The bargaining team met with the employer on June 4, 5, 6, and 7. We have another day scheduled on July 4 and will continue to provide updates.
As always, if you have any questions, please email the team at email@example.com.
The bargaining team met with the employer on June 4, 5, 6, and 7. We have another day scheduled on July 4 and will continue to provide updates.
As always, if you have any questions, please email the team at firstname.lastname@example.org.
ONTARIO LABOUR RELATIONS BOARD
Labour Relations Act, 1995
OLRB Case No: 0493-21-U Duty of Fair Representation
Haran Thurairasah, Applicant v Ontario Public Services Staff Union, Responding Party v Ontario Public Services Employees Union (OPSEU), Intervenor
COVER LETTER TO THE PARTIES LISTED ON APPENDIX A
The Board is attaching the following document(s): Decision – April 08, 2022
DATED: April 08, 2022
Catherine Gilbert Registrar
Address all communication to:
Ontario Labour Relations Board 505 University Avenue, 2nd Floor Toronto, Ontario M5G 2P1
ONTARIO LABOUR RELATIONS BOARD
OLRB Case No: 0493-21-U
Haran Thurairasah, Applicant v Ontario Public Services Staff Union, Responding Party v Ontario Public Services Employees Union (OPSEU), Intervenor
BEFORE: Maureen Doyle, Vice-Chair
DECISION OF THE BOARD: April 8, 2022
1. This is an application filed with the Board pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”). The applicant asserts that the responding party, Ontario Public Service Employees Union (“OPSSU”, the “union”) violated section 74 of the Act with respect to the applicant’s relationship with the employer, Ontario Public Service Employees Union (“OPSEU”, the “employer”). OPSSU denies that the Act has been violated.
2. In its response, in addition to denying that it has violated the Act, OPSSU seeks dismissal of the application on the basis that it does not reveal a prima facie case.
3. In a decision dated October 29, 2021, the Board directed the applicant to file submissions in response to the request of OPSSU that this matter be dismissed as revealing no prima facie case, including copies of any case law relied upon, and to copy the other parties. The applicant requested an extension of the time for those submissions, stating that an extension is required “due to work commitments” and the need to consult “outside counsel”.
4. The applicant was granted an extension to December 1, 2021 to provide the above-noted submissions to the Board, and to copy the other parties. In a decision dated January 24, 2022, the applicant was granted a further extension to February 8, 2022 to provide submissions and to copy the other parties. The decision stated that if the applicant failed to provide submissions in the timeframe provided, the Board would consider whether to dismiss this matter on a prima facie basis of the materials before it.
5. The Board has received nothing further from the applicant and accordingly this matter is decided on the basis of the materials currently before the Board.
6. The applicant includes Schedule “A” to an Unfair Labour Practice complaint (ULP), which states, among other things that the union understood the employer had hired 24 individuals who were temporary employees, to permanent positions, without competition. The applicant states that the union filed the Unfair Labour Practice (ULP) complaint against the employer on April 16, 2021, and that this complaint has a “direct impact” on the applicant’s pension. The applicant states that the union did not discuss with the applicant its intention to file the ULP and it did not disclose any information to the applicant regarding three days of mediation which took place with the employer, presumably about the ULP.
7. The applicant states that the union asserts it is acting in the best interests of all members but the applicant says that in the ULP the union wants to remove the applicant from the applicant’s permanent position. The applicant asserts that the union has said on more than one occasion that the pension plan is being “impacted as a result of the employer not filling positions on a permanent basis”. The applicant states that the applicant has suggested to the union leadership that the ULP complaint could be resolved by “working out an MOU with the employer on converting temporary staff to permanent positions”, but that the union has not addressed this suggestion. The applicant states that at a General Members Meeting of the union on January 30, 2021, there was “extensive discussion” about the “pension issue”.
8. The applicant also states that the applicant is a racialized person, and that when the employer offered the applicant a permanent position, it wanted to “promote diversity and inclusion within the organization”. The applicant states that the current leadership of the union is not “diverse and inclusive” and asks “Given this, how can OPSSU fairly represent me?”
9. The union submits that the applicant has not established a prima facie case, and requests that the Board dismiss the application. It submits that it is under no obligation to discuss filing a ULP with the members, nor is it permitted to divulge confidential settlement discussions.
10. The union submits that it has taken actions to ensure that temporary positions are filled in accordance with the collective agreement and filed a grievance and the above-noted ULP regarding this issue. It submits that it has worked to resolve the matter on an amicable basis, including participating in mediation with the employer regarding the issue. The union submits that it is obliged to represent all members, and states that the applicant has pled “nothing to suggest that the union wanted the Applicant specifically removed” from the applicant’s position.
11. The union submits that the applicant has not plead anything which would establish that the union treated the applicant in a way that was arbitrary, discriminatory or in bad faith. The union submits that though the applicant states that the union leadership cannot represent the applicant as its leadership is not diverse and inclusive, the applicant has provided “no basis whatsoever to support this claim” and the applicant asks a hypothetical question without any basis in fact.
12. In support of its position that the applicant has not made out a prima facie case, the union cites several decisions: Savage Shoes Ltd.,  OLRB Rep. Dec 2067; Bartlett v. Amalgamated Clothing and Textile Union. Local 307, 1983 CanLII 791 (ON LRB) (“Bartlett”); Kezia Motluk v. Halton District Educational Assistants Association, 2013 CanLII 15756 (ON LRB), and Sukhoo v. Labourers International Union of North America, Local 506, 2001 CanLII 20549 (ON LRB).
Analysis and Decision
13. At this stage, the question to be answered is whether any of the applicant’s allegations, if true, make out a violation section 74 of the Act. Section 74 reads:
74. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
14. The Board has the authority under Rule 39.1 of the Board’s Rules of Procedure to dismiss an application without a hearing where it does not make out a prima facie case. To plead a prima facie violation of the duty of fair representation under section 74 of the Act, the applicant must plead facts capable of supporting a conclusion that the union acted in a manner that is arbitrary, discriminatory, or in bad faith.
15. The Board in Hill v Canadian Union of Public Employees, Local 793, 2006 CanLII 7208 (ON LRB) summarized the Board’s jurisprudence considering the terms arbitrary, discriminatory and bad faith as follows:
(a) “arbitrary’ means conduct which is capricious, implausible or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all relevant factors;
(b) “discriminatory” is broadly defined to include situations in which a trade union distinguishes between or treats employees differently without a cogent reason or labour relations basis for doing so;
(c) “bad faith” refers to conduct motivated by hostility, malice, ill-will, dishonesty, or improper motivation.
16. The Board has held repeatedly that the threshold for pleading a prima facie case is not particularly high. In J. Paiva Foods Ltd.,  OLRB Rep. May 690, at page 691, the Board held as follows:
The Board’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged.
17. In assessing whether an application states a prima facie case, the Board must assume that the applicant’s allegations are true and could be established if the matter proceeded to a hearing or consultation. The Board does not consider any explanation or defense offered by a responding party in making this determination.
18. While it is clear that the applicant is not happy that the union has filed a ULP compliant which could have an impact on the applicant’s position, there is nothing in the application which would establish that the union has acted in a manner which is arbitrary, discriminatory or in bad faith.
19. The union is not obliged to consult with the members prior to filing a ULP, nor is it required to discuss the substance of settlement discussions with members in these circumstances. Though the applicant believes that the union should conclude an agreement with the employer which would convert temporary staff to permanent positions, and asserts that the union has not addressed this suggestion, the applicant has not made allegations which would establish that by not discussing settlement strategies with the applicant, the union has acted arbitrarily, discriminatorily, or in bad faith. In fact, the applicant has asserted that the union spent three days in settlement discussions regarding the ULP: there is no basis to conclude that in doing so it behaved in a way which was arbitrary or in any way that was contrary to its obligations under the Act.
20. The applicant has asserted that the union wants to remove the applicant from the applicant’s permanent position. As the Board observed in Bartlett:
36. Section 68 requires that each trade union decision be grounded on a consideration of relevant matters, free from the influence of irrelevant considerations. The requirement that a trade union not act in a manner which is in bad faith protects the legitimate expectation that an individual employee’s bargaining agent will act honestly and free of any personal animosity toward him. The requirement that a trade union not act in a discriminatory manner protects against the making of distinctions between employees and groups of employees on bases which have no relevance to legitimate collective bargaining concerns. “Bad faith” and “discriminatory”, therefore, test for the presence, in the process or results of union decision-making, of factors which should not be present. “Arbitrary”, on the other hand, describes the absence in decision-making of those things which should be present. A decision will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations. The duty not to act arbitrarily requires a trade union to turn its mind to the matter at hand.
21. The applicant has provided no indication of how the union has taken action to target the applicant in a way which was due to any personal animosity or took actions for reasons which were unrelated to legitimate collective bargaining concerns. I am not persuaded that the applicant’s allegations would establish that the union acted in a way which was arbitrary or in bad faith or discriminatory.
22. The applicant also asserts that the leadership of the union is not diverse or inclusive and draws the conclusion that the leadership will not be able to represent the applicant fairly. The applicant has provided no particularized assertion to establish that the union has not represented the applicant fairly, and there is nothing in the applicant’s hypothetical question to establish that the union has acted contrary to its obligations under the Act.
23. The applicant has not pleaded facts which are capable of establishing capable of supporting a conclusion that the union acted in a manner that is arbitrary, discriminatory, or in bad faith. For all of the reasons above, this application is dismissed as stating no prima facie case that the union has contravened its duty of fair representation under the Act.
“Maureen Doyle” for the Board
Hello OPSSU members,
The bargaining team met with the employer on March 22 for our first day of bargaining.
The parties exchanged proposals, engaged in discussions and will meet again next week on March 29, 30, and April 1.
We will continue to keep you updated and suggest you monitor your email regularly next week.
Stronger, Solid, United!
With warm regards from your OPSSU bargaining team.
This is a reminder that the current window for vision care expenses ends on March 31 and a new period starts on April 1.
Article 22 Insurance, Health and Dental
22.02 e) Vision Care
(i) Eyeglasses, frames and/or contact lenses, per person, per eighteen (18) month period commencing October 1, 1996 to a combined total of four hundred dollars ($400). Dependent children under the age of eighteen (18) are eligible for this benefit annually (twelve months). The plan will pay for all eye tests.
(ii) Provide contact lenses or glasses following surgery (maximum 2 pairs per lifetime). Effective January 1, 2013.
(iii) One additional pair of eyeglasses, frames and lenses, per eighteen (18) month period commencing October 1, 1996, for employees who use a computer, up to a maximum of four hundred dollars ($400) per employee, who is required to operate a computer for two (2) hours or more a day on average; and who is required to undergo a special eye examination once per year, as per Article 26 of this Agreement.
(iv)Provide for a second pair per lifetime for contact lenses or glasses following surgery. Effective January 1, 2013.
It is with great pleasure that I write to report that following several weeks of ongoing discussions between OPSSU and OPSEU, the Parties have resolved both of OPSSU’s ULPs and OPSEU’s ULP, along with many outstanding grievances relating to the ULPs. We are very pleased with the outcome of our discussions and the settlement that we were able to achieve.
For the past few weeks, OPSSU and OPSEU have had constructive discussions regarding improving labour relations; these included, in large part, working to resolve the outstanding ULPs and related grievances. On the morning of Mar 9, 2022, the Parties executed a Memorandum of Settlement resolving the ULPs (and related grievances).
Here’s the text of the agreement, along with a PDF.
MEMORANDUM OF SETTLEMENT
Ontario Public Service Employees Union/Syndicat des employés de la fonction publique de l’Ontario(the “Employer” or “OPSEU/SEFPO”)
– and –
Ontario Public Service Staff Union (the “Union” or “OPSSU”)
the Employer and the Union are Parties to a Collective Agreement, effective March 10, 2019 to March 9, 2022 (“the Collective Agreement”);
NOW THEREFORE, the Parties do hereby agree without prejudice and precedent and without any admission of wrongdoing to the following:
1. The Union ULPs and the Employer ULP are fully and finally settled and resolved.
2. Within ten (10) working days of executing this Settlement, the Union and the Employer shall separately write to the OLRB, with a copy to the other Party, and advise that their respective ULPs are fully and finally settled and resolved and that the ULPs are withdrawn. Further, the Union will advise the OLRB that it abandons its Request for Reconsideration filed in respect of the OLRB’s January 14, 2022 decision. Further, the Union will advise the Divisional Court that its application for Judicial Review has been abandoned without costs and on consent.
3. Both Parties unconditionally retract the allegations that were made in their unfair labour practice applications. Further, neither Party will seek any further remedy with respect to any of the allegations raised in the settled ULPs in future, including in any litigation involving OPSSU and OPSEU/SEFPO.
Vacation Overages and Coverage
4. The Parties agree to consider the 2019 and 2021 calendar years as discrete vacation accrual/overage periods for the purposes of Article 19.03 of the Collective Agreement.
5. The Parties agree to address the issue of “vacation carry-over” during the current round of bargaining, set to commence in March 2022.
6. The Employer will pay out vacation overages that were clawed back from employees in 2019. Payment will be made at the applicable 2019 rates under the Collective Agreement, will be less all statutory deductions and tax withholdings and will be paid with forty-five (45) days of the execution of this Settlement.
7. Within thirty (30) days of the date of full execution of this MOS, the Employer shall review its records to determine whether any OPSSU members have carried over vacation for the 2021 calendar year, in excess of that allowable pursuant to Article 19.03 of the Collective Agreement. Should the Employer determine that an OPSSU member has carried over excess vacation, the Employer shall pay to that member the monetary value of the excess accrued vacation, except as otherwise previously agreed by the Parties.
8. Should there be any disputes with respect to the Employer’s calculations at Paragraph 7, and should the Parties be unable to resolve these disputes, the Parties agree that such disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement.
9. The Parties agree that in accordance with Article 19.03(a), and except as provided for in 19.03(c), employees may not accumulate more than two (2) years of vacation credits. The Parties agree that commencing the date of full execution of this MOS and until the expiry of the current
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Collective Agreement, for the purposes of Article 19, December 31st of each calendar year will be used to calculate the employee’s carry-over, in accordance with the Collective Agreement. The Parties agree to refer the issue of the effective date of this calculation to their respective Bargaining teams with a recommendation that December 31 of each calendar year be used for this calculation. Further, the Parties agree to refer any inconsistencies in the language between Article 19.03(a) and 19.03(b) to bargaining with the goal of resolving these inconsistencies.
10. For the purposes of vacation entitlement and overage when going off on pregnancy and/or parental leave: a) Vacation Bank as of the Commencement of the Leave: The employee is to work with their Supervisor to reduce their vacation bank prior to their leave, such that upon return to active work, they will not exceed the vacation overage as set out in Collective Agreement Article 19.03, except in circumstances beyond the employee’s control.
b) Vacation Accumulation during the Leave(s): Any vacation accumulated while on the leave(s) will not be reduced in accordance with Article 19. At the end of the leave, the employee will work with their Supervisor and will be able to extend this leave by using vacation. Regardless, the Employee’s vacation balance must be reduced to the levels detailed in Article 19 within one year of returning from the leave.
11. The Parties agree that the Union grievance (2020-25) is fully and finally settled and resolved.
12. Any grievances related to vacation overage are fully and finally settled and resolved, without limitation: Union (2020-02); Norman (2020-13); Rosales (2020-14); Darazi (2020-15); Nicu (2020- 16); Danbrook (2020-17); Bahn (2020-18); Walker (2020-19); Malik (2020-20); Sostar (2020-21); Banerjee (2020-22); Gilchrist (2020-23); Union (2020-25); Adach (2020-28); Fraser (2020-31); Grenci (2020-36); Boggs (2020-38); and Mulhall (2020-39).
13. Within one (1) week of the execution of this Settlement, the Employer agrees to rescind its direction requiring that OPSSU members obtain their own coverage while on vacation or their vacation will not be approved, and shall approve vacation pursuant to the Collective Agreement. Grievance Union (2020-24) is fully and finally settled and resolved.
14. The Union will, within thirty (30) days of the execution of this Settlement, advise the Employer what, if any, losses are claimed by Grievor Fraser (2021-08). Within fifteen (15) days, the Employer will respond with respect to these claims. Any disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement. If there are no losses being claimed, the Union agrees to withdraw the grievance.
Job Posting and Filling
15. The Parties agree that bargaining unit positions shall be filled in accordance with the Collective Agreement.
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16. The Union withdraws the following grievances: 2020-46, 2021-05, and 2021-28, which are fully and finally settled and resolved.
17. The Union agrees it is no longer challenging the post and fill process used by the Employer for competitions fully completed between June 30, 2020 and January 10, 2022, and the employees who were awarded permanent full-time jobs during that time are full-time permanent employees in those positions. The Union will not file or pursue any grievances, or any other legal proceedings, related to or arising out of the post and fill process used for competitions completed between June 30, 2020 and January 10, 2022.
18. The Parties agree that Article 11.02.01 (a) and (b) of the Collective Agreement are interpreted as follows: Permanent employees with more than eighteen (18) months shall be given first consideration, in accordance with the Collective Agreement. Qualified temporary employees and applicants from outside the OPSSU bargaining unit, in accordance with the Collective Agreement, shall compete for bargaining unit positions in the same manner as permanent employees, including using the same testing, interviews, and/or scoring. The Parties agree that the Employer need not grant interviews to temporary employees and applicants from outside the OPSSU bargaining unit if they do not pass the testing that forms part of the job competition. 19. The Parties agree that unless and until the relevant Collective Agreement language is changed, Paragraph 18 shall remain in force. The Parties agree that the remainder of Article 11 remains in full force and effect.
20. The Parties agree to develop a working group to review staffing levels and consider where increases in the OPSSU-represented staffing complement are necessary; the working group shall be comprised of three (3) OPSEU/SEFPO representatives and three (3) OPSSU representatives, chosen by the respective Parties. The Parties will have their initial meeting within thirty (30) days of the full execution of this settlement, and will meet at least once monthly, with the goal of having a proposal to take to the Executive Board by the September 2022 board meeting for their consideration.
21. The Employer agrees to contribute five hundred and twenty thousand dollars ($520,000) to the Parties’ joint pension plan and thirty thousand dollars ($30,000) in dues in accordance with Article 4.03 of the Collective Agreement to OPSSU. The Employer will provide written confirmation that this has been completed within forty-five (45) days of the execution of this Settlement.
22. The Union will, within thirty (30) days, advise the Employer what, if any, losses are claimed by Grievors Noakes (2021-09), Lewis (2021-10), Lucente (2021-11), Hall (2021-22), Evans (2021-23),
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Lumley (2021-24), Mahon (2021-26), and Liddle/Campbell (2021-07). Within fifteen (15) days, the Employer will respond with respect to these claims. Any disputes shall be resolved using the Mediation/Arbitration Procedure outlined at Article 8.09 of the Collective Agreement. If there are no losses being claimed, the Union agrees to withdraw these grievances.
Pandemic Exit Initiative
23. The Union agrees to withdraw the following grievances: Near (2021-12); Mason (2021-13); Ledwidge (2021-14); Janson (2021-15); Guppy (2021-17); Simms (2021-18); Szymanski (2021-19); Robinson (2021-20); Clayton (2021-21); and Orzel (2021-27). These grievances are fully and finally settled and resolved. Save and except for enforcement of the Pandemic Exit Initiative (“PEI”) on behalf of the bargaining unit members who were granted the PEI and subject to paragraph 25, the Union will not file or pursue any grievances, or any other legal proceedings, related to or arising out of the PEI.
24. Within forty-five (45) days of the execution of this Settlement and signing the release, the Employer agrees to pay the Grievors listed in paragraph 23 thirty thousand ($30,000) dollars, less statutory deductions, as a retiring allowance in accordance with the Pandemic Exit Initiative/Agreement. Each employee receiving the PEI will sign a release, attached hereto as Schedule A.
25. Should Grievor Ingriselli wish to retire within the next ninety (90) days of the execution of this Settlement, the Employer agrees to pay her thirty thousand ($30,000) dollars, less statutory deductions, as a retiring allowance, in accordance with the Pandemic Exit Initiative/Agreement and Ingriselli (2021-16) shall be deemed to be fully and finally settled and resolved. Should Ingriselli not want to retire within that time frame, the Union agrees to withdraw Ingriselli (2021- 16).
26. The Employer will not re-open the PEI.
Hours of Work
27. The Memorandum of Agreement regarding hours of work signed by the Parties on or about February 26, 2021 continues in full force and effect.
28. The Employer acknowledges that it entered into merger and employment agreements with another union and its full time staff, and it did not discuss the impact of those agreements on staffing with the Union in advance of the merger’s completion. The Employer agrees that in any future merger agreements with other unions and/or employee associations, it will discuss any impacts on the staffing complement in OPSSU with the Union in advance of the merger being finalized, and will not enter into any employment agreements directly impacting the Collective Agreement of the OPSSU bargaining unit without the Union’s knowledge and consent.
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29. The Employer agrees to withdraw all outstanding Employer grievances which shall be deemed fully and finally settled and resolved.
30. The Union agrees to withdraw grievance Union (2021-31).
31. OPSEU/SEFPO confirms that it has instructed its legal counsel, Mark Mendl that he is not to communicate directly via email to the Union’s Executive Committee regarding outstanding legal matters involving the Parties, unless required by law. OPSSU confirms that it has instructed its legal counsel that it is not to communicate directly with OPSEU/SEFPO’s Executive Board regarding outstanding legal matters involving the Parties, unless required by law.
32. The Employer confirms in accordance with paragraph 3 of this Settlement that it unconditionally withdraws its allegation that Lois Boggs “lied on the witness stand.”
33. The Parties agree that in the event of any breach or alleged breach of this MOS by any of the Parties, this MOS will be enforced by the Union or the Employer by way of grievance and arbitration, as per the provisions of the Collective Agreement, and that arbitration will be the exclusive forum for resolution of such disputes.
34. The Parties acknowledge and agree that nothing in this MOS affects any position that either Party may take in the hearing of the Inglis (2021-06) grievance.
Dated in the City of Toronto this 9th day of March 2022
__________________________ __________________________ For OPSSU – Lois Boggs For OPSEU/SEFPO – Ilana Goodman
__________________________ __________________________ For OPSSU – Tim Mulhall For OPSEU/SEFPO – Stephen Giles
__________________________ For OPSSU – Alison Nielsen-Jones
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RELEASE IN CONSIDERATION OF the payments and undertakings to be provided by Ontario Public Service Employees Union to, or for the benefit of, NAME as set out in the attached Minutes of Settlement, the receipt and sufficiency of which is hereby acknowledged I, NAME, DO HEREBY RELEASE AND FOREVER DISCHARGE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, ONTARIO PUBLIC SERVICE STAFF UNION and their associated, affiliated, predecessor, successor and parents, their respective officers, servants, agents and directors (both in their official and personal capacities) and their respective administrators, successors and assigns, (collectively, the “Employer” and “Union”) of and from all present and future grievances, actions, causes of action, claims and demands (“Claim” or “Claims”) which I, or any of my heirs, executors, administrators or assigns has against them, upon or by reason of any matter, cause or thing whatsoever existing up to the present time, whether legal or equitable, and arising in contract or tort, including without limitation, negligence, and without limiting the generality of the foregoing, specifically of and from all such Claims arising out of my employment and the end of my employment with the Employer. I agree that once I have received the payments and benefits set out in the Memorandum of Settlement, I shall have received all wages, salary, incentive payments, credits, overtime pay, severance pay, pay in lieu of notice of termination, termination pay, vacation pay, holiday pay, pensions or any other employment benefits to which I am entitled, including, but not limited to, any amount to which I may have been entitled under the Collective Agreement. I hereby agree that I have no Claim and therefore will not commence any Claim under any applicable law, including but not limited to the Employment Standards Act, the Labour Relations Act, the Human Rights Code, the Pay Equity Act, or the Occupational Health and Safety Act, with respect to any aspect of my employment (including but not limited to the salary or wages provided to me during such employment) or the end of my employment or alleging breach of any of the provisions of such statutes, including, but not limited to, those provisions which prohibit reprisals by an employer. Further, any and all grievances filed by me and/or the Union on my behalf, or in any way related to my employment with OPSEU, including the PEI and harassment/discrimination grievance, are fully and finally settled and resolved. I agree that I shall be liable for the full amount of any payments or repayments, including, but not limited to, any tax, penalties or interest, which may be demanded pursuant to the Employment Insurance Act, the Income Tax Act, and/or the Canada Pension Plan and/or any similar applicable provincial laws as a result of any payment contemplated in this Agreement, or any payment which may, in future, be found to be payable by the Employer in respect to, and I hereby agree to indemnify and save harmless the Employer from any claim made against it under such statutes I agree that I have canvassed any and all human rights concerns or issues which may have arisen out of my employment with the Employer, the end of such employment and/or the execution of the attached Memorandum of Settlement and this Release. Furthermore, I agree that I am aware of my rights under the Human Rights Code and the anti-discrimination provisions of the Collective Agreement, and I confirm that I have not and will not assert such rights or advance any human rights claim in respect of any matter which arose out of my employment with the Employer, the end of such employment and/or the execution of the attached Memorandum of Settlement or this Release. I acknowledge that the Employer has freely offered the payments and undertakings in the Memorandum of Settlement without admission of any liability and that the payments and undertakings are the sole consideration for this Release.
I acknowledge and agree that:
(i) I have obtained independent legal advice with respect to the execution of this Release and the attached Memorandum of Settlement, or I have freely taken the decision not to do so;
(ii) I have read, understood and agree with all of the terms and conditions contained herein;
(iii) I fully understand that this document contains a FULL AND FINAL RELEASE of all Claims that I have or may have against the Employer and/or Union; and,
(iv) I have signed this Release freely and voluntarily.
Dated at the City of Toronto , Province of Ontario, this day of March , 2022.
SIGNED IN THE PRESENCE OF
____________________________ ______________________________ WITNESS NAME
Name and Address of Witness: [someone other than the Grievor’s spouse] _____________________________
Hello OPSSU members,
We will be engaging in negotiations with our employer later this month.
We have secured the following dates to meet with the employer March 22, 29, 30 and April 1st.
Your Bargaining Team is ready to go, and we hope to have a very productive first day on March 22. The employer bargaining team is comprised of: Tara Maszczakiewicz – Chair, Edie Strachan – Vice Chair, Ilana Goodman, Kenneth MacLam, Linda Mariani, Ted Panagiotoulias, Ken Steinbrunner, and Brock Suddaby.
We will continue to provide you with updates during this process. If you have any questions for the team, please email us at email@example.com.
With warm regards from your OPSSU Bargaining Team,
Cheryl Wing, Chair
Lois Boggs, President OPSSU
Mirla Alvarado Fenn
As our return to the workplace is fast approaching (commencing March 7 for Support Staff and March 14 for Pro-Tech Staff), I’m reaching out to provide you with further information. I apologize for the lateness of this communication, but we wanted to ensure that we had as much information as possible before communicating; we met with OPSEU yesterday in order to raise our members’ concerns, and OPSEU was able to answer almost all of our questions.
You have all received an email today from Ted Panagiotoulias, outlining some important information about the return to the workplace.
In our meeting with OPSEU yesterday, we heard loudly and clearly that OPSEU’s plan for the return to workplace is based on flexibility and understanding, taking into consideration that each employee will have different comfort levels in the return to the workplace; OPSEU advised that it is considering both physical health and safety and psychological health and safety. As such, if you require flexibility or accommodation in the return to work, you should reach out as soon as possible to your Supervisor to request the necessary assistance, flexibility, and/or accommodation. Some solutions may be flexible start/end times, a gradual build-up of days in the office, attending meetings virtually, etc. If you need assistance in this regard, please contact your Steward.
As Ted outlined in his email, all employees (whether permanent or temporary) will continue to be paid if they are unable to attend the workplace due to having COVID-19 symptoms or they need to self-isolate, etc. We were heartened when OPSEU advised us that this has been – and will continue to be – its practice. We also want to remind you that all OPSSU members (whether permanent or temporary) have 10 sick days per calendar year, paid at 100%.
As you may already be aware, OPSEU members are not – at this time – able to physically attend any OPSEU offices (or membership centres attached to OPSEU offices). If you believe that you are being directed or pressured to meet with members in person, please contact your Steward. In addition, OPSEU has advised us that ALL persons entering an OPSEU worksite (including visitors, contractors, etc.) are subject to OPSEU’s COVID-19 Safe Workplace Directive AND its masking policy; if any concerns arise with respect to this, please contact your Supervisor, Steward, Health and Safety Representative and/or email firstname.lastname@example.org. There is a JOHS committee meeting on Monday, March 14th so if you have questions our committee representatives can take those questions directly to the Employer.
I hope that this information provides you with additional clarity and comfort in the return to the workplace.
We are committed to continuing dialogue with OPSEU through the return to the workplace process. If you encounter any issues or have any outstanding questions, please reach out and we will try to get an answer and/or solve the problem.
I’m writing regarding a recent communication to Local Services and the Collective Bargaining Division from Steve Saysell. I want to clarify OPSSU’s position on the matter of finding your own vacation coverage.
Steve’s statement that “this has been the accepted practice” is false and misleading.
Article 19.10 (a) clearly states that vacation requests “will be granted on the basis of seniority within a particular regional office or Head Office department.”
OPSEU is well aware of our position on this issue and OPSSU has filed a policy grievance, an individual grievance, and has included this in our Unfair Labour Practice charges against OPSEU. Just because the Employer has unilaterally and erroneously implemented a direction in contravention of the Collective Agreement for several years does not, in any way, mean that OPSSU has accepted this practice. OPSSU has in fact continuously challenged this practice since its inception.
Unfortunately, if you want your vacation approved, based on Steve Saysell’s direction, you will need to find coverage until such time as the issue is resolved by mutual agreement or determined by an arbitration decision.
I am saddened that OPSEU continues to issue direction in clear violation of our Collective Agreement.
I will keep you updated as we move forward.
Thanks and take care,
Hello OPSSU members,
The bargaining team is ready to meet with the employer to negotiate a renewal collective agreement. We have secured the following dates to meet with the employer: March 22, 29, 30 and April 1.
As always, if you have any questions for the team, please email us at email@example.com.
Stronger, Solid, United!
With warm regards from your OPSSU Bargaining Team
Mirla Alvarado Fenn
Lois Boggs, President OPSSU
Cheryl Wing, Chair
I’m writing to provide an update on the Unfair Labour Practice (ULP) applications. As you may be aware, there was a hearing at the OLRB (by Zoom) on November 13, 2021 before Vice-Chair Maureen Doyle.
At that hearing, the Employer argued that every issue contained within our ULP where OPSSU had also filed a grievance be deferred until the conclusion of all of the grievance arbitration proceeding, including one such grievance that has a first hearing date in 2023; OPSSU argued against such deferral. I should point out that both OPSEU and OPSSU agreed that the deferral request by OPSEU did not include issues from the ULP that had not been grieved.
Please see attached Vice-Chair Doyle’s award; she decided to defer all three ULPs until the conclusion of all arbitrations. Either Party may return to the OLRB within 18 months.
We are very disappointed with her decision because at arbitration hearings, we will not be able to “connect the dots” between each unfair labour practice that OPSSU and its members have had to endure for the last two-and-a-half years.
We have had a discussion with our lawyer as how to proceed and will discuss our options with the grievance committee at our next meeting (January 27). We will likely ask for reconsideration on the entire decision, but – at the very least – reconsideration of the decision with respect to the several complaints that were not grieved.
OPSSU is committed to ensuring we have an open and shared conclusion to the events that have taken place over the last two-and-a-half years.
As always, OPSSU remains open to settlement discussions in the hopes that the Parties can resolve these issues and move forward with improving our labour relations. I personally hope this discussion will take place with Smokey given that these unfair labour practices took place under his watch; however, if Smokey is not interested in engaging in such discussions, then I hope we can have meaningful discussions with the new OPSEU President in April.
Take care and we will continue to update you through this process.
IN THE MATTER OF AN ARBITRATION
UNDER THE COLLECTIVE AGREEMENT AND THE ONTARIO LABOUR RELATIONS ACT
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
ONTARIO PUBLIC SERVICE STAFF UNION
GRIEVANCE OF SHAWN KOZA
Arbitrator: Barry Stephens
Union Counsel: Roberto Henriquez, McMahon Molyneaux Henriquez
Employer Counsel: Mark Mendl, Mendl Workplace Law
Heardings on January 17, June 5, July 8, 23, 30, October 22, November 9 and December 18, 2020; January 18, February 12, 2021
And by Video Conference on May 14, June 2 and July 7, 2021.
Decision Released December 7, 2021
 This case involves five grievances that are related to events around the termination of the grievor, who worked as a Staff Representative for the employer. The grievor had approximately 11 years of service, and was terminated for cause on September 9, 2019, for being continuously absent from work without leave or authorization for the period from September 3 to 9, 2019, and for failing to provide a medical note when asked to do so. In the letter of termination, the employer characterized the grievor’s conduct as unacceptable and insubordinate.
 The main facts are not in dispute. The grievor advised his supervisor, Denis Boyer, that he was filing a health and safety complaint about a training assignment under the Member Development Training (MDT) program that involved work with a particular individual with whom the grievor had had a previous conflict. Boyer’s response to the health and safety complaint was to ask the grievor whether he would be interested in a “buy-out” package to voluntarily end his employment. The grievor made a buyout proposal. The employer’s response was that the grievor’s proposal was not acceptable, and the employer did not make a counter-proposal. The grievor was advised his grievances would be discussed on his return to work the following week. The grievor then went off work ill, and it is this period of illness that led to the grievor’s termination.
 The parties agreed that there were five grievances that were relevant to the events that led to the grievor’s termination, and all of them were consolidated in this hearing:
2019-44 Termination Grievance
2019-50 Discrimination in Termination
2019-49 Improper Request for Sick Note
2019-48 Violation of Occupational Health and Safety Act, s. 25.2(h) 2019-51 Toxic Work Environment and Harassment – this grievance to be
addressed as part of compensation, pending outcome of grievances above
There was a sixth grievance that did not form part of this hearing and is not affected by this award:
2019-52 Parties agreed this grievance would be placed in abeyance
pending the outcome of another arbitration hearing
 Denis Boyer, the Region 6 & 6 Supervisor for OPSEU, was the main employer representative in the events leading to the grievor’s termination. Unfortunately, Mr. Boyer became ill in the early stages of the hearing and, although he was expected to testify at some point, he did not recover and passed away in December 2020. I offer my condolences to his family, friends and colleagues for their loss.
 Brock Suddaby was the Senior Advisor Employee Relations at OPSEU. He was directly involved in the events related to the grievor’s termination. His evidence-in-chief was provided by way of a will-say statement that he confirmed at the hearing. Suddaby stated that the grievor was terminated for insubordination and for being absent from work from September 3 to 9, 2019 without reasonable cause or justification. The sequence of events is not in dispute. The grievor advised Boyer on August 28, when the buyout issue was first raised, that he would take the rest of that week to consider the
buyout suggestion. He also told Boyer on August 28 he would to be off sick as of Tuesday, September 3. Although the grievor was in the office from August 28 to 30 (Wednesday through Friday), he spent his time cancelling scheduled meetings and packing personal items in his office. He did not attend work from September 3 through to Monday September 9, the date of his termination. On August 30 the grievor sent Boyer an email saying he would voluntarily resign in exchange for two years of salary continuance including benefit coverage. Boyer responded to state that the grievor’s proposal was “not even in the ballpark” and that he would discuss the grievor’s grievance about the MDT assignment when the grievor returned to work after the Labour Day long weekend.
 On Tuesday, September 3, the grievor wrote Boyer to ask him to forward the application forms for Short Term Disability (STD) to his personal email address. That email prompted an email exchange between the two men, which led to Boyer making his first request for medical information.
 There was no deadline associated with this request for information, just a request the documentation be provided at the grievor’s “earliest convenience.” Suddaby testified that the grievor’s response indicated that he was refusing to provide medical documentation.
 The “threshold” mentioned by the grievor is in Article 23.02.02, which reads as follows:
23.02.02 After five (5) consecutive days of absence due to illness, no leave with pay shall be allowed unless a certificate from a legally qualified medical practitioner is forwarded to the Employer certifying that the employee is unable to attend to their official duties.
After frequent absences due to sickness, the Employer may request a medical note or require the employee to submit to a medical examination, at the expense of the Employer.
The grievor took the position at the time that Article 23.02.02 prohibited the employer for asking for a sick note except in the two circumstances set out in the article. During the hearing the union agreed that Article 23.02.02 did not prevent the employer from asking for a medical note in circumstances where there were reasonable grounds to suspect abuse of sick leave.
 The next day, September 4, Boyer emailed the grievor a longer and more formal communication about his absence. Boyer detailed his understanding of how the buyout discussions had arisen and been disposed of and set a deadline to provide the information, stating as follows:
Based on the sequence of events described above, your assertion that you would be off sick before having consulted with your “medical Team”, the fact that you did not report for work on September 3 without contacting your supervisor or Employee Relations, as well as a less than clear response to my specific request for a medical certificate, are issues that of are [sic] great concern to the Employer. Further, your calendar shows no appointments except for pre-scheduled sector conference calls in what is normally a busy time of the year. Lastly, you verbally advised me that you would be off sick on August 28th, but I have no further notifications regarding any credits being used on August 29th and 30th.
Under the circumstances, your absence remains undocumented and questionable. Article 23 of the OPSSUE CA does not preclude the Employer from requiring documentation to substantiate absences that the Employer reasonably considers suspect.
You are hereby ordered to provide medical documentation and any further information you deem relevant to explain your absence from work since last Thursday, August 29/19. If this information is not provided by 4 p.m. on Thursday September 5, you will be deemed to have abandoned your position and as a result, may be subject to discipline, up to and including termination.
 On Friday, September 6, Suddaby emailed the third request for medical information setting out another deadline for the information. Suddaby stated that the grievor had “one final opportunity” to provide documentation by 7 p.m. that day.
 In cross-examination Suddaby confirmed the employer did not treat this case as a deemed termination. He stated that he normally communicates with employees by email
 The grievor did not respond to the emails of September 4 and September 6. He was terminated on the following Monday, September 9. Suddaby testified that the employer did not receive any documents with respect to the grievor’s medical condition until just prior to the first hearing date in this arbitration. Suddaby testified that the employer’s view was that the grievor’s sickness was not legitimate. He had advised the employer almost a week before his absence that he would be sick the following week. In addition, the grievor attended the workplace over the weekend, on Saturday, August 31, returning his OPSEU laptop and cellphone and removed his personal effects from his office. He also changed his business phone greeting to state that he would be absent until September 11. There were no meetings or other work activities scheduled on the grievor’s work calendar for the month of September 2019.
or in person. He testified that he preferred to use email and that letters are only sent via Canada Post when employees were hired. He did not want to send the grievor a letter because it would take too long to be delivered. In this case, he used the grievor’s home email address because he was not at work and the home address was the same address the grievor was using for the STD application process. He confirmed that it was normal for the employer to advise the insurance carrier immediately as soon as an employee was terminated. Suddaby stated that he was not aware of any discussion among management officials about the possibility that the grievor’s health may have impacted his actions during the relevant time.
 Stephen Giles was a Senior Human Resources Advisor for OPSEU, responsible for overseeing the administration of the sick leave STD plan. He testified that, while the employer was aware that the grievor had requested the STD application forms, the employer was not made aware of when employees apply for STD, and that he did not become aware that the grievor had applied until his application was denied in October, well after his termination. He stated that the employer always followed the medical conclusions reached by the insurance carrier, even in cases where the employer had concerns about the carrier’s decision. Giles testified that, in this case, the employer had concluded that the grievor’s absence was not related to an illness because the grievor had stated during the week of August 26 that he was going to be sick the following week. His subsequent actions indicated that his departure from the office was not a result of illness but of a decision to “elect to not come back to work.” Under cross-examination Giles
confirmed that the STD packages were routinely sent to employees by both email and regular mail. Giles agreed that he was not a doctor and agreed that the question of whether the grievor qualified for STD was different from the question of whether he was suffering from an illness.
 Raison’s first contact with the grievor was after he had been in a car accident in March 2018. She stated that he told her he had problems with the treatment he had
 Alison Raison testified for the union. Raison was a social worker with a private practice in the Thunder Bay area. She was a member of the Ontario College of Social Workers and Social Service Workers. She had been a social worker for more than thirty years. Her clients were mostly adults, who presented with a variety of issues such as past trauma, depression, anxiety, and related problems. Raison stated that, as a social worker, she was not permitted to render a diagnosis of mental disorders, but that she worked closely with physicians and psychiatrists who have the authority to render diagnoses, and that those practitioners often reviewed her assessments of her clients when reaching their own conclusions. She testified she worked with clients with a variety of mental health conditions, and she had used different types of psychological therapies. She testified that she has a copy of the DSM-IV manual (now DSM-V) used to diagnose mental health conditions. She stated that it took from six months to a year to see a psychiatrist in the Thunder Bay area and from two weeks to three months to book an appointment with a family doctor.
received at the hospital and with the other person who had been involved in the accident. The grievor also reported that he was experiencing considerable pressure at work at the time. Raison recommended he take some time off in order to process his reactions. She saw him several times in April and May 2018, at which point he was able to cope on his own and she advised him to call if he needed any further assistance.
 Raison next saw the grievor on September 2, 2019. At that time, he told her that
he felt overwhelmed and hopeless. She described him as at times shaking, in tears, having trouble finding his words, and he told her he was not sleeping well. She concluded that
he was not someone who could perform professional duties, and she recommended he see his family doctor in order to find out if it would be appropriate to take some time off.
 Under cross-examination Raison confirmed she was not a licensed psychotherapist. She stated that, although she was aware the grievor was being treated by his family doctor, Dr. Toppin, she did not speak directly to Dr. Toppin about the grievor. She stated her assessment of the grievor was based on what he was reporting but also her observations of his emotional state as described above. She noted during the session that he had a diminished ability to think or concentrate. She stated she assumed the events he was describing were described accurately but she was also aware that there was always “another side.” She added she had to base her interventions on what she learned and observed during the session. She stated that she did not ask the grievor if he had been using prescribed or recreational drugs. She was not aware the grievor had been
in discussions to leave his job. Raison agreed that “stress” was not identified as a disability under the DSM V.
 Dr. James Toppin was a General Practitioner in Thunder Bay. He was the grievor’s GP since 1990. He provided diagnosis and treatment for approximately 1700 patients for physical and mental illnesses. He testified that if he was unsure about the diagnosis of a mental illness, he referred the patient to a psychiatrist. Dr. Toppin stated that the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) was the standard reference for the medical profession with respect to mental illness, and that it provided criteria for diagnosis as well as suggested treatments of various disorders.
 Dr. Toppin testified about the difference between adjustment disorder and major depressive disorder (MDD). MDD was a deeper-rooted condition that involves the individual’s past experience. Adjustment disorder was a form of depressive state that arose from the individual’s difficulty in absorbing the impact of a traumatic external event and reorienting their lives to a new reality created by the event. Dr. Toppin stated that his method of diagnosis included information reported by the patient as well as observations of their behaviour during assessment.
 Dr. Toppin testified about the history of the grievor’s treatment for mental health problems. The first occurred in 2010 as the result of the end of a relationship. Dr. Toppin testified that he diagnosed this incident as adjustment disorder and treated the grievor
with medication. He noted that the grievor had a relapse after finishing his course of treatment and returned to taking the medication for several months thereafter. Dr. Toppin testified that the adjustment disorder might have sparked an underlying MDD, which could have explained the relapse after first going off the medication.
 The grievor’s next mental health issue arose in response to a motor vehicle accident in 2018. Dr. Toppin testified that the grievor was anxious and stressed in the aftermath of the accident but reported the source of his problems to be related to workplace issues. He stated that the grievor seemed to recover quickly from this episode.
 Dr. Toppin was asked about booking procedures in his office. He testified that if a medical issue is ‘acute’ he can see a patient within an hour but that otherwise an appointment can take between 2 to 6 weeks to schedule. He stated that after speaking to the person in his office who had taken the grievor’s call, he determined the grievor was “under pressure” and that the need for an appointment was “urgent but not life threatening.” He offered the grievor an appointment the following week, on September 10.
 During the September 10 appointment the grievor advised that he had been fired the night before. Dr. Toppin testified that the grievor exhibited symptoms including: upset, crying, flustered, agitated movements, a “hang-dog” demeanour, difficulty finding words and answering questions, and an uncharacteristic slovenly appearance. He
testified that, although he did not conduct a full mental status examination, his observations amounted to “about 90%” of such an examination. He concluded the grievor was experiencing an adjustment disorder at that point, observing that the DSM-V indicates that MMD is not normally diagnosed unless the patient exhibited depressive symptoms for a period of more than two weeks. The grievor had a follow-up appointment on September 24. The doctor observed at that point that he was “still crying” and reached the conclusion that the grievor was suffering from a more severe depression and suspected that the grievor may have been suffering from a “low level” depression since 2018 which had resurfaced because of the loss of his job. Dr. Toppin stated that it was possible that the grievor had known that he would need time off after the employer raised the possibility of a buy-out, because he may have felt the onset of the symptoms of his depression.
 During cross-examination Dr. Toppin agreed that his report, dated November 11, included all his observations up to that point, not just the results of the September 10 appointment. He stated that the assessment on September 10 lasted approximately 10- 12 minutes and included time to fill out the STD form. He testified that he changed his view about the severity of the grievor’s condition during the September 24 appointment because he observed depression-related symptoms that had been in place for more than two weeks, at which point he diagnosed the grievor with depression.
 Dr. Toppin was cross-examined closely on his notes, and particularly why his clinical notes did not contain direct references to the criteria for depression. He responded generally that he does not take detailed notes and tends to record either observations or conclusions with respect to how the patient presents and responds during an assessment. At times he would note a conclusion in his notes, while at other at times he might note a detail that points to a conclusion. It was put to Dr. Toppin that he was “jumping to conclusions” to conclude from the fact that the grievor was wearing sweatpants that he was depressed. He responded that he had diagnosed depression based on several factors. The grievor’s appearance was one factor given that he knew the grievor to be someone who normally dresses well, and the notation about the grievor wearing sweatpants to the November session was his way of recording that the grievor had an unusual unkempt appearance, which reflected his low mental state. Dr. Toppin stated that he observed that the grievor was better dressed when he arrived at the appointment on January 14, and that this was an indication that his mood had improved in that he was taking better care of himself.
 Dr. Toppin stated that he had known Raison for years, was familiar with her reports, and had found her to be a reliable health care professional. His conclusion was that the grievor’s state of mind in 2019 was very similar to the depressive episode after the motor vehicle accident in 2018, that the grievor was unwell and that he had no information that pointed to a better explanation than a recurrence of the adjustment disorder and MDD.
 The grievor, Sean Koza, worked previously as a psychiatric nurse. He joined OPSEU staff in 2008 in a temporary position, and eventually became a Staff Representative. He testified that Denis Boyer became his supervisor approximately five years prior to his termination.
 The grievor testified that he lived about a half hour drive outside of Thunder Bay and his home was in a “fringe” area for internet access. For this reason, he testified, he did not often work from home. He stated that his co-workers, including Boyer, were aware of these limitations on his access to internet.
 The grievor testified about his medical history. He was involved in a motor vehicle accident in March 2018. Ultimately, this accident contributed to his decision to begin to prepare for his retirement, including enrolling in the employer’s pre-paid leave plan, which he hoped to use as a means of retiring early. After he returned to work from the accident, he said, he experienced a higher-than-normal workload, which included often driving to Dryden, about four hours from Thunder Bay. He testified he often felt stressed and exhausted. He developed some concerns about the distribution of work because his opinion was that his assignment was more demanding than that of other staff and discussed these issues with Boyer, but no changes were made.
 One of the events that led up to the grievor’s termination involved Membership Development Training. The grievor spoke to Boyer about one participant in the program with whom the grievor had previously had a conflict. He asked Boyer not to assign him to work with that individual during the MDT process. The grievor testified that Boyer got back to him later and advised him that the response to his request from higher-level OPSEU management was less than favourable, and that Boyer then asked him what it would take for the grievor to voluntarily leave his employment. The grievor said that the suggestion of a buy-out “hit me hard”, and he contacted Boyer later that day to ask if he was “serious” about the question, and Boyer confirmed he was. The grievor said he would need a few days off to consider, get advice and respond, and that Boyer agreed he should do so.
 The grievor testified that he felt like his options were limited. He either had to “play ball” with respect to the MDT issue or take a buy-out. He stated that he assumed that if he did not take a buy-out he would be in danger of being terminated regardless. He needed to consider the possibility of a buy-out. The grievor responded to Boyer by email on August 30, stating that he would leave his position in exchange for two years’ salary continuation with full benefit coverage. Boyer responded quickly by email to the grievor’s proposal as follows:
Your proposal is not even in the ballpark. We can discuss your grievances next
The grievor testified that he was “stunned” by the response. He advised Boyer that he would likely be taking sick leave the following week. The grievor testified that, given his history with mental health issues, he knew it would take a week or two to come to terms with events and, as he put it, “get the train back on the rails.” He stated that he had taken similar leaves for mental health reasons in the past that Boyer had accepted, and he had covered his pay by using vacation or compensating times as permitted by the collective agreement.
 On Saturday the grievor drove to the Thunder Bay office twice to return items that belonged to the employer. He also cleared his scheduled for the month of September. These actions indicate the grievor did not expect he would be returning to work. He testified that he understood that the employer did not want him to continue working and that he “had to be prepared for termination.”
 The grievor attended an appointment with his therapist, Raison, on Monday, September 2. He testified that he was an emotional “mess” that day, which was confirmed by Raison’s evidence. He said that she advised him to get an appointment with Dr. Toppin because she thought it might be appropriate for the grievor to take time off from work. The grievor did not report to work on September 3. Boyer sent the grievor an email that day stating that the grievor should provide a medical note for his absence at his “earliest convenience.” The grievor responded to Boyer that a medical note was not required under Article 23.02.02 of the collective agreement and that he intended to
grieve. He testified, however, that once he received Boyer’s request, he took steps to secure an early appointment with his doctor. He conceded that he did not mention this fact in his response but that once it had been requested it was “understood” that he had to provide it. The next day, September 4, the grievor was able to secure an appointment with Toppin for September 10, the following week. He testified that the appointment was booked more quickly than was normally the case, and that he thought he was being compliant with Boyer’s instructions by booking the appointment for the following week. He did not believe he was being insubordinate and that the appointment was booked at his “earliest convenience.”
 The grievor began the process of applying for short-term illness benefits (STD) on September 3 by asking Boyer to arrange for the STD application package to be sent to his personal email address.
 Under cross-examination, the grievor stated the drive from the OPSEU Thunder Bay office was approximately 30 to 45 minutes, depending on the time of year and the weather. He agreed that he did not provide complete medical information to the employer until after having been ordered to do so as part of these arbitration proceedings. He stated that he had discussed the end of his employment with Boyer on one previous occasion but in the context of succession planning in the office, given that he intended to use the pre-paid leave plan to bridge to an early retirement.
 The grievor agreed that on August 28 he had advised Boyer he would be “off sick” the following week. He stated that he knew on August 28 that he would be sick on the following Tuesday, after the long weekend. He agreed he was not sick on August 28, 29 and 30. He testified, however, that he felt a mounting anxiety around the circumstances given that he was only 50 and was about to become unemployed. He stated it was “difficult to get his head wrapped around” the major life change he saw coming. He knew he needed time to manage his anxiety and would need to take time off work to do that.
 Employer counsel put to the grievor that clearing out his office and other actions indicated that he had decided that he would never return to work with OPSEU. The grievor responded that that was a decision that had already been made by the employer when they told him that there was a desire on the part of OPSEU management for him to leave. He agreed, however, that he had not been formally terminated. When it was put to him that his actions were not consistent with a person intending to return to work, he responded that his actions were consistent with a person who was not welcome back at work. The grievor agreed that the employer had the right to ask for a sick leave note despite Article 23 in cases where there was a reasonable suspicion of misuse of sick leave. The grievor acknowledged that he had asked the employer to send him the STP application forms by email.
 The grievor testified that he became aware that he had been terminated when he received a text from Lois Boggs, the OPSSU President, at approximately 5 p.m. on
Monday, September 9. Boggs advised the grievor to check his email. He testified that he drove down the road to download his email and read the letter of termination. He testified that, similarly, he did not read the September 5 deadline email notice sent by Boyer until the next day, September 10. Similarly, he testified he had not previously read either of the two ‘deadline’ emails, one sent by Boyer on September 4 and the other by Suddaby on September 5. The grievor was asked why it was that he saw his doctor on September 10 but that he did not get a medical report from his doctor until November 11. He stated that by the time he saw his doctor he was aware he had been fired and he “did not see any point” to providing the documentation. He stated in retrospect this was not a good decision but that he was not in a “good mental condition” at the time. The grievor acknowledged that he had posted a harsh comment about Boyer on a Facebook group shortly after Boyer’s death. He stated that, while it would be difficult to return to work at OPSEU, he did not want to close off any options.
 The employer stated that the grievor had been terminated for being absent without leave from Tuesday, September 3 to Monday, September 9. The grievor had no valid medical reason to justify his absence, nor did he follow clear directions to provide medical information in a timely manner. The employer asserted that the only way to understand the evidence was to accept that the grievor had voluntarily absented himself
from the workplace, believing that the employer would eventually propose a severance package. All his actions were intended to serve this aim, and to increase the pressure on the employer to make a proposal for a buyout of his employment. The employer submitted that it had good reason to suspect the grievor’s absence and to ask for medical confirmation. The union asserted he knew on August 28 that he was going to be sick the following week, but he did not ask for the STD forms until September 4. This was not explained. His statement that he knew he would need two weeks off to “get back on track” was incoherent and self-serving.
 The employer described as “incredible” the grievor’s story about not reading the emails from Boyer and Suddaby setting deadlines for medical information. His evidence was not consistent with the surrounding known facts, including that the grievor had communications through the same email address with the employer both before and after the two emails in question. At the time the grievor was also expecting the employer would make an offer for a termination package. It was highly likely that the grievor was checking his email and that he read but decided to ignore the two messages. The employer argued that it did not matter why the grievor ignored the messages. He held the mistaken view at the time that the employer did not have the right to request medical documentation until after five days of absence, and he also harboured a deep animosity to Boyer, as was demonstrated by his Facebook post in the aftermath of Boyer’s death. Either or both could have motivated the grievor to ignore the employer’s clear directions.
 The employer argued the evidence demonstrated that the grievor had decided he was not going to return to work with OPSEU. He stopped working for the employer during the week of August 26. He attended the workplace that week only to work on disengaging from the job, cancelling meetings, organizing his personal effects, and so on. He ceased communicating using his work email address and he cleared his calendar of all meetings in the month of September. He drove to the office on Saturday to pick up his remaining personal items and to return all OPSEU property in his possession. He made the long drive to the office a second time on Saturday to return a file he had at home but had failed to return on the first trip. After that Saturday, he did not return to the office. There was no question that the grievor considered that his employment at OPSEU was over, yet he did not properly explain why in his evidence. His actions to terminate his working contact were taken prior to consulting with any of his medical advisors, which demonstrates that his decision to leave was unrelated to any medical considerations.
 The union argued that the grievor had a history of mental disorders, but the employer was not aware of his medical condition, so the only relevant question was whether he was properly absent from work. The employer relied on the fact that it received no medical documentation until shortly prior to the first hearing day in this arbitration and full disclosure required an order for production. As a result, the employer asserted it had been deprived of the opportunity to reconsider the decision to terminate in light of timely medical information solely because the grievor decided he would not disclose any information to the employer.
 The employer argued that the grievor’s assertion that he did not see the ‘deadline’ emails was not credible and did not pass the test set out in Faryna v. Chorny. The grievor had argued that he checked his email before and after the two key emails, but not for a period of five days in between. Such an assertion was simply not believable, particularly given all that was happening and the critical nature of any communication that would have been coming from the employer around this time. Similarly, the grievor’s failure to tell Boyer on September 3 that he was making plans to see his doctor, and to let him know on September 4 that he had booked an appointment on September 10 deprived the employer of the chance to consider how those facts affected the situation. The grievor had decided that the employer was not entitled to any information, and he kept Boyer in the dark. In the circumstances, it looked as though the grievor hoped the employer would terminate him. Ultimately, the employer asserted, it did not matter because email was the grievor’s chosen method of communication, and his failure to check it would have been highly unreasonable and irresponsible.
 The employer was critical of the medical evidence of Raison and Dr. Toppin. Both relied on “sketchy”, incomplete notes. Raison was “argumentative” and acted as an advocate for the grievor. Dr. Toppin was not a specialist and not qualified to treat psychological disorders and, rather than apply objective testing, he conceded much of his obligation to diagnose the grievor to the analysis made by Raison. Dr. Toppin did not have independent recall of the grievor’s condition, and he relied on his vague notes as the basis
for his evidence. He did not check to find out if the grievor’s behaviour was related to drug abuse; he did not observe symptoms daily over a two-week period before diagnosing depression, as required by the DSM-V; he did not conduct a full mental health assessment; and he never stated in his testimony that the grievor was unable to perform his full duties because of his condition.
 In summary, the employer argued the grievor ignored employer directives to provide medical documentation. He was absent without leave from September 3 to 9 inclusive but his explanation of illness was not substantiated by any medical evidence. Those were sufficient facts to support termination. In addition, there were aggravating factors, including the grievor’s refusal to disclose medical information, his unexplained measures to sever his employment relationship, and the fact that he did not acknowledge that he has any responsibility for the events around his termination.
 In the alternative, the employer submitted that it would not be appropriate to reinstate the grievor and that this case should be considered as one requiring compensation in lieu of reinstatement. In the event the termination was not upheld, the withholding of medical information should be weighed as an egregious transgression on the part of the grievor, and that he be suspended without pay until the date of the award.
 The employer relied on the following authorities: Salvations Army Grace Hospital,  O.L.A.A. No. 23 (McLaren); St. Joseph’s Health Centre,  O.L.A.A. No. 79
(Joyce); City of Toronto,  O.L.A.A. No 51 (Davis); Kubota Metal Corporation,  CarswellOnt 13497 (Trachuk); Sault Area Hospital,  CarswellOnt 12072 (Steinberg); Regional Municipality of Waterloo,  CarswellOnt 15619 (Rayner); Labatt’s Ontario Breweries,  CarswellOnt 4183 (Brandt); Brown & Beatty, 7:6142; Town of Caledon,  CarswellOnt 5574 (MacDowell); City of Brampton,  CarswellOnt 5338 (MacDowell); TRW Linkage & Suspension Division,  CarswellOnt 6375 (Hinnegan); Toronto District School Board,  CarswellOnt 10856 (Luborsky); Aviscar Inc.,  CarswellOnt 4961 (Chauvin); Calgary Co-operative Association,  CarswellAlta 941 (Ponak); Canada Post Corporation,  CarswellNat 1192 (Jolliffe); Canadian Regional Airlines Ltd.,  CarswellNat 3225 (Smith); Regional Municipality of Cape Breton,  CarswellNS 660 (North); Grand Erie District School Board,  CarswellOnt 9820 (Howe); Real Canadian Superstore,  CarswellAlta 1521 (Sims); Spectra Energy Transmission,  CarswellNat 5701 (McPhillips); Telus Communications Co.,  CarswellNat 7398 (Hornung); Toronto Community Housing Corporation,  CarswellOnt 9657 (Johnston); Metro Ontario Inc.,  CarswellOnt 8258 (Chauvin).
 The union argued that this case was largely one about fair treatment of the grievor. The grievor was an employee who was suffering from high levels of stress and having difficulty coping in the workplace. He had a history of mental disorders going back to 2010 and as recently as 2018, one year before he was terminated. Boyer was aware of this history and had previously demonstrated flexibility when the grievor needed time off.
 The grievor testified that he had been devastated when the employer raised the possibility of a buyout. It was a blow to him, and it caused another mental health episode, diagnosed initially as adjustment disorder and then as Major Depressive Disorder by Dr. Toppin. In other words, the grievor was ill and had required time off.
 The union submitted that there was no substance to the employer’s allegation that the grievor had been insubordinate. He told Boyer’s he was going to grieve the first request, but, at the same time, he took immediate steps to get an urgent appointment with his family doctor, responding appropriately to Boyer’s instruction to do so at his “earliest convenience.” Unfortunately, he did not read the next two emails with the deadlines, and the situation deteriorated from there. The employer did not show any concern about the grievor’s state of health although, they were aware that the grievor was applying for sick leave benefits. The grievor had no disciplinary history and yet he was terminated with unseemly haste, with the employer imposing tight deadlines and not taking responsibility for ensuring those deadlines were clearly communicated.
 The grievor had about eleven years of experience, during which time he had worked as the “face of the organization” to OPSEU members. Despite the grievor’s lengthy service, the employer appears to have discounted his concerns about the MDT assignment. There was no evidence that the employer had conducted a basic investigation into the grievor’s concerns. When the buyout option was raised, and the
grievor had absorbed the impact of the employer’s response, he realized he would need time to consider his response and relied on Boyer to allow him similar flexibility with respect to time off, just as he had been accorded in the past. The grievor took two days to respond. He made an opening proposal. The employer’s response was particularly damaging. Boyer refused to make a counterproposal and suggested the situation could all go back to normal, and they would carry on with reviewing the grievance the following week. The response was, for obvious reasons, hard for the grievor and, understandably, he confirmed that he was going to be sick the following week. At this point, the grievor understood his career as a union representative with OPSEU was over and he had difficulty accepting he was unemployed at the age of 50.
 The grievor sought medical care for his mental distress. He saw Raison on the Labour Day Monday and booked an appointment with his family doctor on September 10. On September 4, the employer unilaterally decided to “up the ante” and sent an email to impose a 24-hour deadline for providing medical information. This act appeared to be a direct response to the grievor’s request for STD forms. The grievor testified that Boyer regularly reached him via text messages, but that did not happen this time. The grievor was not well and the employer used an unreliable means of communication.
 The union asserted that Raison’s evidence was reliable and useful. She was a health care professional with more than 30 years of experience providing counselling and support for people with mental health disorders. She had worked with the grievor
previously. She assessed the grievor’s symptoms without providing a diagnosis, which she was not permitted to do. She was subjected to tough cross examination but remained consistent in her observations. Dr. Toppin also had decades of experience as a family doctor and treated the grievor for each of his major episodes of depression in 2010, 2018 and 2019. His diagnosis of depression was attacked on the basis that his notes were not clear and, in the employer’s opinion, did not match with the DSM-V. Even assuming the notes were not easily understood by anyone else, that did not affect Dr. Toppin’s ability to understand them, and he was able to testify in detail about his observations and state of the grievor’s health.
 The union argued that the medical evidence showed the grievor was in a mental health crisis at least by September 2, when he was seen by Raison, and he was diagnosed by Dr. Toppin on September 10 as suffering from a “severe” adjustment disorder. The union argued that it was not appropriate to discipline an employee in such circumstances, particularly when the discipline was based on rushed timelines contained in unverifiable communications.
 In summary, the union submitted that the central question was whether the grievor was genuinely ill. The union argued that, if the grievor was scheming, his plan had no coherent logic and led to his termination, which provided him with no advantages. The evidence did not show that the grievor was insubordinate or absent without leave. The request for medical information was improper because there was no basis to suspect
the grievor was abusing sick leave. The grievor complied with Boyer’s first request and took steps to obtain medical information at his earliest convenience. The subsequent requests were not clearly communicated. The grievor was sick during the relevant time. Even if the grievor bore some culpability in the circumstances, termination was not a reasonable response, and a short suspension would have been more appropriate given the mitigating circumstances of the grievor’s illness.
 The union relied on the following authorities: Ontario Provincial Police, [Unreported, Abramsky, August 31, 2018]; Ontario Ministry of Housing,  O.L.A.A. No. 19 (Stewart); Lilly Industries Inc.,  O.L.A.A. No. 91 (Dumoulin); Maritime Paper Products, [Unreported, Richardson, September 7, 2018]; Good Humour – Breyers,  O.L.A.A. No. 79 (Trachuk); Mistahia Health Region (Alta.),  A.G.A.A. No. 87 (Moreu); Wm. Scott & Co.,  B.C.L.R.B.D. No. 98 (Weiler); Dashwood Industries Ltd.,  O.L.A.A. No. 430 (Rose); Good Humour-Breyers,  O.L.A.A. No. 173 (Kirkwood); Labatt’s Ontario Breweries,  O.L.A.A. No. 60 (Brandt).
Conclusions and Decision
 The grievor was terminated for two reasons. First, the most important allegation was that the grievor had been absent without leave and not sick for the period from September 3 to September 9, the date of his termination. Second, the employer alleged that he insubordinately failed to provide medical evidence when requested by his managers.
Allegation 1 – Was the Grievor sick?
A – Impact of the Medical Evidence
 The question as to whether the grievor was legitimately sick from September 3 to 9, 20019 is an issue that turns on medical evidence. Dr. Toppin saw the grievor on September 10, the day after his termination, and diagnosed the grievor was suffering from adjustment disorder with anxiety. Raison observed similar symptoms during her session with the grievor on September 2. In addition to their testimony, the medical evidence included Dr. Toppin’s and Raison’s reports, dated November 11 and September 19 respectively, their clinical notes and the relevant portions of the STD application and appeal. The employer urged that the combined evidence of Raison and Toppin should be given no weight, that both witnesses were unreliable, that their reports were questionable and that both were wrong in what they observed and the conclusions they reached.
 Raison was a social worker with more than thirty years of experience. She had previously counselled the grievor with respect to depression. The grievor contacted her office requesting an “emergency appointment.” Raison saw the grievor on September 2. He presented as “very tearful and overwhelmed” according to her clinical notes. She stated the grievor reported symptoms of lack of sleep, feeling overwhelmed and hopeless. She noted that she thought he might have been experiencing a “relapse of his depression symptoms.” Raison testified that, given what she observed on September 2,
she thought the grievor was not capable of carrying out the complex professional duties associated with his position, and she advised him to see Dr. Toppin to find out whether he should take some time off work.
 Dr. Toppin had been the grievor’s family doctor for 30 years. He had treated the grievor during his prior episodes of depression. He testified that the appointment on September 10 was scheduled on an “urgent” basis. Dr. Toppin also testified that he observed many of the same symptoms that had caused Raison’s concerns. On September 10 he diagnosed the grievor with anxiety adjustment disorder, although on September 24 he changed the diagnosis to a major depressive disorder. I note that Mr. Mendl identified issues with the latter diagnosis but I do not need to rule on that aspect of the grievor’s medical history. The issue before me is the grievor’s medical condition from September 3 to September 9, and whether he was unable to work during that period due to illness. The illness identified on September 10 was adjustment disorder.
 The employer submitted that I should discount the medical evidence of both Raison and Dr. Toppin with respect to the grievor’s state of health from September 3 to 9. Both witnesses testified that they did not believe the grievor was capable of working, given the symptoms they observed. Thus, to reach the conclusion urged by the employer, I would have to conclude that both Raison and Dr. Toppin were taken in by the grievor, who was feigning symptoms, or they were both incompetent, or that they both gave unsubstantiated, false testimony and false assessments of the grievor’s condition.
 I do not accept the employer’s submission that neither Raison nor Dr. Toppin provided useful medical evidence. It does not seem reasonable to conclude that two seasoned health care professionals were fooled by the grievor, who was only pretending to be ill. I note that the conclusions reached to by both Raison and Dr. Toppin were largely based on the grievor’s behaviour and how he presented himself, not on self-reporting. The facts are distinguishable from those in the TDSB decision, where a medical examination found no evidence of “any diagnosable psychological condition.” This was not a case of the grievor telling his medical advisors that he had flu symptoms several days prior but had since recovered. The grievor had a history of mental illness. Both medical professionals had been involved in the treatment of his previous mental illness. The symptoms observed by both Raison and Dr. Toppin included crying, shaking, slovenly appearance, difficulty “word finding”, being flustered and agitated, exhibiting a “hangdog” expression and so on. These collected symptoms could have been observed by someone with no medical training and still lead them to the reasonable conclusion that the grievor was not capable of performing his job, as alluded to by Arbitrator Trachuk in Good Humour. Raison and Dr. Toppin, were best placed to assess the genuineness of the grievor’s behaviour and to determine if he was faking or embellishing the symptoms, and neither indicated they detected any such dishonesty. It does not strike me as likely that the grievor would have been able to successfully feign such symptoms and do so in a manner that would have convinced Raison and Dr. Toppin, both of whom had known and
treated the grievor for some time and both of whom had many years of clinical experience.
 Similarly, I have not concluded that either Raison or Dr. Toppin gave false evidence or acted as unethical advocates for the grievor. Both were closely cross-examined by Mr. Mendl about their reports and their clinical notes. The employer was particularly critical of Dr. Toppin’s clinical notes. I agree that some of his notes were difficult to understand from the perspective of a non-medically trained layperson, and perhaps even for another doctor. However, I am satisfied that Dr. Toppin explained the contents of his notes and how those notes related to his diagnosis of adjustment disorder and, later, depression. The issue of the clarity of his notes is not a matter I have to rule on. What is important in this case is the nature and quality of Dr. Toppin’s testimony and his medical reports. In this regard, it matters that this was not the first time Dr. Toppin, or Raison treated the grievor for mental health issues, which increases the likelihood that they could more readily identify the signs of illness for this patient, a factor noted by Arbitrator Davis in City of Toronto. In my view, both Raison and Dr. Toppin provided coherent evidence about the grievor’s observed symptoms, how such symptoms related to past mental health problems, and how such symptoms compared to the grievor’s behaviour when not mentally ill. I expect that neither Raison nor Dr. Toppin found the cross-examination process to be an easy experience. However, both defended their observations and conclusions vigorously and, in my view, in a manner that was rational and persuasive – I did not reach the conclusion that either were acting as an advocate for the grievor or that
they tailored their testimony to benefit the grievor. I have concluded that the medical evidence provided by both Raison and Dr. Toppin about the grievor’s health between September 3 and September 9 was objective and relevant.
 The employer cited the decision in Spectra as authority for the proposition that GPs do not have the expertise or the training to diagnose mental illnesses. I do not agree with this general proposition, nor can it reflect the state of the law. GPs are not specialists in mental health – it requires additional training to become a psychiatrist. However, GPs are part of the mental health care system, in the same way that they are part of any other area of health care. GPs have the competence and authority to assess, diagnose and treat mental illness, including prescribing medication. GPs are usually the first place at which individuals seek help with mental illness and, as Dr. Toppin testified, the GP must be able to determine when it is necessary to refer a patient to a specialist, which is not different from any other kind of health complaint. I would not discount the opinion of a GP on a mental health issue solely because they are not psychiatrists, and I have not done so in this case. Similarly, Dr. Toppin’s evidence is not diminished by the fact that he did not refer the grievor to a psychiatrist.
 As mentioned previously, Mr. Mendl raised some issues about Dr. Toppin’s diagnosis of depression during the September 24 session in relation to the criteria for depression set out in the DSM-V. As stated above, the focus of this dispute was the state of the grievor’s health at the time of his termination, which Dr. Toppin diagnosed on
September 10 as adjustment disorder with anxiety. The question I must answer is whether the evidence shows that the grievor was likely suffering from an adjustment disorder with anxiety during the week leading up to his termination that was serious enough to prevent him from performing his job.
 In my view, the critique of Dr. Toppin’s later diagnosis of MDD does not affect his initial diagnosis of adjustment disorder. Adjustment disorders are diagnosable mental health conditions, and are described in the DSM-V as emotional or behavioural symptoms in response to an “identifiable stressor.” The definition of the diagnosis provides several examples of possible stressors, including “marked business difficulties” which would capture events involving the loss of or threat to one’s career. The DSM-V stipulates that adjustment disorders are characterized by marked distress as well as significant impairment in social, occupational, and other functioning. Dr. Toppin observed and identified the following symptoms exhibited by the grievor that are listed as symptoms of adjustment disorder: low mood, tearfulness, feelings of hopelessness, nervousness, worry and jitteriness. The doctor characterized the symptoms as “severe” in his report for the grievor’s application for STD, and he indicated it was his conclusion that the grievor should be on indefinite sick leave. This was not a case where the employee claimed they could not work due to “stress”, such as in TRW. Adjustment disorder is a recognized mental illness, and the medical evidence was consistent with the hallmarks of the illness set out in the DSM-V. I do not think it reasonable to conclude that the grievor could perform his normal duties as a union representative when in such state of health.
 Given the clinical observations made by both Raison and Dr. Toppin, and given their evidence placing those observations in context of the grievor’s history of mental illness, I am not persuaded there is a basis to discount the conclusions of either health care professional. Even though the grievor’s sick leave declaration on August 28 was suspicious (a point I discuss in detail below), I have reached the conclusion that, at least by September 2, he was demonstrating objective indicators of a diagnosable mental illness, and that his behaviour was sufficiently serious to lead Raison to conclude that he should see his family doctor to get an opinion on whether he should report for work. Raison, as a social worker, could not and did not provide a medical diagnosis but her evidence was important in establishing when the grievor began exhibiting the symptoms that would lead to the diagnosis of adjustment disorder. Dr. Toppin made his assessment on September 10. By that time, the grievor had already been terminated. However, given that the symptoms Dr. Toppin observed on September 10 were like those observed by Raison on September 2, I find that the evidence is sufficient to conclude that the grievor’s mental health began to deteriorate at the latest by September 2, and that the diagnosed adjustment disorder would have prevented him from performing his duties as an OPSEU representative between September 3 and September 9.
B – Impact of Insurance Carrier Rejection of STD Claim
 The employer relied on the findings of the insurance carrier, SSQ, to support the assertion that the medical evidence did not demonstrate that the grievor was medically
unfit to work. The evidence of Giles was that the employer had a practice of following the medical decisions of the insurance carrier, even in cases where they may not necessarily agree with the carrier’s opinions.
 The employer relied on the decision in Caledon for the proposition that a conclusion contrary to that of the insurance carrier, whose task it is to review STD applications, must be based on “clear and cogent” evidence, and that otherwise it is reasonable for the employer to rely on the carrier. However, Caledon was a case about eligibility for sick benefits, not about the termination of an employee. Giles explained why the employer follows the decisions of the insurer with respect to the assessment of sick leave claims, and that explanation makes sense and was consistent with the reasons outlined by Arbitrator MacDowell in Caledon. However, an arbitrator’s decision with respect to just cause for discipline is based on evidence weighed on the balance of probabilities. The quality of such evidence is not coloured by administrative
 The insurance carrier initially rejected the grievor’s claim for STD on the basis that he was not “totally disabled” and that he had not seen a doctor for his illness before his coverage was ended by his termination on September 9. These conclusions were set out in the letter rejecting the grievor’s claim dated October 25, 2019. The key finding of SSQ in this letter was as follows:
While we recognize you may have some difficulties and associated symptoms, the medical evidence does not confirm that you have experienced a level of impairment that has restricted you from performing your job duties as a Staff Representative.
considerations, but by the impact the evidence has on the factual issues in dispute. For this reason, I do not think it would be helpful to apply the reasoning in Caledon to a termination case.
 Secondly, even were I to apply the same standard, MacDowell’s point was predicated on the condition that the insurer’s decision should stand so long as it was within a range of reasonable conclusions. I do not believe that it is prima facie reasonable to conclude that a person suffering from adjustment disorder can carry out the duties of a union representative. Thus, some explanation from SSQ as to why they thought the grievor was able to work would have been necessary. It is not possible to assess the reasonableness or medical relevance of the SSQ rejection of the grievor’s claim in this matter because no reasons were provided. The passage excerpted above set out SSQ’s decision. The first part is a statement of sympathy or compassion. There is nothing wrong with that, but it contains no medical analysis. The rest of the passage says no more than that the medical evidence did not meet the carrier’s standard, which is the same as saying you did not qualify for benefits because you did not qualify for benefits. Dr. Toppin’s medical evidence was that the grievor had “severe” symptoms of adjustment disorder and needed time off work. The insurer’s statement added no meaningful response to the medical evidence and it cannot be considered as an alternative medical analysis. The conclusion reached by SSQ was, in essence, that they did not agree with Dr. Toppin’s conclusions, but the disagreement was not explained and there was no analysis of the
medical information they had been provided. Some reasoning is required if the carrier’s conclusion is to be given weight beyond a bare statement of ineligibility.
 It is reasonable to assume from SSQ’s later appeal decision that the primary reason the grievor was denied benefits was the fact that he did not see his doctor before he was fired. By September 10 it was too late because his benefit coverage had terminated at the moment he lost his job. This was mentioned in the initial rejection letter but was made clearer in SSQ’s reasons for the rejection of the grievor’s appeal, dated April 21, 2020. In the appeal decision the carrier stated that benefit payments commenced on the date the employee is under the care of a doctor, adding:
As your disability coverage terminated on September 9, 2019 you were not eligible for STD benefits prior to the date you first were seen by a licensed doctor, September 10, 2019.
In other words, SSQ rejected the appeal because the grievor had been terminated on September 9 prior to seeking treatment from a licensed doctor. As was the case with the first letter rejecting the STD application, there was nothing substantive in the SSQ appeal decision that can be viewed as medical evidence or analysis that should impact my evaluation of the evidence of Dr. Toppin or Raison. When the initial rejection and the appeal decisions from SSQ are read together, I can find no reasoning or critique of the medical evidence. As a result, there is no evidence available that would allow me to assess the reasonableness of SSQ’s rejection of the medical evidence. The only medical evidence in this case is that provided by Raison and Dr. Toppin, as outlined above.
Allegation 2 – Insubordination re Requested Medical Note
A – Background to the Dispute
 The background for the events that led to the grievor’s termination was that he was advised that he would be working with an OPSEU member as part of Member Development Training (MDT), an OPSEU program to train union activists as OPSEU Representatives. The grievor testified that he had had a previous negative experience with the member in question, but the experience was based on hearsay and for that reason I will identify the member as X. The grievor stated he had been advised that some OPSEU members had voiced criticisms of him in a discussion with X, and that X had said to them: “If he [the grievor] is giving you a hard time, I will take it up with the Board of Directors of OPSEU and get him straightened out.” The grievor was not present for this alleged exchange. He was told about X’s alleged comment by someone else, and no evidence was led about the truth of the statement attributed to X. Nevertheless, the grievor believed the incident to be true. He spoke to Boyer about his concerns and advised that he would not work with X as part of the MDT and would instead exercise his rights under the Occupational Health and Safety Act (OHSA) to declare a work refusal.
B – The Buyout ‘Discussion’
 The employer’s response to the grievor’s concerns about the MDT assignment was a clear sign that the employment relationship was not healthy. Boyer spoke to the grievor on August 28 and advised him that he had raised the MDT matter with senior managers
at OPSEU and that they had a negative reaction to the grievor’s concerns. Boyer then formally raised the question of whether the grievor would be interested leaving OPSEU with a buyout package. Boyer wrote later that he made this suggestion because the grievor had previously stated that he would be interested in a buyout. The grievor testified that his previous comments were taken out of context. Be that as it may, it is significant that the employer, not the grievor, raised the possibility of a buyout.
 The grievor responded to the buyout suggestion by telling Boyer that he would need some time to consider his position and to confer with his spouse and advisors. He told Boyer that he would take the rest of the week off to consider the matter, and that he would take sick leave starting on September 3, the Tuesday after the long weekend. Although it appears it was not clear to Boyer what credits the grievor would use for August 28 through 30, there is no dispute that those days were taken as one personal day and two compensating days. The employer considered the grievor to be absent without leave on the first working day after the long weekend, September 3.
The grievor responded to the question of a buyout package in an email to Boyer on Friday, August 30, with an offer to leave his position in exchange for two years of salary continuance including benefit coverage. Boyer responded within half an hour, stating that the grievor’s offer was “not even in the ballpark” and that they would discuss the grievor’s outstanding grievances after the long weekend. The employer made no counter-offer. Boyer’s response appeared to indicate the employer was no longer interested in
discussing the buyout option, and that the grievor was expected to report for work the following Tuesday. Anyone who has performed the job would understand that a union representative could not work effectively in an environment where they know that the leadership of the union may not be there to back them up when needed. In my view, it was not reasonable for the employer to open the door to a buyout and then slam it shut and expect that the grievor could return to “business as usual” the next day. I cannot say whether this was a bargaining strategy or an expression of frustration, but it was a decision that had a major impact on what followed.
C – Grievor’s Actions After Buyout Raised
 It was reasonable in the circumstances for the grievor to conclude that he had lost the confidence of his employer. It was clear that the employment relationship was in trouble, both from the fact that Boyer had raised the possibility of a buyout and by the dismissive and somewhat contemptuous response to the grievor’s proposal. The grievor testified that he considered his work at OPSEU to be over. He took steps to follow through with that conclusion. He cleared all appointments from his calendar for the month of September. On Saturday, August 31 he made two trips from his home to the Thunder Bay office to collect his personal effects and return the employer’s property. The grievor agreed that, as of August 28, he no longer performed any work for the employer, other than the work of disengaging from his assignments. But he did not tender his resignation and, although the employer had given a strong indication of non-confidence in him, the grievor had not been formally terminated.
 The employer suggested that the grievor’s decision to separate himself from his job duties was part of a scheme to pressure the employer to make a buyout offer, and that the grievor hoped that his absence would force the employer’s hand. The employer also asserted that the grievor believed that he would be successful in an application for STD commenced on September 3, and that he would be well placed to ‘wait it out.’
 It is possible the grievor was, as the employer asserted, engaged in some sort of scheme designed to pressure the employer but the self-defeating nature of his decisions argues against such a conclusion or at least suggests that his scheme was incoherent and illogical. It is difficult to accept that the grievor, an individual with considerable experience as a union representative, would take steps to deliberately force his own termination. Such a move would mean he would be without any income and forced to fight for compensation. He had applied for STD, which offered his best chance for income security, but termination could, and did, put his application for sick benefits at risk. If his decision to disengage was a plan, it was not a part of a plan that brought him any obvious benefits. The actions the grievor took to separate himself from the workplace were not rational and did not advance his interests.
D – Did Employer have Reasonable Grounds to Suspect Abuse of Sick Leave?
 The grievor did not report for work on September 3. The employer sent a total of three emails to the grievor requesting confirmation of sickness, the first one sent by Boyer
on September 3; the second one also from Boyer sent on September 4 with a deadline for providing the sick note of September 5 at 4 p.m.; and the third from Suddaby on September 6 with a deadline of that same day at 7 p.m.
 There was an issue between the parties as to whether the employer had the right to make the requests for sick notes given Article 23.020.02. However, at the hearing both parties agreed that, despite Article 23.02.02, the employer had the right to request a medical note prior to five days absence where there were reasonable grounds to suspect abuse of sick leave, as set out in the decision in Salvation Army and the long line of cases following therefrom. The question, therefore, is whether the employer had such reasonable grounds for suspicion?
 The documentation from Boyer seems to suggest that he was uncertain after the conversation on August 28 what the grievor was doing, but the grievor agreed in cross- examination that he had told Boyer on August 28 that he would be off sick on the following Tuesday, September 3. As Giles pointed out this was, to say the least, an unusual assertion to make before seeking medical advice unless one is expecting to be absent for scheduled surgery or some other medical procedure. Indeed, as Giles as testified, in the case of mental illness it is hard to predict how one might feel from one day to the next. The fact that the grievor claimed almost one week prior that he would be sick on September 3 was not consistent with the normal process of the onset of illness. In addition, the comments were made in the context of the failed buyout discussion.
 It was reasonable for the employer to assume that the assertion of sick leave was not related to bona fide illness but was related to the buyout process. I have concluded that the assertion of the illness in advance and in this context gave rise to reasonable grounds for the employer to suspect the validity of the grievor’s claim for sick leave. For this reason, the employer’s decision to request medical confirmation of illness was related to a reasonable suspicion of sick leave abuse and was not limited by the normal sick leave procedures set out in Article 23.02.02.
E – Grievor’s Response to Boyer on September 3
 There is no dispute that the grievor read Boyer’s September 3 email requesting medical documentation to cover his absence from work. In the email, Boyer did not stipulate a deadline, asking only that the information be provided at the grievor’s “earliest convenience.” The grievor testified that he knew at the time that, even if he disagreed, the email put him in an “obey now, grieve later” situation and that he intended to follow through. Although the grievor stated he intended to comply with Boyer’s September 3 directive, he did not express that intention to Boyer at the time. The email exchange between the two on September 3 started when the grievor sent Boyer an email asking that STD application forms to be sent to his personal email address. That prompted an email exchange that can be summarized as follows:
Boyer: Have you provided HO with a doctor’s note or an indication of a time
frame regarding your expected sick leave?
Grievor : I have not but I have not passed the threshold at this point. …
Boyer: The Employer requires you to provide a sick note from a medical practitioner from your first day off sick at your earliest convenience.
Grievor: This is contrary to Article 23.02.02 and as such please be advised of
my intent to grieve.
What is significant here is what the grievor did not say. The grievor did not say that he had seen Raison the day before, and that she had advised him to make an appointment with Dr. Toppin on an urgent basis. He could have advised Boyer he was going to make an appointment with Dr. Toppin. He could have let Boyer know about the September 10 appointment with Dr. Toppin after it was scheduled on September 4. These were all pieces of information that were relevant to the medical note demand. The grievor did not share any of this information with Boyer. Had he disclosed the information, at worst Boyer might have insisted the grievor attend a clinic immediately. Given the grievor’s claim that he knew he was in a situation where he had to ‘obey now and grieve later’, such an outcome would have been a minor but not unexpected inconvenience. The grievor’s explanation for his silence was puzzling. During cross-examination he said “it was understood” he would comply because his supervisor had made the request. This struck me as more of a rationalization than an explanation. The grievor’s response to Boyer on September 3 did not imply any compliance. It was clear that there was not a good working relationship between the two men, so clarity of communication was important. There was nothing about the grievor’s efforts to see his doctor that would have been difficult or stressful to explain or that might have provoked any greater conflict
with Boyer. Indeed, assuring Boyer that he was taking steps to get medical information, while reserving his right to grieve, would have helped to reduce tension between the two.
 I accept that the grievor was sick and was likely in a poor mental state at the time. However, he recognized the importance of providing medical evidence to support his STD application. This implies that the grievor was capable of responding more fully to Boyer on September 3 and September 4 and to Suddaby on September 6 but, for reasons of his own, he did not. He might have maintained his silence out of anger or for some other reason, but whatever his motivation, his decision to do so played a significant role in this dispute.
F – Did the Employer Properly Communicate the Deadlines?
 The secondary reason why the grievor was terminated was for insubordination for refusing to provide medical documentation when requested. The two ‘deadline’ emails, sent by Boyer on September 4 and by Suddaby on September 5, were emailed to the grievor’s home email address. As stated above, the employer had a right to request medical documentation, and that would include the right to attach reasonable deadlines for providing such information. There was an issue between the parties as to whether those deadlines were communicated to the grievor. The grievor stated he did not read either email until after he was terminated. The employer argued it was highly unlikely the grievor did not read the emails, and it was more likely that he chose to ignore them.
 It seems likely that the grievor received the emails in question. He received and responded to other emails with the employer before and after the warning emails were sent. He responded on September 3 to the first email in which Boyer requested the medical documentation at the grievor’s “earliest convenience.” He also received and responded to emails related to his application for STD, including on September 6. It seems unlikely that he would have failed to receive these two specific emails. Thus, I accept the employer’s submission that the grievor likely received the emails of September 4 and September 6.
 However, I am not persuaded that the employer has been able to demonstrate that the grievor read and ignored the two emails. Insubordination requires proof that an employee willfully disobeyed an order, and there must be evidence of a clearly communicated order. In this case, the evidence of communication is not clear.
 The employer was aware that the grievor had initiated the process to apply for STD coverage, which meant the employer was aware that there was the possibility that the grievor had a valid medical condition that prevented him from working. Even though the grievor’s pre-announced sick leave was suspicious, the employer could not be sure of the grievor’s fitness to work until after seeing medical reports. One of the key factors in this case is that the employer moved so rapidly to termination. In addition to the fact that the employer could not be certain that the grievor had received the two ‘deadline’ emails, and they could not be sure whether he was healthy enough to work, the period
from the first request for medical information to the grievor’s termination was just six days, September 3 to September 9. Compare that to the efforts employer made prior to terminating an employee, as set out in the jurisprudence. In Aviscar, the grievor went off work on August 7. After some weeks, the employer made several unsuccessful attempts to reach him by phone and then, in October, sent him a registered letter. The grievor refused delivery of the letter and did not respond to Canada Post notices to pick up the letter at a local post office for several weeks. In Calgary Co-op, there were similar facts to the instant dispute, in that the grievor in that case was off work for up to 6 weeks with depression. He asked his employer for a buyout. After the six-week period, the employer made multiple attempts to contact the grievor, both directly and through the union, over a period of several weeks. Similarly, multiple attempts to communicate over extended periods can be seen in the Canada Post, Canadian Regional Airlines and Cape Breton decisions. The question of what efforts are required in cases such as the one before me must be answered in context of the specific facts, but it was clear in this case the employer moved very quickly to terminate the grievor’s employment. Added to these considerations is the fact that the employer should have known that a union representative, even one without a history of mental illness, would have faced considerable difficulty returning to work in the circumstances. It may well be that a broader context for this troubled employment relationship has been lost because Boyer was not able to testify, but I note there was no history of discipline against the grievor. Regardless, there is no question but that the employer moved with some haste to terminate the grievor’s employment. It was not reasonable for the employer to move to
terminate the grievor’s employment so quickly without making greater efforts to first ensure he had received the warning emails and secondly to clarify his medical status.
 The grievor’s actions after he discovered he was terminated are difficult to understand. Upon being told by his local president that he had been terminated he should have immediately understood that the employer had acted under the misapprehension that he was not gathering the requested medical documentation. The obvious reaction should have been to contact the employer immediately and advise that he had an appointment with is doctor scheduled for the next day, that he had already been assessed by Raison, that he had not seen the deadline emails – in other words he should have provided the same explanation to the employer at the time that he provided during his testimony. Given that he asserts the OPSSU president advised him of the termination letter, he did not even have to take these steps on his own. He could have given his union president the information and asked her to communicate with OPSEU management in an to attempt to reverse the termination. Surprisingly, the grievor took no steps to get an immediate medical report and did not ask Dr. Toppin for a medical note on September 10, the day after his termination. He testified that he did not because he had already been discharged by then, so there was “no point.” Obviously, there was a point. In the end, the employer was not provided with any medical documentation about the grievor’s health until shortly before the commencement of the hearings in this matter.
 The failure of the grievor to provide the employer with medical documentation remains an issue to be addressed. As Arbitrator Luborsky pointed out in TDSB, there is an important contractual expectation that employees should provide medical confirmation of illness, and that failure to do so can lead to loss of sick pay and, eventually, termination of employment. However, while I consider it important that the grievor withheld medical information, most of that happened after he was terminated. Arguably he withheld information from Boyer on September 3 about steps he was taking to see his doctor, but that was not a decision that should attract serious discipline. Otherwise, the grievor’s withholding of information took place after he was terminated. Although the withholding of medication information should not be considered a disciplinary matter, it was significant that the grievor’s mental health did not prevent him from arranging to provide SSQ with the necessary documentation to process his claim for STD. From this I have concluded as a fact that the grievor understood, despite his illness, that medical information had to be provided to others if he wanted them to consider it in assessing his rights. The grievor’s explanation that he did not provide the employer with any medical information after termination because it was “too late” was not sufficient. The employer did not have the chance to reconsider the termination based on timely medical reports, which would have included reports that could have been provided soon after termination. These are aggravating factors to be weighed in calculating compensation owed to the grievor.
Resolution of Grievances
1. Grievance re OHSA – 2019-48
 This grievance alleges a breach of the Occupational Health and Safety Act in relation to the employer’s response to the grievor’s concerns about the assignment related to the MDT.
 There is no evidence to support a conclusion that the employer breached the OHSA. The MDT training situation had not materialized by the time the grievor was terminated and there were no steps the employer could or should have taken to address a work refusal regarding an anticipated future unsafe situation, other than what it did, which was to indicate its willingness to meet the grievor to discuss the matter. The last communication on the subject was in Boyer’s August 30 email to the grievor, indicating they could discuss the matter in greater detail after the Labour Day long weekend. The grievor was terminated before that meeting took place. Grievance 2019-48 is dismissed.
2. Grievance re Sick Note – 2019-49
 This grievance alleged that the employer improperly requested a sick note prior to the five-day period in Article 23.02.02. It was my understanding that the union had conceded this grievance during the hearing. Regardless, as explained above, the employer had the right to request the sick note in the circumstances in accordance with the long line of cases following Salvation Army. Grievance 2019-49 is dismissed.
3. Grievance re Discrimination for Union Activity – 2019-50
 This grievance alleged that the employer: “reprised against me and acted in a discriminatory fashion as a result of my Union membership.” The evidence did not support any such finding with respect to union discrimination. The grievor had difficulties with Boyer, but there was no evidence to connect those difficulties with the grievor’s membership or participation in his union. Grievance 2019-50 is dismissed.
4. Grievance re Discrimination related to Disability – 2019-51
 This grievance raised issues of discrimination related to the employer’s alleged failure to accommodate the grievor’s disability, as well as his complaint with respect to a toxic work environment. The employer’s decision to terminate the grievor was to a large extent triggered by the grievor’s failure to communicate at the time that he intented to provide the medical information requested. Moreover, the grievor did not provide the employer with any medical information until shortly before the arbitration hearing. There is no basis for concluding that the employer did not accommodate the grievor’s medical condition. Grievance 2019-51 is also dismissed.
5. Grievance re Termination – 2019-47
 The employer had the right to request medical information from the grievor outside of Article 23.02.02 because the grievor’s advance declaration of sickness gave rise to a reasonable suspicion of abuse of sick leave. However, I find that the evidence does not support the conclusion that the grievor was absent without leave, given that he was,
in fact, sick and unable to perform his regular duties from September 3 to 9. The grievor’s illness was real and serious. Even during the hearing, it was evident he found it emotionally difficult to talk about the issues in dispute.
 I find that it is likely that the grievor received the two ‘deadline’ emails, in the sense that they were in the grievor’s inbox in his email application, but the employer has not demonstrated that the grievor read and ignored those instructions. The grievor might have seen but avoided the emails out of anger or anxiety, he might not have noticed them, or he might have read them and decided to ignore them. Any of these is possible but none has been demonstrated to be more likely than the other. Insubordination requires a clearly communicated order. The evidence of communication in this case was not clear enough to support a finding of insubordination as just cause for discipline.
 The employer argued in the alternative that the employment relationship has been irredeemably damaged, and I agree. Although Mr. Boyer has since passed away, the message of non-confidence he communicated to the grievor was described as a joint opinion of OPSEU management. The grievor also took steps to terminate his working relationship with OPSEU. It is fair to say OPSEU did not want the grievor to continue working as a union representative and the grievor did not want to continue working for OPSEU. It did not help matters that, after his termination, the grievor published a harshly critical opinion online about Boyer shortly after the latter’s death. In addition, the trust necessary for the employment relationship has been further undermined by the grievor’s
unexplained failure to provide medical evidence until the onset of the arbitration process. The arbitration hearing has not brought to light any softening of attitude on either side. I agree with the employer’s submission that there is no reasonable prospect that the employment relationship can be renewed.
 The employer has not proven just cause for discipline, and the termination is rescinded. There is no reasonable prospect of re-establishing the employment relationship, and I decline to order the grievor to be reinstated to employment with OPSEU. The grievor is entitled to compensation in lieu of reinstatement. I refer the issue of the quantum of compensation back to the parties for discussion and resolution if possible. The grievor’s decision to withhold medical information is an unusual factor in this case that should feature in the calculation of the remedy, along with the usual considerations. The parties have until December 23, 2021 to reach a settlement. If no agreement is reached by that date, either party may contact me to request the reconvening of the hearing to resolve the issue of compensation and any other outstanding issue related to the implementation of this award.
Barry Stephens, Arbitrator December 07, 2021
President – Lois Boggs, firstname.lastname@example.org, 905-978-3147
1st Vice President – Cheryl Wing, email@example.com
2nd Vice President – Alison Nielsen-Jones, firstname.lastname@example.org
Chief Steward – Tim Mulhall, email@example.com, 705-790-3104
Secretary – Lorri Foley, firstname.lastname@example.org
Treasurer – Jean-Philippe Maher, email@example.com
Membership Secretary – Alyssa Walker, firstname.lastname@example.org
Steward at Large – Ceceil Beckford
Steward at Large – Hasnain Abid
The following are the unedited questions submitted for presidential candidates:
The following are the unedited questions submitted for treasurer candidates:
1.3 Every communication emanating from this Union shall be clearly identified and any unauthorized use or distribution of matter infringing such identification shall be subject to sanction by the Union as provided for in this Constitution.
ODD YEAR ELECTIONS
(1) Benefits Committee
(1) Health and Safety Committee
(1) Steward Body
General Membership Meeting of the year
Central Joint Health & Safety Committee
(2) Head Office at 100 Lesmill Road
(1) Regional Office
(1) Head Office Protech
(1) Head Office Support
(1) Head Office Service
(1) Regional Protech
(1) Regional Support
Pension/Trust Severance Committee
(2) Head Office
(2) Regional Office
Employment Equity / Human Rights Committee
(3) Head Office
(2) Regional Office
OFL – two (2) Delegates
1st meeting in the year prior to the OFL
CLC – two (2) delegates
1st meeting in the year prior to the CLC
General Membership Meeting of the year
1st Vice President
2nd Vice President–
Chief Steward –
Operations Services Unit and Mailroom/Print Shop Unit -2
Accounting Unit and Payroll Unit -1
Region One -2
Region Two -2
Region Three -2
Region Four -2
Region Five -2
Region Six -2
Region Seven -1
Organizing Unit -1
Research Unit -1
Negotiations Unit -1
Local Services Division, Job Security Unit -1
Arbitrations Unit and Legal Services Unit – 2
Pensions and Benefits Unit -1
Health & Safety Unit, Member Education and Equity Unit -1
Communications Unit and Campaigns Unit -1
Information Technology Unit -1
Membership Services Unit and Conferences Unit -1
16.2 The rules of procedure for Standing Committees shall be as follows:
Any OPSSU member found to have violated Article 3.6 of the constitution may have their rights to participate in OPSSU activities reduced to statutory rights only, either for a set period of time or permanently, by a majority decision of the executive committee. The procedures shall be the same as those outlined in Article 17.2 for suspending a member from elected office.
The purpose of this article is to provide direction in the event that OPSSU is requested to or decides to explore a potential merger or affiliation with another Union.
Affiliation: The state or relation of being closely associated or affiliated with a particular person, group, party, company, etc. (But not a transfer of rights as defined under section 68 of the OLRA)
Merger: To cause to combine, unite, or coalesce and as defined under section 68 of the OLRA
1. A vote will be conducted via secret ballot at a meeting to determine whether there is interest in merging or affiliating with any interested union(s).
A simple majority vote of (50% +1) is required. Those members registered and in attendance at the meeting when the question is called will be eligible to cast a ballot.
Attendance in this regard means in-person except those times where the meeting is held entirely by different means.
2. If there is interest expressed by the members of OPSSU (per #1 above) to move forward, then an ad-hoc committee of five (5) or seven (7) members representing a cross-section of the membership will be appointed by the Executive Committee within 10 days of this meeting. The merger and/or affiliation criteria will be set by participants at the meeting.
3(a) If there is a single interested union, then the Ad-hoc Committee will invite that Union to make a presentation, including a question-and-answer session, at a Special meeting no earlier than sixty (60) days and no more than one-hundred and twenty (120) days after the date of the meeting which voted to consider a merger or affiliation. The interested Union will be asked to provide information relevant to the issues no less than thirty (30) days in advance of the meeting.
Following this presentation, the members will have an opportunity to debate the pros and cons of a merger or affiliation and then prepare for a formal vote to take place at the end of this meeting. A two-thirds (2/3rds) majority will be the deciding factor.
3 (b) If there is more than one Union that has expressed interest, the Ad-hoc committee will reach out to each Union to make a presentation, including a question-and-answer session, at a Special meeting no earlier than sixty (60) days and no more than one-hundred and twenty (120) days after the date of the meeting which voted to consider a merger or affiliation. The interested Unions will each be asked to provide information relevant to the issues no less than thirty (30) days in advance of the meeting.
Following these presentations, the members will have an opportunity to debate the pros and cons of each presentation on either merger or affiliation and then prepare for a formal vote to take place no earlier than fourteen (14) days and no later than thirty (30) days from the date of the meeting. If there are more than two Unions on the ballot, the Union with the lowest number of votes will drop off. A two-thirds (2/3rds) majority will be the deciding factor.
For clarification, throughout the balloting process, the option of “Do not merge or affiliate with any of the above” will remain an option.
The purpose of the committee is to gather a list of applicants eligible to partake in the annual draw for the Memorial Scholarship of $2,500; and to conduct the draw, of up to five (5) applicants, at the Year End General Membership Meeting where the $2500 will be divided equally amongst the successful applicants.
The committee shall accept applications from son(s)/daughter(s) of any Permanent OPSSU member and those covered by Article 10.06 of the current Collective Agreement.
All applications for hardship payments are made to the committee (at an email address to be created). Members will have to be without pay for at least two (2) weeks to access the fund.
All members of the bargaining unit shall have access to the fund if they meet the criteria of “hardship” as agreed to by the hardship committee which shall be composed of three (3) members of the executive committee to be elected by the executive.
All of the funds for the hardship committee fund will be held in a separate budget line for the sole purpose of hardship support
Fund will be a maximum of $10,000 per year.
To be eligible to receive assistance from the hardship fund, a member must be in good standing.
The executive committee will hold final authority to approve payments which shall be made in a consistent manner that is not discriminatory or in bad faith.
Hardship funds will only be paid to members who find themselves unable to work and do not receive full benefits from their employer the Ontario Public Service Employees Union (OPSEU)
The hardship fund will endeavor to operate within is means. Should it become necessary to increase the $10,000.00 budget it will require a two thirds (2/3rds) majority recorded vote by OPSSU’s Leadership. (For clarity, the OPSSU Leadership includes the executive, all elected stewards and the elected chairs of all OPSSU active member committees)
Each application will be dealt with on a case by case basis having regard to the balance of the fund, the number of members affected and the likely length of the time members will be in need of support.
The fund will pay no more than $500 per week to any individual member to a maximum of $2,500 in a twelve month period.
Amendments to the Terms of Reference
Amendments to these Terms of Reference can only be made by a motion at a general membership meeting.
Article 1 – Preamble:
The Ontario Public Service Staff Union (OPSSU) appreciates and acknowledges the commitment and expertise of retired members of OPSSU. To that end, OPSSU also recognizes that active members of OPSSU would benefit from the collective historical knowledge retirees can contribute to assist decision making in several different areas, such as, bargaining, grievance and arbitrations and mobilizing.
Article 2 – Purpose:
There shall be a Retired Members’ Group within OPSSU, known as the OPSSU Retirees Group (ORG). The purpose of the ORG is to bring together retired members to discuss issues of particular concern and interest to ORG members, to formulate recommendations for action by OPSSU, and to provide support and assistance to OPSSU.
Article 3 – Membership:
In accordance with Art. 3.08 of the OPSSU Constitution, an OPSEU employee who retires from an OPSSU represented position and who is granted honorary life membership, is entitled to become and remain a member of the OPSSU Retirees Group (ORG) subject to these Terms of Reference, on submission of the OPSSU Retiree Group Registration Form to the OPSSU Membership Secretary.
Members of the ORG who accept a work assignment with OPSEU in a position represented by OPSSU will be deemed to be temporarily removed from the ORG. The member shall resume membership in the ORG once the assignment is completed. Members of the ORG who accept a work assignment with OPSEU in a non-OPSSU represented position will be removed from the ORG and will be deemed to have left the ORG when their assignment commences.
To remain a member in good standing of the ORG each member must uphold the OPSSU Constitution, do no harm to any member of the ORG, or to any member of OPSSU or to the Union (OPSSU).
OPSSU Retiree Group Registration Forms submitted by retirees who have been granted honorary life membership shall be provided to the Executive of the ORG by the OPSSU Membership Secretary. The information will only be shared within the ORG as necessary to fulfill its undertakings consistent with these Terms of Reference.
Article 4 – OPSSU Retirees Executive and Election Procedures:
OPSSU Executive shall designate a member of the OPSSU Executive who will act as a liaison between the OPSSU Executive and the ORG Executive.
Elections shall normally take place in even numbered calendar years beginning in 2018.
Executive Officers shall be elected from and by the members of the OPSSU Retirees Group. The position of Chair, Vice-Chair, Secretary and one (1) Member-at-large shall be elected to serve a two (2) year term.
The OPSSU Executive Liaison shall receive the nominations and ballots, and shall be responsible for counting ballots, announcing the election results and destroying ballots if there are no challenges within 3 days of announcing the election results.
The ORG Executive will designate a member of the ORG as Scrutineer. Election results will be based on plurality, i.e. the retiree receiving the most ballots is deemed elected. In instances where there is a tie, the tied candidates will be advised of the tie and the outcome will be determined by a neutral process, e.g. tossing a coin, unless all but one of the tied candidates chooses to withdraw.
The call for nominations shall be sent electronically to the OPSSU Retirees Group no later than 45 days before the last GMM in an election year. The nomination period for the positions of Chair, Vice-Chair and Secretary will be no less than 7 days and close no later than 38 days prior to the GMM. Nominations shall be emailed to the OPSSU Executive Liaison. The ballots will normally be distributed by email to the members of the ORG within 7 days of the close of nominations, to be returned by email to the OPSSU Executive Liaison no later than 10 days after issuance. The announcement of the election results for Chair, Vice-Chair and Secretary will normally be announced by email from the OPSSU Executive Liaison within 7 days of the closure of balloting.
The call for nominations to the position of Member-at-Large will accompany the announcement of the results of elections of Chair, Vice-Chair and Secretary. Nominations must be received from members of the ORG no later than 5 days after the call. Nominations shall be emailed to the OPSSU Executive Liaison. Ballots will normally be distributed by email to the members of the ORG within 5 days of the close of nominations, to be returned by email no later than 5 days after issuance. In instances where there is a tie, the tied candidates will be advised of the tie and the outcome will be determined by a neutral process, e.g. tossing a coin, unless all but one of the tied candidates chooses to withdraw. The announcement of the elected Member-at-Large will be announced by email from the OPSSU Executive Liaison within 7 days of the closure of balloting.
A vacancy that occurs mid-term shall normally be filled by election prior to the next GMM.
If an ORG Executive member accepts a work assignment, with OPSEU in any bargaining unit or excluded position, the member must resign from their position on the ORG Executive.
Article 5 – Duties / Responsibilities:
The Chair shall:
Chair meetings of the ORG.
Prepare the agenda for ORG meetings.
Communicate with the members of the ORG.
Act as the spokesperson for the ORG within OPSSU.
Report on activities of the ORG to the OPSSU Executive Committee and at each regular General Membership Meeting of OPSSU.
The Vice-Chair shall:
Perform the duties of the Chair in the absence of the Chair or when called upon by the Chair.
The Secretary shall:
Keep a full and impartial record of the proceedings of all meetings of the ORG Executive and the ORG.
Be responsible for the distribution of communiqués of ORG meetings to all members of the ORG.
Be responsible for the publication and distribution of notices of all meetings of the ORG.
Perform other duties as may be assigned by the Chair
Keep copies of all distributed communication.
Assume responsibility of an Executive member, except the Chair, if they are unable to fulfill their duties.
Perform other duties as may be assigned by the Chair.
Article 6 – Meetings:
Where the ORG Executive determines that a meeting is necessary, the ORG shall meet on the afternoon of the day immediately preceding an OPSSU General Membership Meeting.
The agenda for the OPSSU Retirees Group will be prepared by the Chair and will normally be shared with members of the ORG no less than seven (7) days in advance of the meeting. Members of the OPSSU Retirees Group may submit items for inclusion on the agenda at least twenty-one (21) days in advance of the ORG meeting.
Members of the OPSSU Executive Committee may attend the OPSSU Retirees Group meeting.
The Executive of the ORG may meet using telephone conference call, as approved by the OPSSU Executive in advance of the ORG meeting as necessary.
The ORG Executive will make regular reports to the Executive Committee of OPSSU. Such reports may either be in writing to the Executive or, by attendance of the ORG Chair at the OPSSU Executive Committee meeting subject to the OPSSU Executive pre-approval of necessary expenses.
All questions of parliamentary nature shall be decided by Roberts Rules of Order.
Article 7 – Expenses:
OPSSU members enjoying only statutory rights shall not be entitled to any expenses; this does not include retirees or Membership Development Trainees (MDTs).
Attendance by ORG members at ORG meetings and/or OPSSU General Membership Meetings is voluntary.
To minimize the cost to OPSSU as a result of any ORG member attending both the OPSSU GMM and the ORG Meeting, ORG meetings will be scheduled on the afternoon preceding OPSSU General Membership meetings
There shall be no expenses reimbursed to a member of the ORG who attends an ORG Meeting and who elects not to attend an OPSSU GMM.
Expenses reimbursed to an ORG member who attends an ORG meeting can’t exceed expenses that would be reimbursed to attend the OPSSU General Membership Meeting only.
Article 8 – Funding:
In the event an ad hoc expense of the ORG Executive is proposed, it must be pre-approved by the OPSSU Executive.
Funding for any ORG activity such as, support for OPSSU bargaining, grievance and arbitrations and mobilizing, must first be pre-approved by the OPSSU Executive.
In addition to any other mandate, the members of the Employment Equity / Human Rights Committee shall serve as the members of the joint Union/Employer Employment Equity Committee found at Letter of Understanding #3 of the OPSSU-OPSEU Collective Agreement
(a) The committee will meet regularly with the purpose of eliminating systemic barriers in employment, including in the selection, retention, promotion and training processes of OPSEU in order to ensure the full participation of traditionally under-represented workers, with a priority focus on addressing the barriers faced by racialized and Indigenous workers in employment;
(b) It is recognized that to address historical imbalances special measures may need to be developed in order to eliminate barriers faced by under-represented groups, especially racialized and Indigenous workers;
(c) It is further recognized that in order to fulfill its mandate, the committee will pursue necessary information including workforce data.
Promoting human rights, equity and racial justice
(d) As part of its mandate, the committee will promote principles of human rights and equity, specifically anti-racism and decolonization;
(e) The committee will promote inclusion of members in SSU, develop tools to ensure the SSU community fosters diversity, inclusion and racial justice; as well as, it will build solidarity with other like-minded organizations;
(f) The committee will study and make recommendations in relation to the Union’s policies and practices to try to ensure that these do not contribute to systemic discrimination and inequity, and will advocate that the Union will further the goals of equity and racial justice in all its activities;
(g) The committee will deliver training on anti-racism including anti-black racism and decolonization training in accordance with the committee budget. (Dec 1, 2018)
Claims for these expenses should be described appropriately.
OPSSU shall have use of a credit card or credit based debit service such as Visa Debit.
The credit card or similar type purchase ability shall be named under OPSSU, as permitted by the financial institution, and the signatories shall be the authorities permitted on such financial credit account.
The use of such credit card or credit based debit service shall be solely for online and recurring purchases and for single purchases such as supplies.
The use of such credit card shall not be used for hospitality, food or beverage purchases.
The limit of the credit card or credit based debit service shall be limited to two thousand dollars ($2000) per month.
Where the issuance of a credit card is made to OPSSU, such card usage shall be preapproved by at least two signing authorities prior to an individual purchase.
Recurring expenses need be approved only for the initial commitment, and such agreement is to be reported to the executive at the following executive meeting.
Consultants or resource persons, who may include current or former OPSSU members, may be contracted to perform duties outside of negotiation. Where costs for same are to be incurred, the hiring of these persons must be approved by the Executive Committee. The Executive will tender all contracts to up to three (3) providers and the contracting process shall be open and transparent.
Despite progress toward gender equality and valuing diversity, sexual harassment continues to be a societal problem in all workplaces. Women constitute the overwhelming majority of the victims of sexual harassment. However, men also are victims of sexual harassment.
Although it is the employer’s obligation under the law to maintain a workplace free of sexual harassment, all of us—women and men, union and management—must work together to eliminate sexual harassment.
Workers must be empowered with knowledge about sexual harassment so they may assert their right to a workplace free of sexual harassment. You need not suffer sexual harassment in silence, imprisoned by the fear of speaking out. Every woman and man must be empowered to confront such abusive behavior in the workplace.
The purpose of this policy is to provide guidance to all OPSSU members on what constitutes sexual harassment, what you should do if it occurs, and what recourse is available to you and to present helpful information so that you may exercise your right to work in an environment free from sexual harassment.
By working together, helping each other and respecting each other, we can promote a cooperative and progressive work environment.
The purpose of this Policy is to assist all Ontario Public Service Staff Union members who have/are experiencing sexual harassment in the workplace, and to provide procedures for reporting, investigating, and resolving incidents and complaints.
APPLICATION AND SCOPE
This Policy applies to all permanent and temporary bargaining unit members within the
Ontario Public Service Staff Union (OPSSU) who work for the Ontario Public Service
Employees Union (OPSEU) at all sites where business/union activities are undertaken and applies to all situations where these activities are connected to work during and outside of regular business hours at the workplace and away from the workplace. This includes:
activities on OPSEU premises
OPSSU/OPSEU assignments outside OPSEU premises
OPSSU/OPSEU related conferences, conventions, training sessions, or educationals
OPSSU/OPSEU related travel
OPSSU/OPSEU related social functions
WHAT IS SEXUAL HARASSMENT?
The key to what constitutes ‘sexual harassment’ is that it is, unwanted, unwelcome and unasked for behaviour of a sexual nature. Sexual harassment is a display of power intended to intimidate, coerce or degrade another worker.
We all have the right to work in a workplace that is free from harassment and one where all employees are treated with dignity and respect at all times.
Over the years sexual harassment has been misunderstood and mischaracterized. Sexual harassment’s main motive is the wielding of power.
Sexual harassers, and those who fail to address sexual harassment, send the message “she’s just trying to cause trouble”, and have stigmatized those who have tried to stop it as “not a team players”.
Sexual harassment is dehumanizing and divisive, and hinders us from achieving career goals, such as having control over our working lives and shaping our future, being treated fairly and working productively.
Harassment claims when two members are involved can be challenging to deal with. This issue is further complicated when there is an imbalance of power between the individuals.
Sexual harassment is an extremely serious and complex issue to navigate in the workplace.
It’s important to remember that complaints of this nature do not take place in a vacuum meaning this can literally wreak havoc in the lives of all who are involved, whether that involvement is direct or indirect.
Forms of sexual harassment (as per OHRC May 2013)
Sexual harassment can include:
sexual solicitation and advances
a poisoned environment (pornographic images in the workplace)
gender-based harassment (targeting someone for not following sex-role stereotypes)
Examples of sexual and gender-based harassment:
invading personal space
making unnecessary physical contact, including unwanted touching, etc.
using language that puts someone down and/or comments toward women (or men, in some cases), sex-specific derogatory names
leering or staring
making gender-related comments about someone’s physical characteristics or mannerisms
making comments or treating someone badly because they don’t conform with gender-role stereotypes
showing or sending pornography, sexual pictures or cartoons, or other sexually explicit material
sexually explicit graffiti, or other sexual images (including online)
sexual jokes, including passing around written sexual jokes (for example, by e-mail)
rough and vulgar humour or language related to gender
using sexual or gender-related comment or conduct to bully someone
spreading sexual rumours (including online)
making suggestive or offensive comments or hints about members of a specific gender
making sexual propositions
verbally abusing, threatening or taunting someone based on gender
bragging about sexual prowess
demanding dates or sexual favours
asking questions or talking about sexual activities
making an employee dress in a sexualized or gender-specific way
acting in a paternalistic way that someone thinks undermines their status or position of responsibility
making threats to penalize or otherwise punish a person who refuses to comply with sexual advances (known as reprisal).
Sexual harassment is against the law
The Human Rights Code prohibits reprisal or “payback” where a person raises issues or complains of sexual harassment. Reprisal includes such things as being hostile to someone, excessive scrutiny (for example, at work), excluding someone socially or other negative behaviour because someone has rejected a sexual advance or other proposition (such as a request for a date).
You do not have to object to the harassment when it happens for there to be a violation, or for you to claim your rights under the Code. You may be in a vulnerable situation and afraid to speak out.
Due to the power imbalance that often exists between the harasser and the person being harassed, and worries about what will happen if they object, people may go along with the unwelcome actions. But in these cases, it is still sexual harassment and it is still against the law.
This Policy is intended to respect the rights of all who may be involved in a complaint. The guidelines, requirements, and procedures contained in this Policy are designed to ensure that individuals feel as comfortable as possible in coming forward with a complaint, without fear of reprisal or retaliation. The procedures are also intended to protect the interests of alleged harassers or others who may be involved in the complaint process.
This Policy also ensures the steps in the grievance procedure or other complaint resolution
process(es) are followed as quickly as possible.
If you are being sexually harassed:
1. Keep a record of incidents with date, times, locations, possible witnesses, what happened, your response. You do not have to have a record of events in order to make a complaint, but a record can strengthen your case and help you remember details over time.
2. If able, tell the harasser that their behaviour is unwelcome and ask them to stop.
3. Make a complaint. This complaint can be either informal or formal.
Dealing with a Complaint
Once a complaint is received by OPSSU, it will be kept strictly confidential. If a complaint is made through the union as a grievance, a meeting will be held with the union representative/steward before and after a thorough investigation.
OPSSU should try to prevent gossip and protect the members’ privacy. However, the complainant must self-identify and name the alleged harasser in a complaint, and if the complaint goes to formal adjudication, what they say to the employer cannot be confidential.
Dealing with the complaint informally
In some cases of co-worker sexual harassment, a member might want to resolve the problem without going to the employer. In such instances OPSSU recommends connecting with a trained peer and/or steward.
On a volunteer basis, OPSSU members will be given the opportunity to receive training in sexual harassment complaints. A list of trained members (“trained peers”) will be compiled and distributed to the OPSSU membership. The President of OPSSU or executive should not act in the capacity of steward or trained peer in any sexual harassment complaint.
MAKING A COMPLAINT FORMALLY
If an OPSSU member wishes to file a complaint under the employer’s sexual harassment policy, the member should:
1. Notify a trained peer and/or steward of harassment. These individuals will talk with the complainant as soon as possible about their experience, needs and options. In this regard, OPSSU endorses an active role by trained peers in representing their members and in assisting them when claims of sexual harassment arise.
OPSSU will notify the member they will have access to EAP (Employee Assistance Program).
OPSSU will arrange for an outside representative/consultant, trained in sexual harassment in the workplace for both the complainant and the respondent. This consultant must have experience in labour law*.
DEFINITION OF INVOLVED PARTIES:
Complainant— an employee who has been subjected to alleged sexual harassment.
Respondent— an employee who is alleged to have sexually harassed a bargaining unit member
Consultant— an individual hired to investigate, through fact-finding, formal complaints of sexual harassment.
OPSSU members who have been accused of sexually harassment resolve it formally by the following process:
The respondent, who may be accompanied by a union representative/steward or colleague, meets with the trained peer, is informed about the complaint, and given a chance to answer the allegation.
The respondent is told that the matter will be dealt with formally, that his/her responses are also logged, and that this investigation is part of the official grievance procedure.
A governing principle in respect of any matter that is brought forward pursuant to this sexual harassment policy is confidentiality.
Every effort will be made to keep matters confidential. However, information will be disclosed
as necessary during the complaint process to the following extent:
OPSSU has a legal duty to represent all members of the bargaining unit affected by the sexual harassment. The complainant has the right to:
Work in a healthy and safe work environment.
Have a complaint heard and receive a fair, unbiased investigation of the facts.
Have a union representative/trained peer with them at any time during the complaint process.
Be free from retaliation for participation in an investigation.
The respondent has the right to:
Work in a healthy and safe work environment.
Know the full nature of the allegations in order to make a full response.
Have their response heard and receive a fair, unbiased investigation of the facts.
Fair discipline, should discipline occur.
Union representation as provided by the collective agreement during any investigation and discipline procedure.
Witnesses to harassment and participants in investigations have the right to:
Work in a healthy and safe work environment.
Receive support if they have witnessed and been harmed by harassment.
Union representation as provided by the collective agreement during any investigation and discipline procedure.
Be free from retaliation for participating in an investigation.
COMMUNICATING A DECISION
The member who made the complaint may be accompanied by a person of their choice
(trained peer, steward…etc.) when informed of the outcome of the investigation in a face-to-face meeting with their consultant. They will receive a hard copy of the decision.
The respondent will be told the result of the investigation in a face-to-face meeting with their consultant, and it will also be written down.
The respondent may be accompanied by a person of their choice.
Whatever the process (informal resolution or a formal complaint), OPSSU has other responsibilities. One important component should include a general awareness BEFORE problems occur. Therefore part of this policy includes actions to be taken such as:
Be pro-active. Watch for signs of sexual or other forms of harassment, patterns and root causes. For example, high absenteeism and stress levels, turnover of particular groups in a department or sudden changes in a member’s behaviour might indicate a problem. Take action to reduce and eliminate the hazards and factors that contribute to sexual or other forms of harassment.
Be aware of your own actions.
The OPSSU Communications Committee shall coordinate an awareness campaigns to educate members
The OPSSU website to include links on their home page to various organizations/events dealing with sexual harassment in the workplace
Members who experience or witness sexual harassment might fear embarrassment, retaliation or isolation if they draw attention to the problem. OPSSU should inquire carefully and do what it can to protect members from negative consequences. Contact the trained peers who can support the complainant and witnesses, as needed.
Explore Employee Assistance Plan options. (see OPSSU website)
Ensure that harassment complaints are handled in a culturally safe way, respecting the cultural values and practices of members involved.
Sexual harassment is a violation of human and trade union rights and dignity and all efforts must be made to eliminate it.
Unions play a major role in outlawing sexual harassment at work. To do so they can act by: pushing governments to introduce legislation; taking up cases, and raising awareness and training and negotiating with employers on the issues.
OPSSU is committed to eliminating all forms of discrimination or harassment from the workplace. These goals and objectives seek to protect our members and enable them to attain a higher standard of living in all areas of their lives.
In the matter of an arbitration:
Ontario Public Staff Services Employees Union (Union and Grievor)
– and –
Ontario Public Services Employees Union
BEFORE Reva Devins Arbitrator
FOR THE UNION Sarah Molyneaux
FOR THE EMPLOYER Mark Mendl
Treasury Board Secretariat Legal Services Branch Counsel
HEARING June 29 and August 4, 2020 by video conference, written submissions on August 13, 26 and September 4, 2020 and conference call on November 9, 2020
Decision There are two grievances before me, a policy grievance filed by the staff Union and another filed by an individual member. Both grievances challenge the current Application for Disability Benefit Form (the “STIPP Form”) used by the insurer, SSQ, to determine eligibility for Short Term Income Protection.  Despite efforts to resolve this matter, the parties ultimately sought an arbitral award. They agreed that the arbitration would proceed by videoconference, with written Will Say Statements, oral cross examination and re-direct and written argument. Background  The grievances were filed under the collective agreement that was in force from July 1, 2016 to March 9, 2019. Entitlement to short term sick benefits is governed by Article 23 of the agreement: the Employer is obliged to provide full income replacement for the first seven days of absence, known as the waiting period, and up to an additional 83 days, capped at 75% of the employee’s wages, can be awarded during the subsequent “benefit period”. Pursuant to a contract with the Employer, SSQ administers the plan during the benefits period, reimbursing the Employer to a maximum of $900 per week, with any balance owing to the employee paid by the Employer.  Employees are required to provide a medical note after five consecutive days of absence during the waiting period; they must also submit medical proof of their ongoing entitlement to benefits during the benefit period. To assist it in determining an employee’s entitlement, SSQ has created detailed forms, stipulating that claims will not be approved unless the STIPP Forms and associated consent are completed.  There are a number of questions in the Forms that the Union and the Grievor maintain are inappropriate, including those that ask for: 1. Diagnosis 2. Current symptoms, dates of previous episodes 3. Medication details, including dosage 4. Test results, X-rays, ECG reports 5. Whether the symptoms have psychotic elements or is related to pregnancy 6. Personal information such as whether the absence from work relates to marital/family life issues, personal problems, or alcohol, drug or gambling abuse.  The Union also takes issue with the breadth of the consent to release personal information, including the authorisation that information can be shared with the Employer.  The Forms, in one variation or another, have been in continuous use for a number of years. Several current and former Union executives have completed the Forms personally, however, this is the first time that they have been challenged.  The individual Grievor was off work from January 29, 2018 to February 18, 2018. He provided the Employer with a medical note advising of his need for sick leave and he was paid 100% of his wages for his first seven days of absence. He then received the disputed STIPP Form to complete and return to SSQ to obtain benefits for the remaining period of his absence.  The Grievor was concerned about what he perceived as an overly broad consent for the release of his personal medical information and the invasive nature of some of the questions. Although he did not advise the Employer at the time, his concern stemmed from the highly personal circumstances surrounding his illness. He objected to completing the Form, citing his concern that it breached his privacy rights. He offered to provide a more detailed medical note as an alternative, but his offer was declined. Since the Grievor did not submit the required Forms, his file was closed by SSQ and the Grievor used other credits to cover his remaining time off. He returned to work as scheduled in February 2018. The Grievor stated that the inability to access benefits caused him additional stress during a difficult time in his life.  Cheri Hearty, a steward and former member of the Joint Benefits Administration Committee (“JBAC”) and Tim Mulhall, the current Chief Steward, both testified to their knowledge of the STIPP Form. Ms. Hearty stated that she was unaware of the content of the Form or extent of the release until the Grievor brought it to her attention. She had no evidence to refute the Employer’s assertion that there had been over 450 Forms submitted prior to 2018. However, based on her experience with members seeking benefits, she believed that many of the applicants may have felt financial pressure to complete the Form to ensure they obtained income replacement when off sick.  Mr. Mulhall, who has been Chief Steward since 2017 and was previously a steward for several years, acknowledged that he completed the Forms and signed the release in 2013 and again in 2016 in connection with two of his own applications for STIPP. He did not recall any objections to the content of the Form or turning his mind to the issues raised in these grievances at the time. The nature of his medical conditions was not particularly stigmatising or embarrassing. Consequently, he was not especially concerned about his own personal or medical privacy. He was not aware of any concerns by OPSSU members with the content of the Form until January 2018.  Stephen Giles, a Senior Advisor in Employee Relations, stated that the STIPP Form was created by the Insurer and that the Employer did not have any input into the form or content. Furthermore, although the consent allows SSQ to share medical information with the Employer, that does not happen in practice. On cross examination, he acknowledged that SSQ will provide information with regard to an employee’s accommodation needs, including medical limitations and restrictions. He noted, however, that the Employer also asks employees to submit an accommodation package before returning to work that provides an alternate means of acquiring the necessary information for the accommodation process. Mr. Giles further admitted that JBAC had not vetted or approved the STIPP Forms and that he was mistaken when he had informed the grievor that the Forms had been reviewed at JBAC. Finally, he acknowledged that although the form was changed in early 2014, the old form continued to be used for some indeterminate period thereafter.  Mr. Giles also reviewed the records maintained by Employee Relations back to 2008 and recorded 498 occasions where STIPP Forms were sent to employees. On cross examination he acknowledged that it was unlikely that the Form was sent to 498 different people and that there were probably instances where the same person received a form on a number of different occasions. He also determined that SSQ approved 447 STIPP claims from 2005 to the date the grievances were filed in 2018, including several from current or former executive members of the Union. All the approvals required the member to complete and return the disputed Forms.
Submissions The Employer indicated at the outset of argument that it would limit its submissions to whether the Union waived its rights, was estopped from pursuing the grievances or unduly delayed the filing of the grievances. The Union largely focussed on those issues in making its submissions, however it also provided a brief summary of the arbitral jurisprudence in connection with the request for medical information to establish eligibility for short term sick benefits.  The Union relied on Hamilton Health Sciences, 2007 CanLII 73923 (ON LA), noting that Arbitrator Surdykowski affirmed an employee’s right to privacy with respect to personal health information, confirming that an employer’s entitlement to information did not include the right to a diagnosis and was limited to information:
1. That an employee is unable to work due to illness or injury
2. The employee’s expected return to work date
3. The employee’s restrictions and abilities The Union submitted that Arbitrator Surdykowski further found that consent forms must be similarly limited and should not contain a “basket” consent authorising a broad release of confidential information. The Union maintained that the approach first articulated by Arbitrator Surdykowski has been routinely followed by other arbitrators. Moreover, the Employer, in its capacity as a trade union, has relied on the decision in Hamilton Health Sciences in multiple cases.  Turning to the Employer’s main argument, the Union submitted that the facts in this case do not establish waiver, estoppel or delay that would warrant dismissal of the grievances. In the Union’s submission, an unequivocal affirmation, such as a fresh step, is required to establish waiver. Similarly, the law of estoppel requires a clear and unequivocal representation upon which the opposing party relied to their detriment.  In this case, the Employer seeks to rely on the Union’s silence to establish a representation. The Union agreed that silence can, in some circumstances, amount to a representation, however, it maintained that it did not in this case. Furthermore, at most, the silence upon which the Employer relies dates back four years, from 2014, when the consent was amended, to 2018, when the grievance was filed.  In the Union’s submission, the Employer’s argument that the Union is estopped from pursuing the grievances should fail for a number of reasons:
1. Union knowledge cannot be imputed. A lengthy practice that goes unchallenged will not necessarily ground an estoppel and ought not to in this case.
2. The Employer has not led any evidence that it relied on the alleged representation to its detriment.
3. The doctrine of estoppel cannot be used to escape the application of statutory rights.
4. The Collective Agreement under which the grievances were filed has now expired and a new Collective Agreement has been negotiated and ratified. In the circumstances, any estoppel would be discharged and the Union would be entitled to relief in respect of the ongoing breach of the current Collective Agreement.
5. There was no evidence that the grievor had previously applied for STIPP benefits or was otherwise aware of the contents of the STIPP form before the absence covered by this grievance. He grieved promptly. The Employer did not defend the Forms in their present format. Nor did it pursue arguments disputing jurisdiction to determine this matter. For the purposes of arbitration, the Employer conceded that the Forms and the required consent are not wholly consistent with arbitral case law and that the grievances are properly before me, subject only to arguments of delay, waiver and estoppel.  Counsel for the Employer argued that these Forms have been in use for many years, with the full knowledge of the Union, its members and executive. No grievances had been filed, nor were any concerns brought to the Employer’s attention. Given these facts, the Employer maintained that both grievances are barred based on delay, waiver or estoppel.  The Employer contended that the Union had not complied with the requirements in the Collective Agreement for the timely filing and referral of grievances. It submitted that the Forms had been completed and signed by numerous Union executives from 2005 onwards, offering ample evidence that the Union had actual knowledge of the Forms and their impugned contents. Alternatively, the practice was so longstanding and notorious that knowledge should be imputed to the Union.  Counsel maintained that whether the Union had actual or imputed knowledge, a grievance filed on February 17, 2018, many years after the Forms were first used, was well beyond the timeline required under the collective agreement. Correspondingly, the grievances are out of time for referral and an arbitrator has no ability to extend the timeline, irrespective of the reason for the delay or whether there has been prejudice. The Employer took the position that this should not be characterised as a continuing grievance. In the Employer’s submission, while the use of the STIPP Forms may have had a continuing impact on employees who are required to sign them, the grievance relates to the Form itself and that gives rise to a single, non-continuing alleged violation.  In the alternative, the Employer submitted that the grievances should be dismissed on the basis of the doctrine of waiver. It argued that it need not show reliance or detriment for the doctrine to apply. It was sufficient that the Union had knowledge of the Forms, was aware of the deficiencies and did not insist on its right to address them. The Union did not raise the issue of the STIPP Forms in collective bargaining and failed to address the alleged deficiencies for more than decade. The Employer argued that the Union has thereby waived any ability it had to grieve these issues.  In the further alternative, for many of the same reasons, the Employer also argued that the Union is estopped from grieving that the Forms are deficient. The Employer submitted that more than twelve years of Union silence reasonably induced it to believe that the STIPP Forms were acceptable. It would therefore be inequitable to allow the Union to insist on changes, particularly since Article 22.04.01 of the Collective Agreement obligates the parties to negotiate changes. There is obvious prejudice to the Employer in that it lost the ability to negotiate changes during the life of the collective agreement.  The Employer took the position that the Union’s silence conveyed acquiescence: bargaining parties communicate with one another through spoken word and conduct, including their silence. In this case, both the rank-and-file members and the elected members of the executive committee signed the STIPP Forms on 447 occasions from 2005 onwards. By their actions, the Union and its members clearly communicated that the Forms were acceptable.  The Employer refuted the Union’s position that there can be no estoppel against statutory rights. Counsel suggested that the Union in this instance is relying on the anti- discrimination provisions in the collective agreement and there is therefore no need to consider protections set out in the Human Rights Code. Moreover, there are many examples where arbitrators have found that estoppel can apply to statutory rights.  In reply, the Union suggested that the Employer conflated the forms in use prior to February 2014 and those used previously. The Union notes that while there are undeniable similarities between the forms used in these two periods, they are not the same. In particular, it points to the consent that employees must sign, which it maintains changed significantly in 2014. Moreover, the earliest form produced by the Employer was dated 2012. Therefore, arguments with respect to delay should be limited to the period following 2014.  The Union submitted that the issue of delay is distinct from timeliness. While the Employer previously raised issues of delay, it did not mention untimely filing or referral to arbitration until closing argument. By waiting until final argument to raise the issue, the Employer denied the Union the opportunity to make argument or call evidence before it had closed its case. By its conduct over a period of two and a half years, the Union submitted that the Employer had waived its right to assert timeliness objections.  The Union also took issue with the Employer’s argument that the use of the Forms does not constitute a continuing grievance. Although the policy was only implemented once, there is a repetitive and ongoing breach every time a member is asked to complete a form that breaches their right to privacy.  In the Union’s view, the caselaw on estoppel distinguishes between long- standing employer conduct, such as providing a particular benefit, and non-grievance by a union over a lengthy period. Where an employer confers benefits on the union members, the union will come to rely on those benefits to their detriment. The same cannot be said of non-grievance, which confers no inherent benefit. In these circumstances, detriment to the Employer should not be presumed.
Analysis A good deal of the evidence that was called at arbitration pertained to issues that I have determined do not need to be considered, including whether this matter is arbitrable and whether the Forms are permissible. The Employer conceded these points in final argument, expressly accepting that I had jurisdiction to determine the matter in this instance and acknowledging that the STIPP Forms do not comply with the accepted legal standard pertaining to confidential medical information. Ultimately, the only live disputes that remained between the parties was whether the grievances should be dismissed on the basis of undue delay, waiver or estoppel and, if allowed, what remedy should be awarded.  Most significantly, the parties agreed on the primary underlying issue that the STIPP Forms, as presently drafted, exceed the limits set out in the current jurisprudence for what information an employer can request when determining eligibility for short term sickness benefits.  The leading authority on this issue is Hamilton Health Sciences, supra. At paragraph 25, Arbitrator Surdykowski adopted what he referred to as “the least intrusive non-punitive interpretive approach” that balances the competing interests of the employer and their employee. He goes on to conclude at paragraphs 27 and 28: The several layers of legitimate employer interests suggest that there is more than one stage to the process that is engaged when an employee seeks the benefit of the sick leave provisions in a collective agreement. It also suggests that the employer will generally be entitled to less information at the initial stage than at a subsequent stage. The employer’s desire for more information, or its genuine concern for the employee’s well-being or desire to assist the employee, do not trump the employee’s privacy rights. Nor do questions of expediency or efficiency. In the absence of a collective agreement provision or legislation that provides otherwise the employer is entitled to know only that the employee is unable to work because she is ill or injured, the expected return to work date, and what work the employee can or cannot do. A document in which a qualified medical doctor certifies the employee is away from and unable to work for a specified period due to illness or injury is prima facie proof sufficient to justify the absence. Unless the collective agreement (or less likely, legislation) stipulates otherwise, it will also be sufficient to qualify for any applicable sick benefits for that period. To require more invites an unnecessary invasion of the employee’s privacy. In order to obtain additional confidential medical information, the employer must demonstrate a legitimate need for specific information on a case-by-case basis. That is, for sick benefits purposes an employer has no prima facie right to an employee’s general medical history, a diagnosis, a treatment, plan or a prognosis other than the expected date that the employee will be able to return to work with or without restriction. As a general matter there is nothing to prevent an employer from contracting out the information gathering or assessment of medical information as the Hospital has done in this case. But the party to whom the employer has contracted out this function stands in the shoes of the employer and has no greater rights to or need for information than the employer has if it performs the function itself. And the employer is responsible for the conduct of any third party that performs such function for it. However, the insertion of such a third party, which is a stranger to the workplace and beyond the direct reach of the collective agreement, may raise suspicions and increase an employee’s reluctance to provide confidential personal medical information.  Arbitrator Surdykowski also considered the scope of the consent that an employer can legitimately ask an employee to sign when they are seeking short term disability benefits. At paragraph 35 he found that: In the first instance for STD benefits purposes, therefore, in the absence of statutory or collective agreement authorization an employer cannot require an employee to consent to the release of more than the certification that she is absent and unable to work because she is ill or injured, the general nature of the illness or injury, that the employee has and is following treatment plan (but not the plan itself), the expected return to work date, and what the employee can or cannot do. The consent must be both focused on the particular purpose and limited to the particular medical professional. A consent that must be provided for the purposes of STD benefits should not include return to work accommodation considerations other than whether there are likely to be any restrictions on the anticipated return to work date. A “basket” consent that purports to authorize anyone who the employer may ask to release confidential medical information is not appropriate. Nor is it appropriate to require an employee to sign a forward-looking consent that may exclude her from the confidential medical information loop. The overwhelming weight of the arbitral jurisprudence takes a dim view of consents that purport to give an employer prospective permission, particularly where the consent purports to permit the employer to unilaterally (with or without notice to the employee) initiate direct contact with a doctor or other custodian of confidential medical information. Every contact should be through or at the very least with the knowledge and consent of the employee, a separate consent should be required for every contact, and every consent should be limited to the completion of the appropriate form or the specific information required, as appropriate.  Arbitrator Surdykowski confirmed and expanded his view in a series of cases1, with a minor revision of his initial view that a separate consent was required for every contact. In Canadian Bank Note Company Ltd. v. International Union of Operating Engineers, Local 772, 2012 Can LII 41234 (ON LA) Arbitrator Surdykowski indicated that a fresh consent was not necessary for every communication with the same medical professional identified in the consent.  These general principles guiding the access to confidential medical information have been widely followed in Ontario: Toronto Hydro Electric Systems Ltd. v. Society of United Professionals, 2019 CarswellOnt 12143 (Goodfellow). Most recently, in a case in which the Employer was acting in its capacity as a trade union, Arbitrator Kaplan found that the law in this area was by and large settled: Legal Aid Ontario (Union Grievances re: APS) v. OPSEU, issued February 4, 2019 (Kaplan).  Applying the principles set out in Hamilton Health Sciences, supra, the Forms and Consent that are currently used to assess eligibility for STIPP benefits are clearly out of step with what is permitted. There are a number of excessively invasive questions, including requests for diagnosis, treatment details and information related to an employee’s personal life. None of these questions come within the broadly accepted arbitral view that, while an employer has a legitimate business interest in ensuring the proper administration of its sick leave plan, employees have corresponding rights to privacy and confidentiality of their health information.
1 Providence Care, Mental Health Services v. OPSEU, Local 431, 2011 CanLII 6863, Revera Care Long Term Care Inc. v. ONA, 2011 CanLII 73193 (ON LA); Canadian Bank Note Company Ltd. v. International Union of Operating Engineers, Local 772, 2012 Can LII 41234 (ON LA). The question before me is whether the Union waived its rights, is estopped from pursuing these grievances or is otherwise precluded from advancing the grievances due to delay. The Employer relied on the open and notorious use of virtually identical forms for many years to suggest that it would be unfair to permit the Union to challenge the Forms in these circumstances. The Employer did not allege any particular prejudice, beyond denial of an earlier opportunity to bargain for an acceptable resolution, asserting that it would nonetheless be unfair to allow these grievances to proceed.
Undue Delay/Timeliness I previously advised the parties of my ruling that the Employer could not argue that there was undue delay in filing the grievances or referring them to arbitration. The Union raised concerns that it would need to re-open its case in order to respond and that the Employer had waived the right to advance issues of timeliness. Because this was raised for the first time in closing argument, I issued a bottom-line decision and indicated that more detailed reasons would be included in the final decision.  Throughout these proceedings, including a lengthy period where the parties attempted to reach a mediated resolution, the Employer objected to the grievances on the basis of ‘delay, waiver or estoppel’. Counsel conceded that a timeliness argument was not specifically advanced until final argument. Nonetheless, the Employer maintained that the policy grievance should have been filed years ago when the Insurer first began using the Forms.  The Employer has taken several fresh steps over a lengthy period before raising a timeliness argument. It repeatedly referred to objections based on ‘delay, waiver or estoppel’ without ever articulating an objection that the grievances were not filed or referred to arbitration in accordance with the collective agreement. These concerns were not identified before the hearing commenced, despite protracted discussions between the parties. Nor were they advanced in opening argument. The Employer has repeatedly conducted itself in a manner that suggested it did not intend to challenge the timeliness of the grievances. I therefore found that it had long since waived any right it might have had to raise a timeliness argument.  The Employer argued there was a delay in referring the matter to arbitration, which goes to jurisdiction and cannot be waived. In my view, if there is a timeliness issue, it is only with respect to filing the grievance and not in connection to referral to arbitration. There was no evidence of delay in referring the matter once the policy grievance was filed. The Employer relied solely on the assertion that the Union was obliged to file a grievance when it, or at least union members and executives, first became aware of the contents of the Forms. On these facts, the Employer maintained that the matter should have been grieved and referred when the Union first reviewed the Forms at issue.  Counsel did not provide any caselaw to support the argument that an untimely referral to arbitration could be established in this way. That is, that a delay in filing the grievance also, and necessarily, equalled a delay in referring the matter to arbitration. In my view this would lead to a troubling result. It would effectively convert every instance of a delay in filing into a case where there was also an untimely referral, which the Employer says cannot be waived. This would clearly be inconsistent with the settled jurisprudence. Complying with the timeline for filing a grievance and then referring it to arbitration are distinct procedural steps. I am not persuaded that there is any basis to collapse them in the manner suggested by the Employer.  In any event, even if delay could be established vis a vis the Union, there was no evidence that the individual grievance was untimely. Irrespective of when individual Union executives knew about the Forms, there was no suggestion that the individual grievor was similarly aware of the contents of the Form or required consent before he filed his grievance.  The Employer suggested the ‘complaint’ crystallised when the Union became aware of the violation and that the individual grievance was therefore also untimely. This argument is in direct conflict with the express terms of the Collective Agreement. Article 8.01 directs an employee to initiate the grievance procedure within 30 working days “of the employee becoming aware of the grievance” (emphasis added). The Employer’s position would ultimately preclude individuals from grieving any issue that could have been grieved as a policy grievance. I do not believe that this is what the parties intended.
Waiver and Estoppel In the alternative, the Employer submitted that the Union was either estopped from enforcing its rights or had waived its right to do so. The Union maintained that neither of these equitable remedies are warranted in this case.  Typically, parties argue that the right to pursue a matter has been waived when there are alleged procedural irregularities and, alternatively, raise issues of estoppel for the non-enforcement of rights under the collective agreement. The Employer in this case is advancing both doctrines and quite properly notes that the arguments invoke very similar reasoning: that fairness demands that it not be required to defend against allegations when it says the Union remained silent for many years.  The SCC described the fundamentals of waiver as follows in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., 1994 CanLII 100 (SCC), at pp. 499-500: The essentials of waiver are thus full knowledge of the deficiency which might be relied upon and the unequivocal intention to relinquish the right to rely on it. That intention may be expressed in a formal legal document, it may be expressed in some informal fashion or it may be inferred from conduct. In whatever fashion the intention to relinquish the right is communicated, however, the conscious intention to do so must be ascertained.  Similar questions are asked in considering whether there has been an estoppel: has one party made a clear and unequivocal representation that the other party has reasonably relied upon to their detriment? The representation may be established by word or conduct, including a lengthy silence, but it is ultimately a question of fact: Canadian National Railway v. Beatty, 1981 CarswellOnt 1137 (Ont. Div. Ct.); Beatrice Foods Inc. v. RWDSU, 1994 CarswellOnt 1331 (MacDowell); Air Canda v. CAW, 1994 CarswellNat 1661 (Brandt); Insurance Corp. of British Columbia v. OPEIU, 2002 CarswellBC 3320 (Hall); MTD Products Ltd. and CAW (Machado), (2004) 129 LAC (4th) 313 (Schiff); BC Ferry Services Inc. v. BC Ferry and Marine Workers’ Union (2013), 229 LAC (4th) 288 (Korbin).  As acknowledged by the parties, despite some distinctions between the two doctrines, they are some key similarities. They both require an intentional relinquishing of rights, which, in this case, the Employer seeks to establish by relying on identical factual assertions related to the Union’s knowledge and silence. They also invoke comparable principles of fairness. Ultimately, I have determined that neither doctrine should be applied in this case. I do not think there was a clear and unequivocal representation or intention by the Union to relinquish their rights and, in the overall labour relations context, it is not unfair to allow the matter to proceed.  I turn first to whether there was a clear and unequivocal representation or demonstration of intention by the Union that it would not assert its rights. Although there was some dispute about precisely how long the current STIPP Forms have been used, there is no doubt that they were used for at least a few, if not several years before these grievances were filed. In my view nothing turns on this distinction. It is apparent that several Union officials received and signed the impugned forms in their personal capacity a number of years before the policy grievance was filed.  While I am satisfied that the current Forms were in use for a significant period of time before the grievances were filed, there is no evidence that the Union intended to give up the right to object to the Forms or the required consent to release medical information. They were not approved by the Joint Benefits Administration Committee, were not raised for discussion between the parties during bargaining or at any other time. Nor were copies of the Forms sent to the Union when application packages were forwarded to individual employees. Moreover, I accept the evidence of Tim Mulhall, the one Union executive who gave direct evidence on this issue, that while he had signed the form in the context of a personal application for STTIP benefits, he did not turn his mind to whether it might infringe employees’ privacy interests.  In these circumstances, I am not persuaded that the Union knowingly gave up its rights or intended to communicate that intention to the Employer. There was no overt decision by the Union not to pursue its’ rights and no evidence upon which I can conclude that it even turned its mind to whether the Forms violated employees’ privacy rights.  The Employer submitted that the Union’s intention to waive its rights can be inferred from its’ silence. I disagree. Arbitrators have long been wary of accepting a Union’s silence as a clear and unequivocal representation or demonstration of intention. An estoppel has been found where the union’s silence arose in a circumstance that called out for them to make their position known, but there has been a reluctance to make that finding where significant rights are at stake or where there was no evidence that the union intended to communicate the representation being asserted: Insurance Corp. of B.C., supra; Cornwall Community Police Services Board v. Cornwall Police Association, 2016 Can LII 12626 (ON LA) (Snow); Toronto Hydro-Electric System Ltd. v. Society of United Professional, 2019 (CanLII) 67962 (ON LA) (Goodfellow).  Despite the long term use of the Form, I do not think either party actively turned their minds to the privacy issues raised by these grievances. As I have already mentioned, the Forms were not the subject of previous discussions between the parties and the Employer did not assert that there were particular circumstances where they would have expected the Union to raise their concerns. In this case, the Union’s silence ought not be construed as acquiescence to the existing Forms such that it gives rise to either waiver or estoppel.  Nor am I persuaded that the Employer relied on the Union’s silence or that it would have been reasonable for them to do so in all the circumstances. At a minimum, I find that there has been no detrimental reliance, a necessary pre-condition for estoppel. The Employer suggested that it was prevented from addressing this issue at the bargaining table. I have two reservations about the force of this argument. First, the Employer consistently argued throughout these proceedings that the Forms were prepared and controlled by the Insurer. They insisted that they could not demand a change in content. If that is true, then I fail to see how the Forms could have been the subject of bargaining.  It is equally hard to imagine what they could have bargained for beyond acceding to the Union’s request. Given the nature of the legal and statutory rights at issue and the Employer’s admission that the Forms do not comply with privacy protections, it is difficult to comprehend what exactly the Employer has given up by not being able to raise this issue at the bargaining table. Neither side has the capacity to derogate from an employee’s legal entitlements: they cannot contract out of their statutory obligations, nor bargain away employees’ rights to individual privacy of confidential medical information. In my view, although not technically required to make out a successful case for waiver, the lack of prejudice or detrimental reliance also militates against the underlying goal of both waiver and estoppel, which is to prevent unfairness.  Finally, I would add that I have serious reservations whether waiver or estoppel can be applied to rights to individual privacy. At a minimum, it would not preclude the individual grievance from proceeding. It would be antithetical to the objective of human rights and privacy protections to find that an individual grievor was precluded from grieving about discrimination or a violation of their right to privacy simply because other, similarly situated individuals had not previously grieved.
Disposition and Remedy For all these reasons, the grievances are allowed. What then is the appropriate remedy?  The Union requested a number of remedies:
1. A declaration that the Employer breached the Collective Agreement and the Code and, if applicable, PHIPA, PIPEDA and OHSA
2. An Order granting the grievance
3. An Order that the Forms be amended forthwith
4. An Order that any issues arising in respect of STIPP applications made between the date of the first grievance and the amendment of the Forms be remitted to the Parties
5. An Order that the Employer reinstate the Grievor’s credits applied in respect of his sick leave
6. An Order that the Employer pay the Grievor $5000 in general damages Both parties recognised that the STIPP Form violates employees’ privacy rights and is impermissible. Although there was some disagreement between them whether there has been a statutory breach of PIPEDA, PHIPPA and OHSA, there is no dispute that the Forms do not meet the standard set in the applicable arbitral case law. There was also substantial agreement on the limits on a request for medical information in regard to receipt of short-term sick benefits. In the unique circumstances of this case, I have determined that no labour relations purpose would be served by issuing the declarations sought by the Union.  Nor do I consider this to be an appropriate case for an award of general damages; in my view it is sufficient that the Grievor be made whole for his actual losses. The factors to be considered in making an award of general damages include an assessment of the extent, if any, of the humiliation, hurt feelings and loss of self- respect, dignity, self-esteem and confidence experienced by the individual subjected to a violation of their rights, as well as the seriousness of the conduct: Weyerhaeuser Co. and CEP, 2003 154 LAC 94th 3 (Sims); Sanford v. Koop, 2005 HRTO 53 (CanLII); Arunchalam v. Best Buy Canada, 2010 HRTO 1880 (CanLII); Shaw v. Ottawa (City), 2012 HRTO 593 (CanLII).  The Grievor in this case elected not to submit the information or consent to the disclosure of information that he felt would violate his privacy. The extent of his evidence on how the denial of benefits affected him was merely that ‘it caused him further distress during a difficult time’. I accept that this would have been distressing, however, he did not disclose any confidential information, his income was not interrupted and there is virtually no evidence on the extent of his upset. In the circumstances, I am not inclined to award a further amount for general damages.  To make him whole, the Grievor should be reimbursed for the credits used for the duration of his absence. The Employer submitted that the matter be remitted back to SSQ for a retroactive determination. I am not persuaded that would be a reasonable outcome. The Employer has already accepted the Grievor’s medical note as sufficient to entitle him to benefits for the first seven days of his absence and has not identified any specific shortcomings or raised direct questions related to the Grievor’s ongoing eligibility to receive benefits. In the circumstances, there is no basis to remit his entitlement for the remaining 8 days of absence for further review.  The grievances are allowed and I make the following Orders:
1. The STIPP Forms are to be amended as soon as practicable to comply with the law as summarised in this decision.
2. All related issues arising from the use of the disputed Forms from the date of the first grievance are remitted to the Parties for resolution.
3. The Employer reinstate the credits applied in respect of the Grievor’s denied STIPP benefits. I will remain seized in the event that the Parties are unable to fully resolve the matters that have been remitted back to them or if any other issues of interpretation or implementation of my award arise.  Dated at Toronto, Ontario this 31st day of March 2021.
Reva Devins, Arbitrator
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