Canadian Union of Public Employees – Local 1750 (Lubinovic) v. The Crown in Right of Ontario (Workplace Safety and Insurance Board), 2014 CanLII 20606

GSB#2012-1026, 2013-4316

UNION#12-83,12-27

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 (Lubinovic)

Union

• and -

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

Employer

BEFORE

Richard Brown

Vice-Chair

FOR THE UNION

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

FOR THE EMPLOYER

Gurjit Brar Workplace Safety and Insurance Board Counsel

HEARING

May 8, 16, September 30, October 2, 4 & 11, December 2, 5, 9 and 11, 2013; January 15, February 24, March 6, 2014

DECISION

1Zineta Lubinovic was employed by the WSIB as an eligibility adjudicator (EA). The union has referred to arbitration two grievances filed by her. In the first grievance dated February 10, 2012, she claimed alternative work, offered to her as accommodation for her disabilities, was not suitable. On April 13, the grievor was terminated because she had been absent, allegedly without justification, since March 16. The second grievance contests the termination. The hearing in this matter lasted thirteen days and hundreds of pages of documents were entered as exhibits. Having carefully reviewed all of the evidence, I will recount the salient facts.

2Ms. Lubinovic lives in Hamilton. She began working as an EA in Kitchener in May of 2010 and continued in the same position after transferring to Toronto in June of 2011.

3The work of an EA involves a lot of keyboarding. The grievor testified she first requested an ergonomic assessment relating to keyboarding in an email sent on June 22, 2010 to her manager in Kitchener, Sue Granger. The assessment was requested because the grievor felt her posture when typing was wrong. She also testified about experiencing aches and fatigue in her wrists in September of 2010, but made no mentioning of reporting this occurrence to management.

4In January of 2011 the grievor suffered an injury to her wrists and forearms subsequently recognized by the WSIB as having been caused by her work.

5Between January and October of 2011 she continued to work as an EA, with a new keyboard, breaks for stretching and access to central dictation services. When testifying about time off work during this period, the grievor mentioned only absences related to treatment and medical appointments.

6To use central dictation service, the grievor called a phone number and then dictated a letter or memo. She testified it normally took ten days or longer to get the completed document back via email. According to her, she was allowed to expedite only two documents monthly for faster delivery. As a result, when time was of the essence, she continued to type her own memos and letters.

7In early July the grievor was assessed by Dr. Zvi Margoliot at the WSIB’s Specialty Hand Clinic, part of the Trillium Health Centre. In a report dated July 6, Dr. Margoliot noted “some improvement overall” in the grievor’s symptoms. He also wrote:

Mainstay of treatment will be work restrictions and behavior modifications. The patient would benefit from voice dictation software as opposed to dictation service. The voice dictation software after appropriate brief training is usually much faster than keyboarding, and the patient will have the benefit of immediate results on the computer without the added time delay associated with transcription services presently being used. The patient will therefore likely be more compliant with voice dictation. …

At this time , the patient’s keyboarding should be restricted to 20 minutes at a time followed by a short 1-minute break to … perform appropriate stretching exercises … She should have longer breaks at the top of the hour … She should be able to work and type at a self-paced activity level. … More specific keyboarding restrictions can follow after the keyboarding assessment.

8Ms. Lubinovic testified that on July 7 she asked her then manager in Toronto, Sia Christodoulou, for the type of voice recognition software (VRS), mentioned by Dr. Margoliot, capable of instantaneously converting the spoken word to text. Her request was not granted at that time.

9A keyboarding assessment was carried out at the Hand Specialty Program on October 4. In a report bearing the same date, Occupational Therapist Richard Taufel wrote:

It is recommended she performs 5-10 minutes of keying at a time with 3-minute rests. It is recommended that her cumulative daily keyboarding time be limited to approximately 50% of her day. Ms. Lubinovic appears to manage her current equipment but would benefit from the implementation of voice dictation software to reduce demands on her hands.

10Ms. Lubinovic experienced further problems with her wrists in late October of 2011. The last day she actually worked as an EA was October 25.

11A medical report from her family doctor, Dr. Laura Blew, dated October 25, stated the grievor would be unable to keyboard until reassessed by Dr. Margoliot. This report also noted a permanent restriction on repetitive neck movement resulting from an injury suffered in a 2007 car accident.

12Dr. Blew’s clinical notes of her consultation with the grievor on October 25, 2011 contain no indication the grievor mentioned her neck that day. Prior to that date, Dr. Blew’s most recent report about neck-related restrictions, dated October 16, 2009, stated:

Zineta requires permanent restrictions to her work activities to prevent recurrent neck injury. She must avoid repetitive and prolonged flexion and rotation of her neck whenever possible and not as a regular duty. If doing an activity that requires repetitive and or prolonged neck flexion and/or rotation on occasion, she must alternate this with a non-repetitive role every 15 minutes.

Prior to October 25, 2011, the most recent mention in the clinical notes of the grievor complaining about neck problems is dated November 6, 2009.

13In a letter to the grievor sent on October 26, 2011, Ms. Christodoulou indicated VRS “has now been ordered” and offered “expedited” dictation service. The manager stated “accommodated work”, meeting the temporal restrictions on keying recently recommended by the Hand Specialty Program, was available. She also noted the grievor had advised her current medical condition precluded her from returning to work.

14Documentary evidence suggests the order for Dragon Speak VRS was not placed with an external supplier until sometime in November. It cost $474 and was installed on the grievor’s computer sometime in December.

15Louise Shannon subsequently replaced Ms. Christodoulou as Ms. Lubinovic’s manager in Toronto. On November 3, Ms. Shannon asked the grievor to provide an undated medical report.

16Ms. Lubinovic consulted Dr. Blew on November 29. The objective portion of the physician’s clinical notes list arm and wrist symptoms, including tenderness, pain and numbness. The notes also record the grievor saying she hoped to see Dr. Margoliot before returning to work. Dr. Blew provided a report that day indicating the grievor was “totally disabled” from working and stating she would be unable to keyboard until reassessed by Dr. Margoliot. Dr. Blew wrote a subsequent report, dated December 13, to the same effect.

17In a letter to Ms. Lubinovic dated December 28, Ms. Shannon stated Dragon Speak would not eliminate all keying for an EA, because the software’s page turning function was not compatible with the WSIB legacy systems. The manager went on to say the grievor might not be able to work as an EA if she remained unable to do any key boarding.

18The grievor testified she was later told by Monica Ackerman, a Dragon Speak trainer, that the custom script version of this software was capable of moving through the legacy system without any keyboard commands. The grievor also testified Judy Davis, a nurse in corporate health, told her on December 29 that this version was provided only to someone who had lost a limb.

19A report from Dr. Blew, dated January 10, 2012, reiterated that the grievor was unable to return to work and awaiting reassessment by Dr. Margoliot in relation to keyboarding.

20A return-to-work meeting was held on January 19, 2012. Ms. Lubinovic was accompanied by two union representations. Louise Shannon was accompanied by Ann Bisson from human resources and two people from corporate health: Natasha McMurray, a work safe specialist and Brian Cox, an ergonomist. The grievor was assured the employer’s goal was for her to return to work as an EA. She was told the installation of software had been completed and informed of the training she would have to undergo before using it.

21As an interim measure, the grievor was offered alternative work as a helper in records control, counting and sorting documents, without any reduction in her hourly rate of pay. This interim position had been fashioned by Natasha McMurray with the assistance of Brian Cox. The records duties offered to the grievor were part of an existing job, previously held by the grievor, that also involved other duties. Ms. McMurray testified she and Mr. Cox selected only tasks consistent with the restriction precluding the grievor from keyboarding of which they were informed by an occupational health nurse.

22The grievor was told several things about the work offered to her in records control: she would have assistance lifting documents; the work would be self-paced; and the employer had no “productivity expectations.” Ms. Lubinovic was asked to return on January 23 to observe someone performing the helper duties. Rosanne Goulet, one of the union representatives in attendance, indicated the grievor would do so.

23Ms. Lubinovic testified she raised a concern at the January 19 meeting about flexing her neck when handling documents and was told a slant board would be provided to address this issue. According to the grievor, Bill Howard, the other union representative in attendance, expressed a concern that the fine finger movements required to count documents would present a problem for the grievor’s hands. Ms. Shannon testified she did not recall these concerns being raised, but she also did not recall the specific duties offered to the grievor.

24Also at the January 19 meeting, the grievor asked whether she would be allowed to return to the EA job if she got “updated medical” indicating she could keyboard. The employer representatives agreed to review any new medical information.

25On January 20, the grievor wrote her manager, asking for a written description of the helper duties, to enable her to determine whether they were consistent with her functional abilities and otherwise suitable. The grievor went on to assert the employer was obliged to provide work “of a nature and at earnings comparable” to her pre-injury job. She expressed an intention to have a written description reviewed by her legal counsel “prior to further escalation.” In this letter, the grievor acknowledged having been told by Natasha McMurray that she would return to her pre-injury job. In cross-examination, the grievor denied knowing at the time the helper job was temporary.

26Ms. Lubinovic also visited her doctor on January 20. Dr. Blew’s clinical notes contain the following entry about the records job:

She has told them not suitable based on previous permanent restrictions as cannot do the neck flexion and rotation elements.

The clinical notes also indicate the grievor expressed a desire to return to her pre-injury job and presented a detailed plan for temporal restrictions on typing and graduated hours of work.

27In a report bearing that date, Dr. Blew stated the grievor could return to work on January 25 with the graduated hours proposed by her. The previous prohibition on all keyboarding was replaced by temporal restrictions not significantly different than those recommended by Richard Taufel. Dr. Blew listed a number of other restrictions including: no lifting over 5 kg; limited movement of fingers on both hands. In relation to “bending/twisting/repetitive movement”, Dr. Blew checked the box for “limited” and wrote “non-repetitive for neck, back, elbow.” In relation to work at or above shoulder level, Dr. Blew checked the box designated “limited” and also the one designated “other” and then, under the heading “specify”, wrote: “None for neck. Note: a records role is unsuitable due to health and safety.”

28In an email to Louise Shannon and Ann Bisson, also dated January 20, Natasha McMurray attempted to summarize the most recent restrictions identified by Dr. Blew in her report of the same date. The summary in the email differs from the report in two respects: (1) Ms. McMurray indicated “limited … repetitive movement of the neck back and elbow was allowed, whereas Dr. Blew had ruled out repetitive movement of these body parts; and (2) in relation to work at or above shoulder level, Ms. McMurray indicated “limited” work was allowed” but “none from neck up”, whereas Dr. Blew had actually written “none for neck.” Ms. Murray noted in the email that her copy of the medical report was difficult to read, but apparently she did not seek clarification from the physician.

29Ms. Lubinovic did not return to work on January 23 as scheduled. In a letter to the grievor bearing that date, Ms. Shannon stated the employer was unable to offer any work until her restrictions were clarified.

30On January 25, Dr. Blew received a written description of the records role offered to the grievor:

Below is a description of the basic duties:

• Bundles of medical reports delivered and placed open on workstation

• May be required to do one or more of the following:

o Separate documents into 1” to 1.5” thick bundles

o Count staggered bundles or individual documents as required

o Secure bundle with elastic band

o Place bundle on shelve

The following are accommodations and safe work practices that Zineta would be expected to follow:

1. The job is self-paced with no productivity expectations. She is expected to work at a comfortable pace that does not compromise her health and safety or exceed her functional abilities.

2. Handling of documents is not to exceed duration of 2-3 minutes at which time a rest break of 2-3 minutes is required.

3. Assistance is available for placing 1” -1.5” thick bundles on the shelf. These bundles average 1-2 kg in weight. One bundle at a time can also be walked over and placed on the shelf.

4. Use of a slant board to increase neck comfort when viewing or counting documents.

5. Micro-breaks (10-20 seconds) within activities should also be taken.

6. Vary document handling tasks with other non-document handling tasks if available.

31On January 30 Dr. Blew completed a functional abilities form containing restrictions including: alternating sitting and standing; no lifting from waist to shoulder; a restriction on bending, twisting repetitive movement of the neck; rare work at or above shoulder level; limited use of hands; and detailed temporal limits on keyboarding. This form indicated the grievor could return to work on February 1.

32In a letter dated Friday, February 3, Louise Shannon directed the grievor to return to work on February 7, with the graduated hours recommended by her doctor, to perform light clerical duties and to learn how to use Dragon Speak. Contending there was no justification for the grievor’s ongoing absence, Ms. Shannon stated the grievor might be terminated under article 13.05 of the collective agreement if she failed to return as directed.

33Ms. Lubinovic replied to Ms. Shannon in an email dated Monday, February 6, characterizing her letter of February 3 as “harassment and bullying.” This email was also sent to numerous union representatives and requested a grievance be filed about the letter. Ms. Lubinovic subsequently filed a grievance, dated Feb 13, seeking a written apology for the “threat” to her employment made by Ms. Shannon. The grievance alleges Cynthia Ireland, regional vice-president of the union, “dismissed” the grievor’s complaint about the letter in question, saying the employer and union had agreed to the article cited by Ms. Shannon. It appears this grievance was never referred to arbitration.

34Another return to work meeting was held on February 7. Ms. Shannon and a human resource representative attended for the employer. The grievor was accompanied by Cynthia Ireland and Bill Holland on behalf of the union. The grievor was provided with a written return-to-work plan at this meeting. The plan accurately states most of the restrictions identified by Dr. Blew on January 30, but omits the restriction allowing only rare work at or above shoulder level. The plan also incorporated the graduated hours of work recommended by the grievor’s doctor.

35The grievor was told at the meeting she would be returning to her EA job after a few weeks doing light clerical duties and learning Dragon Speak. The plan included five hours of Dragon Speak “training” and three and a half hours of Dragon Speak “practicum” scheduled between February 16 and 27. The clerical duties contained in this plan were the same as those previously communicated to Dr. Blew. The duties were described as “self-paced” and as not entailing any “productivity expectations.” The employer undertook to provide a sit/stand work station. The grievor was directed to handle documents for periods of 2 to 3 minutes interspersed with breaks of the same duration. She was directed not to lift bundles of documents and advised the manager in records control, Vicki Tingle, would arrange for someone else to lift and transport bundles.

36Ms. Lubinovic testified she expressed concern at this meeting about flexing her neck when counting documents but agreed to try doing so. The concern expressed by the grievor prompted Ms. Shannon to arrange for a consultation between the grievor and Brian Cox. At the conclusion of meeting on February 7, they went to the work station where the helper duties would be performed. Mr. Cox testified he checked the height of the work station and showed the grievor how to the use the slant board to limit neck flexion. He also demonstrated a way to count documents while minimizing pinch gripping between thumb and forefinger.

37Mr. Cox testified he was aware of the grievor’s restrictions but did not then have a copy of the return to work plan that summarized them. In cross-examination, he identified Ms. McMurray as the person who told him about the grievor’s restrictions. He mentioned only two restrictions in his testimony: the one relating to use of hands and the one relating to neck flexion. He made no mention of the restriction relating to work at shoulder level.

38The work station used by the grievor counting documents had two sections: one section designed for a computer, but lacking any computer at the time, that could be adjusted to standing or sitting height; and another section fixed at sitting height. The surface area of these two sections is not revealed by the evidence. At one point in her testimony the grievor said she was “forced to sit” but at other points she mentioned working when either sitting or standing.

39Ms. Lubinovic also testified that the ergonomic chair provided for counting documents had arms, whereas she required a chair without arms. What problem arms presented was not explained.

40According to the plan presented on February 7, the grievor was scheduled to commence performing the helper duties on February 9. On February 8, Ms. Lubinovic drafted a letter, subsequently sent to the WSIB case manager handling her claim, saying she was “not interested” in the helper job because it was “not comparable” to her pre-injury EA position, was a “make work” job and “exceeded” her medical restrictions. Also on February 8, Ms. Lubinovic sent an email to Ms. Shannon asking to delay her return to work until she had an opportunity to consult her doctor. The grievor testified she had concerns about her neck when working at shoulder level in a standing position.

41Ms. Shannon replied in a letter bearing the same date, saying the grievor might be terminated under article 13.05 if she did not report for duty as scheduled on February 9. Also on February 8 the grievor received an email from Cynthia Ireland, a regional vice-president of the union, saying she would be disciplined if she did not return to work the next day.

42On February 9 Ms. Lubinovic reported for duty and signed the return-to-work plan presented at the meeting two days earlier. She performed the helper duties on February 9 and 14 as scheduled in the plan. She also worked on February 13 but had no helper assignment that day. She testified about having to count documents at shoulder level because her neck injury precluded her from looking down.

43The grievor testified she suffered an injury to her neck and arms when counting documents on February 14. Ms. Lubinovic communicated with Louise Shannon and Vicki Tingle before leaving work that day Ms. Shannon testified about receiving a message reporting a flare-up of pain in her right arm and shoulder. Ms. Lubinovic testified about telling Vicki Tingle that she felt tingling in her arm and a flare-up in her neck. Ms. Tingle sent an email to Natasha McMurray and Brian Cox, saying the grievor had reported tingling in right arm and had displayed “a very positive attitude” during the past week.

44In an email sent at the end of the day on February 14, Ms. Shannon asked the grievor to call her at 9:00 a.m. the next day. Ms. Lubinovic testified she called Ms. Shannon on the afternoon of February 15, after seeing her doctor. Asked in cross-examination why she had not called Ms. Shannon sooner, the grievor said she did not get out of bed for five days, after seeing her doctor and massage therapist on February 15, due to “severe pain” resulting from the re-aggravation of her injuries and a “severe migraine”.

45Ms. Lubinovic filed a grievance, dated February 10, alleging “the employer and union have violated the collective agreement” in relation to her records control assignment because it was not comparable to the EA job and exceeded her medical restrictions. The grievance alleges a union official, Rosanne Goulet, told the grievor the two jobs were not comparable but at least she had a job.

46Ms. Lubinovic did not report to work as scheduled on eight days between February 16 and February 28 inclusive.

47Dr. Blew prepared a brief note, dated February 15, saying the grievor was off work for “medical reasons.” In a more detailed medical report of the same date date, Dr. Blew recorded the grievor reporting: “increased burning and pain upper back, neck R > L shoulder, R upper arm; tingling R forearm.” The diagnosis contained in this report is “exacerbation of myofasical R shoulder pain girdle pain and R forearm strain.” Dr. Blew stated the grievor was “unable to work at present” and not expected to improve until mid-March. Dr. Blew’s clinical notes indicate the grievor received a prescription for Tylenol 2.

48In an email sent to Ms. Lubinovic on February 17, Ms. Shannon reported having received no medical documentation since the grievor left work on February 14 and directed her to report for work at 9:45 a.m. on February 21, bringing any new medical documents with her so they could be reviewed and any necessary changes to the RTW plan could be discussed.

49At 6:37 a.m. on February 21, Ms. Lubinovic left a voice message for Ms. Shannon, saying she would not be at work that day and that medical documentation had been forwarded by her doctor. Ms. Shannon replied in a letter bearing the same date, saying the employer would review the documentation once received with a view to returning the grievor to work.

50On February 28, Ms. Shannon wrote to the grievor, saying Dr. Blew’s brief note of February 15 was “insufficient” and directing her to return to duty at 12:30 on March 2, and again referring to article 13.05. It appears Ms. Shannon wrote this letter before the employer received the more detailed report also prepared by Dr. Blew on February 15.

51Ms. Lubinovic faxed a copy of this report to corporate health on February 29. On the same date, Dr. Blew prepared another report indicating the grievor’s symptoms and diagnosis had not changed since February 15. Once again Dr. Blew indicated improvement in the grievor’s condition was not expected until mid-March.

52On March 1, after personnel in corporate health had reviewed the documents received on February 29, Ms. Shannon again wrote to the grievor directing her to return at 12:30 on March 2. This letter contains the following caution relating to article 13.05:

[Y]ou are put on notice that you are either to provide HWC with additional medical documentation sufficient to justify your total disability or complete inability to return to work or to report to work on Friday, March 2, 2012. If neither of these options is satisfied, the WSIB will proceed in accordance with article 13.05.

Ms. Shannon ended the letter with a reference to the employer’s goal of returning the grievor to her pre-injury job.

53Ms. Lubinovic did report for duty on March 2 and another return-to-work meeting was held that day. Louise Shannon was supported by a human resource representative. Roxanne Goulet attended for the union and Cynthia Ireland joined via teleconference. The grievor testified she complained the helper duties exceeded her restrictions and put her at risk of injury because she was working at shoulder height. Ms. Shannon testified she does not recall the grievor making these comments.

54Dr. Margoliot issued a second report dated March 4 based on a consultation with the grievor on March 1. He recorded the grievor’s account of her records job:

She now performs little keyboarding but primarily does document counting. She has a work station placed at shoulder level where she inspects and counts them. This is highly repetitive work, requiring continuous high speed use of both hands to manipulate documents. In addition, because she has been forced to work at shoulder level for hours at a time, she complains of worsening shoulder and neck pain.

Dr. Margoliot recommended a “thorough assessment” of the grievor and went on to say:

In the meantime, I can only reiterate the recommendations I made [in July] … Furthermore, given the more recent symptoms, the grievor should also avoid working at the shoulder or above shoulder level for more than 5 minutes at a time. Again, the patient is not suitable to perform repetitive work with either left or right hand or sustained work with either hand at shoulder or above level. Therefore, the patient is not suitable to perform document counting and inspection at a high rate. She is only suitable for self-paced activity with breaks every hour and minimal repetitive use of both hands. She should not be performing any work at shoulder or above level. I expect that if she does not follow these restrictions, her symptoms will worsen over time and she will no longer be able to function in any capacity requiring use of her hands. (emphasis added)

I note the two italicized passages about working at shoulder level contradict one another; the first limits such activity to 5 minutes at a time, whereas the second prohibits it entirely. It appears Dr. Margoliot was not asked to provide clarification on this subject.

55Ms. Lubinovic was seen by Dr. Blew on March 7. According to Dr. Blew, she did not examine the grievor on this occasion. The physician’s clinical notes indicate the patient complained of “ongoing pain in arm and neck.” In a note to the employer, bearing the same date, Dr. Blew reiterated her view that the helper job in records control was “not suitable” for the grievor.

56As noted above, Ms. Lubinovic returned to work on March 2. The evidence does not reveal how many days Ms. Lubinovic worked between March 2 and 8. She stopped working again on March 8, reporting another aggravation of her injuries.

57At 6:40 a.m. on March 9 the grievor left a message for Louise Shannon. Ms. Shannon wrote to the grievor later that day:

[A] note was received from your physician however it does not alter the medical precautions we have on record. Based on the medical precautions received to date, the modified work offered in the return to work plan remains suitable and consistent with those precautions. … As such you are expected to return to work.

58Ms. Lubinovic returned to work for a third time on Monday, March 12. She also worked on March 15. The evidence does not reveal how many days she worked between March 12 and 15. The grievor testified that on March 15 she spoke to Louise Shannon and Nancy Leal, another ergonomist, about the problem presented by working at shoulder level. According to the grievor, Ms. Leal moved the slant board a few inches and said she should continue working at shoulder level. Ms. Shannon confirmed there was a discussion between the grievor and Ms. Leal that day but she did not testify as to what was said or done.

59On March 15 the grievor reported to Louise Shannon another flare-up of pain in the right arm and shoulder . Ms. Shannon accompanied the grievor to corporate health where she saw a nurse. According to the grievor, the nurse declined to examine her in order to avoid aggravating her problem. In cross-examination, Ms. Shannon conceded she had no reason to disbelieve the grievor’s report of another flare-up.

60Ms. Lubinovic did not work again after March 15. The grievor left voice messages for Ms. Shannon on Friday, March 16 and on the following Monday and Tuesday, saying she would not be returning to work until able to consult her doctor. On March 23, the grievor saw Dr. Blew who had been on vacation until March 19.

61Ms. Shannon wrote to the grievor on March 20, again saying the records job was consistent with her medical restrictions and the grievor was expected to co-operate by returning to work. No mention of article 13.05 was made in this letter.

62The grievor replied in a letter dated March 21, contending her restrictions were not consistent with the following set of duties that she had been performing:

1. Bundles are transferred from a trolley, flipped right side up and opened

2. Count individual documents

3. Count individual and separate staggered documents into 1” to 1.5” bundles

4. Date stamp cover sheets

5. Write the amount of documents as bundled

6. Shuffle bundles to line up

7. Secure bundle with double elastic bands

8. Manually staple documents as needed

9. Place bundles onto trolley

10. Push trolley to records station

63As indicated by this list, the grievor had been doing some things the return-to-work plan explicitly told her not to do—i.e. the first duty and the last two in the list. The plan directed her not to lift bundles of documents and stated someone else would lift and transport them. On its face, this prohibition applied, not only to the very large bundles in which documents arrived for counting, but also to the smaller 1” to1.5 inch bundles into which they were placed after counting. A photograph entered as an exhibit suggests the large bundles contained as many as 2000 pages. The grievor estimated they weighed up to 20 pounds. She testified about sometimes arriving at work to find large bundles on a trolley, transferring them to the work station, cutting the plastic bands around them and then flipping them over. After counting documents into smaller bundles, she would lift those bundles onto a trolley. If no-one was around to help, she would push the trolley a distance of some thirty feet to its destination.

64The grievor conceded never complaining to management about not having some-one to help her. There is no evidence about what steps, if any, the employer took to ensure the assistance mentioned in the plan was actually provided.

65In a note dated March 23, Dr. Blew referred to the restrictions recently outlined by Dr. Margoliot and stated: “[A]ccording to Zineta the modified role you continue to offer contradicts these restrictions. As such she is unable to return to work given that appropriate work is not being offered.” This note leaves little double that Dr. Blew’s opinion about the unsuitability of the helper role was based upon the duties being performed by the grievor which differed from those contained in the return-to-work plan.

66After leaving work on February 14, the grievor began receiving physiotherapy and massage therapy. The treatment was still ongoing in late March. Reports from a physiotherapist and massage therapist were provided to the employer on February 29.

67In a letter dated April 13, Louise Shannon informed the grievor that her employment was being terminated under article 13.05 because she had been absent without reasonable justification since March 16.

68Also on April 13, Wendy McConnochie from human resources emailed Tony Maccarone, chief steward for the union, advising him a letter of termination had been sent by courier to the grievor’s home address. Ms. McConnochie also wrote: “It is understood that this information will not be shared with Zineta until after she has received the letter.” Ms. McConnochie testified that terminations under article 13.05 sometimes entail a termination meeting and sometime do not.

69The employer led evidence about an incident occurring in the summer of 2013 after the grievor’s termination. That summer she engaged Highland Heating and Cooling to work on her air conditioner. The grievor initially elected to purchase a new unit rather than repair the old one. The new unit did not work properly and the grievor eventually asked to have the old unit put back into service. Highland refused to comply and the grievor commenced a court action.

70According to Mitch Trebilcock, an installer for Highland, the grievor told him, during a face-to-face conversation, she worked for the WSIB and at the push of a button could send out 4000 emails about Highland. Mr. Trebilcock attributed this comment to the grievor’s sense of frustration with what had gone wrong. He reported this comment to Karen Grant, Highland’s book-keeper. Ms. Grant testified she contacted the WSIB because she did not want any problems relating to Highland’s account with the agency.

71Ms. Grant also testified about receiving an envelope, mailed by the grievor, with an express post label on the corner over top of some white-out. Ms. Grant peeled back the label and discovered the WSIB’s logo beneath the white-out.

72The grievor was the first person to testify about Highland. In cross-examination, she was asked if she had told Karen Grant that she worked for the WSIB and could send thousands of emails at the push of a button. This question was answered in the negative. The grievor was never asked if she made the same comment to Mr. Trebilcock. When Mr. Trebilcock was being cross-examined, the union suggested the grievor would say the comment attributed to her had been made during a telephone conversation and not face-to-face. I accept Mr. Trebilcock’s testimony about what the grievor said to him because his evidence was not contradicted.

II

73Section 5(1) of the Human Rights Code creates a right to equal treatment without discrimination because of disability. This right is limited by the test of undue hardship elaborated in s.17. The term “duty to accommodate” is often used as a short-hand reference to this right and its accompanying limit. Perhaps the leading case on the duty to accommodate is Central Okanagan School District No. 23 v. Renaud [1992] S.C.R. 970. Speaking for the Court, Mr. Justice Sopinka wrote:

43The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley. At page 555, McIntyre J. stated:

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

44This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O'Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.

74Article 13.05 of the collective agreement 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.

75Article 13.05 was considered by arbitrator Gray in Workplace Safety and Insurance Board and Canadian Union of Public Employees (Richards), [2005] O.G.S.B.A. No. 154. The grievor in that case, while abroad on vacation, sought an unpaid leave at the end of her vacation, saying she was unable to work because of stress. During a telephone conversation, her manager made some inquiries to which the grievor replied. There was no further direct communication between them. The employer sent two letters to the grievor’s home, saying she would be terminated if she did not return to duty. Her employment was later terminated via a third letter sent to the same address. The grievor did not receive any of these letters until a few weeks later, upon returning to Canada. Arbitrator Gray concluded she reasonably expected the employer “would be getting back to her” by telephone after the first phone call. The arbitrator viewed this expectation as providing reasonable justification for the grievor’s absence. He reinstated her but with only partial pay back. In particular, Mr. Gray imposed a one-month disciplinary suspension, because the grievor had delayed when first contacting her employer, and because there was no medical justification for her absence.

III

76The arguments advanced about the duty to accommodate under the Human Rights Code are intertwined with those made about whether the grievor’s absence was justified with the meaning of article 13.05. The broad outline of those arguments can be briefly stated. The details will be addressed below in conjunction with my assessment of the evidence.

77In general terms, the union contends the employer breached its duty to accommodate the grievor’s disability in two ways: (1) by delaying the purchase of VRS and the implementation of keyboarding restrictions when she was doing the EA job in the summer and fall of 2011; and (2) by repeatedly directing the grievor to perform the helper role in records control in early 2012, after Dr. Blew had lifted her prohibition on all keyboarding, and after the grievor had three times experienced flare-ups when counting documents. According to the union, having failed to offer suitable work to the grievor, the employer cannot properly claim her absence from work, commencing on March 16, 2012, was not justified within the meaning of article 13.05.

78The employer denies any breach of the Code in relation to the EA job during the summer and fall of 2011. In relation to the helper role, the employer does not contest the grievor’s evidence about the flare-ups she experienced on each of the three occasions that she worked as a helper in records control. The essence of the employer’s argument is the helper duties set out in the return to work plan were consistent with the restrictions identified by Dr. Blew and its attempts to accommodate the grievor were frustrated by her failure to co-operate as required by the Code. In particular, the employer contends: (1) she resisted performing the helper assignment because she viewed it as not comparable with the EA job and not utilizing her knowledge, skill and experience; (2) when performing the helper role, she did things that the return-to-work plan indicated she should not; (3) she mislead Dr. Blew about the nature of the helper duties assigned to her; and (4) she failed to communicate with the employer after her letter of March 21.

79The employer’s alternative argument is that, even if the helper role turned out not to be a suitable accommodation, based on the physical difficulties encountered by the grievor when doing this work, she should have engaged her employer in a discussion about some other form of accommodation in the days following March 21. According to this line of argument, her failure to do so rendered her continuing absence unjustified within the meaning of article 13.05.

80In reply, the union submits the employer failed to ensure someone else did the record duties not assigned to the grievor under the return-to-work plan. Even after the grievor mentioned doing these duties in her letter of March 21, the employer took no steps to return her to the helper role with appropriate assistance. Nor did the employer initiate a dialogue about other ways to accommodate the grievor.

IV

81I begin my analysis by considering the events of the summer and fall of 2011. In my view, the duty to accommodate did not oblige the employer to provide VRS during this period, because the medical evidence did not support this accommodation. I read Dr. Margoliot’s report of July 6 as saying either VRS or central dictation services would suffice, but the grievor would “benefit” more from the former because she was likely to be “more compliant” with it. In my view, the employer was not obliged to purchase VRS because the grievor was reluctant to use the central dictation services already provided. Nor do I read Richard Taufel’s report of October 4 as indicating the grievor required VRS. He did say she would “benefit” from it, but he also noted the grievor appeared “to manage” with the current arrangement.

82Dr. Margoliot’s first report did recommend temporal restrictions on keyboarding and self-paced activity. The evidence is not entirely clear as to whether these recommendations were implemented in the summer of 2011. However, there is no evidence that the grievor requested these types of accommodations at that time. Her over-riding goal appears to have been to get VRS. In the absence of a request from the grievor, there was no violation of the duty to accommodate, even if the recommendations were not implemented.

83Nor do I think the employer failed to properly accommodate the grievor by not returning her to the EA job immediately after January 20, 2012, when Dr. Blew lifted her complete prohibition on keyboarding. The employer could not be faulted for suspecting this abrupt change was caused by the grievor’s desire to avoid the helper job offered to her on January 19. I also note the employer planned for the grievor to resume her work as an EA within a few weeks, after she had been trained on the use of Dragon Speak.

84The union does not contend the employer violated the duty to accommodate when it initially directed the grievor to do the helper job, on a temporary basis and without a reduction in her hourly rate of pay. Rather, the union argues a violation of the Code occurred when the employer continued to insist that she perform these duties, after she had tried them three times and injured herself on each occasion.

85In my view, the grievor’s medical restrictions gave rise to some uncertainty as to whether she could safely do the helper duties listed in the return-to-work plan, with frequent breaks and no productivity targets. Dr. Blew’s report of January 30 put an unspecified limit on the use of both hands. This report also allowed only rare work at or above shoulder level and placed an unspecified restriction on bending, twisting or repetitive motion of the neck. I note a person needs to bend the neck only a little to see a document held slightly below shoulder level. Moreover, it is far from obvious that counting documents would have required more neck flexion than the EA job, to which the grievor was determined to return, and there is no evidence to this effect.

86I digress to note the employer appears to have paid little heed to Dr. Blew’s restriction on work at or above shoulder level, which was stated as “none for neck” on January 20 and “rare” on January 30. Ms. McMurray’s memo of January 20 misstated the first formulation of the restriction as “none from neck up.” The return to work plan presented on March 7 makes no mention of the second formulation. Neither Ms. Murray not Mr. Cox mentioned any such restriction when testifying. This apparent oversight on the employer’s part had little practical consequence, because the restriction as stated by Dr. Blew generated uncertainty as to whether the grievor could do the helper job safely, as I have already explained.

87Given the lack of specificity in the grievor’s restrictions, it was not unreasonable for the employer to direct her to try the helper job. Just as the proof of a pudding is in the eating, the question of whether the grievor could safely perform the work was best answered by trying it.

88As of late January and early February of 2012, the employer had received no reliable medical opinion suggesting a trial posed any risk of long-term harm. Dr. Blew’s report of January 20, saying a record’s role was unsuitable, had been written before she saw a description of the duties offered to the grievor. There is no evidence as to what the grievor told her doctor about those duties at that time. I note Dr. Blew made no comment about the suitability of the helper role in her report of January 30, written after she had seen a written description of the duties involved.

89By repeatedly refusing to try the job, the grievor failed to fulfill her duty to cooperate in the accommodation process.

90Nonetheless, she eventually tried the job three times, with the positive attitude noted by Ms. Tingle. The grievor testified about suffering a flare-up on each occasion. After her first attempt to do the job, Dr. Blew twice informed the employer, on February 15 and again on 29, the grievor was not fit to work for medical reasons. The employer does not contest this evidence indicating the grievor suffered an aggravation of her injuries when doing the helper duties.

91As the grievor did some things the written plan directed her not to do, it is impossible for me to determine whether she would have been injured if she had complied with those directions.

92In my view, the grievor and the employer share the blame for shortfalls in the implementation of the plan. The grievor should have requested assistance with lifting and transporting bundles. She failed to do this. The employer should have taken steps to ensure such assistance was provided. There is no evidence the employer did anything of the sort. Moreover, in her letter to Louise Shannon, dated March 21, 2012, the grievor clearly indicated she had been lifting and transporting bundles. There was no reply to this letter. The employer should have responded, saying it would ensure these duties were performed by someone else, if the grievor returned to work. In short, both sides fell short of meeting their statutory obligations.

93I now turn to consider the employer’s alternative argument that the grievor’s absence in late March and early April of 2012 was unjustified because she should have returned to the work place to engage her employer in a discussion about some assignment other than the helper role.

94I am not persuaded by this argument. The employer’s last communication to the grievor, prior to her termination, was Ms. Shannon’s letter of March 20. That letter directed the grievor to return to the modified work previously performed by her, despite the injuries she had suffered doing it. In her letter of March 21, the grievor asserted she was medically unable to perform this work. Thereafter, neither side sought to engage the other in a dialogue about accommodation. There was radio silence on both sides.

95As noted in the passage from the Supreme Court’s decision in Renaud, quoted above, “the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business.” In the case at hand, the employer bore the primary obligation to initiate a discussion about returning the grievor to work in some fashion that would not lead to further injury. The employer might have directed her to return to the helper role and assured her that someone else would lift and transport bundles. The employer could have proposed some other form of modified work. Instead, the employer did nothing before terminating her. Such inaction was itself a violation of the duty to accommodate. This contravention on the employer’s part was the primary cause of the grievor’s absence. She did not report for duty because no suitable work had been offered. Accordingly, she was not subject to termination under article 13.05 because there was “a justifiable reason” for her absence. Moreover, the employer breached its duty to accommodate under the Code by terminating her in these circumstances.

V

96The union contends the employer contravened other provisions in the collective agreement by sending a termination letter to the grievor’s home, rather than holding a meeting at which she would have had a right to union representation. This argument is based on the following provisions found in article 13 of the 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.

97I recently addressed the application of these provisions to a termination under article 13.05. In Workplace Safety and Insurance Board and Canadian Union of Public Employees, GSB No. 2012-0173, I wrote:

60The 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.

61The 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.

62I 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.

63In 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.

As this decision post-dates the grievor’s termination, the employer did not have the benefit of it’s guidance at the time she was terminated.

98Here too the employer has contravened the first sentence of article 13.01 as well as article 13.02. The union contends these violations provide grounds to overturn the termination, because they denied the grievor union representation that might have precluded her dismissal. I have already concluded the dismissal was improper because it contravened the Code and was not permitted by article 13.05. Given these rulings, the appropriate remedy relating to articles 13.01 and 13.02 is a declaration that they were breached.

VI

99Having concluded the grievor’s termination was not warranted, I turn to consider the appropriate remedy. The union seeks damages under s. 45(2) of the Human Rights Code for “injury to dignity, feelings and self-respect.” No specific amount was claimed. As the grievor bears some of the responsibility for the failure of the employer’s attempt to accommodate her, I conclude the award of damages of this sort would be inappropriate.

VII

100The union asks that the grievor be reinstated. The employer contends reinstating her would be inappropriate and suggests a monetary award in lieu of reinstatement.

101In Workers Safety and Insurance Board and Canadian Union of Public Employees, GSB. No. 2012-0173, I summarized the law relating to this remedial issue:

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.

102In opposing reinstatement, the employer relies primarily on the comment made by the grievor to Mitch Trebilcock about sending thousands of emails concerning Highland at the push of a button. This comment was characterized as damaging the employer’s reputation and as undermining the employer’s trust in the grievor. The employer also notes the grievor made wrongful use of the employer’s resources—i.e. the WSIB envelope sent to Ms. Grant. In addition, the employer cited the grievor’s demeanour at the hearing. Her conduct during cross-examination was characterized as argumentative. Some of her answers were said to be inconsistent and to betray a lack of candour. She was also criticized for failing to take responsibility for her lack of cooperation in the accommodation process.

103The union argues there is neither evidence the grievor could access Highland’s WSIB account nor any indication of who might have been the recipients of the emails mentioned by her. I was reminded that testifying is a stressful experience for most people. The grievor was under cross-examination for four days, facing frequent suggestions that she did something wrong. The union noted, on occasion during her testimony, there was obvious amusement on the part of some on the employer’s side of the hearing room. The grievor was in obvious physical discomfort through much of the hearing, as demonstrated by the fact she alternated between sitting and standing.

104In considering this issue, I begin by noting reinstatement is the normal remedy and it is denied only in exceptional circumstances. I also note the employer terminated the grievor’s employment in contravention of the Human Rights Code. In this context, an arbitrator should be particularly cautious in scrutinizing the grounds alleged to render reinstatement inappropriate.

105When considering conduct at a hearing, an arbitrator should take into account behaviour on both sides of the room, because action on one side may elicit a response on the other. An arbitrator should also bear in mind that it is not unusual for some degree of resentment to be displayed by an employee who has been wrongfully terminated. Some exaggeration and minor inconsistencies over the course of multiple days of testimony are not uncommon. Bearing the foregoing considerations in mind, I conclude the grievor’s demeanour at the hearing does not provides grounds to deny reinstatement.

106The most troubling aspect of the grievor’s conduct is the comment she made to Mitch Trebilcock. This comment by a person claiming to be an employee of a crown agency, to a person working for a company subject to the legal authority of that agency, constitutes serious misconduct. The severity of the misconduct is mitigated slightly by the spontaneous nature of the comment and by the fact it was made more out of frustration than anger. Would misconduct of this sort warrant the dismissal of an employee, like the grievor, with over ten year’s seniority and no proven disciplinary record? I think not. Nonetheless, it would warrant a lengthy suspension. This analysis leads me to conclude the grievor should not be denied reinstatement. Rather, she should be reinstated subject to a suspension of one month as discipline for this comment.

107It is true the grievor has not accepted responsibility for her lack of co-operation in the accommodation process. Neither has the employer accepted responsibility for failures on its part which I have found to be contraventions of the Code. In this context, it would be highly improper for me to deny reinstatement based on the grievor’s conduct alone. Following the lead of Arbitrator Gray in the Richards case, I conclude the best way to address the grievor’s lack of cooperation is to with-hold some portion of the backpay to which she would otherwise be entitled. I fix that portion at 25%.

VIII

108The grievances are allowed. The employer is directed to reinstate the grievor without loss of seniority. Subject to her obligation to mitigate her loss, she is entitled to compensation for 75% of the wages and benefits she would have received, but for the termination of her employment, for the period between the termination and reinstatement less one month, that month representing a disciplinary suspension. I remain seized to address any issues arising in the implementation of this award.