in November of 2011 for making allegations of harassment that the employer viewed as unfounded. She was terminated in January of 2012 for allegedly failing to provide satisfactory proof that her absence from work was medically necessary. The allegations of harassment and the subsequent absence share a common factual backdrop involving the grievor’s interactions with a manager.

2The grievor’s name does not appear in this decision because it contains confidential medical information. The parties agreed the manager in question, who was not called as a witness and did not otherwise participate in the hearing, also should not be named. He is referred to below as Mr. X.

3The grievor reported to Mr. X from March of 2009 until July of 2010. Their relationship was a troubled one. The grievor first complained of being harassed by Mr. X in September of 2009. An internal investigation of this complaint, conducted by Susan Hardman from human resources, concluded there had been interpersonal conflict between the grievor and her manager but he had not harassed her.

4The absence resulting in the grievor’s termination began in early 2011 when she held the position of work transition specialist. Her then manager, Annette O’Connor-Lockley, was new to the WSIB. In late January, Ms. O’Connor Lockley told the grievor that Mr. X would act as her manager when Ms. O’Connor Lockley was away. The grievor was also told she would be sharing a work station with a member of Mr. X’s team with whom he would have regular interaction.

5On January 26 the grievor told her manager that she would not work with Mr. X, saying the employer had put in place restrictions on his interaction with her. Ms. O’Connor Lockley initially told the grievor that she could report to another relief manager. This decision was rescinded on February 22 after Ms. O’Connor Lockley made inquiries about any restrictions on Mr. X’s interaction with the grievor and was told there were none.

6The grievor met with Ms. O’Connor Lockley on February 23 and stated she was having trouble sleeping and was certain Mr. X would “do something” to her. February 23 was the grievor’s last day on the job. She went on sick leave commencing February 24 and did not return to work before her dismissal almost eleven months later.

7In a letter to the employer dated February 23, Dr. Thomas Barnard, the grievor’s family doctor, stated he had advised her not to work with Mr. X and to seek “legal protection.” The grievor handed this letter to her manager when they met the same day. Also on February 23 Dr. Barnard referred the grievor to a psychiatrist, Dr. Rachel Burdett, and psychologist, Dr. Elizabeth Skidmore. On February 25, Dr. Skidmore advised the grievor to contact the police immediately.

8The grievor did contact the Ontario Provincial Police on March 12. The police report indicates she felt threatened by Mr. X’s body language, even though he had not verbally threatened her or physically touched her. The OPP redirected the grievor to the Ministry of Labour. An occupational health and safety officer from the Ministry contacted the employer. The officer’s report, dated March 28, records that the employer had “committed to address these issues in house.” As a result of this commitment, the WSIB retained Investigators Group to examine the grievor’s complaints about Mr. X.

9Before the investigation was complete, the WSIB’s Centre for Health, Safety and Wellness (CHSW) determined there was medical justification for the grievor’s absence between February 24 and May 26, 2011. This determination was based on reports provided by Dr. Barnard and Dr. Skidmore.

10In a report dated March 9, Dr. Barnard described the grievor as suffering from “acute, traumatic mental stress” with “possible post-traumatic stress.” He described her symptoms as sleeplessness, severe anxiety and panic. On March 22, Dr. Leonardo Grbac, a medical consultant to the CHSW, spoke to Dr. Barnard on the phone. At the end of this conversation Dr. Grbac determined there was “medical support” for the grievor’s absence to date.

11On April 29 Dr. Skidmore provided a report containing a diagnosis of acute stress disorder and adjustment disorder with anxiety and depression. She characterized the depression and anxiety as in the severe range. She recorded a global assessment of functioning (GAF) score of 51, indicating the grievor’s symptoms were in the lower end of the moderate range. On May 26, Yolanda Chong, a nurse in the CHSW, decided Dr. Skidmore’s report supported the grievor’s absence up to May 25.

12Between May 26 and November 7, 2011, pending completion of the investigation, the employer did not require the grievor to provide medical justification for her absence. She was treated as being on a paid leave, funded by her attendance credits.

13By early November of 2011 the employer had received a report from Investigators Group concluding Mr. X had not bullied or harassed the grievor. The report dealt with a range of complaints the grievor had made about Mr. X including those already addressed by the Hardman report.

14For present purposes, the most pertinent part of the report concerns the grievor’s allegations that Mr. X on three occasions behaved in an angry and aggressive manner that frightened her. In particular, the grievor complained about encounters with Mr. X on September 23, 2009, May 13, 2010 and June 29, 2010.

15The transcript of the grievor’s interview with Investigators Group contains the following account of the September 23 incident which occurred in Mr. X’s office:

And then he just started yelling at me about everything. He started saying he was getting all these complaints, and he said that why don’t I just admit that I hate my job, and I don’t want to be there, you know, that kind of thing. So, anyway, I kept trying to leave, and he was getting very upset, like his face. ….[F]inally I did get up and left. And I was just shaking, like, for a couple of days after.

Mr. X told Investigators Group he met with the grievor, with some trepidation, about performance issues. He provided no details of this interaction.

16When interviewed about the May 13 incident, the grievor stated:

I was at my desk and he came charging at me… So, I was trying to leave before he got to my desk. And then he stopped me… So, then, I sat down and he put his hands on—I have armrests on my chair—and he put his arms on both of them and lowered himself down and looked at me… I don’t even remember what he said. I was just, like, I thought I was going to pass out.

Mr. X gave Investigators Group a note, apparently made by him on May 13, stating he had gone to the grievor’s cubicle and had “crouched down like a baseball catcher” because she had previously indicated she was intimidated by his height. He did not say whether he had placed his hands on the arms of her chair.

17The transcript of the grievor’s interview contains the following version of what happened on June 29:

So I was sitting at my desk, and [Mr X] came over and started to, like really criticize something I had done. I don’t even remember what it was. And, anyway, so Ken got up … and said [Mr. X] calm down … And then [Mr. X] started to get mad at Ken … And said you’re frothing at the mouth … He said look at you, you are beet red, why are you so angry at [the grievor]… (pages 28 and 29)

Mr. X told Investigators Group: “And it was a difficult conversation but I did not raise my voice.”

18There were no witnesses to the first two encounters but the one on June 29 was witnessed by another employee. His interview by Investigator’s Group contains the following description of this encounter.

And they were going at it, not loudly but it was aggressive. … He was asking questions. She was giving him responses. He would re-ask further questions. She would give him more responses… His face was beet red, and he was getting, the body language, and the way his face was, and the way his voice was, he was getting, I felt he was getting angry. She wasn’t going to take that, and certainly wasn’t helping the situation … So I leaned back in my chair and said what’s going on … And it kind of snapped them out of it and he stopped and kind of walked away. And [the grievor] was shaking. She was visibly shaking.

The report by Investigators Group indicates this witness subsequently described the grievor as insubordinate.

19Viewing the grievor’s account of the June 29 incident as contradicted by the employee who witnessed it, Investigators Group determined her complaint about Mr. X lacked any evidentiary foundation. (See page 12 of the report.) In coming to this conclusion, Investigators Group relied in part on the witness’ description of the grievor as being insubordinate. Noting the witness stated Mr. X was separated from the grievor by a baffle on June 29, Investigators Group mistakenly treated this statement as contradicting the grievor’s claim that Mr. X had his hands on the arms of her chair, a claim she had made about May 13, not June 29.

20Despite having found the grievor’s complaints to be unfounded, Investigators Group concluded she had “a real fear” of Mr. X. As Investigators Group noted, after the Hardman report, “it was decided” the two of them would meet “on the fourth floor where security was present or have another person present.”

21Investigators Group also addressed concerns the grievor had raised about how three other people had treated her in 2009 or 2010: Karen Krall from human resources who supported Mr. X when he denied expense claims; Gizella Orosz, a union steward, who had backed Ms. Krall in relation to the same expense claims; and Nadia Metulynsky, the grievor’s manager after Mr. X, who allegedly delayed approval of expense claims and vacation requests. Investigators Group concluded the grievor’s complaints about these individuals were unfounded.

22Having received the report from Investigators Group, Greg Coulson, then executive director of human resources, on November 7 sent an email to the grievor, inviting her to a meeting on November 9. As to the subject matter of the meeting, the email stated that Mr. Coulson would be bringing a summary of the report submitted by Investigators Group. There was no mention of discipline. Also in attendance at the meeting were Ms. O’Connor Lockley and Jim Braund, regional vice-president of CUPE.

23Three letters were presented to the grievor on November 9. The first imposed a two-day suspension for making “serious” allegations that were “unfounded” and “completely without merit”. The only allegations specified are those set out in the opening paragraph of the letter: allegations of “ongoing harassment by your previous manager, [Mr. X], and negligence on the part of the employer to provide you a safe workplace.” There is a subsequent reference to the impact of the grievor’s allegations on the “individuals involved.” Based on this reference, the employer contended the unfounded allegations resulting in discipline included those involving Ms. Krall, Ms. Orosz and Ms. Metulynsky, relating to expenses and vacation. Reading the letter as a whole, I conclude the “individuals involved” means Mr. X and more senior managers who were allegedly negligent in responding to the grievor’s allegations about him. In other words, the grounds for discipline are limited to the allegations specified in the first paragraph of the letter.

24The second letter presented to the grievor on November 9 asserted she was “fit to return to work” and directed her to do so by November 21, saying a failure to return by that date would result in termination. Mr. Coulson testified his recollection was that, prior to November 9, the employer had received “medical information” indicating the grievor was fit to return to work. In fact, no medical reports had been received after those in March and April stating she was not fit for duty.

25The third letter delivered to the grievor on November 9 offered her a choice of positions and indicated Mr. X would have no supervisor authority over her.

26On November 17, 2011 the grievor emailed Ms. O’Connor Lockley stating she was unfit to work. The manager replied by letter on the same date requesting, by December 5, “an explanation of how your medical condition or functional limitations prevent you from performing any work.” The manager’s letter of November 17 ended by advising the grievor that a failure to provide medical justification for her absence would result in termination.

27The grievor provided two letters in response to Ms. O’Connor Lockley’s letter of November 17. A brief letter from Dr. Barnard, dated November 24, stated she remained “medically disabled” and had been advised “not to return to work”. In a letter dated November 29, Dr. Skidmore described the grievor as “unfit for work” and stated “returning to the workplace would have deleterious effects on her emotional and physical well-being.”

28On December 2 Ms. O’Connor Lockley wrote to the grievor, asserting the letters recently received were “superficial” and provided “no information about your functional, physical and or psychological restrictions or abilities.” Ms. O’Connor Lockley offered the grievor three options to provide such information by January 3, 2012: (1) submit a detailed medical report; (2) undergo an examination by an independent medical examiner; or (3) consent to a WSIB physician speaking to her doctor. Ms. O’Connor Lockley issued another warning that a failure to provide medical justification for absence would result in termination.

29The grievor responded by email on December 2, inviting the employer to have one of its physicians contact her doctor directly. When Dr. Grbac spoke to Dr. Barnard on December 6, the latter was unwilling to discuss functional limitations on the telephone. Dr. Barnard asked for the WSIB to send a detailed letter outlining all of its questions. Dr. Grbac recorded this request in his notes of the call but took no further action. He testified this type of letter would normally be sent by a CHSW nurse. Based on Dr. Grbac’s evidence, I conclude it was reasonable for Dr. Barnard to expect the employer would be providing detailed questions in writing. No such questions were ever sent to Dr. Barnard, perhaps because an agency nurse had replaced Yolanda Chong who was on leave.

30Dr. Barnard prepared a medical report dated December 10. The relevant parts of the report state:

I cannot state that [the grievor] will be able to return to her current workplace without knowing the status of her assailant in the workplace, and indeed, even if he is not in the workplace, his status in terms of how he left the workplace, and whether he in fact is prohibited from contacting [the grievor] at home or in the community. As per the recent case of a nurse in Windsor who was recently assaulted and eventually killed in the workplace, we have the professional obligation to ensure that [the grievor] is protected in the largest possible sense…

Once these conditions are met, I believe we could make an informed decision and real progress having [the grievor] get back to the workplace … As per the ongoing problems that [the grievor] has with anxiety, nightmares and insomnia, resulting from her being assaulted in the workplace, I believe along with her psychiatrist that [the grievor] will require long term counselling with her psychologist .. and may perhaps at some future time need to use psychotropic medications for her adjustment disorder with depressed features, and anxiety not yet specified with some elements of post traumatic stress disorder. She may also need to receive EMDR therapy for her hypervigilance disorder …

I consider [the grievor] disabled for return to this workplace until we are assured of her ongoing safety.

31There is a dispute as to whether the CHSW ever received this letter. According to Yolanda Chong, the letter was not in the grievor’s file when she reviewed it shortly before testifying in March of 2013. Ms. Chong was on leave in December of 2011. There is no mention of this letter in the notes made by the agency nurse who replaced Ms. Chong during her leave. The letter appears in Dr. Barnard’s electronic chart for the grievor with a date of December 10. There follows an unrelated entry dated Dec. 14. The next chart entry, dated December 16, is the fax number for the CHSW. In my view, this entry does not prove the letter was successfully transmitted by fax. It may indicate no more than an intention to fax the letter or an unsuccessful attempt at transmission.

32In an email to Ms. O’Connor Lockley, dated December 19, the grievor wrote: “My doctor confirmed he already prepared a detailed report … as per option one presented in your letter dated December 02.” A copy of this email was sent to Jim Braund as union representative.

33On December 20 Greg Coulson and Karen Krall, one of his associates in human resources met with two union representatives, Cynthia Ireland, who had recently replaced Mr. Braund as regional vice-president, and Tony Maccarone, chief steward. Ms. Krall testified the employer disclosed its intention to terminate the grievor during the week of January 9 if acceptable medical information had not been received. There was no discussion of the medical report prepared by Dr. Barnard in December. At the union’s request, the employer agreed to wait an additional week before terminating the grievor.

34By letter dated January 18, 2012, Ms. O’Connor Lockley informed the grievor that her employment was terminated for failing to provide “medical support” for her absence.” The employer mailed this letter to the grievor. No disciplinary meeting was held at the time of her termination.

II

35The grievor testified briefly about her encounters with Mr. X. She described him as being “really angry” and going on a “tirade” when they met in his office on September 23, 2009. As to their encounter on May 13, 2011, the grievor testified he blocked her from leaving her cubicle and placed his hands on the arm rests of her chair while she was sitting in it. Describing him as “really angry” and “red” in the face, the grievor said this incident left her “shaking”. In relation to the encounter on June 29, the grievor testified Mr. X “kept getting more and more angry” was “all red,” causing her to fear he would “hurt” her. The grievor conceded Mr. X never actually touched her or verbally threatened to do so. She also admitted not being able to recall what he said on May 13 or June 29.

III

36There are two medical documents pre-dating the termination that were not delivered to the employer before the grievor was terminated. The first is Dr. Barnard’s letter to the employer, dated December 10, 2011. Dr. Grbac was shown this letter during cross-examination and asked in if it would have been “helpful” to have seen it earlier. He replied in the affirmative, saying “the more information, the better, in terms of making a decision.”

37The second medical document not provided to the employer before the termination is a letter from Dr. Skidmore to Dr. Barnard. The psychologist provided this letter in response to the following request made by the family doctor on December 8, 2011:

Please consult re post-traumatic stress disorder, what has changed is the that the man who assaulted her at work is apparently no longer working for the WSIB so she won’t see him, and now she is wondering if she should go back to work.

Dr. Barnard believed Mr. X was no longer at the WSIB because that is what Dr. Grbac had told him in error two days earlier.

38On December 22 Dr. Skidmore replied to Dr. Barnard’s request. The grievor’s psychologist diagnosed her as having post-traumatic stress disorder (PSTD) and described her as then being “not fit to return to the workplace by reason of severe anxiety with post-traumatic avoidance, severe depression, inability to concentrate or make decisions, sleep and appetite disturbance, and severe social isolation.” Dr. Skidmore sent this letter to Dr. Barnard but no-one delivered it to the employer.

39Additional medical evidence was presented at the hearing. During his testimony, Dr. Barnard recounted the grievor coming to his office around 7:00 a.m. on February 23, 2011, without an appointment, to discuss her concerns about resuming contact with Mr. X. According to a note entered in the doctor’s chart that day, the grievor was “very stressed” and having nightmares about Mr. X “coming after her.” Another chart note, dated April 26, contains the following description of the grievor’s health: “having difficulty sleeping, nightmares and flashbacks still, lack of enjoyment of life, not doing anything outside the home.” As to the situation in December of 2011, Dr. Barnard testified the grievor was not able to return to the workplace from a “psycho-emotional” point of view, because of the trauma she had experienced as a result of her interactions with Mr. X.

40In cross-examination, Dr. Barnard was asked about injuries the grievor had sustained in a 2004 motor vehicle accident that occurred in the course of her employment. She then suffered spinal fractures, a lung obstruction and a fractured sternum. Dr. Barnard described these injuries as “catastrophic” and noted they resulted in ongoing treatment and disability. As to the psychological impact of these injuries, Dr. Barnard replied the grievor remained “remarkably functional” after the accident but he suggested the impact of the accident was augmented by later events, resulting in her current mental health issues.

41Dr. Skidmore’s notes indicate she first saw the grievor on February 25, 2011. The grievor visited the psychologist 5 times in March and three times in each of April and May. Between June and December, there were two visits in most months, but only one in July and none in August or September. There were also two visits in January of 2012 before the termination. The treatment provided by Dr. Skidmore during these sessions was cognitive behavioural therapy. In April of 2012 she took specialized training in the use of cognitive processing therapy to treat post-traumatic stress disorder. Dr. Skidmore then conducted a series of twelve weekly sessions with the grievor, using this new treatment.

42In cross-examination Dr. Skidmore was asked why her diagnosis changed from acute stress disorder to post-traumatic stress disorder (PSTD). She explained the term “acute” applies to the first four weeks of such a disorder and the term “post-traumatic” is used to describe the rest.

43In cross-examination, Dr. Skidmore was presented with the passage relating to PTSD disorder found in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV), published by the American Psychiatric Association. The sort of event that might trigger PTSD is described in the following terms:

The essential features of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s personal integrity; or witnessing an event that involves death, injury or a threat to the personal integrity of another person; or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member of other close associate …

Traumatic events that are experienced personally include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents …

DSM-IV also indicates there may be a delay between the triggering event and the appearance of symptoms, using the term “delayed onset” to describe PSTD where the time lapse is six months or more.

44Asked what event triggered the grievor’s trauma in February of 2011, Dr. Skidmore said it was a perceived threat to the her “personal integrity” arising from incidents like the one she described as occurring when Mr. X visited her cubicle on May 13, 2010. Dr. Skidmore stated, when the grievor was later faced with the prospect of again interacting with Mr. X, that prospect triggered a fear such things would happen again.

45Dr. Skidmore went on to say the grievor exhibited all of the characteristic symptoms of PTSD as listed in DSM; re-experiencing of the traumatic event through flashbacks of Mr. X “coming after her” and nightmares about him pushing her down stairs; avoidance of any reminder of the traumatic event and numbing or diminished responsiveness to the external world; and increased arousal including problems sleeping, hypervigilance and poor concentration. The psychologist described the grievor’s symptoms as becoming “increasingly worse” during the course of treatment.

46When testifying on September 27, 2013, Dr. Skidmore stated the grievor was not yet capable of returning to the WSIB. Asked for a prognosis about whether the grievor would ever be fit to work for the WSIB, Dr. Skidmore replied the prospect of that happening was “poor” because things in her former workplace that previously had been “neutral” for her, such as her cubicle, could trigger a traumatic reaction.

47The grievor saw Dr. Burdett only once, in July of 2011. In a report to Dr. Barnard, dated July 7, the psychiatrist gave the following diagnosis:

Adjustment disorder with depressed features. Anxiety NOS [i.e. no specific diagnosis]. Some symptoms of post-traumatic stress disorder but sub-threshold regarding severity of trauma. … Presently she is sub-threshold for a diagnosis of depression.

Dr. Burdett’s wrote she would have recommended medication to decrease nightmares, anxiety and sleeplessness, if the grievor had not been opposed to taking it. The psychiatrist did recommend continued therapy with Dr. Skidmore to treat “hypervigilance and response to stress”.

IV

48The parties agreed I should limit my determination to whether the grievor honestly recounted her perception of what occurred during her encounters with Mr. X and I should make no determination of what actually occurred. This agreement was intended to limit the scope of relevant evidence.

49The employer urged me to conclude the grievor was not a credible witness on three grounds: (1) her testimony was contradicted by others on a number of points; (2) she made allegations of wrongdoing against a number of people; and (3) she admitted being unable to recall some things because of her emotional state when they occurred.

50The alleged contradictions cited by the employer are based either on statements made by individuals during interviews by Investigators Group or statements contained in written communications received by the grievor. With one exception, the people making these statements did not testify before me, under oath and subject to cross-examination. Karen Krall was called as a witness. The employer contends she contradicted the grievor’s contention that Ms. Oroz, a union steward who attended the August 2009 meeting about expenses, said she was attending as “a resource for the employer.” According to my notes, Ms. Krall was not asked about this matter when testifying.

51The grievor alleged wrongdoing by a number of people in relation to expense claims and vacations requests. Nadia Metulynsky, the grievor’s manager after Mr. X, was not called as a witness to respond to the grievor’s complaint about her conduct in 2010. Karen Krall did testify in relation to what occurred in 2009, when the grievor contended Ms. Krall, Mr. X, and Ms. Oroz “ganged up” on her, all taking the position she was not entitled to reimbursement for the type of expenses she was claiming. Ms. Krall testified their position was supported by the grievor’s director in Toronto. However, in cross-examination Ms. Krall conceded the initial decision to deny the grievor’s claim was subsequently reversed. Given this reversal, I do not view the grievor’s complaint about her initial treatment as significantly undermining her credibility.

52The grievor admitted being unable to recall what Mr. X said during two of their encounters and also what she told Dr. Barnard the day after she stopped working. Nonetheless, the grievor was the only person to testify before me about Mr. X’s conduct on the three dates in question. In the absence of any evidence contradicting her description of his behavior, I do not view her inability to recall what he said during their encounters, or what she later said about them, as grounds to reject her testimony about his deportment. In my view, a person is more likely to recall behaviour that she finds frightening than words that she does not.

53Having reviewed all of the evidence, I conclude the grievor did perceive Mr. X to act in an angry and aggressive manner. I also conclude she was fearful he would hurt her. Regardless of whether the average person would have been frightened by the conduct described by the grievor, I conclude it frightened her. (I digress to note Investigator’s Group also concluded she had a real fear of Mr. X.)

V

54I now turn to the two-day suspension. The employer bears the burden of proving there was no foundation for the grievor’s allegations about Mr. X behaving in an angry and aggressive manner. The only way to discharge this burden would have been to call one or more witnesses to testify under oath and subject to cross-examination. The burden of proving misconduct cannot be discharged by relying on conclusions reached by Investigators Group.

55Mr. X did was not called to testify. Nor did I hear testimony from the only person who witnessed any of the encounters with Mr. X about which the grievor complained. The grievor is the only person to testify about these incidents under oath and subject to cross-examination. Accordingly, I am compelled to conclude the employer has failed to prove the allegations made by her were unfounded.

VI

56The union contends the grievor should have been notified in advance of the meeting on November 9, when the suspension letter was delivered, that the employer intended to discipline her. This argument is based on article 13.01 of the agreement:

When the Employer meets with an employee to advise of disciplinary action, the employee will be advised of the nature of the meeting and that they have a right to Union representation. In the event of an employee’s impending discharge, the union will be given advance notice of such action.

57The union reads the first sentence of this article as requiring the employer to give an employee advance notice of the purpose of a disciplinary meeting and of the right to union representation. I see no such requirement. This sentence does not explicitly notify an employee of proposed discipline in advance of a meeting. In this respect, the first sentence is markedly different than the second requiring “advance notice” to the union in relation to a meeting where an employee is discharged. In my view, the purpose underlying the first sentence of article 13.01 is to ensure a grievor has union representation at a disciplinary meeting, if he or she so desires. This purpose can be accomplished by advising an employee, at the commencement of such a meeting, of both the reason for the meeting and the right to union representation. Of course, if the employee requests representation, no disciplinary action may be taken until a representative is in attendance. The same purpose can be accomplished by the employer arranging to have a union representative present at a disciplinary meeting.

58As Mr. Braund, then regional vice-president of CUPE, attended the November 9 meeting, at the employer’s request, I conclude there was no violation of article 13.01 on that occasion.

VII

59The grievor was terminated pursuant to article 13.05 of the collective agreement. That article states:

When an employee is absent in excess of ten (10) consecutive working days, they may be discharged for not providing a justifiable reason or for not notifying the employer, unless giving such notice was not reasonably possible.

The issue is whether the grievor was absent for a justifiable reason. She claims to have been unable to work due to illness. The crux of the dispute is whether that claim is valid in relation to the period between mid-November of 2011 and January 18, 2012. I note the employer approved the grievor’s sick leave from February 24 to May 25, 2011 based on the detailed medical information provided at that time. The employer did not request updated medical support for her continuing absence until November 17.

60The grievor’s family doctor and psychologist provided letters, dated November 24 and 29 respectively, stating she was unfit for work but offering no details of her condition. The employer then requested information about her “functional, physical and/or psychological restrictions.” I note the union has not suggested this request was improper. No further information was received by the employer before January 18 when the grievor’s employment was terminated.

61Employer counsel contends the validity of the grievor’s claim must be determined based upon the information received by the employer prior to her termination. In this regard the employer relies upon the decision in Geiger International and CJA (1990), 1990 CanLII 12694 (ON LA), 17 L.A.C. (4th) 13 (Davis). The grievor in that case missed an entire week of work and provided no notification of his absence. The following week he returned to the employer’s premises with a medical note, only to be told he was fired. The collective agreement stated:

An employee shall be deemed to have terminated his employment … if the employee fails to report for work for three (3) consecutive working days and fails to notify the Company during such period of the reason for his absence. (Emphasis added.)

Arbitrator Davis upheld the termination because the grievor missed three days of work without notifying the employer of the reason for his absence. I note the collective agreement in that case specifically required that notification be provided “during such period.” I also note the grievor there did not just fail to inform the employer of the reason of his absence. He also failed to provide any notification of the absence itself.

62The facts and contractual language before me are markedly different. There is no suggestion the grievor failed to provide appropriate notice of her absence. Moreover, article 13.05, while requiring an employee to provide justification for an absence of ten days, does not explicitly say when the justification must be provided. I do not read this article as implying any information provided post-termination should be ignored. Consider, for example, an employee who is off work, having given appropriate notice, and on the tenth day of absence provides a brief doctor’s note, saying she was unfit for duty due to illness. Assume the employer rejects the note, because it discloses no details about the patient’s health, and terminates the employee on the eleventh day of absence. Assume also the doctor provides the missing details a few days after the termination. In my view, this information should be taken into account when determining whether dismissal under article 13.05 was warranted. Employers often accept very brief medical notes but there are circumstances where an employer is entitled to challenge such a note by requesting further information. Nonetheless, employees should not be expected to disclose sensitive medical information before it has even been requested by the employer with proper justification. This example illustrates information provided post-termination should be considered in appropriate circumstances when applying article 13.05.

63The union contends there are three reasons why I should consider information not provided to the employer before the grievor was terminated. The first reason is the employer’s failure to provide the written questions Dr. Grbac lead Dr. Barnard to think he would receive.

64The second reason cited by the union is the employer’s failure to follow-up on the grievor’s email to Ms. O’Connor Lockley on December 19, saying her doctor had prepared a report. The report referenced in the email is Dr. Barnard’s letter of December 10 which appears to have gone astray. The union argues Ms. O’Connor Lockley should have asked the CHSW whether the report had been received and, upon learning it had not been, should have informed the grievor.

65In support of the argument that I should consider information not provided to the employer before the termination, the union also relies on the employer’s failure to hold a termination meeting at which the grievor would have been entitled to union representation.

66In this regard the union cites the following two articles of the collective agreement:

13.01 When the Employer meets with an employee to advise of disciplinary action, the employee will be advised of the nature of the meeting and that they have a right to Union representation. In the event of an employee’s impending discharge, the union will be given advance notice of such action.

13.02 An employee will receive a copy of disciplinary letters at the time of the disciplinary meeting and prior to them being placed in the human resources file.

The union contends article 13.02 requires a disciplinary letter to be delivered at a disciplinary meeting and article 13.01 confers a right to union representation at such a meeting.

67The employer submits the collective agreement does not require it to convene a meeting before disciplining an employee. According to this line of argument, article 13.01 applies only if the employer elects to hold a disciplinary meeting. In this regard the employer relies upon the decision in McMillan Bathurst Inc. and C.P.U. (1992), 1992 CanLII 14432 (ON LA), 29 L.A.C. (4th) 415 (Schiff) where the grievor was discharged by a letter sent to his home. The collective agreement stated:

[W]hen an employee is called into the office for the purpose of receiving a formal discipline, he will be accompanied by the appropriate union steward.

Arbitrator Schiff held this article did not apply when the employer decided not to hold a meeting. I note the collective agreement in that case had no provision analogous to article 13.02 in the instant agreement, about disciplinary letters being delivered at meetings.

68I read article 13.02 as requiring that a disciplinary letter be presented at a disciplinary meeting. The first sentence of article 13.01 affords an employee a right to union representation at any disciplinary meeting. The employer contravened both of these provisions by terminating the grievor without holding a meeting where she would have had a right to union representation.

69In concluding the employer contravened the grievor’s right to union representation, I have not overlooked the notice provided by the employer to the union about her impending termination. That notice fulfilled the employer’s obligation to the union, an obligation created by the second sentence of article 13.01. It did not fulfill the employer’s distinct obligation to the grievor arising from first sentence of article 13.01 in combination with article 13.02.

70As the union did not contend the violation of the right to union representation nullified the dismissal, I am not called upon to decide whether such a breach could nullify a termination under this collective agreement.

71Instead the union argued this violation provided ample justification to take into account any medical information that likely would have come to the employer’s attention if it had complied with articles 13.01 and 13.02. I agree.

72This conclusion is supported by the decision in Canada Safeway Ltd. and Retail, Wholesale and Department Store Union (2000), 2000 SKCA 119, 196 D.L.R. (4th) 518 (Sask. C.A.) where an employee confessed to theft at a meeting held in the absence of a union representative and in contravention of the collective agreement. Noting a union representative probably would have advised the grievor not to confess, the Saskatchewan Court of Appeal decided the proper remedy for the procedural violation was to exclude the confession and then determine whether the remaining evidence was sufficient to prove the alleged theft. Reasoning by analogy from that decision, I conclude the proper remedy for a similar violation in this case is to take into consideration any medical reports that likely would have been provided to the employer, in a timely fashion, if it had complied with the collective agreement.

73In my view, if a disciplinary meeting with union representation had been held in January of 2012, such a meeting would very likely have resulted in the employer being provided with Dr. Barnard’s letter of December 10, 2011 which appears to have gone astray. A disciplinary meeting would have notified the grievor of her impending termination and such notice would almost certainly have prompted her to inquire why the most recent report prepared by her doctor was viewed by the employer as insufficient to support her absence. This inquiry would have brought to light the fact that this report had gone astray.

74Dr. Barnard’s letter of December 10 describes the grievor’s psychological problems in some detail, but it does not explicitly state that she was unable to return to work because of illness. A sizeable portion of the letter is about Mr. X posing a risk to the grievor’s safety at work. Nonetheless, Dr. Grbec testified the medical information in the letter would have been helpful. In my view, receiving this letter in a timely fashion would likely have prompted Dr. Grbac, or one of his colleagues in the CHSW, to ask follow-up questions, just as Dr. Grbac himself had done in response to earlier medical reports. Such questions probably would have led Dr. Barnard to pass along the information contained in Dr. Skidmore’s letter of December 22.

75The employer’s contravention of the right to union representation is not the only reason for taking these medical reports into account. Further justification for considering them is supplied by two factors: the employer’s failure to provide in writing the questions which Dr. Barnard reasonably expected to receive after his conversation with Dr. Grbac; and the employer’s failure to inform the grievor it had not received the medical report from Dr. Barnard. In regard to the latter factor, I note union officers were told in late December that the medical information received by the employer was not sufficient, but they were not told the particular medical report mentioned in the grievor’s email of December 19 had not been received.

VIII

76The employer contends neither Dr. Barnard’s letter of December 10 nor Dr. Skidmore’s letter of December 22 provides justification for the grievor’s continuing absence from work. As already noted above, the letter from Dr. Barnard did not clearly state the grievor was unable to work for reasons of health. The same cannot be said of Dr. Skidmore’s letter of December 22. This letter makes only passing reference to Mr. X and is much more focused on matters of health. The psychologist explicitly stated the grievor was “not fit to return to work” by reason of her psychological state, providing a diagnosis of PTSD with additional details.

77The employer contends Dr. Skidmore’s letter should not be accepted at face value. Contending an arbitrator should access the reliability of any medical report, the employer referred me to the following authorities: Fishery Products (Marytown) Ltd. and Newfoundland Fishermen & Allied Workers (1979), 1979 CanLII 3947 (NL LA), 22 L.A.C. (2d) 439 (Hattenhauer); Wetaskiwin General and Auxiliary Hospital and Nursing Home and Canadian Union of Public Employees, unreported decision dated Dec. 21, 1984 (Beattie); and Ministry of Community, Family and Children’s Services and Ontario Public Service Employees Union, [2004] O.G.S.B.A No. 73 (Abramsky). I agree that medical reports, like all other evidence, should be scrutinized to ensure they are reliable. A medical report may be discounted if the author is proven to be biased or misinformed about the facts upon which the report is based. A medical report may also be rejected if contradicted by a preponderance of medical opinion.

78The employer urges me to reject Dr. Skidmore’s diagnosis for a number of reasons: the psychologist allegedly thought the grievor had been physically assaulted by Mr. X, something the grievor concedes did not occur; the grievor’s description of her interaction with Mr. X does not constitute the sort of traumatic event required by DSM-IV for a diagnosis of PSTD; Dr. Skidmore’s opinion is contradicted by Dr. Burdett; and Dr. Skidmore demonstrated hostility towards the employer by questioning the neutrality of the inquiry undertaken by Investigators Group.

79Having reviewed Dr. Skidmore’s reports, clinical notes and testimony, I conclude she believed Mr. X had behaved in an angry and aggressive manner but did not think he had physically assaulted the grievor.

80Dealing with DSM-IV, I note it treats a “violent assault” as a traumatic event, regardless of whether the assault actually occurs or is only “threatened.” Moreover, a “violent assault” is treated as a traumatic event for an individual, not only when that person directly experiences the actual or threatened assault, but also when the individual witnesses anyone else being assaulted or threatened, and even when the individual learns about a family member or close associate being assaulted or threatened, without witnessing the event.

81DMS-IV does not elaborate on the meaning of “threatened.” The Oxford Dictionary defines ‘threat” in two ways: (1) a statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done; and (2) a person or thing likely to cause damage or danger. Both definitions entail likely injury but only the first entails a statement of intent to injure. I note one of the examples of a traumatic event cited in DSM-IV is a “life-threatening illness.” As a statement of intent to injure is not inherent in such an illness, I read the word “threatened”, as it appears elsewhere in DSM-IV, to encompass both definitions of “threat” found in the Oxford Dictionary. In other words, I read DSM-IV as contemplating that a “threatened” assault can occur without a statement of intent to assault.

82I also note DSM-IV contemplates delays of six months or more between a traumatic event and the onset of symptoms.

83Based on this review of DSM-IV, I do not view it as providing grounds to discount Dr. Skidmore’s professional opinion that the grievor underwent a traumatic event when Mr. X’s conduct led her to think he was likely to hurt her.

84When Dr. Burdett saw the grievor on July 7, 2011, the only time they met, the psychiatrist provided a diagnosis of adjustment disorder with depressed features and recommended ongoing treatment. Dr. Burdett’s report notes the grievor displayed some symptoms similar to PSTD but was sub-threshold regarding the severity of trauma. I note Dr. Burdett expressed no opinion as to whether the grievor was fit for work in July. Nor did the psychiatrist see the grievor in the weeks preceding her termination. Dr. Burdett’s report does provide some reason to wonder if she might have disagreed with Dr. Skidmore’s assessment in late December, but in the absence of a more direct challenge from Dr. Burdett, I do not view her report as providing grounds to conclude Dr. Skidmore’s professional opinion was flawed.

85I do not think Dr. Skidmore demonstrated bias by expressing doubts about the neutrality of an investigation carried out by a third party chosen by the employer without input from the grievor or her union.

86In the absence of any medical evidence to the contrary, I accept Dr. Skidmore’s opinion that the grievor was not fit for duty during the period in question. Accordingly, I conclude she should not have been terminated under article 13.05.

IX

87Having concluded the grievor’s termination was not warranted, I turn to consider the appropriate remedy. The union asks that the grievor be reinstated. The employer contends the remedy should be limited to a monetary award.

88In support of its remedial request, the employer cited two cases. The first is the decision of the Supreme Court of Canada in Alberta Union of Public Employees v. Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R. 727. Speaking for the Court, Mr. Justice Iacobucci cited with approval the general arbitral practice of normally utilizing the remedy of reinstatement and reserving the alternative remedy of monetary damages for “exceptional or extraordinary circumstances.” (See para. 50) The learned Justice went on to say:

As a general rule, where a grievor’s collective agreement rights have been violated, reinstatement of the grievor to her previous position will normally be ordered. Departure from this position should only occur where the arbitration board’s findings reflect concerns that the employment relationship is no longer viable.

The arbitration board in that case concluded the grievor had been discharged without just cause but declined to reinstate her because the position she formerly held had been eliminated and finding another position for her would have been difficult. The Court sustained the board’s ruling because these circumstances could reasonably be viewed as exceptional.

89In DeHavilland Inc. and National Automobile, Aerospace and Transportation and General Workers Union of Canada (1999), 1999 CanLII 35895 (ON LA), 83 L.A.C. (4th) 157 (Rayner), contains the following list of factors to be considered in determining whether extraordinary circumstances render any future employment relationship unviable:

1. The refusal of coworkers to work with the grievor.
2. Lack of trust between the grievor and the employer.
3. The inability or refusal of the grievor to accept responsibility for any wrongdoing.
4. The demeanour and attitude of the grievor at the hearing.
5. Animosity on the part of the grievor towards management and co-workers.
6. The risk of a “poisoned” atmosphere in the workplace.

In that case Arbitrator Rayner noted, even if the grievor had been reinstated, it would have been without any compensation for lost wages, because he had engaged in misconduct warranting a lengthy suspension. Despite his serious misconduct, he refused to accept any responsibility for wrongdoing and described as “bogus” an early string of progressive discipline. At the hearing, he objected to the person selected by the union to represent him, threatened several times to walk out and uttered a vague threat. In these circumstances, the arbitrator declined to reinstate the grievor.

90The employer contends the grievor has displayed a lack of trust in management and animosity towards it by making unfounded allegations about Mr. X and continuing to allege the employer failed to provide a safe workplace by protecting her from him, despite the contrary conclusions reached by Investigators Group. As the employer has failed to prove her allegations about Mr. X were unfounded, she cannot be faulted for challenging the report by Investigators Group.

91The grievor’s demeanour at the hearing was cited as an additional reason for denying reinstatement. In my view, there was nothing inappropriate about her demeanour.

92I note there is no evidence to suggest any problems in the employment relationship in the almost two decades before the grievor began reporting to Mr. X. The absence of such evidence weighs in favour of reinstatement.

93There remains to be considered the employer’s submission that reinstatement would not be an appropriate remedy because of Dr. Skidmore’s prognosis that a return to work could cause the grievor to suffer a traumatic reaction. I note this submission was made in the employer’s written reply. It should have been made as part of the employer’s oral argument, when the union would have had a chance to comment on it. Rather than rejecting this submission on procedural grounds, I have decided to address its merits. In my view, Dr. Skidmore’s prognosis does justify denying reinstatement. A prognosis is inherently uncertain because it attempts to predict the future. In addition, I understood Dr. Skidmore to be talking about only the location where the grievor was previously based. The employer carries on operations at other locations to which the prognosis does not apply.

94On the other hand, Dr. Skidmore’s prognosis provides ample justification for the employer to require the grievor to provide medical certification indicating she is fit to work, before allowing her to return to active duty.

X

95The suspension grievance is allowed. The employer is directed to compensate the grievor for any loss of wages or benefits resulting from the suspension.

96The termination grievance is also allowed. The employer is directed to reinstate the grievor as an employee of the WSIB with no loss of seniority. I also direct the employer to compensate her for any loss of wages or benefits caused by her wrongful termination.

97The compensation awarded above does not include wages or benefits foregone by the grievor while she unable to work for medical reasons. She did not claim compensation for such losses in this proceeding, electing instead to pursue the matter by way of a WSIB claim.