GSB# 2017-0616

UNION# 2017-0713-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Webb)

Union

• and -

The Crown in Right of Ontario

(Ministry of Natural Resources and Forestry)

Employer

BEFORE

M.V. Watters

Arbitrator

FOR THE UNION

Alex Zamfir

Ontario Public Service Employees Union

Grievance Officer

FOR THE EMPLOYER

Felix Lau

Treasury Board Secretariat

Legal Services Branch

Counsel

HEARING

October 15 and 21, 2020

DECISION

1Prior to the events giving rise to this grievance, the grievor William (Kyle) Webb worked as a Forest Technician-Forest Health as part of the Employer’s Biodiversity and Monitoring Section. At the time, the grievor worked out of the Rosslyn, Ontario office near Thunder Bay, Ontario. The Forest Technician-Forest Health position is a seasonal position that lasts approximately nine (9) to ten (10) months from April or May of a given year to January or February of the next calendar year. The grievor commenced work for the 2016-2017 season as a permanent seasonal employee. His seasonal contract had an expiry of February 4, 2017.

2The Forest Technician-Forest Health job is physically demanding. It involves substantial driving to remote areas of the Province. Once on site, the employee is regularly required to hike considerable distance into the forest or bush to collect samples and data relating, inter alia, to deforestation and bug infestation. The Forest Technician-Forest Health uses equipment such as chain saws, hand saws, pole saws, axes and shovels to assist with the performance of the necessary tasks. The grievor advised that, while this collection of hand tools could be “a heavy load”, he would generally not carry more than forty pounds (40 lbs.) of equipment at any one time. Given the nature of their duties, the Forest Technician-Forest Health spends a lot of time away from their home location.

3The grievor experienced the onset of a serious illness during the early morning of Sunday, January 8, 2017. He was taken by his wife, Linda Webb, to the Thunder Bay Health Sciences Centre and remained hospitalized there until February 10, 2017. While in hospital, the grievor underwent extensive treatment and diagnostic testing. His symptoms included impaired motor functioning, vision and speech; the loss of muscle memory and the use of his hands; related neurological issues; and high blood pressure. The grievor has not returned to work following his release from hospital.

4The grievor’s wife contacted Mr. Jay Wright, the grievor’s supervisor, on Monday, January 9, 2017 to advise of her husband’s hospitalization and that he would not be attending work that day as a consequence. She subsequently provided an update to Mr. Wright on January 12, 2017 as to her husband’s status and apprised him of the specific diagnosis. Ms. Webb further communicated with Mr. Wright on January 27, 2017. At that time, she informed him of the following: the grievor was still in hospital; his symptoms from the diagnosed illness were decreasing; and that he had developed a blood infection that required antibiotic treatment.

5The Employer was provided with a medical note dated February 14, 2017 prepared by the grievor’s family physician, Dr. J. Behse. The note, excluding any reference to the diagnosis, reads:

“This is to confirm that William was recently hospitalized for a severe medical condition. He was discharged on February 10, 2017. His diagnosis was determined to be …………………….. He is expected to have a full recovery. He will have regular follow-up assessments by myself and his specialists. His next full work ability evaluation/assessment, to return to work will be done March 27, 2017.”

6The Employer permitted the grievor to work out of Rosslyn, instead of Dryden, Ontario, on a trial basis for the 2016-2017 season. The grievor, however, continued to be responsible for monitoring the Dryden/Sioux Lookout Distinct. The latter District is approximately three hundred and seventy-five (375) kilometres northwest of Thunder Bay. It was the Employer’s intent to re-evaluate this arrangement at season’s end.

7By letter dated March 14, 2017, the Employer advised the Union of its decision to permanently relocate the grievor’s position from Rosslyn to Dryden for operational reasons. The Union did not raise any concerns with the Employer about the relocation during the disclosure notice period. It is also not challenging the relocation decision, per se, in this proceeding.

8Mr. Wright subsequently sent the following letter dated March 27, 2017 to the grievor:

RE: Change in Headquarters Greater Than 40 Kilometres

I am writing to advise you that following an operational assessment, it has been determined that your seasonal position of Terrestrial Monitoring Forest Heath Technician will be permanently relocated from 173 25^th Sideroad, Rosslyn, Ontario to 479 Government Road, Dryden, Ontario effective May 1, 2017.

There will be no changes to your reporting relationship, job description, classification, or salary as a result of this change in headquarters.

Attached is a Notice of Intent which, when signed by you, forms a binding agreement between you and the ministry. Once signed, this Notice constitutes confirmation that you will or will not be relocating with your position. Please return the signed Notice of Intent to your current manager, Jay Wright, Science Operations Supervisor, no later than 5:00 pm on Friday, April 21, 2017.

Should you choose to decline recall to the relocated position in 2017 or if you do not respond within this period, you will be deemed to have forfeited rights to reemployment under Article 32.5.1.1 of the OPSEU Collective Agreement. Therefore, please ensure that you fully understand the information in this letter before you sign the Notice of Intent.

Should you have any questions regarding this change in headquarters, please do not hesitate to contact me. ……………………………………………………………………………………………”

9The Notice of Intent referenced in the above correspondence reads:

NOTICE OF INTENT

CONFIRMATION OF INTENT TO RELOCATE

I hereby confirm that I will relocate with my position from 173 25^th Sideroad, Rosslyn, Ontario to 479 Government Road, Dryden, Ontario on my agreed to date of May 1, 2017.

Name (Please Print) Signature

Date

CONFIRMATION OF INTENT NOT TO RELOCATE

I hereby confirm that I will not relocate with my position to 479 Government Road, Dryden, Ontario.

Name (Please Print) Signature

Date

Please return the Notice of Intent to:

Jay Wright

Science Operations Supervisor

173 25^th Sideroad, Rosslyn, Ontario

Tel:

On or before 5:00 pm April 21, 2017.

10Following receipt of the letter of March 27, 2017 and the attached Notice of Intent, the grievor communicated with Mr. Mark Belanger and Mr. Ian Monteith, the President and Vice-President of the Union Local, respectively. The grievor noted that the letter was different from any other that he had received previously, as it required him to relocate to Dryden. He, therefore, elected to seek clarification from the Union.

11The grievor subsequently arranged to meet with Mr. Wright at the Rosslyn office at about 3:30 p.m. on April 10, 2017 to collect some personal belongings. He was advised by Mr. Belanger to request an accommodation from Mr. Wright while there. The grievor was unable to make this request, as Mr. Wright had left the office by the time he was finished packing his belongings in the car. He, therefore, decided to speak with Ms. Shelagh Duckett, the Coordinator of the Northwest Biodiversity and Monitoring Unit, and Mr. Wright’s superior, for purposes of seeking an accommodation. The grievor asked Ms. Duckett who he should speak to in order to obtain the forms necessary for pursuing an accommodation request. She provided him with the contact information for Ms. Anita Woolman, a Disability Accommodation Specialist. The grievor’s recollection, as documented in his journal, was that Ms. Duckett stated she would contact Ms. Woolman to request an update and expedite the delivery of the required forms. During the course of this hearing, these forms were referred to as the CEHSW assessment package. I am left with the impression that the package includes a medical questionnaire, to be completed by an employee’s doctor, which identifies the restrictions and limitations to be accommodated. The grievor, at the time, believed that the accommodation process commenced once he made the request for an accommodation.

12As the grievor had not received the assessment package by April 17, 2017, he tried to contact Ms. Woolman directly by telephone, but was unsuccessful in doing so. The grievor was also unable to reach the alternate contact person identified by Ms. Woolman. On April 18^th, the next day, the grievor received a voicemail message left for him by Ms. Duckett. By all accounts, the message was to the effect that the grievor had to accept the offer of re-employment in Dryden in order to receive the necessary forms.

13Following Ms. Duckett’s voicemail on April 18, 2017, the grievor contacted Mr. Belanger and Mr. Monteith by telephone to advise them as to the content of same. He subsequently met with Mr. Shawn Koza, OPSEU Staff Representative, on April 20, 2017 to discuss the “pros and cons of filing a grievance”. The grievor also met with both Mr. Koza and Mr. Belanger on April 21, 2017. A decision was ultimately reached that day that the grievor would file a grievance and would not sign the Notice of Intent.

14In the later afternoon on April 21, 2017, Mr. Koza delivered the following letter, of the same date, to Mr. Wright’s office on the grievor’s behalf:

“To whom it may concern;

With regards to my offer of employment dated March 27^th of 2017; pleased be advised that the Ministry is obligated to, pursuant to article 32.5.1.1, provide me with an offer of employment in the same position.

Please be advised that I will accept, on a without precedence or prejudice basis, an offer of employment consistent with the provisions of the Collective Agreement and Human Rights Code of Ontario.

Attached is a letter from my treating physician indicating that I will be off work due to a medical condition effective immediately. The duration of this leave is subject to reassessment to take place in 3 weeks, as indicated in the letter.

If further clarification is required, please contact Shawn Koza-Staff Representative OPSEU at…………………………………………….

Kyle Webb

Forest-Health Technician

15The medical note of Dr. Behse dated April 19, 2017, which was attached to the above letter reads:

“This is to confirm that Mr. Webb was reassessed today for his known disabling medical condition. He continues to cooperate with all referrals, investigations and treatments. He is still medically unable to competently, reliably and safely do his work. He will continue in therapy and be reassessed in 3 weeks.”

16The grievance, leading to this proceeding, was also filed on April 21, 2017. The ‘Statement of Grievance’ reads: “I grieve that I have been discriminated against contrary to the Collective Agreement and the Human Rights Code of Ontario”. The ‘Settlement Desired’ lists the following remedies: 1. Cease and Desist; 2. Accommodated Work; 3. To be made whole; and 4. Damages as per the Human Rights Code of Ontario.

17Following the provision of the above documentation to Mr. Wright on April 21, 2017, the grievor received a telephone call from Mr. Wright at approximately 4:18 p.m. that same day. The grievor recalled that Mr. Wright indicated that he did not understand the letter and sought clarification. The grievor told Mr. Wright to direct his questions to Mr. Koza and Mr. Belanger as, from his perspective, they could better explain the collective agreement requirements. Mr. Wright’s recollection of the exchange is captured in the following excerpts of his Will Say Statement which read:

19. Following the receipt of Mr. Webb’s letter, I phoned Mr. Webb from my office at 4:17 pm on April 21, 2017 to ensure that he was aware of the implications should be chose to not sign the Notice of Intent to relocate. I explained to Mr. Webb the reason for my call was that it was unclear to me if he was accepting the relocation to Dryden because of what he stated in paragraph 2 of his April 21, 2017 letter.

20. During the call, I communicated to Mr. Webb as to the consequences if he were to decline recall to the relocated position. I read to him verbatim paragraph 4 of my March 27, 2017 letter (“Should you choose to decline recall to the relocated position in 2017 or if you do not respond within this period, you will be deemed to have forfeited rights to reemployment under…”) and he stopped me mid-sentence and stated that he did not receive the correct recall letter for his job. I asked him again if he was accepting or declining the position because the “Confirmation of Intent to Relocate” was submitted to me as a blank form (not filled out). Kyle was becoming very agitated, and he stated to me that I should talk to either Shawn Koza (OPSEU Staff Representative) or Mark Belanger (President OPSEU local 713). I re-stated to Kyle I was seeking clarification on his intent and thanked him for his time. We closed off the conversation by wishing each other a good weekend.

18The Employer has brought a preliminary motion in this proceeding. It asserts that the grievor declined an offer for re-employment and, thereby, lost his seniority pursuant to article 32.4.2.1 (d) of the collective agreement. Put another way, the Employer’s position is that the grievor’s employment relationship with the Ministry of Natural Resources and Forestry came to an end when he failed to sign the Notice of Intent. The Union, in response, disputes the assertion that the grievor declined the offer for re-employment. The respective positions on this question are set out below. I note, at this juncture, that the Employer’s motion, if successful, will likely put an end to this case. In contrast, if it fails, the matter will proceed to address a number of issues, including whether the Employer conducted a sufficient and timely search for modified work to accommodate the grievor’s restrictions and limitations.

19The provisions of the collective agreement relevant to the resolution of this dispute read:

ARTICLE 32 – SEASONAL EMPLOYEES (SE)

32.2.2 For the purposes of Article 32.2, same position is defined as the position in the same classification, in the same organizational or administrative unit and work location which the employee held prior to the seasonal break.

32.4.2.1 A seasonal employee will lose his or her seniority when:

(d) he or she is unavailable for or declines an offer for re-employment as provided in Article 32.5 (Employment Stability), …………………….

32.5.1.1 Seasonal employees who have completed their probationary period shall only be offered employment in the same position in the following season on the basis of seniority.

32.5.1.2 If the same position is no longer available, the Employer may offer the employee another position within forty (40) kilometres.

20Mr. Jay Wright was the sole witness called by the Employer in support of the preliminary motion. As mentioned above, Mr. Wright was the grievor’s direct supervisor. His position title is Science Operations Supervisor. A Will Say Statement was filed setting out Mr. Wright’s evidence in-chief. Once he adopted the Statement, Mr. Wright was cross-examined by counsel for the Union. The grievor was the only witness to present evidence for the Union.

21Mr. Wright, as noted, was informed of the grievor’s hospitalization on January 9, 2017. He acknowledged that, thereafter, he was aware of the grievor’s diagnosis, as well as some of the symptoms he was experiencing. Mr. Wright received Dr. Behse’s medical notes of February 14 and April 19, 2017. It was apparent to him that the grievor required time off work to combat his medical condition. In cross-examination, Mr. Wright recognized that given the nature of the Forest Technician-Forest Health job, and the grievor’s neurological condition, that he should not be out in the bush performing physically demanding work. Mr. Wright further agreed that the Forest Technician-Forest Health position might be too physically demanding for the grievor in view of his illness.

22Mr. Wright noted that the grievor was offered the seasonal position in Dryden because his former position in Rosslyn had been abolished. He further noted that the grievor was on a seasonal hiatus following the expiry of his 2016-2017 contract. Mr. Wright testified that, as a consequence, the grievor was not an employee until he accepted the offer of re-employment in Dryden. He advised that once the grievor accepted the relocation, the Employer would be able to start the accommodation process by providing the grievor with a medical questionnaire to take to his doctor for an assessment. Mr. Wright agreed that the grievor’s accommodation was contingent on his acceptance of the relocated position.

23Paragraph #17 of Mr. Wright’s Will Say Statement reads:

“17. During the early part of April 2017, the Ministry worked with the Disability Accommodation Specialist from the Centre for Employee Health Safety and Wellness to prepare a medical questionnaire to be sent to Mr. Webb to provide to his physician, in the event that he decided to accept recall to the relocated position (Attachment 4). The purpose of the questionnaire would be to determine Mr. Webb’s ability to perform the duties of the position and/or if he required any employment accommodation. On April 18, 2017, I was advised by Ms. Duckett that she had left a message on Mr. Webb’s home answering machine, advising to the effect that the Ministry will not be providing the questionnaire unless he accepted the relocated position (Attachment 5).”

A series of several emails, covering the period between April 10 and April 18, 2017, are attached to Mr. Wright’s Will Say Statement. The emails were authored by Ms. Duckett; Ms. Paula Riccio, Disability Accommodation Specialist; Ms. Lauren Steinsky, Human Resources Advisor; and Ms. Carly Jones, Treasury Board Secretariat. Mr. Wright was copied on all of the emails. It is clear from a reading of the emails that, while the Employer was willing to prepare the medical questionnaire, it would not provide it to the grievor until he accepted the relocation. It appears that, from the Employer’s perspective, there would be no need to provide the grievor with the documentation if he did not accept the position in Dryden.

24In cross-examination, Mr. Wright was referred to the grievor’s letter of April 21, 2017. It was then suggested to him that its wording reflected the grievor’s intention to keep working with the Ministry of Natural Resources and Forestry. Mr. Wright noted that the grievor was not offered re-employment in his former position but, instead, was offered the opportunity to relocate to Dryden. He added that he had some difficulty understanding the letter and that his interpretation of same was different from that advanced by the grievor and the Union. Mr. Wright was asked if the second paragraph of the letter expressed an intent, on the grievor’s part, to maintain employment with the Ministry. I recorded his response as, “Yes, okay he wants to work”.

25Mr. Wright reiterated that the grievor had to confirm his intent to relocate, or not relocate, by signing the Notice of Intent by April 21, 2017. It was suggested to him in cross-examination that he was asking the grievor whether he would accept the Forest Technician-Forest Health position, even though he knew the grievor could not perform the required job duties in view of his medical condition. Mr. Wright answered as follows: “I made the offer, I was not entirely sure if he could do the job”. He observed that following acceptance of the offer, the grievor would be assessed by his doctor and that, thereafter, the Employer would evaluate the medical information received. Mr. Wright agreed that the Employer needed more information before it could properly assess whether the grievor could perform the Forest Technician-Forest Health job, or some alternate job. He acknowledged that the Employer was not going to seek any additional information until the grievor accepted the relocated position. Mr. Wright advised that he never sought out such information because the grievor failed to sign the Notice of Intent. Mr. Wright acknowledged that he was aware the grievor was looking for accommodated work.

26The grievor agreed that getting the medical questionnaire was the first step in the accommodation process. He noted, however, that Ms. Duckett’s voicemail message of April 18, 2017 stated, in effect, that he would have to move to Dryden to be eligible to receive the questionnaire. The grievor added that, “At that point, I was concerned about getting back to normal, it didn’t add up”. From his perspective, Ms. Duckett’s voicemail contradicted their earlier conversation of April 10, 2017. The grievor noted that Ms. Duckett then gave him Ms. Woolman’s contact information and advised that she would contact the Disability Accommodation Specialist to move the accommodation process ahead.

27The grievor stated that Mr. Koza and Mr. Belanger assisted him with the drafting of his letter of April 21, 2017. He explained that he was not experienced in matters relating to the collective agreement and, as a consequence, relied on their advice. The grievor advised that his focus was then on getting better and trying to manage as best he could. He testified that he wanted to maintain his career and “get back to the bush someday”.

28The grievor indicated that the first paragraph of the letter of April 21, 2017 addressed the relocation from Rosslyn to Dryden. In his evidence in-chief, the grievor seemed to suggest that a change of location in excess of forty (40) kilometres applied to permanent, and not seasonal, employees. In cross-examination he stated that, because of his limited knowledge of the collective agreement, he could not answer the question as to whether he believed the Employer was precluded from relocating him from Rosslyn to Dryden. The grievor added that he could only speculate as to the meaning of the words “same position” in the opening paragraph of his letter.

29The grievor testified that the second paragraph of his letter of April 21, 2017 referred back to the first paragraph. In his words, “certain articles didn’t gel with a recall letter versus a relocation letter”. The grievor was asked to explain what the words “…will accept, ….., an offer of employment” in the second paragraph meant. In response, he asserted that he would have taken any position that he physically could have done. In this regard, the grievor maintained that there were a number of administrative positions, of a sedentary nature, at his home location which frequently become vacant and need to be filled. As is apparent, the second paragraph also refers to the Human Rights Code of Ontario. It was the grievor’s evidence that this legislation was referenced therein as a consequence of the fact his job was being moved because he became sick. He stated that, “The reality is I just wanted to be able to work. I didn’t want to lose my career because I got sick”.

30It was the grievor’s belief that his symptoms, as of late April, 2017, would not have permitted him to perform the Forest Technician-Forest Health job. He referenced the following symptoms: weak shoulders which would have prevented him from doing the required lifting; continuing nerve damage in his back; a feeling of “pins and needles” in his feet, thumb, and left arm; and visual sensitivity to light. The grievor further testified that he was then unable to drive the distances required, or to hike into the bush, to collect the necessary samples. In his words, “it wasn’t a possibility” that he could safely perform the duties of his former position.

31The grievor was asked why he did not sign the Notice of Intent and accept the relocation to Dryden. I note that he answered as follows:

“I’d be lying to say I could do it. The job in general, in Thunder Bay, or anywhere. If I could have done it, I would have but I couldn’t”.

He was also asked whether, in his letter of April 21, 2017, he was saying that he wanted to keep working, but the Forest Technician-Forest Health job was not a job he could do. His response was, “Yes, one hundred percent”.

32The grievor was further questioned about how far he was willing to go to secure an accommodated position, in terms of both jobs and distance. He responded that, at the time, he was focused on getting better and returning to work. The grievor stressed, however, that he had to regularly attend appointments in Thunder Bay with doctors, specialists and at physiotherapy. He observed that, if in Dryden, he would be a considerable distance away from his healthcare providers. The grievor testified as follows on this point: “The idea of having to take a position in another city didn’t add up to my attending appointments and continuing rehabilitation”. Simply put, the grievor expressed concern that a relocation to Dryden would have impeded his recovery. It was the grievor’s evidence that he did not insist on an alternate position in Thunder Bay. I took from his evidence that he did not then have any discussions with the Employer about other suitable positions or locations. The grievor emphasized, however, that he did request an accommodation prior to the April 21, 2017 deadline.

33The Employer’s position in this matter is as follows:

1. The relocation letter of March 27, 2017 is very clear in terms of setting out the consequences if the grievor failed to accept the relocated position in Dryden. Counsel, in this regard, referenced the fourth paragraph of the letter which states that should the grievor decline recall to the relocated position, or if he did not respond by 5:00 pm on April 21, 2017, he will “be deemed to have forfeited rights to re-employment” under the collective agreement.

2. The grievor declined the position because he did not want to relocate to Dryden. Counsel argued it is apparent from the meeting of April 21, 2017 that the Union and the grievor concluded such a change of location could not be done in this instance, given the grievor was a seasonal employee. This belief, on counsel’s reading, is reflected in the grievor’s letter of April 21, 2017. He referenced the words “same position” in the first paragraph of the letter and the definition of “same position” found in article 32.2.2 of the collective agreement. Counsel noted that the only thing which changed with respect to the grievor’s position was the location. He submitted that it is clear, in the circumstances, that the grievor was seeking the Rosslyn position which he had previously performed in the 2016-2017 season and was, in effect, rejecting the offer of re-employment in Dryden.

3. Counsel referenced Mr. Wright’s telephone call to the grievor during the late afternoon on April 21, 2017 in which he cautioned the grievor as to the consequences of not confirming his intent to relocate. He noted that the grievor stopped the conversation and told Mr. Wright that he did not receive the correct recall letter. Counsel submitted that their brief exchange evidences the fact the grievor did not agree with the relocation of his position to Dryden and, for that reason, refused to accept same. He further suggested that the intent to reject the Dryden relocation is confirmed by the fact the grievor had completed a similar recall form for the 2016-2017 season. From the perspective of the Employer, there was no lack of understanding or confusion on the grievor’s part.

4. Counsel noted the grievor’s statement in direct examination that the first paragraph of his letter of April 21, 2017 related to the change in location and his further evidence that the second paragraph thereof was in reference to the first paragraph. He argued that if the grievor was actually expressing concerns about his ability to perform the Forest Technician-Forest Health job, it would not have made sense to request employment in the “same position”. For these reasons, I was urged to find that the second paragraph of the aforementioned letter did not represent a request for accommodation in either the grievor’s former position, or in some alternate position.

5. Counsel observed that the grievor’s position in Rosslyn no longer existed for the 2017 season, as it had been relocated to Dryden. He emphasized that the Employer’s ability to relocate the seasonal position, as it did, is not being challenged in this proceeding. Similarly, the relocation was not contested by the Union after it received disclosure of the intended move at the corporate level. On the Employer’s analysis, the “same position” no longer existed for the 2017-2018 season and the grievor, therefore, no longer had a right to re-employment in such position. Counsel asserted that, in all of the circumstances, the Employer went “above and beyond” by offering the grievor the relocated position in Dryden. He maintained that the grievor was not entitled to dictate the terms of his seasonal recall, that is, he could not insist the Employer only re-employ him in his former position in Rosslyn.

6. It is the position of the Employer that it did not refuse to accommodate the grievor or “side step” its obligations under the Ontario Human Rights Code. Counsel referenced Mr. Wright’s evidence, together with the series of emails noted earlier, in support of the argument that the Employer initiated a plan in early to mid-April 2017 to accommodate the grievor, once he accepted the relocated position. More specifically, at that juncture, the Employer would then provide the grievor with the medical questionnaire to take to his doctor. This approach is reflected in Ms. Duckett’s voicemail to the grievor on April 18, 2017. Counsel noted that the Employer, at that time, felt it would make little sense to provide the grievor with the questionnaire, asking him if he could perform the job duties, if he was not going to accept the relocation and be in the job. Simply put, the Employer rejects any suggestion that it was not prepared to accommodate the grievor.

7. Counsel asserted that the requirement for the grievor to accept the relocation, as a condition for receiving the medical questionnaire, did not amount to an “artificial hurdle” in the accommodation process. Rather, he argued that the Employer’s course of action was dictated by the nature of seasonal employment and, more specifically, that a seasonal employee does not have an employment relationship with the Employer during the seasonal hiatus. Counsel referenced Mr. Wright’s evidence that the grievor had to accept the relocated position, as he was not an employee at the time, and that such acceptance would have the effect of re-establishing the employment relationship and, thereby, permit the Employer to commence the accommodation process.

8. The Employer relies on the Decision in OPSEU (Ballak) and Ministry of Natural Resources, GSB#1869/92 (Knopf) in support of the above position. In that case, the Board determined that seasonal employment comes to an end at the conclusion of each season. It rejected the idea that seasonal employees retain the status of employees between contracts. Instead, the Board held that there is no employment status during the hiatus period between seasons.

34For all of the above reasons, I was asked to sustain the Employer’s preliminary motion on this threshold issue and to find that the grievor lost his seniority as a seasonal employee pursuant to article 32.4.2.1(d) of the collective agreement.

35The Union’s position, in response, is that the grievor did not decline the offer of re-employment and that the Employer’s motion should, accordingly, be dismissed. Its arguments may be summarized as follows:

1. Counsel noted that the grievor intended to request an accommodation from Mr. Wright at their meeting on April 10, 2017. He was unable to do so, however, as Mr. Wright had departed from the workplace. As a consequence, the grievor spoke to Ms. Duckett to request the accommodation. Counsel observed that the grievor left the meeting with Ms. Duckett thinking that the medical questionnaire would be forthcoming. The grievor, however, subsequently received a voicemail from Ms. Duckett on April 18, 2017 advising that he would have to accept the Dryden position, approximately four hundred (400) kilometres distant from Thunder Bay, in order to receive the questionnaire and start the accommodation process. Counsel stressed that this was just three (3) days prior to the deadline for acceptance of the offer for re-employment, and was at a time when the grievor was recovering from a grave illness and was trying to figure out how he could actually be accommodated. Counsel emphasized that the grievor, on the evidence, sought to be accommodated and that such an intent was communicated to the Employer. He submitted that this was inconsistent with a decision to decline employment. Counsel argued that, to the contrary, it reflected a desire on the grievor’s part to maintain an employment relationship with the Ministry.

2. Counsel argued that the Employer should have sought out more information relating to the grievor’s condition and ability, once he expressed his intent to maintain employment. He re-iterated that Mr. Wright was aware of the grievor’s symptoms and that it may not have been possible, or appropriate, to return him to the Forest Technician-Forest Health job. Notwithstanding this knowledge, the Employer required the grievor to accept a job he could not perform before it would commence the accommodation process.

3. Counsel asserted that the Employer made an artificial attempt to “side step” its duty to accommodate. He argued that such duty should not hinge “on ticking a box, or signing a line”, on a form. Counsel submitted that the approach adopted by the Employer in this case is inconsistent with the breadth of the duty to accommodate, which he described as “a far reaching obligation which only stops at the point of undue

hardship”. He further argued that, in the circumstances of this case, the Employer should have considered what alternate work was available for the grievor. Counsel noted that this question was never explored by the Employer.

4. Counsel referred to the grievor’s evidence that the work of a Forest Technician-Forest Health is both physically demanding and strenuous. He re-iterated that the Employer, as of April, 2017, was aware that the grievor’s medical condition very likely prevented him from performing his former duties. Specific mention was made of Mr. Wright’s acknowledgement that the grievor’s neurological difficulties, which impaired his motor functioning, might preclude him from performing his prior work and that he could not be sure of the grievor’s capacity until an assessment was done by the grievor’s doctor. Counsel noted that the grievor’s inability to function safely and reliably in the Forest Technician-Forest Health job is documented in Dr. Behse’s medical note of April 19, 2017.

5. Counsel referenced the grievor’s evidence that he could not do the Forest Technician-Forest Health job in either Rosslyn or Dryden. It was his submission that the grievor should not have been required to accept a job that he knew he could not perform. In his judgment, such a requirement unduly limited the Employer’s obligation to accommodate the grievor. Counsel argued that the Employer was not entitled to recall the grievor to a position it knew, or reasonably expected, he could not perform. Rather, it was obligated to consider what accommodation might be appropriate as part of the recall.

6. Counsel acknowledged that the first paragraph of the grievor’s letter of April 21, 2017 speaks to what he and his Union representatives thought the Employer was obligated to offer under the collective agreement in terms of location. In counsel’s view, they “get to be right or wrong about that”. From his perspective, this case turns more on the second paragraph of the letter.

7. Counsel submitted that the grievor did not intend to decline the Employer’s offer of re-employment. He referenced the grievor’s statement in the second paragraph of the letter of April 21, 2017 that he would “accept, ….., an offer of employment consistent with the provisions of the Collective Agreement and Human Rights Code of Ontario”. In counsel’s view, this statement represents “an unequivocal acceptance” of an offer of employment. He maintained that it cannot be reasonably construed as a constructive decline of employment. Counsel considered it is material that Dr. Behse’s medical note of April 19, 2017 was attached to the letter.

8. On counsel’s reading, the second paragraph of the above-mentioned letter is not about the change to the location of the grievor’s position. In this regard, he noted the grievor’s evidence that he just wanted to work and continue his career. Counsel further

noted that the grievor spoke of other positions that might have become available in Rosslyn, which he could have performed on an accommodated basis.

9. Counsel referenced Mr. Wright’s telephone call to the grievor in the late afternoon of April 21, 2017. He thought it material that Mr. Wright then focused on his relocation

letter of March 27, 2017 and did not address the grievor’s request for an accommodation. Counsel considered this to be a significant oversight. It was his submission that Mr. Wright should have canvassed the issue of accommodation with both the grievor and his Union representatives at this time. Instead, on the Union’s analysis, Mr. Wright presented the grievor with an improper ultimatum, that is, accept the relocation or the accommodation process would not commence.

10. Counsel submitted that this case does present an interpretive issue relating to article 32.4.2.1(d) of the collective agreement. He argued that the collective agreement must be interpreted strictly in situations where an employee’s seniority may be forfeited, truncated, or abridged. Counsel asserted that such seniority should only be adversely affected by very clear contractual language. He stated that it is readily apparent from the facts that the grievor did not decline re-employment. Counsel repeated that the grievor’s letter of April 21, 2017, notwithstanding the dispute over location, demonstrated the clear acceptance of an offer for re-employment. I was asked to strictly interpret the word “declines” in article 32.4.2.1(d).

11. Counsel argued that the option to decline an offer of re-employment is a decision for the employee, and not the Employer, to make. I was urged to conclude that nothing the grievor did amounted to a decline of the offer of March 27, 2017. From the Union’s perspective, the accommodation process should have been triggered once the grievor manifested his intention to accept re-employment. Counsel observed that the instant dispute raises an important issue under the Ontario Human Rights Code, namely, the grievor’s right to equal treatment as a person with a disability. In his submission, this right should not be defeated by “an alleged defeat in form”.

12. Lastly, counsel stated that it is important to note that the grievance of April 21, 2017 includes a request for accommodated work. He disputed the Employer’s suggestion that accommodation is a “red herring” in this case. Rather, he asserted that is the “crux of the dispute”.

36The Union relies on the following authorities in support of its position: New Flyer Industries Ltd. v. CAW-Canada, Local 3003, 2004 CarswellMan 501 (Hamilton); OPSEU (Anderson) and Ministry of Natural Resources, GSB#471/86 (Roberts); OPSEU (Union) and Ministry of Natural Resources and Forestry, GSB#2018-0110 (Dissanayake); Prudence Simpson-Bowlyn and Commissionaires (Great Lakes), 2009 HRTO 1362 (Chadha); Gentek Building Products Ltd. v. U.S.W.A., Local 1105 (2003), Source decision, 119 L.A.C. (4^th) 193 (Surdykowski); and Quality Meat Packers Ltd. and UFCW, Local 175 (Nunes), 2013 CarswellOnt 3605 (Chauvin).

37The threshold issue in this proceeding is whether the grievor declined the Employer’s offer for re-employment for purposes of article 32.4.2.1(d) of the collective agreement. While it is necessary to determine whether this provision is applicable here, the issue in my judgement is primarily one of fact. In addressing the issue, however, it is necessary to closely consider all of the evidence, given that a finding in the Employer’s favour will result in the loss of the grievor’s seniority. This, without doubt, would constitute a serious employment consequence for this grievor. The importance of seniority rights is addressed in the following authorities: New Flyer Industries Ltd.; OPSEU (Anderson); and OPSEU (Union). The Decision in OPSEU (Anderson) states as follows with respect to the importance of seniority rights:

“There seems to be little dispute that, in general, seniority rights constitute “one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining procedure.” Tung-Sol of Canada Ltd. (1964), Source decision, 15 L.A.C. 161, 162 (Reville). In recognition of this, the Grievance Settlement Board has adopted the view laid down by Judge Reville in the foregoing case that “an employee’s seniority should only be affected by very clear language in the collective agreement…and...arbitrators should construe the collective agreement with the utmost strictness whenever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement.”……………………………………………………………….”

(pages 13-14)

38Mr. Wright was made aware early on of the grievor’s diagnosis, as well as some of the symptoms he experienced following his hospitalization. He also received Dr. Behse’s medical notes of February 14 and April 19, 2017. Mr. Wright acknowledged, in his evidence, that he recognized the grievor required time off work to combat his illness and that the Forest Technician-Forest Health position might be too physically demanding for the grievor in view of his medical condition. As mentioned, the grievor testified that he was medically unable to perform the duties of his former position as of late April, 2017. His evidence is consistent with Dr. Behse’s note of April 19, 2017, which stated that the grievor could not then “competently, reliably and safely” perform the tasks required in his prior job.

39The grievor’s discussion with Ms. Duckett on April 10, 2017 made it clear to the Employer that he wanted to start the accommodation process. Her voicemail to the grievor of April 18, 2017, which informed him that he would not receive the medical questionnaire until after he accepted the offer of the relocated position in Dryden, confirms that Ms. Duckett was fully aware of the nature of the grievor’s request. It is noteworthy that the grievor’s request to Ms. Duckett for an accommodation was made well in advance of the April 21, 2017 deadline imposed by Mr. Wright in his letter of March 27, 2017. I find that the aforementioned request is inconsistent with an intent to decline the offer of re-employment.

40The grievor did not sign the Notice of Intent. I accept that the possible consequences of such a failure were clearly set out in Mr. Wright’s letter of March 27, 2017 and later re-iterated in his subsequent telephone conversation with the grievor on April 21, 2017. After assessing all of the evidence, I think it understandable why the grievor was reluctant to sign the Notice of Intent. The grievor believed, at the time, that he could perform the duties required of a Forest Technician-Forest Health. This inability was confirmed by Dr. Behse’s medical note of April 19, 2017. The grievor was also concerned that acceptance of the relocation to Dryden would impair his ability to attend his many medical appointments in Thunder Bay and, thereby, hamper his recovery from a very serious and debilitating illness. Additionally, the Notice of Intent was different from the document he signed prior to the 2016-2017 season, in that it required him to accept or decline a relocation. I reject the assertion that the only reason for the grievor not signing the Notice of Intent was that he simply did not want to relocate to Dryden and wished to stay in Rosslyn. I conclude that his reasoning has to be assessed in the context of a request for accommodation.

41I accept that the first paragraph of the grievor’s letter of April 21, 2017 challenges the propriety of the relocation of his position to Dryden. I think it material, however, that the second paragraph of the letter states that the grievor would “accept, ….., an offer of employment consistent with the provisions of the Collective Agreement and Human Rights Code of Ontario”. The grievor explained that, in part, the second paragraph related back to the first paragraph. I am inclined to think that the reference to the collective agreement in the second paragraph of the letter related to the issue of location of the position. In contrast, I am satisfied that the reference therein to the Human Rights Code was intended to address the grievor’s medical condition and the resulting need for an accommodation. When read in its entirety, I do not construe the grievor’s letter of April 21, 2017 as a decline of an offer for re-employment for purposes of article 32.4.2.1(d) of the collective agreement. Notwithstanding these findings, I recognize that the wording of the letter is not crystal clear and could have been drafted with greater precision.

42As previously mentioned, Dr. Behse’s medical note of April 19, 2017 was attached to the grievor’s letter. On my reading, the content of the note is consistent with the grievor’s intent to return to work once medically cleared to do so. There would have been no need to provide this medical note if the grievor actually intended to decline re-employment.

43The wording of the grievance of April 21, 2017 is similarly inconsistent with an intent to decline the offer of re-employment. It asserts that the grievor was “discriminated against”; cites “the Human Rights Code of Ontario”; and requests “accommodated work” as one of the desired remedies. It is unlikely, in my judgement, that the grievor would have sought this remedy if he intended to decline the offer of re-employment. Rather, it suggests that he was seeking to work in an accommodated position going forward.

44I accept that the Employer, subsequent to April 10, 2017, took steps to prepare a medical questionnaire for the grievor to take to his doctor to complete. However, it took the decision to not provide the questionnaire to the grievor until he accepted the relocated position in Dryden. I note Mr. Wright’s agreement that the grievor’s accommodation was contingent on his acceptance of this position. On the evidence presented, this was a position that the Employer likely knew the grievor could not perform given his medical condition. Notwithstanding this knowledge, the Employer deemed the grievor to have forfeited all rights to re-employment when he failed to sign the Notice of Intent.

45I have been persuaded that the Employer should have sought out more medical information once the grievor requested an accommodation. The timely completion of the medical questionnaire would likely have identified restrictions and limitations relating to the grievor’s ability to perform the duties required of a Forest Technician-Forest Health. Further, adopting such an approach would have permitted the parties to engage in discussions, in an informed manner, concerning the following matters: whether the Forest Technician-Forest Health position could have been modified in some fashion to accommodate the grievor’s restrictions and limitations; whether some alternate position might have been more appropriate in the circumstances; and, most importantly, the location from which the grievor would perform accommodated work given his need to attend regular medical appointments in Thunder Bay. In this instance, there were no discussions with the grievor or the Union about whether acceptance of the Dryden position would preclude accommodated work in Rosslyn, or at some other location closer to Rosslyn than Dryden. Indeed, on the evidence, there were no discussions at the time of the reasons why the Employer insisted on acceptance of the offered position in Dryden. Rather, it simply took the position that the accommodation process would not proceed further if the grievor did not accept the relocation. Ultimately, I conclude that the Employer did not engage in sufficient discussions with the grievor and the Union once the former made it clear that he was seeking an accommodation.

46For all of the above reasons, I find that the grievor did not decline an offer for re-employment for purposes of article 32.4.2.1(d) of the collective agreement. The Employer’s motion is, accordingly, denied.