GSB#2010-2873, 2010-2933
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and Professional Crown Employees of Ontario
(Bokhari)
Association
- and -
The Crown in Right of Ontario
(Ministry of Economic Development, Employment and Infrastructure)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Michael Mitchell
Sack Goldblatt Mitchell
Counsel
FOR THE EMPLOYER
Roslyn Baichoo
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING
June 8, November 16, 17, 29, 2011; July 11, September 30, October 24, 2013; June 11, 12, September 30, October 2, 7, 8, 9, 2014
Decision
1The complainant, Mr. Imran Bokhari has filed two related disputes which were consolidated on agreement. They arise out of Mr. Imran Bokhari’s transfer from the Ministry of Government Services (MGS) to the Ministry of Economic Development and Trade (MEDT), his experience at MEDT following his arrival, and the ultimate surplussing of his MEDT position. The written dispute forms are extremely detailed and not useful to reproduce here. It suffices to note that there are two broad issues that arise from the disputes. First, that Mr. Imran Bokhari was discriminated against because of his disability, and subjected to differential treatment by management at MEDT following his arrival there. Second, that his position was declared surplus for bad faith and/or discriminatory reasons.
2The parties agreed to bifurcate liability and remedial issues. It was agreed that if any liability is found, the Board would retain jurisdiction with regard to remedy and allow the parties to attempt to resolve the remedy. It was explicitly agreed that evidence adduced in the liability phase of the proceeding may be relied upon in relation to remedial issues, and further that the parties would have the right to recall witnesses who had testified, and to call additional witnesses to provide evidence related to remedy.
AMAPCEO EVIDENCE
TESTIMONY OF MR. IMRAN BOKHARI
3Mr. Bokhari joined the Ontario Public Service in May 1999. Prior to his transfer to MEDT he held the position of Financial Analyst at the Business Planning & Financial Management Branch of the MGS, classified at the AFA 17 level. Describing his duties in the last year prior to his transfer to MEDT, he testified that he spent significant time performing work related to AGCO. Mr. Bokhari testified that since 2005 he had cardiac health issues due to blocked arteries. In addition, since 2007 he had high blood pressure and cholesterol issues, and was under medication for type 2 diabetes. As a result of these health issues he experienced shortness of breath and dizziness. He testified that despite his ailments, he performed well at work and received positive feedback.
4Mr. Bokhari received the following letter dated February 16, 2010 from the employer:
In July 2000 the Alcohol and Gaming Commission of Ontario (AGCO) was transferred from the Ministry of Government Services (MGS) to the Ministry of Consumer Services (MGS). As a result of this transfer the financial oversight function that MGS had provided to the AGCO was assigned to the Ministry of Economic Development and Trade – corporate service provider to MCS.
Please be advised that effective March 1, 2010 your home position of Financial Analyst, 17 AFA, will be transferred to the Business Planning and Finance Branch, Ministry of Economic Development and Trade. There will be no change to your classification, salary or benefits. However, there will be a location change to 900 Bay Street, 7th floor, Hearst Block. Effective March 1, 2010 your position will report to Jan Yousef, Controller, Business Planning and Finance Branch. Jan Yousef will contact you shortly to arrange a time to meet with you. I would like to thank you for your service to date and wish you continued success with the Ministry of Economic Development and Trade.
5Mr. Bokhari testified that since he had been expecting a promotion, he was “hopeful” that upon his transfer his position would be reclassified to AFA 19 or 20. He was therefore “shocked” when he found out that he would be working in a very small ministry at the same AFA 17 level. He went into a depression and made an appointment with a psychiatrist at Sunnybrook Hospital for February 27, 2010. Subsequently he had several consultations with two resident doctors there, Dr. C. Whitty and Dr. S. Durbin, and in May 2011 was also seen by psychiatrist, Dr. S. Herskop.
6Mr. Bokhari testified that as of the end of January 2010 he was still continuing his AGCO duties at MGS. From 2003 to 2006 AGCO was a major portion of his work. After he was transferred from the Controllership Unit to the Resource Management Unit in 2007 the AGCO work was divided, and he did less AGCO work than previously. He testified that after he received notice of his transfer to MEDT he had a discussion with Ms. Karen Hughes, ADM/CAO of MGS, and that she informed him that AGCO would no longer be part of MGS and that the AGCO work performed by the Controllership Unit will be handled by him at MEDT, in addition to some expenditure related AGCO work. He asked Ms. Hughes why he was selected for transfer to MEDT and she explained that “they were demanding that”, because MEDT wanted him to prepare the AGCO year end reports. Mr. Bokhari testified that he was very unhappy about not receiving a promotion upon transfer to MEDT. He explained that MEDT was small, and if he ever lost his job, as a AFA 17 his opportunity to bump would be very limited.
7AMAPCEO introduced into evidence the following letter dated January 21, 2010 to the AMAPCEO President, from Human Resources:
Re: Financial Oversight for Alcohol and Gaming Commission of Ontario – Transfer of one (1) AMAPCEO represented position from MGS to MEDT
I am writing on behalf of the Ministry of Economic Development and Trade (MEDT) to provide you with disclosure about the upcoming transfer of a position from the Ministry of Government Services (MGS) to MEDT.
Prior to July 2009, the Resource Management Branch, Corporate Services Division, Ministry of Government Services (MGS), provided dedicated financial oversight to the Alcohol and Gaming Commission of Ontario (AGCO). In July 2009, the AGCO was transferred from MGS to the Ministry of Consumer Services (MCS). As a result, the financial oversight function that MGS had provided to the AGCO was reassigned to the Business Planning and Finance Branch, Corporate Services Division, Ministry of Economic Development and Trade (MEDT)-MCS’s corporate services provider.
To support the reassignment of the financial oversight function, (one) 1 FTE at the 17AFA level will now be transferred from the Resource Management Branch, Corporate Services Division, MGS, to the Business Planning and Finance Branch, Corporate Services Division, MEDT.
One (1) AMAPCEO member will be impacted by this transfer (see Appendix A for details). There will be no change to the employee’s classification, work schedule, salary or benefits as a result of this transfer. There will be a change to the employee’s reporting relationship and work location (within 40 km). The work location will change from 777 Bay Street, 5th Floor, Toronto, to 900 Bay Street, Hearst Block, 7th Floor, Toronto. The employee will be advised of the transfer on February 16, 2010, with the transfer being effective on or about March 1, 2010. Please keep this information confidential until the date of transfer.
Should you have any questions, please contact Dan Keating, Director, Strategic HR Business Unit, Ministry of Economic Development and Trade, at 416-325- 6598.
8Filed as exhibit 10 was a 390 page document book, which Ms. Yousef had put together after the instant disputes had been filed. It chronologically assembled emails relating to Mr. Bokhari’s transfer to MEDT and his tenure at MEDT. In addition, it contains comments and observations by Ms. Yousef which will be hereinafter referred to as Ms. Yousef’s “notes”. These indicate that in mid-February, 2010 Mr. Burns instructed Ms. Yousef to find out what work Mr. Bokhari had been doing at MGS with respect to AGCO. On February 25, 2010 Ms. Yousef met with Mr. Bokhari at a coffee shop. Mr. Bokhari testified that at the meeting Ms. Yousef asked him about his background and work experience. He testified as follows: “Almost towards the end of the meeting I told her about my health issues. That I am having angioplasty in April and will need time off for that, and about my high-blood pressure, diabetes and that I had shortness of breath some mornings. Then I indicated I am in depression as diagnosed by my psychiatrist, and that tomorrow I’ll be seeing her. She jumped from her seat, sat again and said “oh my god, Jeff didn’t tell me about that” She said that very anxiously, and very angrily also probably. I felt so humiliated that somebody hates me or was trying to make fun of my disability”.
9Mr. Bokhari confirmed that he advised Ms. Yousef that due to his morning breathing difficulties, MGS had allowed him to work from 10:00 a.m. to 6:00 p.m. and requested that the same accommodation be continued at MEDT. In response, Ms. Yousef asked if he could start at 9:30 a.m. and he said “no”. Mr. Bokhari testified that Ms. Yousef’s notes on the information he provided about his health issues were “generally accurate”, except that he informed Ms. Yousef that he was in a “depression” and was seeing a “psychiatrist”, whereas her notes mention “stressed out” and a “doctor”, and that Ms. Yousef failed to mention her “very bad reaction”, when he mentioned depression and psychiatrist.
10Mr. Bokhari testified that he was unaware that at 10:30 a.m. on February 26, 2010, Ms. Yousef met with Mr. Edwards at a coffee shop to discuss about him. Ms. Yousef’s notes indicate that the information Mr. Edwards provided about Mr. Bokhari included the following: That Mr. Edwards had been Mr. Bokhari’s manager for the past 3 years and in that period Mr. Bokhari had not indicated he had any heart surgery or other serious health issues; that Mr. Bokhari had been allowed to work 10:00 a.m. to 6:00 p.m. at MGS, but it was because he stated he had to get his kids to school, not because of any health issue; that after Mr. Bokhari was transferred from Controllership to Mr. Edwards’ section, Mr. Bokhari and a fellow employee did not get along. As a result Mr. Bokhari was transferred to a different job; that Mr. Bokhari did monitoring/reporting for all MGS revenues, but that most of his work was for AGCO; that in using a template provided Mr. Bokhari “got numbers wrong and alienated staff`; that Mr. Bokhari was assigned a project called “Expense Tracker”, and that he “was unable to do this and in the process managed to alienate everyone and made it a complex process so they took him off the project”; that while Mr. Bokhari’s job specification was generic to allow flexibility, “they had been trying to make it a job description specific to his work on revenues, mainly AGCO”; that “performance had been a problem and that Imran had received conditional performance reviews in the past and that MGS had been documenting his performance”; that letters and calls were received from organizations trying to collect debts from Mr. Bokhari and one person asked Mr. Edwards to give Mr. Bokhari a letter about an outstanding debt and that his wages had been garnished; that to dodge these organizations, Mr. Bokhari stopped answering his phone. The calls went to reception as result, and it “upset other branch staff”; that Mr. Bokhari had brought to the attention of the CAO (1) that he had been given no work for the last 6 months, which was untrue and (2) that he was unhappy with his office accommodation; and that Mr. Edwards knew Mr. Bokhari was not happy about his transfer to MEDT and “had told management he would fight this all the way to the Supreme Court”.
11Mr. Bokhari testified that since Ms. Yousef had refused his request to start at 10:00 a.m., on March 1, 2010 he reported for his first day at MEDT at 9:30 a.m. At the coffee shop meeting he had inquired about doing AGCO work and was told by Ms. Yousef that his duties could be discussed on March 1st. Therefore he asked Ms. Yousef for “custody of all physical and electronic AGCO files”. Ms. Yousef responded, “No. We will talk about work later. You just familiarize yourself with the environment and the people”. Mr. Bokhari testified in detail about the work he was assigned in the first week at MEDT. It suffices to note that he felt that he was doing menial and clerical/administrative work, and not work requiring financial analysis. He protested and expressed his displeasure, but did the assigned work. He testified “after the first week I felt that after working 20 plus years in finance, I was starting over again as a summer student.”
12AMAPCEO counsel reviewed with Mr. Bokhari numerous e-mails starting his second week, indicating that he was frequently coming in late to work, leaving early or was absent. He and asked Mr. Bokhari why that happened. Mr. Bokhari stated that he had been going through a depression. It was aggravated by Ms. Yousef’s assigning him menial work instead of AGCO work. He said, “I felt and saw from her attitude and gestures that she hated me. She did not like me. Probably my former manager poisoned her against me. I felt the major reason was my disability. He has a stigma against people with mental disability”.
13Ms. GA was another Financial Analyst on Ms. Yousef’s staff and Mr. Bokhari`s co-worker. Filed in evidence was an e-mail exchange on March 18, 2010 between Ms. Yousef and Ms. GA discussing Mr. Bokhari. It included an e-mail at 10:40 a.m. from Ms. GA to Ms. Yousef that Mr. Bokhari “just walked in”, and another at11:14 a.m. to the effect, “I told him to carry on with the work you assigned and to leave the forms for now. I took the MRI binder from his office yesterday and gave it to Vanja. After he came he went to Karen’s office with one paper and closed himself in there. I knocked on the door and told him to carry on with other stuff. He came back to his desk a while later.” Mr. Bokhari testified that he had no idea that his manager was discussing about him with a co-worker.
14Ms. Yousef’s notes for March 23, 2010 include the following:
I just met with Imran (10:51 am) and clarified my expectations about his hours. I advised him that he was expected to report to work on time or notify me by telephone/email if he was going to be late. That it was not acceptable for him to just ‘saunter in’ at other times – I mentioned he had done that yesterday and today. He apologized and acknowledged that he understood this. He mentioned he advised me by email about this yesterday but I said he had not done this until his arrival at the office and that I expected him to advise me first thing in the morning if he would not be in at his expected time. I also requested that he try and move his hours earlier. I commented that his first week he had shifted his hours a bit earlier from 10-6 (shift worked at MGS) till about 9:30-5:30 and that I would appreciate it if he could continue to do so. I asked him what time he had worked till yesterday and he advised he had worked till approx. 7:30 p.m. I advised him that he should have advised me of that as well per my earlier request.
15Following that meeting, Mr. Bokhari e-mailed Ms. Yousef setting out a number of ideas regarding New Year Start Up. Ms. Yousef prepared a draft response, essentially stating that he should concentrate on the assigned work. She forwarded the draft to Mr. Burns and Ms. Jamie Goodman of Human Resources and wrote, “I was quite surprised to get this e-mail today from Imran. I would like your advice/comments on the following response. I want him to concentrate in efforts on his assigned work and not stray to other activities”.
16The evidence is that Mr. Bokhari had registered for two courses offered by the Ontario Learning Centre to OPS employees. When Ms. Yousef became aware of this she informed Mr. Bokhari that he should not have registered for any course without her prior approval, and instructed him to cancel the registration. Mr. Bokhari testified that Ms. Yousef called him in and “was very angry and made a big deal out of this”. He explained that these were excellent courses and in big demand. He therefore registered, expecting to cancel if Ms. Yousef did not approve.
17The evidence is that Mr. Bokhari’s attendance and lateness issues continued into April 2010. On April 13th, Ms. Yousef met with him and discussed her concerns, and gave him a “Request for Employee Health Information” form to be completed by his health practitioner. Ms. Yousef drafted the following speaking notes for use at the meeting with Mr. Bokhari and sent it to Ms. Goodman and Ms. Graham of Human Resources (with copy to Mr. Burns) for vetting by them.
Imran when we first met (Feb. 26/10) prior to you starting at MEDT, you brought to my attention that you required special accommodation for health reasons.
I understood from you that MGS had allowed you to work 10-6 pm but I preferred you start earlier by a least 9:30 if possible.
In order for me to better understand your need/request for accommodation, I am today requesting that you have your doctor complete a Request for Employee Health Information Form by April 27/10.
This is due to your frequent lateness and absences due to illness and doctors’ appointments.
I need this information in order to determine appropriate accommodation. I have not yet agreed to a 10-6 shift on a regular basis.
. If he requests examples: since you started here on March 1, 2010, you have:
Started work late due to not feeling well on several occasions (11)
Taken several sick days (4)
Taken several hours off to attend doctors appts. on various occasions (5)
We need to have reliable attendance in order for us to effectively schedule work
I do acknowledge that you are now advising me when you will be late. But the later start time of 10 am has clearly not been effective in ensuring reliable attendance over the past month.
Once we get the information back from your doctor we will again discuss what accommodation might be appropriate.
I also want to clarify something with you. You did ask me if you could make up the hours you were off on Mar. 22 and I agreed. However I did not mean to imply that it was okay for you to do this on an ongoing basis. My approval was for that day only. You need to advise me in writing of how/when you have made up that time.
I do like to give staff some flexibility when they have a need to take care of a personal matter during work hours and make up the time, but this is granted only occasionally and on an exceptional basis and requires my prior approval.
What I am finding is that it
s difficult for me to assign work to you as I dont know from day to day when you will arrive at work and when you will need time off to attend doctors appts.So let me make myself clear, it is not acceptable to me for you to come in at 11 or later and work till 7 or 8 pm on a regular basis. I don`t want you working after 6 pm on a regular basis.
I also need a listing of your upcoming doctor`s appts. for the balance of this month. I will send you an email about this.
If your doctor’s appts. will continue past the month of April on a regular basis, I need you to provide me with a written list of your appts for the month on the first working day of each month
I will put the essence of what we have discussed today in an email to you.
18In accordance with suggestions by Ms. Goodman and Ms. Graham, the speaking notes were revised to read:
When we first met prior to you starting at MEDT, you brought to my attention that you required special accommodation for health reasons and I understood from you that MGS had allowed you to work 10-6 pm. I mentioned to you that I preferred you start earlier by at least 9:30 if possible, which you started to do on your first week.
Today I requested that you have your doctor complete a Request for Employee Health Information Form by April 28/10. This is due to your frequent lateness and absences due to illness and doctors’ appointments. I need this information in order to determine appropriate accommodation.
For clarification, I have not yet agreed to a 10-6 shift on a regular basis. But your suggested later start time of 10 am has clearly not been effective in ensuring reliable attendance over the past month. We need to have reliable attendance in order for us to effectively schedule work.
I also want to clarify something with you. You did ask me if you could make up the hours you were off on Mar. 22 and I agreed. However I did not mean to imply that it was okay for you to do this on an ongoing basis. My approval was for that day only. You need to advise me in writing of how/when you have made up that time.
If you have a need to take care of a personal matter during work hours, I will try and be a bit flexible and sometimes allow you to make up the time, but this is granted only occasionally and on an exceptional basis and requires my prior approval. It is not acceptable to me for you to regularly start late and work late till 7 or later to make up the time. I don’t want you working after 6 pm on a regular basis.
I also need a listing of your upcoming doctor’s appts. For the balance of this month. If your doctor’s appts. Will continue past the month of April on a regular basis, I need you to provide me with a written list of your appts for the month on the first working day of each month.
19On April 30th, Mr. Bokhari e-mailed Ms. Yousef that he would be starting late due to illness.
Ms. Yousef forwarded it to Ms. Goodman with a covering e-mail stating:
This is the typical type of email I get every morning. You may wish to share it with them prior to meeting. I would like some advice on what action I should take (if any) when I get this every day or what I should say to him when he arrives. He doesn’t exhibit any noticeable outward symptoms of illness when he arrives. He just quietly comes in and smiles if I stop by his office and says hi.
20The evidence is that on April 6, 2010 Mr. Bokhari down-loaded a document “Revised Travel, Meal and Hospitality Expense Directive” and forwarded it to Ms. Yousef suggesting that it be circulated in the unit. Mr. Bokhari testified that he did that because he noticed changes in policy which he believed nobody was aware of. He testified that Ms. Yousef came to his office and said “Whatever happens in this office I am fully aware of. You don’t have to tell me”. Making reference to Ms. Yousef’s notes, Mr. Bokhari testified that on April 19th Ms. Yousef provided feedback on his work on the ICI project, expressing dissatisfaction with many aspects of his work, and told him that she had to spend significant time correcting his work.
21The evidence is that on April 22, 2010 at 3:32 pm, Ms. Yousef submitted a rating sheet for her staff for purposes of pay for performance (“P for P”) for Mr. Burns’ approval. Ms. Yousef rated Mr. Bokhari’s performance as “satisfactory”. At 3:54 p.m., Mr. Burn’s e-mailed back to Ms. Yousef, stating, “It seems to me that Imran’s performance isn’t satisfactory for the period here. Neither attendance nor work”. At 6:12 p.m. the same day, Ms. Yousef submitted a revised rating sheet in which Mr. Bokhari’s rating was changed from “satisfactory” to “below satisfactory”.
22On April 26, 2010 Mr. Bokhari e-mailed Ms. Yousef that he would not be able to start at 10:00 a.m. due to illness and that he had a doctor’s appointment at 2:00 p.m. He sought permission to work that day from 4:30 p.m. to 7:00 p.m. Ms. Yousef replied stating inter alia that “As I mentioned to you before, you may not work past 6:00 p.m.”
23The evidence is that on April 28, 2010, Ms. Yousef received the Health Information Form completed by Dr. Whitty. Under “employees’ specific work-related limitations and/or restrictions”, Dr. Whitty wrote, “Mr. Bokhari has physical symptoms in the morning at this time. Please allow for a later work start time 12:00 p.m. to 7:00 p.m.” These restrictions were stated to be temporary for one month pending reassessment.
24AMAPCEO counsel drew attention to an e-mail sent May 3, 2010 from Ms. Yousef to Ms. Goodman forwarding an e-mail Mr. Bokhari had sent advising that he would be starting late at 1:30 p.m. due to illness. Mr. Bokhari’s e-mail indicates a “sent” time of 11:51 a.m. However, it also has wording “On May 3, 2010 at 9:14 a.m. Imran Bokhari wrote”. Ms. Yousef’s e-mail to Ms. Goodman states “Another e-mail that looks like it was created earlier”. Mr. Bokhari testified that Ms. Yousef did not ask him to explain the discrepancy in time that caused her concern with regard to any of his e-mails.
25Mr. Bokhari testified that when he joined MEDT, he had been allowed to record time missed for medical appointments, tests and therapy, as sick time. However, by e-mail on May 6, 2010, Ms. Yousef instructed him that those absences should be covered with vacation or MCO credits, and not recorded as sick time. The evidence is that on May 27, 2010, Ms. Yousef advised Mr. Bokhari that he could no longer work past 5:30 p.m. Ms. Yousef’s note in that regard reads:
He asked if he could work late and I said no. Since he had advised me he had serious health issues and as a manager I was concerned about his health and responsible, he could not work unsupervised. And that I would be cutting my hours back to leaving at 5:30 p.m. soon and he would need to do that as well. He asked if it was okay for him to work late if he had a Dr. note to do so and I said no.
In addition, Mr. Bokhari was instructed as follows:
As I mentioned to you yesterday, since your hours are so hard to keep track of, I will also now require you to send me an email when you arrive at work and when you leave. In addition, the detailed spreadsheet I have asked you to prepare to account for your hours to date needs to be maintained and an updated version sent to me at the end of each week. I need this in order to be able to review your attendance and WIN records and check them against my records.
I have also previously clarified for you that any absences due to Dr. apt./medical treatments must be recorded as absent and you will need to use a Vac./MCO credit to cover them. I also want to remind you that employees are encouraged to try and schedule medical appts. after normal working hours where feasible.
26Following receipt of the completed health information form a number of e-mails were written between Ms. Yousef and Human Resources about the need to seek more information and clarification from Dr. Whitty, and the content of the letter to be sent to Dr. Whitty. Counsel drew particular attention to an e-mail sent May 4, 2010 from Ms. Yousef to Ms. Goodman, with copy to Mr. Graham. She wrote:
I’m available all day Thurs as well. Will need some help to decide what to include in highlighted sections. Imran is not even showing up at 12 p.m. as per suggestion for revised hours noted in Dr. Info form. We’ll need to note that. I am also uncomfortable in mentioning possibility of him working 12-7 part of this period unsupervised. I would rather we find a way to say that working outside core hours is not possible and would mean he can’t fulfill requirements of the job.
27The letter dated May 28 actually sent to Dr. Whitty included the following information:
Attendance Issues
Mr. Bokhari has been absent from work sporadically over the last three months and with increasing frequency.
. During the first 3 months at MEDT he was absent from work during working days approximately as shown: March – 30%, April - 48%, during May (to date) – 69% of the time.
. He also had regular Dr. appts/medical appts. approx. weekly and was absent approximately as shown: 3 hrs (March), 2 hours (April) and 2.5 hours (May) per appointment.
. He frequently reports that he is unable to start work till later in the day due to illness and arrives at work at various times during the day (see Appendix A)
The Controllership Unit in which he works is a key operational area of the ministry which is responsible for maintaining financial systems and procedures, providing timely controllership services and support to ministry clients; and adhering to numerous corporate financial reporting due dates. As a result of this irregular attendance pattern, it is very challenging to assign him regular operational work.
28Dr. Whitty returned the completed document on June 8, 2010 to the employer. Her responses to the specific questions posed included the following information: that Mr. Bokhari’s physical symptoms include dizziness, drowsiness and headache in the morning that may impact his ability to concentrate.; that lack of concentration due to those symptoms may affect his performance at work and his productivity; that the symptoms are temporary and he would improve as his medication is changed and side effects resolved; that his symptoms are already improved and should be gone in a few weeks; that initially his symptoms were severe, causing her to recommend a later start time, but now that he has improved he can start working within core hours; that when his symptoms were severe, it impaired Mr. Bokhari’s ability for regular attendance, but at present the symptoms have improved; that at present no health and safety risks exist due to Mr. Bokhari’s symptoms which are mild dizziness and drowsiness and occasional headaches “restricted to a.m.”, with no history of falls. That current mild symptoms are unrelated to physical illness, but rather are symptoms of anxiety compounded by side effects of medication; that Mr. Bokhari is receiving treatment and attending bi-weekly or monthly appointments which cannot be scheduled outside 9:00 a.m. to 5:00 p.m. and that medication he takes in the morning may affect Mr. Bokhari’s concentration and “ability to perform duties in the a.m. immediately after taking the dose, but should improve over the course of the day.”
29Mr. Bokhari testified that on May 28, 2010 he made a tentative flight reservation to travel to Pakistan and sought approval of vacation from June 8 to July 9, 2010. Initially Ms. Yousef refused, but then agreed to approve subject to two conditions. That she receives the completed health information form from Dr. Whitty by the deadline she had set, and that Mr. Bokhari signs a consent for that medical information to be released by Dr. Whitty. Mr. Bokhari agreed to the conditions and vacation was approved. Mr. Bokhari testified, and Ms. Yousef’s notes confirm, that at the time Ms. Yousef commented that his flight was more than 13 hours, and with stopovers and connections the trip was over 20 hours, and therefore given his illness she was surprised the doctor had allowed him to undertake such a trip.
30There was a staff day on Monday June 4, 2010 which commenced with breakfast at 8:30 a.m. Ms. Yousef’s notes state that when she arrived at 8:50 a.m. Mr. Bokhari was “already there enjoying breakfast and talking with other staff”. She notes that “according to staff” he had arrived early. Ms. Yousef’s notes state: “Jan asked him how he was feeling and he said good. He seemed fine and was not exhibiting any apparent, obvious signs of illness or distress (e.g. breathing difficulties which he claimed he suffered from in the a.m.) Jan advised him since he seemed very capable of arriving early and was in good health that she expected to see him in on time during core hours from now on. He replied that if she provided him with a nice breakfast like he was enjoying maybe he would. Imran stayed for the full day and participated in scheduled events.”
31On June 7, 2010, Mr. Bokhari e-mailed Ms. Yousef that he was not feeling well and would be starting late at noon, Ms. Yousef forwarded it to Mr. Burns and HR staff with the comment, “I find this interesting in view of his good health early last Friday at our Corporate Services Division day”. Ms. Yousef told him that upon return from vacation he would be required to work core hours as per Dr. Whitty’s latest information. Mr. Bokhari returned to work on July 12, 2010. Ms. Yousef was at home on vacation that day. At 1:45 p.m. Ms. Yousef wrote to Mr. Bokhari’s co-worker Ms. GA, as follows: “Hi G, I am curious – when did he arrive?” At 2:47 p.m. Ms. GA replied: “Actually he came in unexpectedly early, at 9:35. We asked him why so early and he said that it’s a beautiful warm day outside. He looked so happy. Ever since he came in he has been at his desk for maybe 25 minutes, and the rest he has been in and out, walking around. We’ll keep you posted on how he does”.
32The evidence is that Ms. Yousef was on vacation July 12 to 31, 2010. Ms. Lynn Goudie, another manager, was acting on her behalf in that period. On July 13, Ms. Yousef emailed Ms. Goudie suggesting that she monitor whether Mr. Bokhari exhibits another pattern of “coming in at weird times again”, and if so that she or Mr. Burns should speak with him. She also wrote that it had been a chronic problem with Mr. Bokhari e-mailing or calling in late “with illness as an excuse”, and that “this is no longer acceptable since his Dr. says he can now work our core hours which I reiterated to him in the e-mail I sent before I left”. Within minutes, Ms. Goudie responded to Ms. Yousef’s e-mail, stating “Did you give him any work to do that I need to check? If he’s buggering off and was only at his desk for 25 minutes yesterday, how can I handle that? Any suggestions?”
33The same day Ms. Yousef e-mailed Ms. GA about some work related matters. Ms. GA’s reply included a comment “IB came in today at 9:45 and then took off shortly after with Amit for coffee. Amit came in and got him to go for coffee. I’ll keep you posted”. On July 16, 2010, Ms. Goudie, Mr. Bokhari’s acting manager, e-mailed him as follows:
Just to confirm our discussion earlier today, you agreed that you were late coming in twice this week and were gone for over an hour and a half earlier today (Friday) for lunch. While I said that you could not make up the time by working until 6:30 p.m. Friday since this is outside of core hours, I agreed that you could make the time by coming in early next week. However, I want to make it clear that this is one time and will not be allowed in future. You are expected to be in on time and to work core hours.
The same day, she sent a further e-mail stating inter-alia, “… we do not work flex hours in this branch. You are expected to be here for 7:25 hours each work day within the core hours”.
34On July 26, 2010 Mr. Bokhari was late reporting to work and attributed it to “extra-ordinary delay of TTC”. Ms. Goudie conveyed this to Ms. Yousef who was still on vacation, stating, “Just FYI. I was also late getting in this morning and got off the subway at 9:10. There were no delay announcements. I also checked the TTC advisory and it showed no “major” disruptions”.
35Employer records clearly establish that Mr. Bokhari and Mr. Amit Sobti, Senior Procurement Advisor (classification 19APS) were identified for surplus as early as July 16, 2010. The announcement, however, did not take place until September 1, 2010. Mr. Bokhari testified that he received an e-mail that a staff meeting would be held at 8:30 a.m. on September 1st. He chose not to attend. When he reported to work at 10:00 a.m. he asked his co-worker Ms. GA what happened at the meeting. She responded, “Mr. Burns will tell you”. Mr. Bokhari testified, “Shortly after I saw Mr. Burns. He asked me to go the board room. When I got there I saw another person with files and a package. I knew she was from HR but didn’t know her name or title. She said my position had been surplussed and wanted to give me a letter. Since I was suffering from artery disease, I started to have pain in my chest. I said I was not receiving the letter and that I was not feeling well. I left the room, went to the washroom because I also had a stomach problem. I wanted to wash my face. Mr. Burns followed me into the washroom and started to harass me, asking me to come back to the board room. In spite of the fact that I was sweating due to chest pain, I went with him to the boardroom. At this time I had one heart artery 90% blocked and another 70% blocked. So a big chance of a heart attack and death. We saw AMAPCEO rep Michael Helfinger. He said, if the reorganization was decided in January why did they decide to take me from MGS. I said my previous ADM told me that Mr. Burns was insisting on my transfer from MGS. I refused to accept the letter and went towards my office. Mr. Burns followed me. I saw hate on his face which I had noticed before also. He asked that I leave the premises. He said take your bag and leave this office. I asked why. We saw Mr. Helfinger. I asked him if the director has power to send me out of the office. He said “yes he is the custodian. He can send you out”. I asked, “can a person who has not received actual notice but only pre-notice be thrown out. He said no. I asked if there is any such policy and he said no. He said that under the collective agreement, Ontario Public Service Act 2006 and human rights policies, that is not allowed. I looked at Mr. Burns’ face. To me he looked not like a public servant, but like a mobster, like he owned the 7th floor of Hearst Block. He again asked me to go. At the door I asked, “why did you insist on my transfer if you had already planned a reorganization where this position will be surplussed. He was full of hate. It seemed to me it was an attempt on my life. He knew of my health conditions, that I could die. He had no sympathy, as per human rights policy when serving surplus notice. I was not prepared to leave. We were close to the door to the elevator lobby. He almost pushed me to leave the premises and slammed the doors”. When counsel asked “Did he push you?” Mr. Bokhari replied “No. He didn’t touch me”. He went on, “when I tried to enter the office again my access card was not working. He had also changed the password on my office phone and my access to office e-mail had been removed”. Asked whether Mr. Burns gave any reason why he had to be surplussed, Mr. Bokhari replied, “Just said your position was surplussed due to reorganization”.
36Mr. Bokhari was cross-examined at length about the work he was assigned by Ms. Yousef. He continued to insist that the work was in the nature of typing work suitable for an administrative assistant rather than a financial analyst. When counsel suggested that the assigned work was meaningful and required work, some which had been specifically requested by the CAO, Mr. Bokhari replied that no one told him that, that all he knew was when he “asked for my AGCO work, I was told no and asked to do these little things”.
37Mr. Bokhari was asked whether he expected to be doing 100% of the AGCO work after his transfer to MEDT. He replied that at MGS he had done it 100% until he was moved to Mr. Edwards’ section in 2007. At that time some AGCO remained in his old area, and he was doing only some of it. When employer counsel suggested that Mr. Burns would testify that there was no expectation that Mr. Bokhari would be doing all available AGCO work, he replied “The ADM told me I won’t be doing the business planning part of AGCO, but that all AGCO work on controllership, forecasting and financial analysis I will be doing. So everything except the business planning part”.
38Employer counsel put to Mr. Bokhari that at the coffee shop meeting Ms. Yousef did not jump up from her seat, or say “oh my god Jeff did not tell me that”. Mr. Bokhari stood by his testimony. When counsel suggested that Ms. Yousef was not angry at the meeting, Mr. Bokhari replied that “At the end of the meeting she was, I won’t say angry, she was anxious. Probably it was a shock for her”. Counsel put “so now you say she was not angry”. He replied “I’d say she was upset”. Counsel also put to Mr. Bokhari that he did not disclose at the meeting that he suffered from depression or that he was seeing a psychiatrist. He insisted that he did. When counsel pointed out that Ms. Yousef’s notes or e-mails do not reflect that he did, Mr. Bokhari explained that Ms. Yousef had chosen to use the words “stressed out” and “doctor”, instead of the words he used “depression” and “psychiatrist”. When counsel pointed out that by his own admission, Ms. Yousef had provided him helpful information and suggestions about buses and subways he could take to avoid long walks commuting to work, and said “that is not indicative of a person with hate” Mr. Bokhari replied “but that was before I told her about my disability”.
39Employer counsel suggested that in the OPS management has the right to assign duties to employees. Mr. Bokhari agreed, and added “But they tell you many months before, generally in writing. And generally the employee gives consent. It is not like a king ordering anything he likes. This is a professional organization.” Counsel put to Mr. Bokhari that MEDT did not give him notice in advance of what work he would be doing. He replied, “I was expecting AGCO duties. No one ever told me anything else.”
40Counsel pointed out that while at MEDT Mr. Bokhari had significant attendance issues, that the work of a financial analyst could be subject to strict timeliness, and that not attending work regularly may affect the ability to meet time lines. Mr. Bokhari replied that his absenteeism was because of his depression and that “If they gave me my work I wouldn’t have had depression”. Counsel referred to medical reports indicating that he had seen doctors for anxiety as early as 2009, that his panic attacks started in January 2010 and that his first major episode of depression was also in January, all of which pre-dated his notice of transfer to MEDT, and asked how he could say that his depression was because he was given “wrong work”. Mr. Bokhari replied that in January 2010 he heard from “some sources” that he would be transferred to another ministry. Then after witnessing Ms. Yousef’s attitude during the coffee shop meeting, he knew that she would not accept him. He said, “I knew that would start a new era”. When further pressed, Mr. Bokhari accepted that not getting the AGCO work was only “one of the causes of his depression”.
41Counsel reviewed the requirements Ms. Yousef had imposed including requiring Mr. Bokhari to email on arrival and departure, and filling out an attendance chart, and suggested that this was an effort to accurately track his hours which was important given there was so much variation in his hours. Mr. Bokhari agreed, but added that Ms. Yousef “made it so complex. She changed to different sheets and different formats. Just intentionally trying to make trouble for me”. Counsel asked how Ms. Yousef’s email that he should not register for courses without prior approval is harassment/discrimination, because it was standard policy in the OPS. Mr. Bokhari replied, “she was in the habit of creating hell out of any small thing. I was trying to take a course and she was saying no to my training. She had a habit of saying no to everything”.
42Asked how Ms. Yousef’s critical feedback on his work was harassment/discrimination, he replied, “Why is she writing long emails and wasting her time for such small things. She is creating problems to use against me”. Counsel asked “Is it possible she was doing this to tell you what exactly she expects”, Mr. Bokhari replied. “Yes. Each person can read it differently, but many people have left because of her,” and added that she had a reputation and history of harassing employees with the objective of causing them to leave, and that a co-worker had told him that she would fire anyone who disagreed with her. He said that she was harassing him by criticising his work “so I would quit or will go on medical leave”. Counsel put to Mr. Bokhari that Ms. Yousef will testify that her objective was to assist him understand the processes of the unit. Mr. Bokhari replied that processes were “pretty much the same anywhere in the OPS”. Counsel said, “So any further assistance is not useful you say”. Mr. Bokhari replied, “If her intention was to assist yes. But I was not given my work. She gave other work to harass, and then she kept changing the work”.
43Counsel reviewed Mr. Bokhari’s testimony about September 1, 2010 and asked where he was in the washroom when Mr. Burns asked him to return to the boardroom. He replied, “In a stall”. When counsel suggested that Mr. Burns will testify that he was standing by the sinks, Mr. Bokhari responded “It’s a lie”. Counsel put that Mr. Burns will also testify that he first went to Mr. Bokhari’s office looking for him and not finding him there, on the spur of the moment looked into the washroom. Mr. Bokhari replied that was not true, because as he left the boardroom he stated that he was going to the washroom. Counsel asked whether Mr. Burns told him in the washroom that he should return to the boardroom because the AMAPCEO rep was waiting there for him. Mr. Bokhari replied, “Sorry I don’t recall. But I know he followed me and was angry and said come back to the boardroom or something like that”. The Board intervened and asked Mr. Bokhari to clarify exactly where he was when Mr. Burns told him that. He replied, “sitting on the commode”. He testified that when he returned Mr. Burns, Mr. Helfinger were talking outside the boardroom. He said, Mr. Helfinger was very angry and told Mr. Burns, “You decided this reorg in January 2010. Then why did you take him in March.” When counsel repeated Mr. Bokhari’s testimony and asked if that was correct, Mr. Bokhari replied, “I’ll take out very angry. I’ll say Mr. Helfinger was very unhappy”.
44Counsel asked whether Mr. Bokhari was agitated by the time he went to his office from the boardroom. He replied that he was “upset the whole time”. Asked if he was speaking in a loud voice, Mr. Bokhari replied, “I did when Mr. Burns asked me to leave in front of the whole office. He insulted me and treated me like a thief or robber. He disgraced me in front of the whole office”. Asked whether he “threatened to sue the Minister, the Deputy Minister, Mr. Burns or anyone else,” he replied “Maybe. Because I was so angry. They were breaking all OPS rules. No one is ever sent home and access to the building taken away at the pre-notice stage.” Counsel asked if Mr. Burns told him “Imran, you are saying things you don’t want to be saying.” He replied that he may have, but he could not recall that because he was so angry at the time. However, he recalled telling Mr. Burns that “My ADM at MGS told me that it was he who insisted again and again that I be transferred to his branch”. He added that he asked Mr. Burns if he can send me home at the pre-notice stage but Mr. Burns did not answer, and that what Mr. Burns did was “like a show for everyone to see me thrown out.” Asked who was present to see the “show”, he replied that reception and some offices were nearby. He said people were going in and out of the offices along the hallway. He said “everyone was watching it”. Asked to name people who witnessed, he replied, “Mr. Burns, Mr. Helfinger were there I think, and added, “I’d say all controllership staff”. Counsel named each person in the Controllership unit and asked if they witnessed the show. Based on Mr. Bokhari’s responses, Ms. GA and Ms. AY were in their offices, and he was 50% sure that Mr. AS was also in his office. He was not sure of the others. When asked if the 3 individuals were watching, Mr. Bokhari replied, “I don’t know”. He added, however, that “this happened near all offices and reception area. So everyone would’ve seen the show”. Counsel reviewed Mr. Bokhari’s testimony in chief and pointed out that he did not mention about a show taking place in the office area for everyone to see, that he only talked about what happened at the door to the elevator lobby, and suggested that he was now embellishing what occurred. Mr. Bokhari disagreed. He said “Maybe when I was testifying in chief I was more angry than today and forgot to mention what I am saying today. You can add these details to what I said in chief”.
45Counsel repeated Mr. Bokhari’s testimony in chief to the effect that Mr. Burns “attempted to push him out” and asked if that was still his testimony. Mr. Bokhari replied, “No. He was there and he wanted me to go out of the glass door”. When counsel put, “But he didn’t attempt to push you out” Mr. Bokhari replied, “No. But whatever he did was not correct. He was insulting a 10-11 year employee”. Asked how Mr. Burns insulted him, Mr. Bokhari replied, “You escort an employee and ask him to leave like a thief while everyone was there in the offices.” Counsel referred to an email exchange on September 14, 2010 between him and Mr. Burns, where Mr. Bokhari protests and challenges Mr. Burns’ authority to move him from his office to an alternate location during the pre-notice period. Counsel asked Mr. Bokhari whether in this exchange he ever mentioned the humiliation and the “show” witnessed by the branch staff. After a review of the emails, Mr. Bokhari replied that the purpose of his emails was to get access to his own office and that the absence of mention of the show does not mean that it did not happen.
46In re-examination, Mr. Bokhari testified that the offices at MEDT were small and were approximately 20 feet from the reception area. The walls went up to the ceiling, but the office doors were kept open most of the time. Counsel asked whether it is possible that someone can be marched out like what occurred on September 1st and “people will not eventually find out it happened”. Mr. Bokhari replied, “No. When I first joined MEDT, a colleague told me that even if you burp everyone will know. That’s the culture there”.
EMPLOYER EVIDENCE
TESTIMONY OF MS. JAN YOUSEF
47Employer counsel asked Ms. Yousef “When Mr. Bokhari was transferred to MEDT, as you understood what was he to do there”. She replied, “Normally in any reorganization the workload of the receiving ministry increases. So senior management negotiates to get additional resources to deal with that. He was coming to do the increased work load resulting from the transfer”. Ms. Yousef explained that the addition of Mr. Bokhari allowed the branch to decide how best to provide its services. She testified that after Mr. Bokhari arrived, the preparatory work relating to AGCO continued until April 1st when MEDT started to actually provide services to AGCO. Ms. Yousef testified that after Mr. Bokhari’s transfer was announced, she was asked to meet with him. Then she was told to postpone meeting him because he was very upset at the time about his transfer. She ultimately contacted him by phone and a meeting was set up for February 25, 2010 at a coffee shop. When they met, Ms. Yousef Mr. Bokhari looked familiar. It turned out that they had previously met at some meetings at Shared Services. Ms. Yousef testified that when the conversation turned to Mr. Bokhari’s transfer, Mr. Bokhari “indicated that he was very upset and going to see his doctor to get a note for time off because he was really stressed out”. Then he mentioned he had a lot of medical issues, that he has had two heart surgeries, and had to undergo another. He also informed that he had “breathing difficulties in the mornings”, and had diabetes. Asked “Did he say he had depression”, Ms. Yousef replied, “No. But said he was concerned about the distance he had to walk from the subway to our office”. Ms. Yousef told him that there were buses that stopped at the door, or he could take the underground tunnel to the office. She told him that it was a very friendly atmosphere in her section. She summed up that the meeting was “very nice and friendly”. Ms. Yousef added that Mr. Bokhari asked for accommodation “to be allowed to start late at 10:00 a.m. and work till 6:00 p.m.” She told him staff is required to work during the core hours, and asked if he could start at least by 9:30 a.m. Mr. Bokhari replied that because of his breathing difficulties in the morning he could not. Ms. Yousef testified that even though she had no “medicals”, she was aware she had a duty to accommodate, and therefore agreed. Employer counsel asked whether it is possible that at the meeting Mr. Bokhari told her that he was depressed. Ms. Yousef replied, “No. He said he was stressed out and upset about his transfer”. Asked whether she jumped from her chair and said “oh my god, Jeff didn’t tell me that”, Ms. Yousef replied “absolutely not”.
48The evidence is that on February 26, 2010, the day following the coffee shop meeting, Ms. Yousef and Mr. Edwards had an email exchange and also met at a coffee shop to discuss Mr. Bokhari. Ms. Yousef’s notes indicate that Mr. Edwards provided information about Mr. Bokhari (see para. 10 supra). In the email exchange the same day, Mr. Edwards wrote to Ms. Yousef, “I did not get a doctor’s note from Imran. However, he told the CAO he is seeing a psychiatrist today and not a heart doctor”. Ms. Yousef testified that from Mr. Edwards’ email she understood Mr. Bokhari was seeing a psychiatrist because he was stressed out due to the transfer.
49Ms. Yousef testified about work assigned to Mr. Bokhari at MEDT. In essence, her explanation was that the work in her section had to be completed within strict deadlines, and also that she felt the work she gave Mr. Bokhari provided a good opportunity for him to familiarize himself with the policies and procedures of the branch. She said that rather than simply reading them, this work required him also to analyse the policies and procedures. She disagreed that these were menial tasks as Mr. Bokhari had claimed.
50Ms. Yousef testified that Mr. Bokhari had significant attendance issues. He had numerous late reports, absences due to medical appointments and days off. As a result, it became extremely difficult to keep track of his hours. She explained that if an employee does not work 7¼ hours in a day, the shortfall may be covered by using sick or vacation credits if available. If not, it is entered on WIN as “without pay” unless the time is made up with management approval. Ms. Yousef agreed that Mr. Bokhari had sought accommodation to be allowed to start late and finish late. She testified that at the beginning of the year it was possible to allow him to work 7¼ hours by working late, because she also worked late and was able to supervise him. However, later she stopped working late. As a result, while Mr. Bokhari was still allowed to start late, it was not possible to allow him to work late because he had “a lot of health issues”, and she could not allow him to work unsupervised. Ms. Yousef testified that starting March 2, 2010 she started to keep a record of hours Mr. Bokhari missed. She did this because at month end she found it very challenging how to enter his attendance on WIN. While Mr. Bokhari had kept his own record of hours on her instructions, it was very difficult to reconcile her records with Mr. Bokhari’s.
51Reviewing an analysis of Mr. Bokhari’s absences she had prepared, Ms. Yousef summarized that the percentage of his absences as a result of absences due to sickness, late starts, and early finishes to attend medical appointments were as follows: March 27%; April 53%; May 63%. She testified that other than his self-declaration of health issues and request for accommodation, Mr. Bokhari had not provided any “medicals”. By April 2010, he was “starting work later and later”. Therefore, she sought advice from Human Resources on how best she could get Mr. Bokhari to attend regularly. On their advice, on April 12, 2010 Mr. Bokhari was required to have his doctor complete and return a “Request for Employee Health Information Form” by April 28, 2010. The form was completed and returned by Dr. Whitty. Counsel pointed to Dr. Whitty’s notation to the effect, “Mr. Bokhari has physical symptoms in the morning at this time. Please allow for a later work start time 12:00 p.m. to 7:00 p.m.” and asked whether that accommodation was given to Mr. Bokhari. Ms. Yousef replied that the later start was accommodated temporarily, but he could not be allowed to work late if no manager was present. Asked whether Mr. Bokhari started at noon from them on, Ms. Yousef testified that he was not prohibited from starting late if he wanted to, and added that a few days he started as late as 1:30 p.m.
52Ms. Yousef referred to an email that sets out what she told Mr. Bokhari on May 28, 2010 when he was given a second health information form to be completed by his doctor. It states that “we need further clarification in order to better understand your medical limitations or restrictions and to develop a suitable accommodation plan for you that also meets our operational needs.” The email also states that although the doctor had recommended that he work from 12:00 to 7:00 p.m., “… since you have previously advised me that you have serious health issues (e.g. need for angioplasty), I’m concerned about you working to 7:00 p.m. without supervision. Since there is no longer an operational need for me to work past 5:30 p.m., I will be cutting back my hours and hence will be unable to supervise you past 5:30 p.m. Based on advice I have received from Human Resources, and my concern for your health and safety, I will not be able to allow you to work past 5:30 p.m. effective today. I need to remind you that we need to have reliable attendance in order for us to effectively schedule work. It is very difficult for me to know when/if you will be in on any given day as your attendance and start times are so varied. You have a responsibility to meet our needs for regular attendance”.
53Ms. Yousef testified that the doctor returned the second form on June 7, 2010. Based on Dr. Whitty’s assessment that Mr. Bokhari had improved and could start working within core hours, she expected him to do that, although the doctor had indicated that his medical appointments would have to be during work hours. She stated that Dr. Whitty had not set out a diagnosis of depression, but mentioned symptoms like lack of concentration due to dizziness and headache.
54Ms. Yousef testified that it came to her attention that Mr. Bokhari had registered for two courses through the Centre for Leadership and Learning. When she spoke to Mr. Bokhari, he admitted that the courses had not been approved by any manager. She told him that approval for courses can only be given after she and Mr. Bokhari discuss and set out a learning plan for him. Asked to comment on Mr. Bokhari’s suggestions to her about new year start up, Ms. Yousef testified that she appreciated his suggestions, but that work had already been done. For that reason she told him to concentrate on the work assigned to him.
55Ms. Yousef testified that while she was aware that the Branch Director, Mr. Burns, was planning a reorganization, she had no involvement whatsoever in the decision to surplus Mr. Bokhari. Nor was she informed that he would be surplussed. She was not at work on September 1, 2012 when Mr. Bokhari’s surplussing was announced and was effective. She testified that she absolutely had not “harassed or discriminated against” Mr. Bokhari. Nor did she “yell, raise the voice or otherwise demean” him. She took no steps “to exclude him from the workplace, or to ensure that he had no access to job postings.” She testified that while she found it challenging dealing with Mr. Bokhari’s attendance issues, she did her best, and was satisfied about the way she handled it. She felt good she was able to accommodate him by giving him work with no strict deadlines.
56In cross-examination Ms. Yousef testified that she had regular scheduled meetings with Mr. Burns. In addition, she met with him as needed. She agreed that she would expect to be made aware if staff was to be added to or removed from her unit. She stated that 2010 was a particularly busy time for her unit because of reorganizations within ministries in the cluster it serviced. She was not involved in planning these reorganizations and had only a general knowledge of what was going on.
57Ms. Yousef was asked whether her testimony is that no one ever told her that this would be happening, and she said “yes”. She agreed that although she was on vacation at the end of August 2010, she was at work in the first three weeks of August. She reiterated that yet, Mr. Burns never told her that she would be “losing” Mr. Sobti and Mr. Bokhari. She was not told of the surpluses or the reasons for it. She found out that Mr. Bokhari had been surplussed after it had been announced on September 1, 2010, while she was on vacation. Ms. Yousef agreed that MEDT asked for, and received one FTE to support the AGCO work it would be getting. Counsel asked whether, in her view, it was just happenstance that the person transferred to support the transferred work was the person who had been doing it at MGS, Ms. Yousef replied “no”, but added that it was “still up to the receiving unit to decide how to use the resources received”. Counsel pointed out that Ms. Yousef had made detailed notes about Mr. Bokhari’s disclosure during the February 25th coffee shop meeting about his displeasure about being transferred to MEDT and his various health issues, and suggested that she wrote in that detail because “You weren’t too excited about him coming to your unit with all these health issues”. Ms. Yousef replied, “Yes. Because I knew I had to be compassionate and had a duty to accommodate him when I assign work.” Counsel pointed out that although her note says that Mr. Bokhari said he was seeing a “doctor” he used the word “psychiatrist”. She disagreed. Counsel referred to an email Mr. Edwards sent her the day after the coffee shop meeting, advising that Mr. Bokhari “told the CAO he is seeing a psychiatrist today and not a heart doctor”, and suggested that it shows that at least by February 26th, Mr. Edwards knew, and she knew, that Mr. Bokhari was seeing a psychiatrist. She agreed. Ms. Yousef agreed that on February 26, 2010, she also met with Mr. Edwards to discuss about Mr. Bokhari. Referring to her notes about that meeting, counsel asked whether they were an exact transcription of her handwritten notes. She replied “These are formal notes I drew up later based on my jot notes”. She then agreed that the notes in exhibit 10 were made when she spent days compiling it after she became aware of Mr. Bokhari’s grievances. Counsel reviewed the information Mr. Edwards had provided her about Mr. Bokhari at the meeting, and in a later email the same day, particularly that he had performance issues and had alienated co-workers, and asked “You were not very pleased about the employee you were getting”. Ms. Yousef replied that she has learned that employees work differently with different managers. She was not alarmed or upset, but “concerned that I’d have to work with him”. Counsel suggested that she would not have been happy when she saw the email later that day indicating that Mr. Bokhari had told the CAO at MGS that he was seeing a psychiatrist. She replied, “Again it’s about management style. I’ve had other employees come to me and work out fine”. Ms. Yousef confirmed that she briefed Mr. Burns of what she found out about Mr. Bokhari “so that he would be aware and we can make Mr. Bokhari comfortable when he comes”. She testified that she was sure she met with Mr. Burns as soon as possible after she had met with Mr. Bokhari and Mr. Edwards.
58Ms. Yousef was asked why she made a note on March 1st, Mr. Bokhari’s first day at MEDT, that he “arrived to work at approx. 9:30 a.m. with a smile”. She replied she may have been surprised he came at 9:30 a.m. after telling her he could not start till 10:00 a.m. Counsel suggested that she noted Mr. Bokhari came “with a smile” because knowing there was a grievance by Mr. Bokhari, she wanted to say he was happy and friendly reporting to MEDT. She replied that she was probably happy that Mr. Bokhari was no longer upset about the transfer.
59Counsel referred to a note dated March 2nd, where she wrote that Ms. GA had told her that Mr. Bokhari did not know how to do Charter of Accounts, and that Ms. Yousef found it strange. Asked why on his second day at MEDT, a co-worker was reporting to her about Mr. Bokhari’s work performance, Ms. Yousef responded that she found it strange because she had been told Mr. Bokhari had done Charter of Accounts. She did not know why the co-worker chose to report that to her. Asked whether she discussed this with Mr. Burns, she replied, “Not in detail”. When counsel suggested that she would have been further concerned when she read Mr. Edwards’ email on March 3 that Mr. Bokhari sat at his desk for 2 weeks and “would just sit and look at his computer screen”, she replied “I was prepared to start new with him as I do with all employees”. Counsel put to Ms. Yousef, “Is it fair to conclude that based on what you learned about Mr. Bokhari, you were on edge about what will happen when B comes?”, she replied, “I was concerned I’ll have to take steps to make him comfortable”.
60Ms. Yousef agreed that initially Mr. Bokhari’s work performance at MEDT was “way below expectations”. When counsel suggested that the work assigned to him was “data entry or typing changes”, Ms. Yousef agreed, and explained that in her section there was no support staff and everyone did their own typing. When counsel put to her, “But others have regular duties. You did not assign him a regular set of duties”, she replied, “Not at that point. I was trying to orient him to our unit”.
61Counsel referred to an email dated March 18, 2010 from Mr. Bokhari’s co-worker Ms. GA to Ms. Yousef suggesting that Mr. Bokhari was wasting time and not doing the work assigned, and asked whether Ms. Yousef had instructed Ms. GA to report to her about what Mr. Bokhari was doing. Ms. Yousef replied that she did not, and added that she did not know why Ms. GA “was providing her all that detail”. Asked if she instructed Ms. GA “not to do that in the future”, Ms. Yousef replied that she did not. Counsel pointed to further emails and suggested that there are emails about Mr. Bokhari “full of sarcasm, at least from Ms. GA and the other manager Ms. Lynn Goudi”, and that there was talk by people about Mr. Bokhari. Ms. Yousef replied, “People notice if an employee is late or absent.” She agreed that people talked to her about Mr. Bokhari, and added, “It would be very odd not to”. Asked “So they talked to you about what he did and did not do”, she replied, “Yes. We work as a team”. When referred to two emails she received from Mr. Bokhari`s co-worker Ms. GA on May 28, 2010, Ms. Yousef confirmed that at 2:00 p.m. Ms. GA reported that Mr. Bokhari just came in, and at 5:30 p.m. wrote that he just left and asked whether he was “supposed to work till 6:00”.
62Counsel referred to a summary of Mr. Bokhari’s absences Ms. Yousef had prepared and suggested that it records every day he was off ill, late reporting, left early etc. in the months March and April 2010. Ms. Yousef agreed. She agreed with counsel that Mr. Bokhari’s attendance issues were “very frequent –virtually daily”. When counsel suggested that with that level of absences, Ms. Yousef was getting annoyed, she replied, “concerned”. Counsel pointed out that on March 23rd she had written that Mr. Bokhari was “sauntering in” late, and suggested that it suggests annoyance. She disagreed. Counsel referred to her note to the effect that she was surprised when Mr. Bokhari wanted to share his ideas about the new year start-up, that Ms. Yousef replied telling him to just concentrate on the work assigned, and that she even had Mr. Burns and Ms. Graham of Human Resources vet her response before sending it. He suggested that he read “annoyance” from the tone of her response. She replied, “I was surprised”. Under repeated questioning whether she was annoyed, her reply was that she was surprised Mr. Bokhari would send his ideas on what she should do rather than concentrate on his own work. Counsel referred to Mr. Bokhari’s email on April 6, 2010 suggesting that the revised Meal/Travel policy be circulated and her response to him, and put to her that she was annoyed about him making that suggestion. Ms. Yousef replied that she was surprised he was spending time doing this when everyone already would have got the new policy. Asked again whether she was annoyed, she said she was concerned.
63Ms. Yousef agreed that she met regularly with Mr. Burns. She took notes at those meetings, but did not retain them. She could not recall what she discussed about Mr. Bokhari in those meetings. When counsel suggested that she must have discussed about Mr. Bokhari with Mr. Burns on a regular basis since he had all sorts of attendance and personnel issues, Ms. Yousef was evasive. After repeated questioning, she replied, “I discussed performance issues I had with any staff including Mr. Bokhari”. However, she insisted that she could not recall specifically whether she discussed about Mr. Bokhari with Mr. Burns, but stated that she may have.
64Counsel reviewed documentation and suggested that within two weeks after Mr. Bokhari’s arrival, by mid-March her concern about him was such that she discussed with Human Resources about the need to obtain medical information from his doctor. Ms. Yousef agreed. Counsel referred to a note dated March 31, which shows that Mr. Bokhari sought permission to go to his old office at MGS to copy his files, that she wanted him to stay and do his work, and approved only after checking with Mr. Edwards at MGS. Counsel suggested that this indicates she was annoyed. Ms. Yousef agreed.
65Counsel referred to a note dated March 31 that when she provided to Mr. Bokhari some information about renovations scheduled in the office, “He just smiled and said “sure” to indicate he understood”. Counsel asked whether she found Mr. Bokhari to be “strange” to write down that he “smiled”. Ms. Yousef replied, “I may have been concerned that Mr. Bokhari is upset about sharing a room.” Counsel suggested that this had nothing to do with Mr. Bokhari’s work performance, and asked whether she was afraid of him to be writing down everything about him. Ms. Yousef replied, “That’s the kind of person I am”. Referring to documentation, counsel suggested that her concerns about Mr. Bokhari were such that she did nothing without getting HR approval. She agreed and explained that she had not dealt with something like this before and wanted to ensure she did the right thing. Asked whether she kept Mr. Burns advised as she did “all this”, she replied “probably”.
66Counsel reviewed documentation relating to the meeting Ms. Yousef had with Mr. Bokhari to hand over the health information form. Noting that she drafted speaking notes, and got advice from HR on what to say and not to say, he suggested “so a highly planned meeting was orchestrated”. Ms. Yousef agreed and explained that she wanted to make sure she said the “right things”. Counsel noted her testimony that she wanted the doctor’s opinion on what limitations Mr. Bokhari had that prevented regular attendance. He asked, if that was her intention, why she told Mr. Bokhari that she wanted him to start at 9:30 a.m., that he needs prior approval to be absent, and that he was not allowed to make up time by working late etc., without waiting for the doctor’s opinion. Counsel put to her, “It did not matter to you what the doctor might have to say”. She replied “We needed to find out what was wrong with him”. Asked why she told him he would not be allowed to work past 5:30 p.m. despite all health problems he was having, Ms. Yousef replied that since she was no longer working late, if Mr. Bokhari took ill there would be no assistance. She agreed that at that point she had not sought medical advice from Mr. Bokhari’s doctor whether there was any risk. Counsel pointed out that Ms. Yousef had wanted “a witness” present at the meeting with Mr. Bokhari and that HR advised that was not necessary. She was asked whether she wanted a witness because she was “concerned about her relationship with Mr. Bokhari”. She replied, “No. I was just being cautious”.
67Ms. Yousef agreed that in early April when she was assessing Mr. Bokhari’s performance for purposes of P for P she had not yet received the completed health information form, and that all of the other employees in her unit were rated “satisfactory”. She stated that Mr. Bokhari was having attendance issues, and his performance was not good. However, he had not been there for a long time and she was unsure how to assess him. Therefore, she sought advice from HR. Having obtained that advice, she rated Mr. Bokhari as “satisfactory”, and sent that to Mr. Burns for approval. Just two minutes later he wrote back disagreeing with Mr. Bokhari getting a satisfactory rating. After seeking further advice from HR, she changed Mr. Bokhari’s rating to “below satisfactory”. She added that even though she had initially given a satisfactory rating, she was not very comfortable. Asked whether that was because of his attendance issues about which she had not yet sought any doctor’s information, she replied, “No. It was the quality of work”. Asked why then she sent Mr. Bokhari’s detailed attendance record to HR when she sought advice from them, she said “Because of his absences I had little opportunity to assess his work.” She agreed that the documentation indicates that she had a conversation with Mr. Burns about changing Mr. Bokhari’s rating, but could not recall what was discussed.
68AMAPCEO counsel reviewed a Performance Development and Learning Plan (“PDLP”), she had drafted for Mr. Bokhari based on his work during March 2010. Ms. Yousef agreed that it contained numerous critical comments about Mr. Bokhari’s performance and also recorded his registering for courses without prior approval. Counsel suggested “You were so upset about him doing that you wrote all that here”. Ms. Yousef agreed. Counsel put to Ms. Yousef that according to the usual PDLP procedure, the manager has to review the PDLP form completed by the employee before deciding on a rating. Ms. Yousef agreed. Counsel put to her that she had made her decision to rate Mr. Bokhari as “below satisfactory” before she had received his completed PDLP. Ms. Yousef agreed, and explained “But I had seen his work and was able to assess.”
69When referred to her own notes, Ms. Yousef agreed that on April 26th she received the doctor’s completed form, which stated that Mr. Bokhari had physical symptoms in the mornings, and recommended that he be allowed to work from noon to 7:00 p.m., and asked Ms. Yousef if she complied. Ms. Yousef replied that on HR advice she allowed the late start. Counsel put to her that she did not, and asked if she could show any note or email that shows it was done. Ms. Yousef replied that she may not have documented it. Counsel put to her that by her own admission she made notes and consulted with HR and Mr. Burns on everything, and that if Mr. Bokhari’s hours were altered it would show on something. Ms. Yousef replied “Sorry I don’t remember”. Counsel pointed to an email Mr. Bokhari had sent on April 30 informing that he would be starting late around noon, and put to her that if he was allowed to start at noon Mr. Bokhari would not have said he would be late. Ms. Yousef replied, “Sorry I can’t remember what happened with his hours”.
70Ms. Yousef, agreed that in late April she continued to criticize Mr. Bokhari’s work and his attendance issues also continued. She confirmed that when Mr. Bokhari sent an email that he would be late starting, she forwarded it to HR, commenting that “this is the typical email” he sends. Counsel asked Ms. Yousef what caused her to write to HR about two emails Mr. Bokhari sent on April 22nd. Ms. Yousef explained that at 9:13 a.m. Mr. Bokhari sent an email that he would be starting at noon, and then at 11 a.m. sent a second email that he would be starting at 1:00 p.m. It was “odd” because both emails appeared to have been created at the same time at 9:12 a.m. Counsel asked “So you thought it was not bona fide”? Ms. Yousef replied “It just looked odd”.
71Counsel referred to Ms. Yousef’s email on April 30th commenting that when Mr. Bokhari came to work she did not see any “outward symptoms”. He observed that by then the doctor’s information had been received, and asked, “Still did you not believe he was sick?” Ms. Yousef replied, “No. I just say I didn’t observe. I am not a doctor. So I don’t know”. Counsel put to her that if she did not think he was not sick, she would not have made that comment or comments about typical or odd emails. Ms. Yousef replied, “He was sick almost every day. Comes in at different times every day. So I asked HR what do I say to him”. Counsel continued to demand a direct answer to the question whether she thought Mr. Bokhari was really not sick, despite the doctor saying he was. She evaded and explained that she just wrote what she observed and sought advice on what to say. Counsel pointed out that Ms. Yousef sought advice from HR on three occasions because she thought that the timing of Mr. Bokhari’s emails advising of late reporting was suspicious. He asked whether she ever asked Mr. Bokhari to explain. She said “no”. She agreed that during Mr. Bokhari’s tenth week there was further discussion with Mr. Burns and HR about his absences and the need to obtain more information from his doctor.
72Counsel asked Ms. Yousef to explain her email on May 4, 2010 to HR, where instead of saying “let us see if it is possible to allow Mr. Bokhari to start late” or “should we ask the doctor if there is a risk for Mr. Bokhari to work unsupervised”, she said “I would rather find a way” to say it was not possible. Ms. Yousef explained that while the doctor seemed to think that she could just change Mr. Bokhari’s hours, as supervisor she would be responsible if something happened to Mr. Bokhari while working alone. Counsel asked, “Then why not ask the doctor whether there is a risk?”, she replied, “Normally you have to work core hours anyway”. Asked “What about the duty to accommodate?”, she said “I’ve done it”.
73Ms. Yousef agreed that her second letter to the doctor as well as her speaking notes for the meeting with Mr. Bokhari went through many drafts with input from HR. Counsel pointed out that on April 26 the doctor had recommended work hours of noon to 7:00 p.m. and yet she had totally ignored that in her draft, and insisted that a noon start is unacceptable. Ms. Yousef replied that it was “only a draft”. Counsel put to her “But that was what you wanted to say until HR intervened.” She agreed. She agreed that on HR advice she changed her mind about insisting that Mr. Bokhari start at 9:30 a.m., but still told him that he could not work past 5:30 p.m., meaning that he would lose pay. Counsel put to Ms. Yousef that she also wanted to inform Mr. Bokhari that he was expected to work core hours, that if he was not in at 9:30 a.m. he would be considered absent, that she wanted a doctor’s note for every absence, and that medical appointments should be outside work hours. He asked her, if that was her position, why she was seeking more medical information. She replied again that it was only a draft. Counsel put to her that the doctor had already told her that Mr. Bokhari had difficulties starting early and that appointments have to be during office hours, and suggested that Ms. Yousef was “ignoring reality” and telling Mr. Bokhari “to do the impossible”. She replied that she was “trying to get regular attendance” and that “It is normal to encourage employees to schedule doctors’ appointments outside work hours”.
74Counsel referred to Ms. Yousef’s note on May 27th that she observed Mr. Bokhari arrive at work at 1:30 p.m. eating a banana and that he appeared to have no difficulty walking fast, even though he had told her that he would have difficulty walking to the office from the subway, and suggested, “So you say to yourself he is not really sick as he says”. Ms. Yousef replied that it was “just an observation” because it was inconsistent with what he had told her. When counsel asked, “an observation important enough to write down. It was suspicious enough?” She replied “yes”. Ms. Yousef agreed that on May 27, 2010, Mr. Bokhari offered to bring a letter from his doctor to the effect that he can safely work without supervision, and she declined. Asked why, Ms. Yousef replied that HR advised her that despite any doctor’s letter she would still be responsible if something happened to Mr. Bokhari. Counsel asked, why she asked the doctor whether it was safe for Mr. Bokhari to work alone, if the doctor’s opinion did not matter. She said, “I followed HR advice”.
75Counsel referred to Ms. Yousef’s detailed notes about Mr. Bokhari attending the staff training day early in the morning, and suggested “What you are saying is, if he can come here early with no sign of discomfort, he can come to work early also – You say he is not ill as he says?” Ms. Yousef replied, “I just observed it was interesting he was able to come here early when he didn’t want to come for our core hours”. Counsel put to her that she found it so troubling, she brought it to the attention of senior management and HR, and suggested “You are saying he is faking”. She replied, “I said it was interesting”. Counsel put to her again that she thought he was faking and she gave the same answer. When counsel asked a third time, Ms. Yousef replied, “I found it suspicious”.
76Counsel reviewed with Ms. Yousef Dr. Whitty’s second health information form stating that working alone posed no risk to Mr. Bokhari, and that doctor’s appointments could not be scheduled outside office hours. She testified that copies of this form were provided to Mr. Burns, Mr. Keating and to HR. Counsel asked Ms. Yousef why she called Dr. Whitty after she received this form. She testified that Mr. Burns directed her to contact the doctor, because the form was filled in by hand. Since there was no official letterhead, he wanted her to verify that it was really the doctor who had filled it. Ms. Yousef agreed that from the fax Dr. Whitty sent she knew that she was from the Department of Psychiatry at Sunnybrook Hospital, and that Mr. Bokhari was seeing a doctor at the Psychiatric Department. Counsel asked, “What did that tell you about Mr. Bokhari?” She replied, “I didn’t read into what type of doctor sees him. My interest was to get him back to work”.
77Counsel reviewed Ms. Yousef’s testimony disagreeing with Mr. Bokhari’s evidence that at the coffee shop meeting on February 25th he told her that he was seeing a psychiatrist. He put to her that the next day Mr. Edwards informed her that Mr. Bokhari had told the MGS/CAO that he was seeing a psychiatrist not a heart doctor, and that she was aware that the same day Mr. Bokhari had informed Mr. Edwards that he had met “with my psychiatric doctor”. Counsel suggested that at least from those, she became aware that Mr. Bokhari was getting treatment from a psychiatrist. Ms. Yousef replied, “I did not make that connection”. Counsel pointed out that Ms. Yousef had made notes about “erratic behaviour” by Mr. Bokhari, such as walking fast while eating a banana, smiling, and that she had described some of his conduct “strange” and “interesting”. Counsel put to Ms. Yousef that given those observations and her knowledge that Mr. Bokhari was seeing a psychiatrist, “You were assessing him from a lens – this is a man with mental health issues?” Ms. Yousef replied, “I just recorded observations as I saw them. I understood he was stressed and getting help. I tried to accommodate as best as I could”. She continued to insist under intense cross-examination that until she received Dr. Whitty’s fax on June 21st, she was not aware what kind of doctor Mr. Bokhari was seeing because he always said he had a doctor’s appointment, but did not say what type of doctor. She went on, “If anything, I probably saw it through a lens that he was seeing a heart doctor because he had told me he had heart problems”. Counsel put to Ms. Yousef that from the second doctor’s form she knew that Mr. Bokhari had severe physical symptoms in the past, that he had improved by June, and the doctor had authorized that he could start working core hours going forward. Ms. Yousef agreed. Counsel asked why she specifically directed Mr. Bokhari to continue sending emails upon arrival and when finishing work every day, knowing that his past attendance issues were due to severe physical symptoms. She replied that she did that because it helped her keep track of Mr. Bokhari’s hours. She agreed that she had not imposed such a requirement on any other employee.
78Counsel referred to Ms. Yousef’s email to Mr. Bokhari’s co-worker Ms. GA while Ms. Yousef was on vacation, asking when Mr. Bokhari arrived, and Ms. GA’s reply that Mr. Bokhari came early, looked happy, had been at his desk for only 25 minutes, and was walking around the rest of the time. Ms. GA had also stated, that she would keep Ms. Yousef posted. Counsel put to her that everyone was watching Mr. Bokhari and reporting to her, and that she was encouraging that. Ms. Yousef replied that she did not encourage, “But sometimes I would ask. I felt uncomfortable doing it. That is why we put in the emailing requirement on HR advice.”
79Counsel asked why despite having the doctor’s information, on July 13th while on vacation she emailed the other manager Ms. Goudie to the effect that Mr. Bokhari had been “using illness as an excuse” in the past and that a similar pattern was developing again. Ms. Yousef replied that she did that because illness was no longer a valid excuse since the doctor had said Mr. Bokhari could work core hours. Counsel pointed out that she was talking about the past, that it “was” a chronic problem and was warning about a similar pattern starting. Ms. Yousef replied that it was a poor choice of words on her part. Counsel pointed out that in one minute Ms. Goudie replied using the phrase “buggering off” in relation to Mr. Bokhari, and asked if it is fair to say that people who emailed her commenting about Mr. Bokhari, including Ms. Goudie and Ms. GA, had a very poor opinion of him. Ms. Yousef replied, “It’s a small office. Yes. People notice”. Ms. Yousef agreed when shown attendance records, that although from July 2010 Mr. Bokhari’s attendance improved and he began to report to work early, he still had absences due to illness. Counsel referred to email exchanges between management and HR on July 21st about the rule in the collective agreement that for absences of less than 7 days doctors’ notes may only be required “where the employer has reason to suspect that there may be an abuse of sick leave”. Counsel suggested that what HR was saying was that there is a basis for suspicion. Ms. Yousef agreed.
80Counsel asked Ms. Yousef why she stated on August 17, 2010 that Mr. Bokhari may not work past 5:30 p.m. when he wanted to make up time lost by working till 6:30 p.m. when the doctor had stated there was no risk involved. She replied that she was still not comfortable to let him work without supervision. Ms. Yousef testified that she was familiar with the concept of discipline. She agreed that she did not at any time discipline Mr. Bokhari for “poor performance, misconduct, faking illness or anything else”. She also agreed that except for absences on a “couple of occasions”, Mr. Bokhari had not had a pattern of absences since he returned from vacation in July. Counsel asked whether she gave any thought to assigning regular duties to him at that point, since his attendance was now much more regular. Ms. Yousef replied, “I don’t know if I gave it a lot of thought”. She agreed that in any event, Mr. Bokhari was never assigned regular duties.
81Ms. Yousef reiterated again that Mr. Burns never told her that Mr. Bokhari would be surplussed. Nor did she ask Mr. Burns why he did not inform her that two of her employees were to be surplussed. Counsel asked “As manager, is it OK that two of your employees are surplussed and you are never told?” She replied “no”. Counsel asked whether she asked Mr. Burns at any time why Mr. Bokhari was surplussed. She replied “no”. Counsel asked “although you met with him regularly, you never asked?” Ms. Yousef replied, “I don’t remember talking about that”. When counsel put to her that he would be submitting to the Board that her testimony is not credible, Ms. Yousef replied, “I am saying I don’t remember”.
82In re-direct, Ms. Yousef explained that she consistently sought advice from HR about Mr. Bokhari because she had never had to deal with an employee with attendance issues to this extent. Employer counsel reviewed her evidence that at the coffee shop meeting Mr. Bokhari had told her that he had been allowed to work from 10:00 a.m. to 6:00 p.m. at MGS because of his health issues. She pointed out that the next day Mr. Bokhari’s manager at MGS had informed her that he was not made aware of any health issues, and that Mr. Bokhari was allowed to work those hours only because he had said he had to take his kids to school. Counsel asked whether she questioned Mr. Bokhari about that inconsistency. She replied “no”. Counsel asked Ms. Yousef whether she thought that Mr. Bokhari had any psychiatric issues that needed to be accommodated, when she found out that Mr. Bokhari was seeking a psychiatrist. Ms. Yousef replied that she understood that his seeing the psychiatrist had to do with his transfer.
83Counsel asked Ms. Yousef whether she was comfortable changing Mr. Bokhari’s rating for P for P from “satisfactory” to “below satisfactory” after Mr. Burns intervened. She replied that she was, because she was uncomfortable when she originally assessed his performance to be satisfactory. Counsel asked Ms. Yousef why she did not “automatically” accept the doctor’s recommendation that Mr. Bokhari be allowed to work from noon to 7:00 p.m. She replied “I think I got advice from HR and allowed him to start late, but the finish time was a problem”. Asked “when you knew that the second report came from a psychiatrist, did you think that Mr. Bokhari needed any other accommodation?” Ms. Yousef replied, “Not really. I was trying to accommodate his request for altered hours and I gave him flexible work instead of work with deadlines”.
84Ms. Yousef testified that she assigned the ICI project to Mr. Bokhari because it was “a project that had to be done by our branch”, it was less time sensitive than operational work, and therefore, less stress on Mr. Bokhari. Asked whether she was “motivated by malice in managing Mr. Bokhari”, she replied “Absolutely not” and added, “But I needed to motivate people to get the work done”. Counsel asked, “When you found out he was seeing a psychiatrist did it change the way you treated him?” Ms. Yousef replied, “No. I thought he was stressed out because of the transfer. That is common”.
TESTIMONY OF MR. ROBERT BURNS
85At all relevant times, Mr. Robert Burns was the Director of the Business Planning & Finance Branch of the MEDT. He testified that the increase in workload as a result of the transfer of AGCO functions to MEDT was not significant. Counsel asked who at MEDT did that additional workload. He testified, “We had a financial analyst dedicated to supporting consumer services, Ms. Lynn Goldmaker. As AGCO had become part of MCS she took that over”. Mr. Burns testified that the work assigned to Mr. Bokhari after he started at MEDT were mostly intended to provide him orientation. Asked whether that work was appropriate for a AFA 17 like Mr. Bokhari, Mr. Burns replied that all the work in the branch was at least AFA 17 work.
86Mr. Burns testified that shortly after Mr. Bokhari’s arrival at MEDT, Ms. Yousef informed him that Mr. Bokhari had identified a number of health issues he had, that he was not willingly accepting assigned work, that he was “regularly taking sick days”, and that she had concern about how she can manage these issues. Mr. Burns advised her that she must manage Mr. Bokhari’s performance, and should get HR advice on how to deal with his health issues. Mr. Burns was asked whether the allegation in Mr. Bokhari’s dispute that the decision to surplus him was made in advance, and that the plan was to surplus only him is true. He replied “no”. He testified that the process of reorganizing the branch had started around Christmas 2009. Asked who was involved in the decision to surplus Mr. Bokhari, Mr. Burns replied that three positions were identified as no longer required under the new structure and added “the decision to surplus Mr. Bokhari was basically mine, but I had to get my CAO to agree”.
87Employer counsel asked Mr. Burns what prompted him to reorganize the branch. He replied, “When I came to the branch the Corporate Services Division had recently done a client satisfaction survey. They had identified client dissatisfaction issues relating to procurement and business planning. That’s what started it. I was looking to address those issues”. Counsel asked why he did not share any information about his decision to surplus Mr. Bokhari with his manager. Mr. Burns explained that both managers were long-term managers comfortable with the way things were. He said “They had seen the survey and interpreted it differently than I did. So I felt it was up to me to decide how to best serve our client ministries and how best to reorganize the branch to do that”.
88Mr. Burns testified that the re-organization impacted three employees, Ms. Angela Brand, Mr. Amit Sobti and Mr. Bokhari. They were identified as surplus. He stated that Ms. Brand’s coordinator position was eliminated. Under the new structure three Business Planning Consultant positions were created in the new Business Planning Unit and based on her skills and qualifications she was matched to one of those. Mr. Burns was asked how Mr. Sobti ended up in a AFA 20 level position when his position was eliminated. He explained that Mr. Sobti was not matched to a consultant position because he had gaps in skill and knowledge. Therefore he was given a 90 day contract in that position as a learning opportunity, “to pick up the missing skill and knowledge’. He was then matched permanently to one of the consultant positions through the surplus process. The third consultant position was posted and filled. Counsel asked why Mr. Bokhari was surplussed and not given a temporary learning opportunity as Mr. Sobti was. Mr. Burns replied, “He didn’t have the necessary skills and experience in the business planning process and customer service”. Counsel asked Mr. Burns whether he made efforts to find Mr. Bokhari a “soft landing”. Mr. Burns replied “Yes. We looked for any AFA 17 positions in the ministry we can match him to. We found no vacancies. We also contacted his previous employer at MGS and asked if they were prepared to take him back, and they said no.”
89Mr. Burns testified that a branch staff meeting was scheduled for September 1, 2010 to announce the reorganization. In addition, individual meetings were scheduled the same day with the three employees identified as surplus. The meeting with Mr. Bokhari was scheduled for 9:45 a.m. Mr. Burns testified that Mr. Bokhari showed up late for the meeting. AMAPCEO representative, Mr. Michael Helfinger who was to attend the meeting with Mr. Bokhari had left by then. When HR called Mr. Helfinger requesting him to return, he informed that he could not, and asked that the meeting proceed without him. Mr. Burns testified that the meeting was held in a board room, with Ms. Graham, Mr. Bokhari and himself in attendance. Mr. Burns followed the script provided by HR. When Mr. Bokhari was given the surplus package he refused to accept it and “refused to have any conversation with us without a union rep”. As a result, Ms. Graham went looking for a union representative, and Mr. Burns and Mr. Bokhari went to their respective offices. Mr. Burns testified that shortly after, Ms. Graham returned with Mr. Helfinger. He said, “I went to look for Mr. Bokhari in his office, he wasn’t there. Someone told me he just left. I went out and looked down the hallway. I opened the male washroom. Mr. Bokhari was standing at the mirror. I said “the rep is here, we can start”. He came to the boardroom. Before we could start, he insisted he wanted to talk with the rep alone. So Ms. Graham and I went across the hall to my office and left them. After 10-15 minutes, Mr. Helfinger told me that they could not meet until later in the afternoon, because they needed to discuss further. I said “that is fine, but Mr. Bokhari will have to leave the premises and return with you in the afternoon”. Counsel asked why Mr. Bokhari could not stay. Mr. Burns replied, “When given surplus notice it is stressful. You give the employee time to deal with it. I was looking for him to leave and deal with it. I think it is in everyone’s interest. It was done to minimize the embarrassment and discomfort to the employee and allow him to get his head around what has happened, and not be around colleagues and be embarrassed and uncomfortable”. Mr. Burns also testified that there was no work for Mr. Bokhari to do anyway.
90Mr. Burns testified that he was made aware that Mr. Bokhari had not left the premises as instructed to, and was still in his office. Mr. Burns went there and repeated his instructions. Mr. Burns testified, “He said he didn’t want to leave. That he had been treated unfairly, and comments like that. I insisted he had to leave. He stood up, took his coat and bag, and started to leave his office”. Mr. Burns testified that he accompanied Mr. Bokhari as he walked to the elevators, and indicated on the floor plan (filed as an exhibit) the route they took. He testified that the offices on that route faced the interior corridor and there were plaster walls to the ceiling along the hallway they took. Therefore, people in those offices could not see out to that hallway. Mr. Burns testified that while walking down Mr. Bokhari did not talk. However he said, “when we got to the doors to the elevator lobby, he started to get upset and agitated and said things like he was going to get a lawyer and sue his ADM, myself and the ministry. That he’d been lied to by his ADM. I believe he was referring to the CAO at MGS, Karen Hughes”. Mr. Burns testified, “I insisted that he leave. I opened the door to the elevator lobby and said it again”.
91Counsel asked whether Mr. Bokhari was humiliated in front of the whole office as he claims. Mr. Burns replied, “No. My whole approach was to minimize his interaction with colleagues. My effort was to get him to leave as quietly as possible. There was no one in that corridor”. Asked whether there was “a show” or a “public spectacle” as Mr. Bokhari testified, Mr. Burns replied, “Not really. The only emotional show was at the elevator doors and even that only until I told him again he had to go”. Mr. Burns denied that he slammed the doors to the elevator lobby shut, and explained that those were glass doors with slow-closing hinges which made it impossible to slam. Asked whether he yelled or raised his voice, Mr. Burns replied, “No. I was insistent and firm in response to his threats to sue. I said “You have to leave before you say anything that will hurt you”, and that he should seek advice from AMAPCEO”.
92Mr. Burns was asked what the extent of his knowledge was about Mr. Bokhari’s “medical situation”. He replied that Ms. Yousef had told him that at the coffee shop meeting Mr. Bokhari had identified that he needed accommodation for some heart issues. Therefore he believed that Mr. Bokhari’s “high sick time” was due to that. He became aware that it led to a request for doctor’s certificates and that the second certificate said that Mr. Bokhari could return to normal duties and normal hours. Asked whether he harassed or discriminated against Mr. Bokhari because of his disability or created the branch reorganization to target his position for surplus, Mr. Burns replied, “No. It was in response to a need for strategic realignment of resources to serve our client needs”. He was not motivated by what Ms. Yousef told her about Mr. Bokhari’s high absences due to sickness. He testified that very little work came over as a result of the transfer of AGCO functions and that it was not enough work for a full time equivalent.
93In cross-examination, Mr. Burns agreed that he was present and heard all of the testimony of Mr. Bokhari as well as Ms. Yousef. He also agreed that all material that came within the broad production order made by the Board was produced to AMAPCEO. Counsel put to Mr. Burns that he could not find one communication by himself or the CAO about the reorganization of the branch that resulted in Mr. Bokhari being surplussed in all of that documentation. Mr. Burns replied that the reorganization was within his delegated authority and that he was not required to put forward a business case. Counsel put to him, “But there is not even an email, memo or any note and no written approval?” Mr. Burns replied, “I gave myself approval. That was all that was required.”
94Counsel referred to his testimony that the decision to surplus Mr. Bokhari was made sometime in April-May 2010, and asked whether there is anything in writing to corroborate that. Mr. Burns replied that there was none. Counsel suggested that the earliest document he could find about Mr. Bokhari’s surplussing was the draft letter of surplus prepared in July. Mr. Burns replied that there will not be any earlier documents relating to the surplussing of the other two employees either. Counsel put to him that there are documents about Mr. Sobit’s surplussing, and asked whether he was sure that Ms. Brand was surplussed. Mr. Burns replied that he was. Counsel put to him that there is no letter to Ms. Brand or to AMAPCEO notifying that she was surplussed, and asked if there was anything that shows she was surplussed, Mr. Burns replied, “I would think she had to have been surplussed, but if I am wrong, I stand corrected”. Counsel asked, “So she somehow moved to a different position without being surplussed and without any competition?” Mr. Burns replied, “She must have been assigned. I thought it was a surplus”.
95Counsel reviewed documentation relating to the branch reorganization which resulted in the creation of three units instead of two. Counsel put to Mr. Burns that based on the documentation, as of January 15, 2010 the complement of employees was to go from 14 to 15 under the new structure. He agreed. Counsel then put to Mr. Burns that the new structure “was to include a 17 AFA position coming from MGS which is Mr. Bokhari?” Mr. Burns replied, “Yes. That was the proposal. But we didn’t know who was coming over”. He agreed with counsel that “in real life it turned out to be Mr. Bokhari”. When Mr. Burns added that this was “an early work”, counsel told him that there is no other document apart from it, and he agreed.
96Mr. Burns agreed that he had started moving forward with the reorganization which included the AFA 17 position coming over from MGS, before he knew that the employee coming over from MGS was Mr. Bokhari. Referring to documentation, counsel put to Mr. Burns that in September 2009 he discussed with the two managers, Ms. Goudie and Ms. Yousef, whether the funding moved to the branch from MGS was adequate because AGCO work was also transferring to the branch, and decided that one additional FTE should be requested to support the AGCO work. He agreed that the request was made and the branch did get an additional FTE. He also agreed with counsel’s proposition that “You tried hard and a FTE was moved from MGS to your branch to support the AGCO work coming over.”
97AMAPCEO counsel reviewed with Mr. Burns his direction to Ms. Yousef to find out at the coffee shop meeting what AGCO work Mr. Bokhari had been doing at MGS. Counsel suggested that his interest and close involvement do not indicate that there was any intention to “get rid of” Mr. Bokhari as part of the reorganization. Mr. Burns replied, “We were looking for a financial analyst and I wanted to know how we can use him effectively”. Counsel put to Mr. Burns that Ms. Yousef had testified under cross-examination that she discussed everything that happened at the coffee shop meeting with Mr. Bokhari shortly after. Mr. Burns replied that her concern was about Mr. Bokhari not wanting to come to MEDT and about a request for accommodation. Counsel put to him that the day after the meeting, Ms. Yousef found out that Mr. Bokhari had told the MGS/CAO that he was seeing a psychiatrist, and suggested that he also became aware of that. Mr. Burns disagreed and testified that he only knew about “a heart issue”, and “never got that information”. Counsel asked whether Ms. Yousef did not tell him after she had met with Ms. Edwards. Mr. Burns replied, “I don’t recall her say that”, and added that he was “unaware of any psychiatric issues until the very end of the whole process”. Counsel put to Mr. Burns that Mr. Bokhari was not hiding that he was seeing a psychiatrist and had told at least four people, and asked whether he was denying knowing anything about it. Mr. Burns replied, “I know Ms. Yousef and Mr. Bokhari said its surprising. But I am telling you I didn’t know. I was dealing with an accommodation related to a heart issue. Later on, after the surplus, I found out a psychiatrist was involved.”
98Counsel put to Mr. Burns that Mr. Bokhari had “a huge number of absences, lates and doctors’ appointments and had performance issues, which drove Ms. Yousef crazy”, and that Ms. Yousef had testified that she discussed all her concerns with him at weekly or bi-weekly meetings. Mr. Burns replied, “those came up several times”. Counsel stated that Ms. Yousef also raised those issues with HR, and that Mr. Burns was copied on all of that. Mr. Burns replied, “on some of it; not every one”. Counsel put to him that at least until Mr. B took vacation in June, “there was a strong sense that staff in the workplace were aware of his odd hours, absences, and odd behaviour.” Mr. Burns replied, “As a generalization I’d probably agree. They were aware he was not at work a lot and was creating problems for Ms. Yousef”.
99Counsel referred to Mr. Burns’ email stating that Mr. Bokhari’s performance “as well as attendance” were unsatisfactory, and put to him that because of that he refused to give a satisfactory rating to Mr. Bokhari for his P for P. Mr. Burns replied that it was the norm for new employees with less than 3 months to get a conditional rating. Counsel put to him that Ms. Yousef had given Mr. Bokhari a satisfactory rating and that he intervened because of Mr. Bokhari’s attendance and performance issues. Mr. Burns replied that the rating was assessed on one month only. When counsel suggested he would not have said anything different even on July 18th, Mr. Burns agreed and added “because he was continuing to be a problem for Ms. Yousef”. Counsel suggested that whenever he made the decision to surplus Mr. Bokhari, he knew of all the problems he was giving Ms. Yousef. He replied, “All of that is irrelevant. He was surplussed because he was in a junior position and his job was gone”.
100Counsel put to Mr. Burns that the reasons he now relies on as to why Mr. Bokhari’s job was gone are “ex-post facto reasons” he had come up with which are not in any document. He replied, “It was up to me to get the job done and I did”. When counsel asked why he never even discussed with Ms. Yousef the reasons why he thought Mr. Bokhari’s job was no longer required, he replied that he did not discuss anything with either manager because they were about to retire and “I was not going to upset the apple cart until I had to.”
101Counsel asked why Mr. Burns was so adamant on September 1, 2010 that Mr. Bokhari had to be out of the premises immediately. Mr. Burns replied, “His work was gone. He had no work. Also, he was occupying space we needed to quickly realign to allow the Business Planning Unit to work”. Counsel referred to Mr. Burns’ testimony that it was the norm to have employees leave the premises upon getting surplus pre-notice, and suggested there was no such practice. Mr. Burns replied that it was the practice, and added “it would have been embarrassing for him to sit there with no work to do”. He testified, “It’s the norm. I wanted him to work at another location and not be a spectacle or a source for ill-treatment or whatever. I also needed that space to get people on board”. Counsel put to Mr. Burns that even if Mr. Bokhari was able to do AFA 19, 20 or 21 work, he still would have got rid of him given all the problems he was creating with his attendance and performance issues. Mr. Burns replied, “We gave small short-term projects because he wasn’t appearing at work regularly”. Counsel pointed out that in the second form the doctor had said that Mr. Bokhari could return to work full-time and do regular hours, “but it made no difference and you still gave him no real work. You got rid of him because that didn’t suit you”. Mr. Burns replied that all junior positions were eliminated
102Mr. Burns agreed with counsel that regardless of what positions were eliminated, Mr. Bokhari was the only employee who ended up with no job. Counsel pointed out that Mr. Sobti, the other employee declared surplus, received a temporary assignment in the consultant position which enabled him to get that permanently. Mr. Burns commented that he did that because he saw Mr. Sobti’s skills. Counsel referred to Mr. Burns’ testimony in chief that efforts were made to find Mr. Bokhari a job, and asked whether there is any documentation to show he consulted with HR or anyone else in that regard or that HR sought a 17 AFA position, a temporary assignment or any other job at MCS or MGS. Mr. Burns replied “There is no documentation. It was just telephone conversations.”
103Counsel asked where the “review of the operational demands of the branch” he testified about was. Mr. Burns replied that it was not a document, but “just my review of how I wanted the branch to be,” and that “it was never put down on paper”. Counsel put to him his evidence that the branch reorganization was done in response to the client satisfaction survey, but no such survey had been produced. Mr. Burns agreed. Counsel asked whether there was any operational review “that had anything to do with Mr. Bokhari”. Mr. Burns replied “no”, but then corrected himself and stated that Ms. Yousef had done a review of all positions in reallocating work. However, he agreed that was something she did on her own for her own purposes, that she did not discuss that with him, and that he did not consider or analyse her proposal in making his decisions on surplussing.
104Mr. Burns agreed that the letter dated September 1, 2010 notifying Mr. Bokhari of his surplussing did not set out any of the reasons he testified about, but simply stated that the surplus was “as a result of ministry business decisions”. Counsel pointed out that the letter was signed by Mr. Burns’ superior, Mr. David Clifford, ADM/CAO. He referred to his testimony in chief that “obviously” he had to get Mr. Clifford to approve the reorganization, and asked how Mr. Clifford could approve, when there was nothing sent to him about the proposed reorganization. Mr. Burns replied, “That’s not how we did it. We did it in conversation”. Counsel suggested that Mr. Clifford simply rubber stamped the reorganization, and asked whether Mr. Burns discussed all of the problems Mr. Bokhari was creating for Ms. Yousef with Mr. Clifford. R. Burns replied “It would’ve come up, the good and the bad”.
105Counsel asked Mr. Burns how it was that there was no work for Mr. Bokhari for 8½ weeks after September 1st , when he himself had testified that all work in the branch was at least AFA 17 work. Mr. Burns replied “I guess all the essential AFA 17 work was redeployed to others. Work not required we did not do anymore, and had disappeared”. Counsel suggested that Mr. Bokhari as a qualified financial analyst could have done good work instead of “getting paid with public money for 8½ weeks for doing nothing”. Mr. Burns replied, “We decided we would do without him. We put him in another location so he could do whatever he had to do.” Counsel put to Mr. Burns that Mr. Bokhari wanted to do real work and was told “no”, he was not told “we are sorry we had to surplus you, so we want to help you by giving you time and a quiet location to do whatever you have to do,” and suggested that he wanted Mr. Bokhari out of the office for his own reasons. Mr. Burns agreed. Counsel pointed out that he helped Mr. Sobti and OPSEU member Ms. Popovich obtain better positions by giving learning assignments, but did nothing like that for Mr. Bokhari because he did not assess him the way he assessed them, Mr. Burns agreed.
106Counsel asked Mr. Burns why he did not allow Mr. Bokhari to stay after it had been determined that the meeting would have to reconvene in the afternoon. After a long pause, Mr. Burns replied “It was basically… It would’ve been disruptive. It probably would’ve been embarrassing for him. Because he came late, the meeting didn’t unfold as scripted by HR”. Counsel pointed out that despite all those reasons, the fact is that Mr. Bokhari wanted to stay and asked, “What was the harm?” Mr. Burns replied, “I guess because it will make everyone else uncomfortable. They have to get on with work. I felt it will be disruptive and slow down the process”. Mr. Burns agreed that Mr. Bokhari had not been “fired for any misconduct or for threatening anyone”. Asked “But he was considered odd?” Mr. Burns replied, “yes, he had some odd activity. Ms. Yousef had told me that”. Asked, “So just him being there made others uncomfortable?” Mr. Burns replied, “I believe Ms. Yousef testified so”.
107Counsel asked whether it is fair to conclude, given the evidence it was a small office where people talked, and that they worked with their office doors open, that “people would’ve sensed something was going on”, Mr. Burns replied “I can’t say”. He agreed that when he found out that Mr. Bokhari had not left as instructed to, he walked down to Mr. Bokhari’s office and Mr. Bokhari was at his desk with door open. Mr. Burns was not sure who exactly were in their offices at the time, but agreed that “there would have been people in the offices with doors open”. Mr. Burns testified that he said to Mr. Bokhari, “Imran, you have to leave and come back with Mr. Helfinger in the afternoon for the meeting”, and that Mr. Bokhari replied “I don’t want to or I shouldn’t have to”. Mr. Burns agreed that Mr. Bokhari was upset and clearly did not want to leave and that Mr. Burns “escorted him out”. However, he stated that Mr. Bokhari was incorrect when he testified that he was escorted down the internal hallway. Counsel put to him that regardless of the route taken, “given the discussion that had just happened in Mr. Bokhari’s office, “there is a good chance that people in the surrounding offices would have known what was going on, - that Mr. Bokhari was asked to leave, he did not want to, and was escorted out by you”. Mr. Burns replied, “I can’t speak to that. But I know we didn’t encounter anyone while walking down to the elevator”. Asked whether he was saying no one knew, Mr. Burns replied, “I had no discussion with anyone. Ms. Goudie knew he had been asked to leave.” Mr. Burns testified that when they reached the doors to the elevator lobby Mr. Bokhari was getting agitated and loud. Asked whether he was also getting agitated, he replied, “no. But I was frustrated and even exasperated”. Asked whether he became loud, Mr. Burns said, “No. I am not a loud person, but I was firm and insistent. I got as loud as I get when he started talking about law suits”.
108Counsel referred to testimony in chief by Mr. Burns that he did nothing to humiliate Mr. Bokhari, and asked how someone not accused of any misconduct or fired would feel when forced to leave and is escorted out. Mr. Burns replied, “It would’ve been stressful. Yes it will be humiliating. But we did everything possible to minimize it. If he had come in on time a lot of this would’ve been avoided”. Counsel asked, “On 3 or 4 occasions you had a choice. But your single minded pre-occupation was, he just had to leave right away”. Mr. Burns replied, “It was not a pre-occupation, it was the outcome I wanted that day”. Counsel asked whether Mr. Burns would agree “looking back”, that Mr. Bokhari would feel very humiliated because everyone knew that he was “marched out”. Mr. Burns replied, “I don’t agree everyone knew or that it was a spectacle”.
109Mr. Burns agreed that at least in early June 2010 when Dr. Whitty sent the fax on official letter head, Ms. Yousef would have known that the doctor Mr. Bokhari was seeing was a psychiatrist, because it clearly said she was in the Department of Psychiatry. However, he stated that he did not see that fax. Counsel asked, “whether you saw the fax or not, with all that went on about Mr. Bokhari and the regular discussions you and Ms. Yousef had, you want us to believe that Ms. Yousef did not tell you that?” Mr. Burns replied, “Subsequently close to the surplus date, I was made aware”. When counsel asked, “So before the surplus date you knew?”, he replied, “I can’t recall when”.
110In re-direct, Mr. Burns was asked what rationale was provided to AMAPCEO for the reorganization of the branch that resulted in Mr. Bokhari’s surplussing. He referred to the following in the letter dated August 17, 2010 to the AMAPCEO president:
Client ministry demand for strategic advice, business planning and business case development has increased over the past two years and the current structure has not allowed the branch to provide the necessary support at key times.
111Employer counsel reviewed Mr. Burns’ testimony as to why he insisted on Mr. Bokhari leaving the premises on September 1, 2010 and asked whether he anticipated that Mr. Bokhari would react as he did when offered the surplus pre-notice package. Mr. Burns replied that he and Ms. Graham were both surprised, and that Ms. Graham told him that she had never had anyone refuse to take the pre-notice package or refuse to have any discussion without a union representative.
DECISION
112Mr. Bokhari started working at MEDT on March 1, 2010 and was served surplus notice on September 1, 2010. Evidence was tendered as to what occurred at the workplace on practically a day by day basis. I have deliberately set out the evidence in unusual detail given the nature of the disputes. Much of the submissions by the respective counsel consisted of a review of that evidence. The legal authorities put to me will be referred to only to the extent that they deal with legal principles. Application of those principles to the facts in those decisions is of little assistance since they turn on the particular facts.
Discrimination
113The objective evidence is clear that Mr. Bokhari had a number of health issues, going back at least to 2009 when he had panic attacks and anxiety, and was diagnosed with major depressive disorder, mild, without psychotic features. More importantly, it is also clear from medical reports presented to the employer during the relevant period, as well as some post-surplus medical reports, that throughout his tenure at the MEDT, Mr. Bokhari had health issues resulting in work related restrictions. The restrictions included physical symptoms that were more prominent in the early part of the day. His symptoms were initially severe, but improved gradually. While he was medically authorized to work full time regular hours by early June 2010, the doctor was of the view that he could still experience dizziness, lack of energy and concentration “which may affect performance at work and productivity”. He also had frequent medical appointments, particularly early in his tenure at MEDT. The evidence is equally clear that in February 2010, he was provided psychiatric care by two psychiatric residents at the Department of Psychiatry at Sunnybrook Hospital. He had twenty appointments for that purpose in the period March to December 2010. On the basis of the objective evidence the Board concludes, and the employer did not dispute, that during the relevant period, March 1 to September 1, 2010, Mr. Bokhari had a “disability” within the meaning of the Ontario Human Rights Code.
114One of the key areas of dispute between the parties is the extent of the employer’s knowledge of Mr. Bokhari’s health issues. There is no dispute that Mr. Bokhari advised Ms. Yousef about his heart, diabetes, high-blood pressure and cholesterol issues, at the coffee shop meeting the week before he started at MEDT. However, while Mr. Bokhari’s evidence is that he also informed her that he had depression and had an appointment with a psychiatrist the following week, Ms. Yousef testified that what she understood was that he was “stressed out” because he did not want to be transferred, and that the doctor he was seeing was a “heart doctor”. Regardless of what exactly Ms. Yousef was told at that meeting, it is clear that she received an e-mail the next day from Mr. Edwards, explicitly stating that Mr. Bokhari had informed the MGS/CAO that the doctor he was seeing was a “psychiatrist, and not a heart doctor”. I find that at least on February 26th, she became aware that Mr. Bokhari was receiving psychiatric care. Common sense would have informed her, therefore, that Mr. Bokhari was suffering from some mental health issue.
115Mr. Bokhari testified that Ms. Yousef jumped from her seat and said “oh my god Jeff didn’t tell me that” when he mentioned the psychiatrist appointment. I found throughout his testimony that Mr. Bokhari had a propensity to greatly exaggerate and dramatize. He made allegations that Ms. Yousef had a reputation of firing anyone who disagreed with her, and that “a lot of people” including a Mr. C, had left because of her. These are not only completely unsubstantiated, they are untrue allegations. Ms. Yousef’s uncontradicted evidence is that she had not fired a single employee, and that Mr. C had retired in the normal course, and Ms. Yousef had even met with him and his family socially since. Mr. Bokhari testified that from her attitude and gestures he could see she hated him, but did not say what that attitude and gestures were I find that Ms. Yousef would have shown surprise and disappointment at discovering that the employee she was receiving had numerous health issues. This is evidenced by the fact that she immediately documented that information and also briefed her superior Mr. Burns about it. In fact she testified that she was concerned that she would have issues to deal with. I find, however, that Mr. Bokhari greatly exaggerated in describing her reaction.
116Mr. Burns acknowledged that he was advised by Ms. Yousef about Mr. Bokhari’s heart issues, but denied that he had any knowledge that Mr. Bokhari had any mental health issue other than being stressed about his transfer. He testified that he became aware that Mr. Bokhari was receiving psychiatric care only much later. I find this to be very improbable. The evidence is that Ms. Yousef met with Mr. Burns regularly, at scheduled and unscheduled meetings. She testified that at these meetings Mr. Bokhari, and his health issues were discussed because she wanted Mr. Burns to be aware. As early as February 26, 2010 she received very clear information that Mr. Bokhari had informed his CAO at MGS that he was seeing a psychiatrist. She saw Mr. Bokhari’s e-mail where he refers to “my psychiatrist”. She testified that she met with Mr. Burns as soon as possible after meeting with Mr. Edwards and briefed him, about what information she gathered about Mr. Bokhari. It is not conceivable that in discussing Mr. Bokhari’s health issues she would not have mentioned to Mr. Burns that Mr. Bokhari was seeing a psychiatrist. In early June 2010, Ms. Yousef received a fax clearly indicating that the doctor in question was from the Sunnybrook Hospital’s Psychiatric Department. By then, Ms. Yousef was dealing with serious absenteeism issues as well as behaviour she found to be strange or odd, which she had discussed with Mr. Burns, as well as Human Resources. Given the interest and involvement Mr. Burns had shown in relation to Mr. Bokhari’s health issues, attendance, and performance deficiencies, it is not believable that Ms. Yousef or the various staff from Human Resources did not mention to Mr. Burns that Mr. Bokhari was seeing a psychiatrist.
117Mr. Burns’ own testimony also does not give credence to his assertion, because it changed over the course. At first he testified that he became aware that Mr. Bokhari was seeing a psychiatrist only “at the very end of the whole process”. Then he stated that he found that out only “after the surplus”. Finally, under cross-examination he said that it was “very close to the surplus”, and agreed that before the surplus of Mr. Bokhari he was aware Mr. Bokhari was seeing a psychiatrist. Finally he took the position that he was not sure when exactly he found that out. The Board concludes that shortly after Mr. Bokhari transferred to MEDT both Ms. Yousef and Mr. Burns were aware of all of Mr. Bokhari’s health issues, including the fact that he was receiving psychiatric help. The issue then is whether the employer, with the knowledge that Mr. Bokhari had various health issues, including mental health, discriminated against Mr. Bokhari by failing to accommodate him.
118Ms. Yousef did not dispute, nor did employer counsel, that the employer had a duty to accommodate Mr. Bokhari. The duty required Ms. Yousef – the employer – to make every reasonable effort, short of undue hardship, to accommodate Mr. Bokhari’s restrictions as a result of his disability. The initial obligation on the employer was to determine whether Mr. Bokhari’s job could be adjusted or modified to allow him to work within his restrictions. If this was not attainable short of undue hardship, the duty would require the employer to expand the scope of its search for accommodation by investigating whether any other position within the workplace that is suitable exists for Mr. Bokhari. In this manner, the search for an accommodation has to be expanded until all possibilities are exhausted, and the point of undue hardship is reached.
119The Board concludes on the basis of the evidence that the employer failed to comply with the duty to accommodate at the initial stage itself. At the coffee shop meeting on February 25, 2010, Mr. Bokhari disclosed his health issues to Ms. Yousef and sought accommodation. He advised that he had difficulty functioning in the morning, and requested that he be allowed to start work at 10:00 a.m. Ms. Yousef was entitled, if she so wished, to request supporting medical information. However, she did not do so. Instead, she wanted Mr. Bokhari to start at 9:30 a.m. The Board concludes that at this point of time, Ms. Yousef, did not permit Mr. Bokhari to start at 10:00 a.m. While she initially testified that she did allow the late start, after cross-examination she stated that she was unsure. By her own admission she documented everything. If she had allowed an accommodation, that would have been documented in her notes, or in an email. To the contrary, her own notes on March 23, 2010 (para.14 supra) indicate that he was requesting Mr. Bokhari to start at 9:30 a.m. and that he was complying. The only reason she offered for her action is that the “usual” core hours in the office were from 9:30 a.m. to 5:30 p.m., and that the office does not have a “flex hours” policy. The law is clear that once an employee has established a prima facie case that he has a disability that requires employment accommodation, the burden shifts to the employer to prove that every reasonable effort was made to accommodate the employee’s disability. There is no evidence this employer did that.
120The employer did not argue that changing of Mr. Bokhari’s hours would have caused undue hardship. In any event, the undue hardship an employer can raise must be substantial. In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, the Supreme Court of Canada emphasized that inconvenience and some operational disruption does not meet the test. In that case which involved accommodation of religious belief, the court at p. 16 wrote, “More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term “undue” infers that some hardship is acceptable; it is only ‘undue’ hardship that satisfies that test … Minor interference is the price to be paid for religious freedom in a multicultural society”. The same standard applies with regard to the duty to accommodate the disabled.
121In the instant case, there is no evidence that the employer even turned its mind to whether it was possible to accommodate Mr. Bokhari’s disability. To the contrary, Ms. Yousef was looking for a way to say why it was not possible. This is evidence by her email to Human Resources on May 4, 2010 that “I would rather find a way to say it was not possible”. Her explanation, when cross-examined about that email, that normally employees have to work during core hours, suggests that despite her regular contact with advisors in the Human Resources Department, she did not understand that the “normal” or “usual” way of running the office must be modified and adapted in order to make the accommodation possible, unless that would result in undue hardship. There is no evidence that Ms. Yousef put her mind to even consider whether it was possible to accommodate Mr. Bokhari short of undue hardship. A standard that it is undue hardship if a proposed accommodation requires a departure from the “normal” falls far short of the high standard required by law.
122Mr. Bokhari’s doctor set out his restrictions and recommended that he be allowed to work from noon to 7:00 p.m. after Ms. Yousef required medical substantiation. The evidence is unclear whether this doctor-recommended accommodation was implemented at any time. However, the evidence is clear that any accommodation with regard to Mr. Bokhari’s hours was not implemented for at least one month after receipt of the doctor’s recommendation. If it was ever implemented, it was for a brief period. Then he was not allowed to work past 5:30 p.m. This meant that he worked less than full time hours, and lost earnings.
123Ms. Yousef’s explanation was that at that time she herself stopped working past 5:30 p.m. and that meant that Mr. Bokhari would be working without supervision after 5:30 pm. She testified that she received advice from Human Resource that it would be too risky to allow that because of Mr. Bokhari’s heart issues. She explained that if “something happened” while working alone, there would be no one to assist him. In the particular circumstances, that is not a valid reason for not accommodating Mr. Bokhari. In certain circumstances, where a proposed accommodation poses a safety risk to others in the workplace or to the employee seeking accommodation, it may constitute undue hardship. However, as here, where the safety issue is only to the employee, the threshold for that risk to be undue hardship is significantly higher. See, Alberta Human Rights Commission v. Central Alberta Dairy Pool, [1990] S.C.R. 489 (SCC). The evidence falls far short of the standard required. The evidence is that Ms. Yousef personally felt uncomfortable and concerned about what might happen “if something happened to Mr. Bokhari while working alone”, and that HR shared her concern. Initially she made her decision without seeking any medical opinion. Moreover, she declined Mr. Bokhari’s offer to provide a medical opinion that it was in fact safe for him to work alone. It is apparent that Ms. Yousef’s position was that regardless of the opinion of medical experts, she would not allow Mr. Bokhari to work late without supervision. Thus, in response to a direct question posed by the employer in the second health information form, Dr. Whitty clearly stated that Mr. Bokhari could safely work alone. That made no difference to Ms. Yousef. Her only explanation during testimony was that she “still felt uncomfortable”.
124There is ample evidence that suggests that the reason Ms. Yousef did not seriously consider accommodating Mr. Bokhari was because of suspicion that Mr. Bokhari’s claim that he needed accommodation was not legitimate. Her notes evidence this suspicion, although she was very reluctant to agree with AMAPCEO counsel’s suggestion that she thought Mr. Bokhari was “faking”. I have set out the notes in question earlier. These included Ms. Yousef’s comment that despite stating that he could not start until 10:00 a.m., on his very first day at MEDT, Mr. Bokhari arrived at 9:30 a.m. and was smiling. While Ms. Yousef testified that her note about Mr. Bokhari smiling was just an observation, the Board finds it would be so unusual for anyone to make such a note without reason. The implication I draw from Ms. Yousef’s comment is that Mr. Bokhari was happy and in no discomfort arriving at 9:30 a.m. contrary to his assertion that he could not start until 10:00 a.m. Other examples suggesting Ms. Yousef’s suspicion are those referring to Mr. Bokhari walking fast without difficulty eating a banana; Mr. Bokhari arriving early and enjoying breakfast at the Staff Day; the discrepancy in the timing of Mr. Bokhari’s emails about reporting late for work; the observation about how Mr. Bokhari was able to take a long flight to Pakistan; Mr. Bokhari observed arriving at work and Ms. Yousef did not observe any “outward symptoms”, Ms. Yousef’s reference to “typical” emails received from Mr. Bokhari about reporting late; reference to “using illness as an excuse”; her discussion with HR about requiring a medical note for every absence on the basis of suspected abuse; Ms. Yousef’s request that Mr. Bokhari be monitored to see if he “exhibits another pattern” of coming in at “weird times”. Since many of these observations were noted after she had received medical reports substantiating that Mr. Bokhari had restrictions, including difficulty functioning in the early part of the day, it is apparent that despite that, Ms. Yousef continued to doubt the legitimacy of Mr. Bokhari’s claim for accommodation.
125Ms. Yousef was entitled to seek medical substantiation when Mr. Bokhari sought accommodation, particularly since she had doubts about the legitimacy of Mr. Bokhari’s request. However, she did not seek any medical substantiation for about 1½ months. In the meantime, she pressured Mr. Bokhari to work regular hours, solely based on her desire that he should work during normal core hours as other staff did. Even after Dr. Whitty had confirmed that Mr. Bokhari had physical symptoms in the early part of the day and recommended that he be allowed to start at noon, Ms. Yousef essentially ignored that medical information. I agree that where an employee is accommodated due to a disability, it is acceptable to work towards the goal of getting the employee back to regular hours. However, the employee must be first accommodated as long as he has restrictions which prevent regular attendance. It is after, and through the accommodation, that the employee’s attendance be improved to a point of being regular. The goal of regular attendance may not be pursued by ignoring the disability and the restrictions, and pressuring the employee. That would be a violation of the duty to accommodate. This is exactly what Ms. Yousef did. She completely ignored Mr. Bokhari’s restrictions despite medical substantiation. Her single minded position was that Mr. Bokhari must work within core hours because that was the office policy, which did not include an option for flexible hours. She did not at any point consider whether the accommodation, sought by Mr. Bokhari and recommended by his doctor, could be implemented by modifying the normal policy without suffering undue hardship.
126Having reviewed the evidence, however, I do not find that the denial of the AGCO duties to Mr. Bokhari was due in whole or part for discriminatory reasons. The evidence is that the AGCO work was, for most part, time sensitive and had strict deadlines to meet. Given that Mr. Bokhari could not be relied upon to be at work on any given day, the employer exercised its management rights and assigned those duties to another employee who was already performing similar duties. While the evidence indicates that at the time of his transfer the plan was to have him perform the AGCO work, it was not unreasonable that the employer subsequently reassessed what was operationally most effective. It concluded that it was required that the AGCO work be completed in accordance with the time limits and that Mr. Bokhari would not be able to do that. It is clear that Mr. Bokhari had the belief that he had a right to the AGCO work regardless of what MEDT management thought. This is evidence by his repeated reference to AGCO work as “my work”. Contrary to his belief, the Board finds, and AMAPCEO counsel agreed, that despite the initial plans indicated in the transfer documentation, Mr. Bokhari had no ownership in that work. The employer was entitled to reassess its operational needs in good faith with efficiency in mind and assign work as it deems fit. Thus, in Re Gates Canada Inc. 1989 CanLII 9268 (ON LA), [1989] 6 L.A.C. (4th) 435 (Hunter) at para. 20 the arbitrator adopted the following statement by arbitrator Brunner in Re Rio Algom Ltd.:
It is well accepted that absent specific restrictions in a collective agreement or a statutory prohibition, an employer, provided he acts in good faith, has the right to make assignments of work functions to, within or across job classifications. Leaving aside questions such as seniority and the right to the payment of appropriate wages, no employee has the right to a particular job function: see Brown and Beatty, Canadian Labour Arbitration, 2nd ed. (1984), para. 5:2000, pp. 224-7.
The Board does not conclude on the evidence that the AGCO work was not assigned to Mr. Bokhari for discriminatory reasons.
SURPLUSSING
127Mr. Bokhari’s position at MEDT was declared surplus effective September 1, 2010. If the decision was made for bona fide operational or business reasons that would be a proper exercise of management rights. Whether or not the Board thinks that the decision made good business sense, or that the employer could have attained its operational goals without surplussing Mr. Bokhari, the Board would not intervene. It is not the Board’s role, and it has no authority, to second-guess bona fide decisions made by the employer in exercising its management rights, whether or not it agrees that the decisions were correct or fair.
128The flip side of the foregoing is that where the exercise of management rights is not bona fide, but is tainted by bad faith, arbitrators have the authority to, and will intervene. In considering whether the grant of broad and unfettered management rights gives carte blanche to exercise those rights in bad faith or in a discriminatory way, O’Driscoll J., in Brampton Hydro Electric Commission, 1993 CanLII 8488 (ON CTGD), [1993] 15 OR (3d) 773 at p. 782, made the following pointed observation:
Can you imagine any party, while negotiating a collective agreement, bargaining to include an article: ‘the parties shall have the right, at all times and in all circumstances, to act in bad faith and/or in an arbitrary manner and/or in a discriminatory way?
129In Re Algonquin College, (2006) 86 C.L.A.S. 227 at para. 188 arbitrator Knopf, in a case involving termination of a probationary employee, observed as follows:
188Bad faith can involve malice and/or evil intent. But deliberation or intent is not a necessary ingredient in the concept. A lack of a rational connection between the circumstances and the outcome can also signal bad faith when it reveals antipathy or unfair treatment for non-rational reasons. Alternatively, if there is no rational basis for the decision, this can imply that irrelevant, invalid or illegal factors were considered. If that occurs, a decision may be both arbitrary and made in bad faith. In that sense, the concepts of arbitrariness and bad faith can be overlapping.
130Arbitrators have also recognized that due to the seriousness of the allegation, there must be clear evidence to support a finding of bad faith. In Re Algonquin College (supra) at para. 190 the arbitrator wrote:
[190] It cannot be forgotten that bad faith is a very serious allegation. A finding of bad faith affects the professional reputation of the named individuals and the institution. The Employer relies on the quotation from Hamilton Street Railway Co. v. Amalgamated Transit Union, Local 107 (Davidson Grievance),supra, where it was said “Making an assertion of bad faith is a very serious matter. Arbitrators are not reluctant to find bad faith if the evidence exists. However, the seriousness of the allegation demands that there be clear evidence of bad faith.” (para. 72) That quotation simply states the obvious; unless there is clear evidence to support such a serious allegation, the grievance will fail. The existence of mistakes, misguided judgments or even oversights by an employer does not necessarily signal bad faith. Incompetence, inexperience and poor judgment do not equate to bad faith. … The seriousness of allegation of bad faith demands that the evidence supports a conclusion that the decision was more than wrong; it must also have been made without valid considerations or from some improper motivation.
131Employer counsel conceded that the plan at the time of Mr. Bokhari’s transfer to MEDT was that he would be part of the re-organized structure of the Branch. She pointed out, however, that the employer was entitled to reconsider how best to use the resources, including personnel, to make the Branch more efficient. The employer was entitled to change its mind and readjust its resources to suit its needs. She argued that the organizational charts which included Mr. Bokhari’s position transferred from MGS was only the “start document” and not the “end document”. The Board agrees that the employer is entitled to exercise its management rights to reorganize the workplace at any time, provided it is done for bona fide reasons. It cannot, however, exercise any management right in bad faith.
132The legal onus is on AMAPCEO to establish bad faith, and clear evidence is required to support a finding of bad faith. However, by definition bad faith involves “a state of mind affirmatively operating with furtive design or ill will.” (See, the definition in Black’s Law Dictionary). Those acting in bad faith are unlikely to disclose their furtive design or ill will. Where all of the evidence clearly points to bad faith, in the absence of a reasonable and credible explanation to the contrary, bad faith may be found. In short, in order to satisfy the higher quality of evidence required to prove bad faith, it is not essential to present evidence of a “smoking gun”.
133The evidence before the Board establishes that even before Mr. Bokhari started work at MEDT, Ms. Yousef had concerns that she would have a difficult employee to deal with. Mr. Bokhari disclosed to her about his health issues, and the need for accommodation. It was absolutely clear that Ms. Yousef considered it critical that all her staff work within the established core hours. Mr. Bokhari had stated that he would not be able to do that. Moreover, Mr. Bokhari’s manager at MGS, Mr. Jeff Edwards, had informed Ms. Yousef that Mr. Bokhari had performance issues while at MGS and that he did not get along and had alienated fellow workers. In addition, he had indicated that Mr. Bokhari was unhappy about his transfer to MEDT and had threatened to grieve it. Thus, Ms. Yousef would potentially be dealing not only with a sick and incompetent employee, but also one who was unhappy about being in her branch to begin with. That she was expecting trouble is indicated in a note she wrote to herself on Mr. Bokhari’s third day that, “so far things are going ok”.
134However, things did not remain “ok” for very long. Within days Mr. Bokhari’s late reports, early departures for doctor’s appointments and absences became routine. The level of Ms. Yousef’s concern is demonstrated by the volume of notes she made and all of the steps she took to get Mr. Bokhari to attend regular hours. She had Mr. Bokhari email every time he arrived at and left work. She kept a chart to document Mr. Bokhari’s hours. She directed Mr. Bokhari to provide her a list of all medical appointments for the month on the first of each month. She even had Mr. Bokhari’s co-worker reporting to her about when Mr. Bokhari came and left work, and about how he spent his time while at work. All of this was discussed regularly with Mr. Burns and HR.
135Besides his attendance issues, Mr. Bokhari’s performance was not acceptable to Ms. Yousef. She was critical of his work on many occasions as recorded in her own notes. In one note she wrote that she was spending a significant part of her time correcting Mr. Bokhari’s work. Her frustration is clearly evidenced in her notes. Mr. Bokhari also was objecting to the work he was being assigned because it was his position that he had a right to be doing AGCO work. He resisted the work assigned because in his view that was menial typing work, demeaning his status as a financial analyst with years of experience. It is an understatement that she was convinced that Mr. Bokhari was not motivated. A co-worker reported to her that Mr. Bokhari shut himself in the office with a single sheet of paper and then went for coffee, and had worked only for 25 minutes. While Ms. Yousef was on vacation, another manager who acted for her referred to Mr. Bokhari “buggering off”.
136Besides not doing the work assigned to him, Ms. Yousef was concerned that he was wasting his time on matters that were not his business. He was making suggestions to her about what she should do. She sought advice from HR. Her annoyance is exhibited in her response which was in essence “I know what I am doing. You mind your own business and do the work I have assigned”. Her annoyance was also exhibited on the stand when testifying that the work on the year end had already been completed, and that everyone in the office was fully aware of the revised travel and meal policy, suggesting that Mr. Bokhari was simply wasting his time. Mr. Bokhari further caused concern to Ms. Yousef when he registered for courses without prior approval from Ms. Yousef, which was clearly contrary to policy. Moreover, when asked to cancel the registration, Mr. Bokhari‘s attitude was cavalier, that Ms. Yousef was making a big issue of the policy without assisting him to get useful training for career advancement. This attitude of disregard for policy was further demonstrated to Ms. Yousef when Mr. Bokhari requested vacation for one month with no notice, and after making flight reservations.
137Despite repeated cross-examination, Ms. Yousef was very reluctant to admit that she concluded, or at least suspected, that Mr. Bokhari was faking illness. She preferred to use “interesting” or “surprising” to describe her thinking. However, the Board is convinced that she did harbour a serious suspicion about Mr. Bokhari‘s claimed illness and disability to work within core hours. This is exhibited by the extent to which she went in documenting, consulting and reporting of these events. Her notes indicating her suspicion have been set out earlier in this decision. It is notable that Ms. Yousef did not confront Mr. Bokhari and seek an explanation with regard to any of these circumstances which by her own admission she found at least to be “interesting” and “surprising”. Instead, she made a written record, discussed them with HR and also kept Mr. Burns informed. I have concluded based on the evidence that Mr. Burns was kept informed of all of these problems, concerns and suspicions Ms. Yousef had.
138Mr. Burns’ position was that none of that had anything to do with his decision to surplus Mr. Bokhari. He had the authority and the decision was made by him alone, based on the needs of the branch. The evidence offered by the employer about the decision to surplus Mr. B must be examined in the context that when he came to MEDT he was slated to be part of the newly reorganized branch. The employer was aware that AGCO work would be transferred to the Branch and that a 17 AFA position would also be transferred along with that additional workload. Thus the reorganization documents set out a 17 AFA position in the Branch described as “new”. It also indicated that to be the “MGS position”, which both Ms. Yousef and Mr. Burns agreed was Mr. Bokhari. Given that context, the unavoidable question is when and why the plans changed, resulting in the surplussing of Mr. Bokhari.
139Ms. Yousef testified, and Mr. Burns corroborated, that he did not discuss, or even inform her, about his decision to surplus Mr. Bokhari. She found out that Mr. Bokhari had been declared surplus only after the fact. Moreover, there was not even a single document, email, note or anything in writing about the decision making process. Employer counsel pointed to Mr. Burns’ testimony that while he did not document, he had verbal discussions with HR staff, Mr. Keating and the CAO. She urged the Board to accept the testimony by Mr. Burns that the decision was made for legitimate business reasons.
140In assessing the credibility of the evidence in relation to the rationale for the elimination of Mr. Bokhari’s position, I adopt the following approach set out in Faryna v. Charney, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C. Ct. of Appeal) at para. 11:
11 The credibility of an interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
141During his testimony in chief, Mr. Burns testified that the decision was made for business reasons. When probed during cross-examination, he testified that the decision to surplus Mr. Bokhari was made in response to the client satisfaction survey. Counsel pointed out that the survey was done long before Mr. Bokhari’s transfer, that Mr. Burns had testified that in response to it he reorganized the branch and created three units out of the existing two and also created three new business consultant positions. Counsel pointed out that according to the documentation, under the new structure Mr. Bokhari was to be part of the Controllership Unit. Counsel put to Mr. Burns that the survey “had nothing to do” with Mr. Bokhari. Mr. Burns agreed, and added that he made the decision to surplus Mr. Bokhari’s position based on his own review of the operational demands of the branch. When asked where that review was, Mr. Burns testified that the review was not a document, that it was done by “noodling” with HR, the CAO and Mr. Dan Keating, Director of Strategic HR Unit. Counsel asked him why, if he was reviewing the operational demands of the unit, he did not discuss Mr. Bokhari’s surplussing with the operational manager, Ms. Yousef. He explained that he did not consult either manager because they were both scheduled to retire within a short time.
142AMAPCEO counsel put to Mr. Burns that while he used all tools at his disposal to find jobs for the other two impacted employees, he did nothing to help Mr. Bokhari. Mr. Burns disagreed. He testified that inquiries were made whether MGS would be willing to take back Mr. Bokhari, but they declined. Inquiries were made whether a suitable AFA 17 position was available for Mr. Bokhari within the Ministry, but there was none. Also unlike Ms. Brand, Mr. Bokhari could not be matched to one of the new Business Consultant positions because he lacked the necessary knowledge and experience.
143The Board heard substantial evidence about the day Mr. Bokhari was served his surplus notice, September 1, 2010. I conclude that Mr. Bokhari in this instance also embellished the facts in several respects. I find that his testimony that he was seated on the commode when Mr. Burns asked him to return to the board room to be not credible. If that was the truth, surely Mr. Bokhari would have provided that significant detail in his narration during his testimony in chief. Instead, he only stated that Mr. Burns followed him to the washroom and told him to return to the boardroom. In chief, Mr. Bokhari made no mention of “a show” in the office area. He only referred to the incident at the elevator lobby. His explanation that he forgot to mention because he was more angry while testifying in chief is not credible. I also find that Mr. Bokhari’s testimony in chief that Mr. Burns attempted to push him out of the elevator lobby doors and that he slammed those doors to be not credible. In cross-examination Mr. Bokhari agreed that Mr. Burns did not touch him, but did not explain what Mr. Burns did in attempting to “push” him out other than verbally directing him to leave. Similarly, I prefer Mr. Burns’ testimony on the route taken when Mr. Bokhari was escorted out of the office. Mr. Bokhari testified that it was a show “everyone was watching” as he was marched out. However, when asked to name the people who witnessed “the show”, Mr. Bokhari had no idea who was or was not in their offices. I find that Mr. Bokhari attempted to create the impression that there was a public spectacle witnessed by all of his co-workers, when this was not the case. Having stated that, however, I am convinced that while every employee in the office would not have been eye-witnesses to Mr. Bokhari being marched out of the office, within hours if not minutes, it would have been common knowledge in the office that Mr. Bokhari was escorted out after being served notice of surplus.
144Based on all of the evidence, the Board concludes that Mr. Bokhari was not surplussed as a result of a bona fide exercise of management rights. The evidence by Mr. Burns that he made the decision based on his review of the operational demands of the branch is not consistent with all of the other evidence. It is clearly established by documentary evidence that prior to Mr. Bokhari’s arrival extensive work was done restructuring the Branch. The final structure arrived at included the MGS position transferring to MEDT. This was at a point of time when it was known that the AGCO work and the position were coming, but the employee coming with the position was not identified. There is simply no evidence as to what changed, in fact or as perceived by Mr. Burns, in the operational demands of the branch between then and Mr. Burns’ decision to surplus Mr. Bokhari in April/May of 2010. The only evidence before the Board is Mr. Burns’ blanket statement that his decision was based on his review of the operational demands. There is no evidence as to what operational reasons caused him to eliminate Mr. Bokhari’s position, when the reorganized branch designed following an extensive review involving himself, operational manager and experts at HR had included Mr. Bokhari’s 17 AFA position.
145Moreover, to say the least, it is strange that Mr. Burns, who as director was not involved in the day to day operation of the unit where Mr. Bokhari worked, would review and make decisions on operational demands without any consultation whatsoever with the manager of the unit about the need for, and the impact of the elimination of the position. Accepting Mr. Burns’ testimony that he had the power as director to make that decision without any consultation, why he would do that when the evidence is that Ms. Yousef was regularly meeting with him requires a credible explanation. The only explanation offered relating Ms. Yousef’s impending retirement makes no sense and is not credible.
146That, however, is not the only troublesome aspect of the employer’s evidence. Mr. Burns’ testimony as to the basis of his decision was inconsistent. His initial testimony was that the decision was in response to the Client Satisfaction Survey. Then when it became obvious under cross-examination that it could not be the case, he changed his testimony, and stated that he did his own review of the operational demands. He did that without ever talking to the operational manager and without making a single note, email or documentation of any kind. That, it seems to the Board, is most unusual for a decision as serious as the surplussing of an employee in the Ontario Public Service, and is not credible.
147Even if the Board accepts that Mr. Burns was the type of person who would make important decisions without consultation or documentation, that does not give credence to Mr. Burns’ evidence. He testified that while he did not document anything about it, he verbally discussed Mr. Bokhari’s surplussing with a number of other people. AMAPCEO had made a very serious allegation that he had surplussed Mr. Bokhari in bad faith. If he had discussed the legitimate business reasons which caused him to surplus Mr. Bokhari, with his CAO, HR or anyone else, that would have strongly supported his defence against the allegation. However, no one was called to testify that Mr. Burns had any discussions about business reasons for the surplus. No explanation was provided for the failure to call that evidence, other than counsel’s submission that no corroboration was necessary because Mr. Burns had given direct testimony as to why he surplussed Mr. Bokhari.
148The evidence as to the treatment of Mr. Bokhari after the decision to surplus also supports AMAPCEO’s allegation of bad faith. AMAPCEO alleged that Mr. Bokhari was subjected to differential treatment in that Mr. Burns took affirmative steps to find alternate jobs for the two other impacted employees, but Mr. Bokhari was the only one left without a job. It alleged that Mr. Burns did nothing to help Mr. Bokhari since he had decided to get rid of him. This is also an extremely serious allegation levelled at a senior manager. One would reasonably expect that if there was evidence to refute such allegation, it would be presented. That, however, did not happen. Mr. Burns testified about efforts made to find a job for Mr. Bokhari within the ministry, to have him transferred back to MGS, and to be matched to vacancies. However, no letter, email note or any other documentation was presented to establish that any of those efforts were made. Moreover not one individual involved in those efforts was called to testify. No explanation was provided as to why that evidence, which would have demonstrated the absence of any antipathy towards Mr. Bokhari, was not presented if it in fact existed.
149The evidence about B’s departure on September 1, 2010 from the office, on the other hand, supports a finding of such antipathy on the part of Mr. Burns. This is particularly so with regard to Mr. Burns’ insistence that Mr. Bokhari leave the premises right away and return for the meeting in the afternoon. In his testimony in chief, the only explanation Mr. Burns offered was that he acted out of concern for Mr. Bokhari, that if he had remained in the office with no work to do, he would have felt embarrassed and uncomfortable. In cross-examination, it was put to Mr. Burns that Mr. Bokhari had no concern about being uncomfortable or embarrassed, and had in fact wanted to stay. At that point Mr. Burns provided additional reasons. He stated that Mr. Bokhari’s office space was required to be assigned to others, and also that his remaining would have been disruptive of the office operations. I find that these explanations are not credible. If the space issue or the disruption concern had in fact contributed to the decision, Mr. Burns would have testified about those reasons when asked in chief why he insisted on Mr. Bokhari leaving. He did not. When the only explanation he offered, that he acted out of compassion for Mr. Bokhari, did not stand up under cross-examination, he came up with additional reasons. No evidence was led to establish that plans had been made to use Mr. Bokhari’s office space urgently in the few hours that afternoon, and no explanation was made as to how Mr. Bokhari remaining in the office would disrupt the office. The Board is led to the conclusion that Mr. Burns acted out of anger, particularly about Mr. Bokhari refusing to accept the surpluss notice and to have any discussion in the absence of a union representative. That, added to the frustration and antipathy Mr. Burns already had as a result of Mr. Bokhari’s attendance and performance problems, and the suspicion that he was faking disability.
150Mr. Burns was cross-examined as to why he marched Mr. Bokhari out of the premises immediately after his surplussing and continued to pay him for some 8½ months for doing nothing, when he could have remained and done useful work. Mr. Burns gave two reasons. First, that he wanted to provide Mr. Bokhari a private place where he could complete his paperwork including the employee portfolio, and to do anything else he wanted to do such as job searches. Again, the suggestion was that he was doing Mr. Bokhari a favour. Secondly, he testified that it was the norm that employees served notice of surplus are not allowed to remain in the workplace. I conclude that considering the acrimonious relationship that existed between Mr. Bokhari and the employer, and the undisputed evidence that Mr. Bokhari was vehemently opposed to his removal from the office during the pre-notice period and even challenged Mr. Burns’ authority to do that, it is highly improbable that Mr. Burns was in anyway motivated by a desire to be helpful to Mr. Bokhari. If that were the case, it is likely that it would have been explained to Mr. Bokhari that he had been relocated elsewhere to enable him to attend to his own work. Instead, he was in effect forcibly shut out of the office, with his access card disabled and access to email and telephone denied with immediate effect. That is not consistent with an employer acting with Mr. Bokhari’s interests in mind.
151Mr. Burns’ assertion that it was the norm to not allow employees to remain in the workplace upon receipt of surplus notice was challenged by counsel in cross-examination. He put to Mr. Burns that there was no such practice in the OPS. Other than reiterate his testimony, nothing was presented to substantiate that such a practice in fact existed. No example was provided of another employee subjected to such a norm, and no policy within the branch, the MEDT or the broader OPS was cited. No one from HR testified that such a practice existed. The Board concludes that the desire to adhere to a norm had nothing to do with Mr. Bokhari not being allowed to remain in the office during the pre-notice period.
152There is clear evidence that Mr. Bokhari was a thorn in the employer’s side ever since he arrived at MEDT. He came with a negative assessment from his MGS manager. Once there, Ms. Yousef was spending a significant part of her work time trying to manage Mr. Bokhari’s attendance and work performance issues. Even after seeking and receiving medical substantiation, Ms. Yousef had continuing suspicion that Mr. Bokhari was able to regularly attend and work during core hours. He resisted work assignments because of his stand that he should be doing AGCO work. The work he did was deficient. He regarded negative feedback as harassment. He was argumentative and was threatening law suits and grievances. He ignored policy by cavalier action such as registering for courses without prior approval and requesting vacation with no notice after making flight reservations. He considered the manager’s attempts to enforce policy as creating trouble by making a big deal about policy. He was considered to be “strange” and exhibited “odd” behaviour. From the employer’s point of view, he was an extremely difficult employee to manage.
153As set out earlier, the Board is convinced that Mr. Burns shared this extremely negative assessment of Mr. Bokhari. This is demonstrated by the evidence relating to Mr. Bokhari’s P for P. HR had advised that it was almost impossible to deny P for P in the OPS. Albeit with some reservation, Ms. Yousef had approved P for P for Mr. Bokhari by assessing him as satisfactory. Mr. Burns intervened and took the position that Mr. Bokhari should not be getting P for P because his performance as well as attendance were not satisfactory.
154Employer counsel submitted that in dealing with all of these extremely difficult issues, the employer was entitled to take action. She pointed to the strict monitoring of Mr. Bokhari’s hours and attendance, requests for medical substantiation, critical feedback when work was deficient, and insistence that Mr. Bokhari follow policy. She asked how any of these amount to violation of the collective agreement. AMAPCEO has not asserted in the disputes that any of those actions on the part of the employer by themselves amounted to violations. The issues for determination are about discrimination on the grounds of disability and surplussing of Mr. Bokhari in bad faith. While the employer took a number of steps to deal with the difficulties arising from Mr. Bokhari’s attendance issues, what it did not do is accommodate his restrictions as required by law. Ms. Yousef’s sole focus was on her own interest of getting Mr. Bokhari to attend regularly and work core hours as other employees did. If she had considered whether Mr. Bokhari’s restrictions could be accommodated, and determined that it would cause undue hardship, the legal issue would have been different. It would have been about the issue of undue hardship. However, as set out above, even in the face of medical substantiation, she did not even turn her mind to consider whether the accommodation was possible. Instead, she focused on finding a way to say that it was not possible. That thinking, the Board is convinced, was due to Ms. Yousef’s suspicion that Mr. Bokhari was faking or at least exaggerating his illness. She acted on her subjective belief with no investigation, without ever seeking an explanation from Mr. Bokhari, and in total disregard of the medical information in her possession. Thereby she failed to comply with the duty to accommodate.
155On the issue of the surplus, the Board agrees that Mr. Bokhari would have been a very difficult employee to manage. It may or may not be true that Mr. Bokhari was faking illness, that his work performance and attitude towards work was unacceptable. He may have alienated at least some co-workers by not pulling his weight and by his “strange” or “odd” behaviour as the employer’s evidence suggested. In these circumstances the employer had the right to address those concerns, provided that it is done in a manner not inconsistent with the collective agreement and the law. For example, it could have investigated and disciplined Mr. Bokhari for faking illness if its suspicions were substantiated. If Mr. Bokhari was resisting and not performing work assignments properly or not following policy, discipline could have been imposed if the employer deemed it appropriate. It, therefore, had the right to address all of its concerns, subject of course Mr. Bokhari’s right to grieve or file complaints challenging such action. What the employer was not entitled to do, and what the Board finds it did, is sweeping away all of the difficulties it was burdened with, by getting rid of Mr. Bokhari in the guise of a surplus due to reorganization. That constitutes bad faith.
157For all of the foregoing reasons the Board declares that the employer discriminated against Mr. Bokhari because of his disability by failing to accommodate him in contravention of the collective agreement and the Ontario Human Rights Code.
158The Board further declares that the employer contravened the collective agreement by exercising its management rights in bad faith by declaring Mr. Bokhari’s position surplus.
159Any and all remedial issues arising from this decision are referred back to the parties on the terms agreed upon. The Board remains seized in the event remedial issues remain outstanding.
Dated at Toronto, Ontario this 2nd day of March 2015.