,_i

Grievance File Nos.:3923, 3927, 39

IN THE MATTER OF AN ARBITRATION Under the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sche ; A

BETWEEN: SOBEYSINC.

RETAIL SUPPORT CENTRE -WHITBY

-and-

UNIFOR AND ITS LOCAL 1090 (the "Union"),

AND IN THE MATTER OF THE GRIEVANCES OF PETE PRESCOTT ALLEGING HARASSMENT, FAILURE TO ACCOMMODATE A DISABILITY, UNJUST DISCIPLINE

AND DISMISSAL.

SOLE ARBITRATOR:

APPEARANCES

For the Union:

For the Employer:

HEARD:

DECISION:

I. Introduction

Gordon F. Luborsky

Keith Osborne, National Representative Steve Bachelor, Local President Rick Welsh, Local Chairperson Pete Prescott, Griever

Mathias Link, Counsel Dave Blair, Director, Sobeys Whitby Retail Support Centre Shobha Boodram~ Director, Employee Relations

December 8 and 14, 2015, September 15, 20 and 21, 2016, January 20,2017 and February 9, 2017 Ajax, Ontario

August 31,2017

AWARD

[ 1] The parties agree that I have jurisdiction to determine eight grievances arising out of factual circumstances resulting in progressive discipline, charges of harassment and failure to accommodate a physical disability, culminating in the dismissal of the Griever, Mr. Pete Prescott, for alleged just cause.

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[2] The Grievor commenced employment on October I9, I999 at the Employer's Retail Support Centre (referred to as "RSC" or "Warehouse") located in Whitby, Ontario as a "Warehouse Person" or "Shipper/Receiver". As such he was responsible for moving produce and dry goods in and out ofthe Warehouse for storage and distribution to the Employer's Ontario retail outlets. The Grievor had right knee replacement surgery on or about November 28, 2012 (with a subsequent surgery on March 6, 2013 to remove scar tissue) and was drawing short term disability (STD) benefits for several months, thereafter receiving long term disability (LTD) through the Employer's insurance carrier, Sun Life Financial ("SunLife"), from June I, 20I3 until December I, 2013. The Union's eight grievances arise out of attempts to return the Grievor to regular or modified duties between December 2, 2013 and May 8, 20I5 when the Grievor was terminated at the age of 60, after some I4 years of accredited service.

[3] The first grievance dated October 20, 20I4 ("Grievance No. I"), also referenced as #3923, challenges a verbal warning issued to the Grievor that day for allegedly taking an "extended break leaying the floor prior to the scheduled break and returning late from break", causing the Grievor to be absent I8 minutes more than the authorized 20 minute break scheduled from 9:30 a.m. to 9:50a.m. The disciplinary notation advises the Grievor to: "Remain on the floor performing your assigned task until the scheduled break time and return promptly from break to resume your assigned task" and it warns the Grievor that, "Any further actions will result in further discipline up to and including termination". The grievance claims that the discipline was unjust and demands its removal from the Grievor' s record. The Grievor alleges .he had legitimate reason to be in the washroom the entire time related to his disability.

[4] The second grievance, also dated October 20, 20I4 ("Grievance No. 2"), which is internally identified as #3927, alleges that the Grievor was improperly sent home by his supervisor on October I6, 20I4 to provide an updated "Functional Abilities Evaluation" form ("F AE") from the Grievor's doctor thereby losing his pay for the balance of that shift. The Union asserts the Company's actions violated articles I, I7 and I7.07 of the collective agreement as well the Grievor's "Human Rights", demanding compensation for lost wages as.a result.

[5] The third grievance, dated January 22, 2015 ("Grievance No. 3"), also captioned as #3967, claims that as an "incapacitated employee" the Grievor was improperly "sent home (on January I2, 20I5) without being accommodated for the day and not given an F.A.E., violating the [collective agreement] and [the Grievor's] Human Rights". It demands "full redress, no recourse [and that the Grievor be] made whole".

[6] The fourth grievance dated May 1, 20I5 ("Grievance No. 4"), internally identified as #3996, challenges a written warning to the Grievor on March I2, 20I5 for allegedly becoming "aggressive and argumentative" during a pre-shift meeting with his "Return to Work Supervisor" on March 11, 2015, refusing to discuss the list of modified duties presented to him and then leaving the workplace without permission while indicating that he "may not be back to work". The grievance demands the removal of the disciplinary warning and compensation to make the Grievor whole for time lost as a result.

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[7] The fifth grievance dated April 28, 2015 ("Grievance No. 5"), which does not seem to have been provided an internal reference number, disputes a three-day suspension without pay issued to the Grievor that day for allegedly refusing the direction of his Return to Work Supervisor, "to come into the office with his union rep and to discuss his modified duties." The disciplinary notation states the suspension is for "insubordination" and it warns the Grievor that, "Failure to follow supervisor direction will result in further discipline up to and including termination." The grievance claims the three-day suspension was "unjust", being in violation of "the [collective agreement] and [the Griever's] Human Rights." It demands removal of the discipline from the Griever's record and compensation for three days' lost pay.

[8] The sixth grievance dated May 5, 2015 ("Grievance No. 6"), also identified as #3997", claims that a five-day suspension without pay for alleged "insubordination" issued to the Grievor on May 1, 2015 for his ongoing refusal to meet with his Return to Work Supervisor to discuss modified duties was tmjust. It demands removal of the discipline from the Grievor' s record and the payment of five days' lost wages.

[9] The seventh grievance submitted on May 1, 2015 ("Grievance No. 7"), is a complaint of "Workplace Harassment" brought by the Union on behalf of the Grievor under article 13 of the collective agreement, entitled "Protection from Harassment and Discrimination". There is no internal reference number for this complaint. It personally names all of the supervisors who dealt with the Griever's return to work as having acted contrary to "Health and Safety", "Human Rights" and the Employer's policy in its treatment of the Grievor, claiming redress and damages against them and the Employer as a result.

[10] The eighth grievance dated May 18, 2015 ("Grievance No. 8"), internally referred to as #3998, alleges that the Griever's ultimate dismissal as the final step in the chain of progressive discipline on May 8, 2015 was, "Unjust termination, violating [the Griever's] Human Rights and the [collective agreement]". The Union demands removal of the discipline from the Griever's record and that the Grievor be "made whole and just" for all losses as a result. The Employer's letter of termination to the Grievor, written by his "Shift Lead" under the caption "Re: Termination- Insubordination", states in relevant part:

On Friday, May 81h, 2015 you were asked on a number of occasions to review your modified duties with the Return to Work Supervisor and myself, you (sic) failed to comply and refused to review your duties. You have demonstrated this type of behaviour in the past and it has been addressed with you in previous meetings. It is your responsibility to conduct yourself in a proper manner and follow the direction of your supervisor. This behavior is not acceptable and as a result you are being terminated effectively immediately.

[11] The Employer denies any violation of the collective agreement, human rights and workplace safety legislation, requesting that all grievances be dismissed. It claims that the Employer made proper efforts to reasonably accommodate the Grievor' s disabilities (as substantiated by the medical reports it received), which the Grievor wouldn't even discuss with his supervision, constituting insubordination on his part. The Employer notes that the Grievor

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already had an active disciplinary record prior to the October 20, 2014 grievances and points to the progressive discipline issued to the Grievor, warning him of the consequences of his ongoing insubordination and insolence that he ignored. This left the Employer with no alternative after several months of trying to return the Grievor to modified duties than to terminate his employment for alleged just cause. The Employer also claims it is not appropriate to reinstate the Grievor with the substitution of another penalty because the employment relationship has been irreparably shattered as a result of the Grievor' s misconduct.

II. Decision

[12] For the reasons that follow all eight grievances are dismissed. I find on the evidence that the Grievor committed repeated acts of insubordination related to his defiant refusal to discuss, let alone cooperate, with what I have determined to be reasonable accommodations offered to the Grievor. This, coupled with his aggressive insolence towards management while the Employer was properly attempting to return him to work consistent with the medical restrictions identified by the Grievor's own physicians, renders discharge an appropriate penalty at the end of the progressive disciplinary process. I also conclude that the Grievor's inability to recognize his wrongdoing and lack of remorse for his misconduct, even when given the chance to apologize at arbitration, disentitles him to any consideration of exercising arbitral discretion to reduce the final penalty of discharge.

III. The Evidence and Factual Findings

[13] I heard testimony from the following four witnesses on behalf of the Company. Mr. Ed O'Toole was the "Team Leader" for 10 years on the day shift. He issued the verbal warning to the Grievor on October 20, 2014 for overstaying his authorized break. Mr. Wade Serediuk was an· "A Shift Supervisor" for 15 years with responsibilities for all facets of the warehouse activity concerning "in-bound and out-bound volume on the day shift", where the Grievor was one of about 30 employees. Mr. Serediuk also acted as the Employer's "Return to Work Supervisor" who, along with the Union's "Return to Work Representative", identified as Mr. Matt Adair, arrange appropriate accommodations for disabled employees. (The Return to Work Supervisor and the Return to Work Union Representative are recognized as members of the "Joint Retui? to Work Committee" under article 17.07(c) of the collective agreement). Mr. Serediuk issued progressive discipline to the Grievor for refusing to participate in the accommodation process. Mr. James Desmedt was a 16 year employee holding the position of "Shift Lead Supervisor for the Day Shift", with overall responsibility for managing that shift. Mr. Desmedt ultimately approved the Grievor' s termination for alleged just cause. And Ms. Lisa Chaplin, who was the "Abilities Specialist" having five years of service as of her testimony, with responsibilities for coordinating workplace accident claims as well as being the Employer's liaison with the third party insurance carrier administering the STD and LTD plans. She also oversaw the Employer's accommodations for employees returning to work from illness or injury, including the Grievor' s return to work plan.

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[14] In addition to hearing extensively from the Grievor whose examination-in-chief and cross-examination extended over three hearing days, the Union ·presented evidence from Mr. Rick Welsh, who was the Union's local president during the events leading to the Grievor's dismissal. (By the time of his testimony he had moved to a full-time position with the Union). As described below, Mr. Welsh's direct participation was limited to helping the Grievo~ process the "Workplace Harassment" complaint that he filed on May 1, 2015, and to accompanying the Grievor at the final meetings with his supervisors. Mr. Welsh also expressed a number of opinions concerning the "mistakes" committed by the Employer in dealing with the Grievor.

[15] The Employer's witnesses, as well as Mr. Welsh, gave their testimony in a clear and straightforward manner. In many instances the Witnesses had written notes that were prepared at the time of the relevant events or very shortly thereafter, that they were able to refresh their memories from in presenting their evidence. While Mr. Welsh was sympathetic to the Grievor, his evidence corroborated the testimony of Messrs. Serediuk and Desmedt concerning the events in meetings between the Grievor and his supervisors leading to the Grievor's dismissal.

[16] By contrast the Grievor's testimony was inconsistent and unreliable, if not deliberately untruthful in many material respects. He had difficulties answering direct questions with direCt answers, often providing rambling responses punctuated by his own questions to the questioner or gratuitous personal observations. He typically denied the Employer's version of events leading to the various levels of progressive discipline, only later to admit the documented statements and actions attributed to him by the Employer's witnesses following penetrating cross-examination. He gave testimony about the state of his health that contradicted the medical reports provided by his own orthopedic surgeon and personal physician (as well as hospital emergency records), relying instead on an opinion of his physiologist. He was frequently argumentative with counsel and also challenged the qualifications of the Union's own Return to Work Representative, Mr. Matt Adair, who consulted with the Employer on a return to work plan for the Grievor. He was not reticent in expressing his personal viewpoints throughout his questioning from both the Employer and Union sides, often in a way that undermined his own cause. He deliberately misstated conversations he claimed to have had with case workers of the Workplace Safety and Insurance Board ("WSIB") and/or insurance company officials handling the Grievor' s complaints that contradicted the written record of those discussions and the testimony of Ms. Chaplin who was managing the Grievor's return to work for the Employer, which the Grievor later conceded in cross-examination. Consequently, I could give no or little weight to the Grievor' s unsubstantiated assertions. An~ to the extent the Grievor' s testimony differed from the evidence of the Employer's witnesses, I was compelled to prefer the Employer's evidence.

[17] Having therefore considered the testimony of the witnesses as documented by the Grievor's extensive disciplinary, medical, insurance and WSIB files that were admitted into evidence on consent and for the most part acknowledged by the Grievor as accurate, I make the following findings of fact.

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(a) General Background Information

[18] Article 12.02 of the collective agreement prohibits consideration of discipline issued more than one year before a subsequent disciplinary event in determining the appropriate penalty. This limits the Employer's use of the Griever's disciplinary record prior to a notation dated August 29,2014 indicating that the Grievor received a "balance of shift suspension" (or "BOS") for "insubordination" issued by Mr. Serediuk. While the Union filed a grievance challenging that discipline as unjust, the grievance was later withdrawn. The disciplinary report indicates that in response to Mr.,Serediuk's request that the Grievor meet to review a new FAE for purposes of making modified work assignments, the Grievor "refused and walked away':. I was later to hear that this kind of "refusal" and "walking away" behaviour when directed by his supervisor to discuss his medical restrictions and appropriate workplace accommodations became a recurring event between the Grievor and Mr. Serediuk.

[19] As noted above, the Grievor was absent for rion-work related reasons associated with right knee replacement surgery on or about November 28, 2012 until December 1, 2013. He received a combination of short term and long term disability benefits during that time. A medical assessment from an orthopedic surgeon dated November 7, 2013 (which was prepared as a "second opinion" from an orthopedic surgeon who did not performed the original surgery on the Griever's knee), reports that on examination the Griever's surgical wound, "looks well healed with no sign of infection", confirming "a flexion arc of about 0 to 110 degrees" in the right knee that was assessed as being "ligamentously stable" and concluded that: "At this stage [the Grievor] has acceptable range of motion of his right knee post total knee arthroplasty".

[20] The Grievor thus returned to work in the Employer's warehouse with no restrictions on December 2, 2013, reporting to his Team Leader, Ed O'Toole, on the day shift. On his first day back the Grievor told Mr. O'Toole that, "I'm only here to get a pay cheque" and he exclaimed, "I don't want to be harassed and followed around", charging that his supervisor, Mr. Serediuk "has a history of that". The Grievor also said he 'hated' Mr. Serediuk for what he had done to the Grievor in the past (calling him "rotten to the core"), and expressed the opinion that the Employer had unsuccessfully tried to fire him, but then stating: "The only way for the company to get rid of me is to pay me off." Mr. O'Toole documented this conversation in an e-mail sent to the Employer's management team, excluding Mr. Serediuk who was the subject of their conversation (for reasons that Mr. O'Toole was not questioned on by either party, but which was nevertheless raised by the Union as a sign of 'Employer bad faith' in final argument).

(b) Grievor Sustains Work Related Injury

[21] The Grievor was back only one week when, on December 9, 2013, he was involved in an accident at work. While operating a piece of equipment called a "standing dock stocker" (used to mechanically lift loads onto storage shelves) another employee driving a forklift "rear ended" the Griever's machine causing the Grievor to stain his right knee in the collision. He duly reported

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the accident to supervision, filed a claim with the WSIB, and went off work notwithstanding the offer of modified, sedentary duties. In the initial assessment of his WSIB claim for loss of earnings, admitted into evidence on consent and later confirmed by the Grievor, the WSIB case manager reported that the Grievor asserted the accident had caused his right knee to become swollen and that his degree of flexion for that knee had reduced from "88%" when he returned to work ()n December 2, 2013 to "86%" as a result of the accident. This was not what the orthopedic surgeon wrote in his November 7, 2013 report that the Grievor' s flexion arc had stabilized at 0 to 11 0 degrees by the time he returned to work (or the information from his own orthopedic surgeon and family doctor on the matter), leading me to conclude along with the other inaccuracies from the Grievor that he attempted to mislead the WSIB case manager. The Grievor took the position with the WSIB that he was unable to fulfill the modified duties of sedentary work that had been offered by the Employer, which the WSIB did not accept based on the medical information submitted. When informed that he must cooperate with his Employer to return to work the Grievor told the WSIB case manager he didn't trust anyone there. The WSIB subsequently advised the Employer that, "there was no need for a return to work meeting as [the Grievor] stated that he has returned to regular duties and does not have any concerns or issues regarding his return to work."

(c) Initial Return to Modified Duties

[22] The Grievor in fact returned to modified, sedentary work on December 23, 2013 (as previously offered by the Employer), eventually receiving WSIB compensation for his loss of earnings from December 1 0 to that date. He subsequently resumed his regular duties in the warehouse on January 20, 2014, but that was. short-lived. ·

[23] On or about March 21, 2014 the Grievor presented the Employer with a letter from his fari:llly physician, Dr. Chaudhari, who wrote: "Peter is medically unfit and unable to work from March 24114 for at least one month". The Grievor then applied for, and was granted, a leave of absence ("LOA") for a period of three months from March 21, 2014 to June 24, 2014. (Under article 25.02 of the collective agreement the Employer has discretion to permit an LOA for a period up to 90 days without pay, which it purported to apply in this instance). In his request for the LOA the Grievor indicated he would be pursing compensation through the WSIB or STD benefits from SunLife. On April 1, 2014 the Employer (through Ms. Chaplin) proposed modified, sedentary duties (including the avoidance of repetitive knee movements against resistance, prolonged weight bearing, rough ground walking and climbing), and also requested that the Grievor provide an updated F AE from his physician. The Grievor rejected the offer of modified duties, claiming he needed to completely rest his knee and attend regular physiotherapy. Hence he remained off work, on LOA status without pay or compensation through the WSIB or SunLife, and no grievance was filed by the Union challenging the matter.

[24] The Griever's orthopedic surgeon who performed the knee replacement surgery, Dr. Esmat Dessouki, sent a medical report dated April 17, 2014 to the Griever's family physician, Dr. Chaudhari. That report indicates the Grievor told Dr. Dessouki about his December 9, 2013

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workplace accident but on examining the Grievor's knee on April17, 2014, Dr. Dessouki found that, "he had a range of motion from 0- 100 degrees down from 113" and that the Grievor's "X­rays were quite satisfactory". The letter confirmed that Dr. Dessouki "reassured [the Grievor] that no damage was done to his total knee arthroplasty (as a result of the workplace accident)" and that Dr. Dessouki would see the Grievor "back in 2016 for follow up of his knee replacements" (i.e. which at that point was two years in the future). There was no indication of the need for any restrictions or modifications in the Grievor's usual work. This was consistent with another report from StmLife's medical consultant dated April 29, 2014 who, onreviewing the medical file found that the Grievor's "range of motion is functional even though there was a slight decrease compared to the full range of motion that he had previously" and thus concluded that the Grievor, "[did] not have complications following total knee arthroplasty and a soft tissue injury on the basis of which he would have restrictions with respect to performing the essential duties of his customary occupation as described."

[25] Not satisfied with those rep'orts, the Grievor called the Employer's Human Resources Coordinator, ·Ms. Amanda Miller on May 14, 2014, advising that he was receiving Employment Insurance benefits and asking if he could apply for another LOA with an end date of July 28, 2014, asserting that he could not return before then. When reminded that the collective agreement only supported a three month LOA (without sufficient medical justification) that was scheduled to end on June 24, 2014, the Grievor wanted to know if he· would be terminated if he didn't return from his current LOA without approval for a second one, stating: "Well that's what I'm hoping for anyways".

(d) First Disciplinary Notation -August 29, 2014 (BOS Suspension)

[26] At or about the same time, the Grievor was having discussions with the WSIB, claiming his loss of earnings for the entire period he had been off work after his December 9, 2013 workplace accident. (The Grievor had apparently taken the position before the WSIB that the workplace accident had aggravated his right knee causing all subsequent absences from work). In a written report from the Grievor' s WSIB case manager confirming the details of a telephone conversation with the Grievor on May 20, 2014 that the Grievor conceded in cross-examination, the Grievor asserted that his orthopedic surgeon, Dr. Dessouki, told the Grievor he had a permanent injury and that "this is as good as it gets" (referring to the limited flexibility in his right lmee ), contradicting the medical report issued by Dr. Dessouki on April 17, 2014. In a subsequent telephone conversation with a WSIB manager (which was a level above the case manager handling the Griever's case) on June 13, 2014 who the Grievor had appealed to because, "he was concerned that his case was not being handled correctly", the Grievor disagreed with Dr. Dessouki, advising the WSIB manger that he "thinks his family doctor (Dr. Chaudhari) and his physiotherapist would also disagree".

[27] Meanwhile, in response to the Grievor's request to continue his LOA from the Employer for medical reasons, Ms. Chaplin provided the Grievor with a "Practitioner's Report of Abilities and Limitations" form (also referred to as "PRAL", which the parties identified interchangeably

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as an F AE) on June 17, 2014, asking him to forward it to his physician to fill out before returning to work. Dr. Chaudhari subsequently provided a medical note dated June 20, 2014 stating: "Peter is medically unfit and unable to work until July 20, 2014", The LOA was accordingly extended and the Griever returned to work on July 28, 2014, when he presented the requested PRAL from Dr. Chaudhari dated July 18, 2014.

[28] The PRAL stated the Grievor' s condition was "chronic" but that he was "fit for modified duties" commencing July 21, 2014 tmtil "permanent" (meaning that his need for modified duties would be indefmite). Notably, the PRAL did not state that the Grievor was "unfit to work (i.e. TOTALLY DISABLED ... [and] cannot return to modified duties'', which was one of the options available for the physician to check on the form. Rather the PRAL described the Griever's specific physical limitations as assessed by Dr. Chaudhari, explicitly particularizing the restrictions in the Griever's abilities tmder the categories: "Walking, Standing, Sitting, Lifting (floor-waist), Lifting (waist-shoulder), Lifting (above-shoulder), Pushing/Pulling, Climbing Stairs/Ladder, Gripping, Reaching Above/Below Shoulder, Bending/Twisting and Cognitive." The PRAL confirmed that the Grievor was able to return to "Regular full-time hours" and that his next medical appointment with Dr. Chaudhari would occur in one month. (It is to be noted that the PRAL did not include any restrictions for working in the "cold", which would later become significant).

[29] Consequently, based on the reported medical restrictions from the Grievor' s family doctor, Mr. Serediuk prepared a written modified duties work plan on a document entitled, "Injured Employee Follow Up Form" that he reviewed with the Grievor and the Union's Return to Work (also referred to as "RTW") Representative, Mr. Matt Adair, when the Griever attended the workplace on July 28, 2014. Mr. Serediuk testified that the specific restrictions were based on duties that other employees with si:rnllar physical restrictions had been successfully accommodated in the past. The form confirms that the Grievor was advised he would be "assigned to working on plastic wrap cores in Aisle 63 [and that] a chair will be made available". The form also indicates that the Griever's next medical evaluation was scheduled for August 18, 2014, at which time "a new FAE (Functional Abilities Evaluation) will be provided". It was signed by Mr. Serediuk and Mr. Adair; however, the Griever refused to sign this form (consistent with the Griever's usual response to such requests).

[30] The Grievor took the position that Mr. Adair was "not qualified" to provide the Union's consent to the new modified work assignment (which was part of Mr. Adair's role as a member of the "Joint Return to Work Committee" under the collective agreement, referred to as the "JRTWC"). The Grievor also disputed Mr. Serediuk's "qualifications" to offer those accommodations, notwithstanding that Mr. Serediuk was the recognized "Return to Work Supervisor" under the JRTWC for the Griever's area. Nevertheless, it appears that the Griever was able to perform the modified duties as assigned without incident. However, the Griever did not provide the Employer with a new FAE by August 18, 2014, which was the date his doctor had indicated the Griever's condition would be re-evaluated. In a telephone call to his WSIB case manager on August 29, 2014, the Grievor asserted that his doctors told him he was now

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"totally disabled and not able to work", which based on the medical reports submitted and the Grievor' s eventual concessions in cross-examination, was untmthful.

[31] Having not received the promised updated medical evaluation from the Grievor' s doctor, Mr. Serediuk convened a meeting with the Grievor during the morning of August 29, 2014. In response to Mr. Serediuk' s request for a new F AE the Grievor asserted that the previous one dated July 18, 2014 was sufficient, which Mr. Serediuk wouldn't accept. What followed was conduct that the Grievor was to repeat in the future, the details of which were set out in a reporting email by Mr. Serediuk to his supervision that the Grievor substantially confirmed in cross-examination. I thus find it is an accurate depiction of their conversation, as follows:

Today, I [referring to Mr. Serediuk] asked Pete (Prescott) to come in and review and receive a new FAE. He refused and walked away from me. I called him several times to come back. He did not. I went and got Steward Dale Yake. I asked Dale to go and talk to Pete and tell him he has two choices. He can come to the office as directed by a supervisor and receive his paperwork or he will be suspended for the balance of the shift for insubordination. Pete chose to be suspended which I did. I wrote on the write up that he is to return for his next scheduled shift and attend the meeting for his new FAE. He asked what would happen if he doesn't go to the meeting when he returns. I told him he would be suspended for 1 day. He asked how it goes 3 day then 5 day (sic)? I said yes. After the meeting he asked for STD papers which I gave him.

[32] As a result, the Grievor was issued a Balance of Shift ("BOS") suspension Without pay on August 29, 2014 for refusing to meet with his supervisor concerning a new FAE and walking away from his supervisor, which the Union initially grieved but later abandoned. The disciplinary notation presented to the Grievor expressly warned him that: "Any further actions of this nature will result in further discipline up to and including termination".

(e) Subsequent Attempts to Return to Work (September 5 to October 16, 2016)

[33] The Grievor returned to work on September 5, 2014 with a new FAE form dated September 4, 2014 signed by Dr. Chaudhari. Consistent with the earlier PRAL of July 18, 2014, the new form stated the Grievor was "fit for modified duties" that were further described on a "Physical Abilities and Limitations" chart (covering the same categories as "Walking, Standing, Sitting, Lifting, Pushing/Pulling, Climbing Stairs/Ladders, Gripping, Reaching Above/Below Shoulder, Bending/Twisting and Cognitive") which notably said- nothing about a restriction for working in the cold. The document also indicated that the Grievor would have a follow up appointment with Dr. Chaudhari to review his condition "in 3 months" (which was understood to be referring to the date ofDecember 5, 2014).

[34] Based on the updated PRAL, Mr. Serediuk met with the Grievor and Mr. Adair in the morning of September 5, 2014 to review the Griever's restrictions and work assignments. The Grievor had already been performing modified duties ''in the stripping area stacking pop shells and breaking down watermelon bins" where he could sit when needed, in an area that was maintained at a normal room temperature. But Mr. Serediuk wanted to expand the Griever's

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duties to include a job in the "produce department", which is in a separate room in the warehouse kept at or below 40 degrees Fahrenheit to preserve the freshness of the product. When presented with his new responsibilities the Grievor objected, stating that there was 'no way he could work in produce as the cold would aggravate his knee'. When Mr. Serediuk noted there were no restrictions for cold temperatures in the most recent F AE, the Grievor asked if he should go back to his doctor, which he was told would be necessary in order to substantiate his claimed inability to perform such work. In the interim the Grievor was permitted to continue working in the non­cold areas he had previously been assigned on duties stacking pop shells and breaking down watermelon bins.

[35] But no updated F AE from the Grievor's doctor was forthcoming to substantiate the Grievor's claim of an inability to work in cold temperatures. In the period September 5 to October 15, 2014, the Grievor continued his efforts to have the WSIB authorize a leave of absence with compensation for the alleged aggravation of his right knee arising out of the December 9, 2013 accident, which the WSIB rejected. The Grievor repeated his claim that the range of motion on his right knee had reduced to as little as "84 degrees" because ofthat accident justifYing the continuation of compensation benefits (past the December 10- 23, 2013 interval). However, a review of his file by a WSIB medical specialist with access to an updated medical report dated August 19, 2014 from the Grievor's family physician, Dr. Chaudhari, indicating that the Grievor' s range of motion in that knee had recently been assessed at 105 degrees, concluded that: "While the worker reports persistent knee pain and Dr. Chaudhari has indicated that knee flexion has plateaued at 105', this [medical consultant] notes that ... flexion was variously reported at 105'/110'/llJ, which are probably not significantly different from the 105' reported by Dr. Chaudhari (allowing for inter-observer variation ... )". The WSIB accordingly advised the Employer that the Grievor' s alleged ongoing condition was not related to a compensable workplace accident, and that any claim should be referred to the Employer's insurance carrier .. The WSIB later confirmed its final decision to deny the Grievor's request for ongoing compensation related to the December 9, 2013 accident 'in a decision dated October 3, 2014, which stated that based on the medical information on file: "there will be no further entitlement under your claim and your file remains closed."

[36] Shortly thereafter, on October 7, 2014, Ms. Chaplin faxed a new FAE request to the Grievor' s family doctor with a copy to the Grievor who was told to return the completed form by October 16, 2014. The request included a "Physical Demands Analysis (Regular Duties)" for the Grievor's usual job, which the Employer asked the Grievor's physician to consider in describing the Grievor's medical limitations. This was consistent with the Employer's policy in dealing with employees requiring workplace accommodations for a disability, which is generally to require updated F AEs on a regular basis and to have the employee and his/her "Return to Work Supervisor" review the workplace accommodations every week to ensure their continuing appropriateness. The Grievor took the position, as supported by Mr. Welsh on behalf of the Union, that the requirement for almost monthly updates of the Grievor' s medical condition where his disability was "permanent" and his own doctor had not scheduled a follow-up examination for three months was "a case of company intimidation". Mr. Welsh testified there was an

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"unwritten practice" of the Employer only requiring updated F AEs every three months. The Employer's position on the matter was that an updated F AE was necessary because of the Grievor's ongoing absence from work and the need to be assured that appropriate modified duties were assigned.

[37] When the Grievor did not provide his updated FAE on October 16, 2014 he was sent home, losing his wages for the remainder of his shift (although he was not disciplined for that failure). The Grievor submitted a new PRAL from Dr. Chaudhari dated October 16, 2014 on his return the next day which was similar to the previous PRAL but, surprisingly, did not indicate that the Grievor had any restrictions for working in the cold (which had sparked the earlier confrontation between Mr. Serediuk and the Grievor). Also differing from the previous PRAL, Dr. Chaudhari stated the Grievor's disability was "permanent" and thus "no further consultation" with a specialist was required. (The previous PRAL indicated a follow-up referral had been made with Dr. Dessouki, the Grievor's orthopedic surgeon). The PRAL stated that the Grievor's condition would be reassessed in three months (i.e. by January 16, 2015).

[38] The Union later filed a grievance dated October 20, 2014 (Grievance No. 2 herein) challenging the Employer's right to send. the Grievor home and claiming lost wages equal to his earnings for about half of his shift. As part of this grievance the Union also alleged the Company's requirement that the Grievor provide an updated F AE on or about a monthly basis was unreasonable where the Grievor's physician had indicated a follow-up medical was not required for three months from the previous September 4, 2014 examination ..

[39] The parties agreed to hold this grievance in abeyance while the Employer continued its review of the Grievor's restrictions.

(f) Second Disciplinary Notation- October 20, 2014 (Verbal Warning)

[ 40] Thus while the Grievor continued to work on the modified duties established prior to the latest PRAL (which did not include work in the cold room notwithstanding the absence of any documented medical restriction for such work), he was involved in a timekeeping incident on October 20, 2014 that Mr. O'Toole testified about. The day shift begins at 7 a.m. and a bell rings .every morning at 9:30a.m. to announce the beginning of a 20 minute break, the end of which is also signaled by the ringing bell. The testimony of Mr. O'Toole is that all employees, including the Grievor, are advised of their timekeeping responsibilities including the expectation that they will not leave work before or exceed the designated break times without permission, which the Grievor acknowledge that he knew.

[41] There is no dispute that on October 20, 2014 the Grievor left his work assignment at 9:26 a.m. (i.e. four minutes before the bell) and did not return until 10:04 a.m. (14 minutes after the bell), being a total of 38 minutes. When asked by Mr. O'Toole why he overstayed his break, the Grievor said he was "in the washroom" the entire time. The Grievor testified his disability

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required that he exercise regularly, which the Grievor accomplished through workouts on a stationary bicycle before his shift. This meant that the Grievor had to "drink a lot of water", thus resulting, in the Grievor's words, "for nature to take its course". While Mr. O'Toole's testimony confirms that the Grievor told him he was in the washroom, Mr. O'Toole maintained that he was never advised by the Grievor of any medical reason associated with the Grievor's unusually long bathroom attendance, if that was the truthful reason for his extended break. Mr. O'Toole also claimed, without challenge by the Union, that all employees are told that discipline will result from overstaying a break without acceptable excuse, and that the Grievor was not the only employee discipline for such misconduct over the years by Mr. O'Toole.

[42] As a result of his violation of the Company's timekeeping policy, the Grievor was assessed a verbal disciplinary warning on October 20, 2014 admonishing the Grievor to, "Remain on the floor performing your assigned task until the scheduled break time and return promptly from break to resume your assigned task". He was also warned that, "Any further actions will result in further discipline up to and including termination."

(g) The Next Lengthy Absence- October 28, 2014 to March 11, 2015

[43] By October 21, 2014, Ms. Chaplin had completed her review of the most recent PRAL dated October 16, 2014. She noted in an email to Mr. Serediuk and other supervisory officials that, "There is no mention of a cold restriction on the F AE" and consequently Ms. Chaplin wrote she could "see no reason from this latest F AE that [the Grievor] cannot be placed in an aisle performing modified duties similar to the rest of the employees on modified" (which included working in the cold of the produce department).

[44] Mr. Serediuk discussed the matter with the Grievor and Mr. Welsh in a meeting held on October 27, 2014. Mr. Serediuk told the Grievor that his modified work assignment was going to include duties in the produce department, which the Grievor objected to, asserting that the cold temperature in that area of the warehouse would not be good for his knee. When asked why the Employer wanted to make this change, Mr. Serediuk explained that since the Grievor' s PRAL did not restrict work in cold temperatures the new job assignment "would be a more productive use of time and it was better value to the company." Consistent with the written record of his conversation with the Grievor and Mr. Welsh prepared by Mr. Serediuk at the time (and admitted by the Grievor in cross-examination), the Grievor and Mr. Walsh demanded the right to an Independent Medical Evaluation ("IME") and the Grievor repeatedly stated he "didn't w~1t to be here" preferring to be "pensioned off by SunLife or bought out by So beys." (As I shall discuss later in these Reasons, the Union argued that the Employer violated the collective agreement by not acceding to the Union's demand for an IME, even though the Employer was relying upon the medical documentation supplied by the Grievor' s own personal physician in modifying· the Grievor's work assignment).

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[45] The next morning, October 28, 2014, the Grievor attended a pre-shift meeting at 7 a.m., conferring privately with Mr. Welsh immediately afterwards. The Grievor then told Mr. Serediuk that he was leaving the workplace and applying for short term disability benefits because he was incapable of working his new assignment. The Grievor consequently booked himself off work effective his next scheduled shift of October 31,2014 to January 10,2015 that extended beyond that date in circumstances described below.

[46] SunLife initially allowed the Grievor's claim for STD benefits to cover the new absence to January 10, 2015, however it later changed its assessment by granting the Grievor long term disability instead (which paid the Grievor less compensation). SunLife took the position that under the insurance policy the Grievor's latest absence was considered a reoccurrence of his earlier total disability from June 1, 2013 to December 1, 2013 for which he received LTD. The SunLife file indicates that the Grievor signed his consent to that reassessment, resulting in the payment of extended LTD benefits.

[ 4 7] At the beginning of this new leave the Grievor experienced a cardio':'ascular incident that he claimed was a "stroke", suggesting it was caused by the stress put on him by Mr. Serediuk in requiring the Grievor to work in the cold. The associated medical records (including two reports from the emergency hospital that treated the Grievor, an attending optometrist and his own family doctor) indicate that the Grievor was seen in the "stroke prevention clinic" of the Lakeridge Health Hospital in Oshawa on October 30, 2014. The Grievor was already taking medication for high blood pressure and blood thinners. He complained that on October 28, 2014 (the day he left work early) "he had some dizziness" and was "confused", attending the emergency department of the Hospital which could find no evidence of a stroke. By then his symptoms had resolved and he was discharged home. However on November 1, 2014 he experienced a second incident of what the medical reports describe as "visual disturbance", "general weakness" with "confusion" and "difficulties talking", for which an ambulance was called and he was seen again at the Hospital emergency department.

[ 48] The Grievor testified he was told he had suffered a "stroke in the right eye" and experienced temporary blindness in both eyes, which the medical report of a subsequent examination by his optometrist on November 5, 2014 could not confirm. The Grievor also testified that he continues to be "blind on the bottom of the right eye quarter and also blind on the bottom right hand quarter", resulting in the loss of his driver's license which was subsequently restored. However, that testimony was not supported by the reports of his own physicians. The Grievor's family doctor diagnosed a "cerebrovascular accident" with secondary "atrial fibrillation". (Atrial fibrillation is a condition of irregular heartbeat that can cause clotting of blood resulting in strokes). The follow-up report from the stroke prevention clinic dated December 9, 2014 states that since his earlier attendance at the clinic the Grievor, "has largely been doing very well. He has been very active and exercising regularly. Once in a while, he still has vertiginous episodes, but otherwise has been doing well." There was no medical substantiation for any claim that the Grievor's "cerebrovascular accident" was a continuing problem that might affect his ongoing employment or needed accommodation.

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[ 49] However, I heard much evidence about contentious discussions involving the Grievor, Ms. Chaplin and SunLife concerning efforts to substantiate the Grievor' s continuing absence from work, the details of which were documented in the SunLife and Employer's files and elaborated in the testimonies of the Grievor and Ms. Chaplin, as follows.

[50] On December 4, 2014, SunLife told the Grievor that it required further details from his attending physician to verify his medical reasons for the leave of absence from work, and he was warned that his LTD benefits would cease on January 10, 2015 if such information was not forthcoming. SunLife later informed Ms. Chaplin that the Grievor would not be returning to work on January 10, 2015 and that SunLife was awaiting an updated FAE to support his continuing absence, which the Grievor denied ever telling SunLife. On January 9, ~015 the Grievor obtained a medical note from Dr. Chaudhari stating: "Peter is medically fit to return for work with regular restrictions, and is medically unfit to work in temperatures less than 40' F." The Grievor then arrived at work with his doctor's note on Monday, January 12, 2015; but because he was not expected the Employer did not allow him to start working. Instead, he was sent home with a blank F AE that he was told to have his doctor fill out before the Grievor would be permitted back to work, which the Grievor denied ever receiving.

[51] This resulted in the Union filing "Grievance No. 3" dated January 22, 2015, alleging that the Grievor as an "incapacitated employee", "was sent home 'without being accommodated for the day and not given any F.A.E. violating the (collective agreement) and (the) employee's Human Rights." It demands as remedy, "full redress, no recourse (and that the) employee (be) made whole."

[52] The Grievor thus remained off work while the Employer was awaiting an updated FAE, which Ms. Chaplin followed up by leaving a telephone message for the Grievor at his home when, at 2:45p.m. on January 28, 2015, Ms. Chaplin received a return telephone call from the Grievor that she documented in a reporting e-mail to her supervision. That e-mail report as substantially confirmed by the Grievor in testifying, describes their conversation which ended with the Grievor hanging up on Ms. Chaplin, as follows:

• I [referring to Ms. Chaplin] started to ask the worker [referring to the Griever] about a completed FAE. He interrupted several times stating that I lied to Wade Serediuk and the management team advising that he was not expected back at work on Jan. 12/15 from STD. (This was communicated to Wade and OPS [Operations] as a result of my follow up with (Sunlife) prior to Jan. 12/15). He stated he had a letter (email) from Rick Welsh stating this. Rick confirmed in his email that Pete was not provided with an FAE.

• He (the Griever) again interrupted stating that he "had me", and asked if I was responsible for WSIB in my duties. I advised him yes and he responded, "I have you there as well", "I have a team of lawyers handling all of this ..... "

• I advised him that I was calling about getting a completed FAE ... he again cut me off and said, "I'm going to let you go now .... goodbye" and he hung up on me.

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[53] Ms. Chaplin consequently couriered another copy of a blank FAE form to the Griever's home accompanied by a letter dated January 28, 2015 in which she wrote: "If you require modified duties please ensure your treating physician completes the attached form and return it to your supervisor or myself. Upon receipt of this completed form your request for accommodated duties will be reviewed." A subsequent letter also couriered to the Grievor on January 30, 2015 from the Employer's Human Resources Specialist, Ms. Anna Russo, warned the Grievor that in order to maintain his employment status he was required to contact his Shift Lead, "no later than February 2nd, 2015" and upon returning to work he must provide an updated FAE and that, "Failure to meet all aspects of this letter may result in discipline up to and including termination from Sobeys Whitby Retail Support Centre."

[54] In pursuing his claim for a permanent disability pension from SunLife, the Grievor submitted a letter dated January 30, 2015 from the registered physiotherapist who had been treating the Grievor, identified as Brad McCutcheon, PRT. That letter, which contradicted the medical evaluations from the Griever's orthopedic surgeon, orthopedic consultant and family doctor, stated in relevant part as follows:

Peter Prescott was under my care following his total knee replacement related to severe knee extensor contracture which subsequently limited his overall mobility significantly with respect to his walking tolerance and ability to move his operative knee.

On starting rehabilitation following his work related incident Mr. Prescott had regressed significantly and presented with painful limitation of knee flexion to 84 degrees. Over the course of his treatment he demonstrated some improvement with a discharge measurement of 95 degrees knee flexion.

Given Mr. Prescott's permanent range of motion and strength limitations he experiences significant difficulty with normal daily activities. Functional knee ROM for normal daily activities (i.e.: stairs, sit-stand) is considered in the range of 110 to 115 degrees flexion post-operatively. Given his continued permanent range of motion impairment these daily activities will continue to be severely limited on an ongoing basis.

[55] On February 2, 2015 the Grievor called his Return to Work Supervisor, Mr. Serediuk, charging that, "a lot of people lie in this company and it's sad the company treats a person who had a stroke like this." He also said he wished the company would just fire him because he didn't want to work there anymore. The next morning, February 3, 2015, the Grievor called his Lead Shift Supervisor, Mr. Desmedt, at approximately 8:45a.m., who invited the Union's RTW Representative, Mr. Adair, to listen in on the call. But that was aborted when the Grievor refused to allow Mr. Desmedt to put the call on speakerphone. The Grievor told Mr. Desmedt that he would be seeing his doctor on Friday, February 6, 2015, returning to work with an updated FAE on Monday, February 9, 2015. The Grievor also said that the company 'should be ashamed of itself for treating someone who has had a stroke like this'; and asked if the company was going to terminate him, adding: "I wish you would." That conversation ended with Mr. Desmedt repeating that the Grievor was expected to report for work on the following Monday at 7 a.m.

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(the start of the day shift) with his updated F AE, and that the Grievor was required to call in every day he was not going to be at work. The Grievor responded: "Ifl don't, will you fire me?"

[56] The Grievor came into the workplace on Thursday, February 5, 2015, briefly meeting with Mr. Serediuk at approximately 8:53a.m. He requested "STD papers" that were provided to him. When asked to confirm his current home telephone number the Grievor told Mr. Serediuk to, "make sure Anna Russo doesn't call to harass me and Lisa Chaplin too". He then said, "don't expect me back" and left.

[57] Later that morning, the Grievor called Mr. Desmedt complaining about a past vacation pay dispute (apparently going back two years), subsequently exclaiming to Mr. Desmedt that, "I don't want to be here. They (the company) have ruined my life, my happy employment. I know it is all Craig Smith (the head of the Human Resources Department) causing this. I just want out." But the Grievor also told Mr. Desmedt that if he did come back to work, "there will be a very large harassment complaint against the company put in".

[58] The Grievor met directly with Mr. Desmedt the next morning, February 6, 2015, presenting a new note from his family physician, Dr. Chaudhari, who wrote: "Peter continues to be medically unfit and unable to work until March 9/15." (As an aside, this pattern of the Grievor refusing or walking away from work that was later covered by a doctor's note stating he was "unfit", only then to submit a note from the same doctor stating that the Grievor was "fit for modified duties", became a regular event, causing me to doubt the veracity of those notes).

· Shortly afterwards the Grievor was instructed by· SunLife to provide an updated FAE (to be provided to either SunLife or the Employer) to substantiate the Grievor's continuing absence for alleged medical reasons by February 27, 2015, failing which the Grievor was told his benefits were "in jeopardy of suspension and/or termination".

(h) Third Disciplinary Notation- March 12, 2015 (Written Warning)

[59] The Grievor in fact presented the Employer with an updated PRAL from Dr. Chaudhari, dated February 27, 2015. The PRAL indicated that the Grievor was now fit to return to modified duties commencing March 9, 2015, but it included the specific limitation that he was "unable to work in temperatures under 40' F for medical reasons." While this PRAL was similar to the previous one dated October 16, 2014, it recorded a number of improvements to the list of "physical abilities and limitations" in the Grievor's capacity for "standing", "lifting (floor to waist)", "lifting (above shoulder)" and "pushing/pulling". Dr. Chaudhari also noted that a follow-up examination was scheduled in three months (i.e. by May 27, 2015).

[60] The specific medical limitations reported by Dr. Chaudhari were highlighted in a memo dated March 6, 2015 from Ms. Chaplin to Messrs. Serediuk and Desmedt so that there would be no confusion on the matter. It is not disputed that this memorandum accurately itemized the Grievor' s restrictions reported in the F AE as follows:

.I

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• Unable to work in temperatures under 40F • AREA of Injury: Neck & Right Knee • Abilities/Limitations:

o Walking 15 - 30 minutes o Standing NO RESTRICTION o SITTING >60 MIN o LIFTING FLOOR TO WAIST- NO RESTRICTION o LIFTING (ABOVE SHOULDER) MINIMAL <10% o GRIPPING: FREQUENT o REACHING ABOVE/BELOW SHOULDER: FREQUENT o BENDING/TWISTING: MINIMAL (NO BENDING/TWISTING OF RIGHT KNEE)

[61] With this information, Mr. Serediuk prepared the following "Aisle Duties List" for the Grievor that were expressly to be performed on the "warm side" of certain "produce aisles" in the warehouse (i.e. that would not require the Grievor to work in temperatures at or below 40' F). The modified duties were divided into two broad categories: (i) Duties to be performed within any assigned aisle; and (ii) Duties to be performed while sitting; the particulars of which are reproduced below:

Duties to be performed within any assigned aisle

v' Remove excess plastic wrap and garbage v' Remove any string I strapping (trip hazard) v' Clean and wipe uprights of racking v' Sweeping between (behind) MHE bumpers and racking v' Sweeping AISLE v' Ensure product is in correct selection locations (not on the floor or in location beside it) v' Identify arid compile a list of missing rack labels and check digits v' Levelling upper pick locations with pick stick (within restrictions) v' Levelling lower pick locations with pick stick !(within restrictions) v' Moving the product forward in the shelf locations (use pick stick) within reach v' Identify possible safety hazards (damaged racking, skids not wrapped, leaning skids)

· v' Other duties as assigned by your supervisor

Duties to be performed while sitting (for sitting restrictions only)

v' Sorting delay sheets (by date, by shift) v' Sorting safety check sheets v' Creating the generic Pallet Select labels ·

[62] The Grievor returned to work on March 9, 2015, reporting to Mr. Serediuk who reviewed the list of modified duties with him in the presence of the Union's RTW Representative, Matt Adair. Mr. Adair agreed with the modified duties; however, the Grievor did not. As before,' the Grievor challenged Mr. Adair's qualifications for approving the modified duties as the Union's representative to the Joint Return to Work Committee. After a brief discussion the Grievor told Mr. Serediuk that the Employer was "violating my human rights", stating that he "would not agree or disagree to any of the jobs". The Grievor asked if he didn't accept the modified duties

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whether the Employer would fire him, which Mr. Serediuk advised was not his responsibility to decide. After discussing the matter privately with Mr. Adair the Grievor explained that the modified work "was not dignified or productive". The Grievor also testified that he objected because everyone would be able to see him doing this work, which he was either embarrassed about or concerned over constant supervisory scrutiny. When asked by Mr. Adair what would be acceptable, the Grievor responded that he wanted to do receiving work "on the warm side of produce" that Ms. Adair said, "Would be impossible based [on the Grievor's] restrictions." The Grievor asked Mr. Adair, "Whose side are you on?", and then he requested permission to go home, which was granted by Mr. Serediuk.

[63] Thus the Grievor was marked as taking an unpaid LOA with permission after his meeting with Mr. Serediuk on March 9 and for his entire March 1 0 shift. He returned to work on Wednesday, March 11, 2015. Upon being given his copy of the Aisle Duty List, Mr. Serediuk testified the Grievor "was immediately aggressive and argumentative". In what Mr. Serediuk characterized as a "tirade" the Grievor accused Mr. Serediuk of purposely sending him home without an FAE after he returned to work on January 12, 2015 following his stroke, some two months earlier. After discussing that matter further with the Grievor, the Grievor held up the Aisle Duty List and said, "I'm not doing this". When asked by Mr. Serediuk to confirm that the Grievor was refusing his modified work assignment the Grievor said: "I'm going home and may not be back". As he left he also told Mr. Serediuk that, "The company hires a lot of arrogant people and next Monday my lawyer will be doing something about it."

[64] Consequently, the Grievor was issued a disciplinary warning letter dated March 12,.2015, signed by both Mr. Desmedt and Mr. Serediuk which was couriered to the Grievor's home. That letter, entitled "Re: Discipline- Behaviour/Inappropriate Conduct", is reproduced below:

At Sobeys employees are responsible for adhering to the proper policies and procedures in accordance to our company's guidelines. This involves conducting yourself in an appropriate manner.

On March 11th, 2015 after pre-shift meeting, Wade Serediuk, the Return to Work Supervisor, provided you with a copy of a list of aisle duties based on your restrictions. After reviewing your duties you immediately got aggressive and argumentative and started making demands wanting to know who wrote the list of duties. You then made accusations regarding another employee of the organization. You then refused to perform your modified duties and left the building indicating you may not be back to work. This action of leaving and not performing prescribed duties is to be considered a form of insubordination.

This behaviour is unacceptable and cannot be tolerated; as such you will be receiving a Written Warning in the General Stream for Behaviour -Inappropriate Conduct.

(i) Fourth Disciplinary Notation -April28, 2015 (Three-day Suspension)

[65] On the same March 12, 2015 (after the earlier encounter with Mr. Serediuk), the Grievor delivered a new note from Dr. Chaudhari to the Employer, stating: "Peter is medically unfit and

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unable to work from yesterday for at least one month." (I found it too coincidental that the Grievor's doctor backdated the opinion that the Grievor was medically unfit to the day he was disciplined on March 11, 2015, causipg me to have further qualms over the weight of some of this doctor's notes). No further medical support for the Grievor's ongoing absence was provided to the Employer suggesting any change in the Grievor's medical condition from the February 27, 2015 PRAL that confirmed the Grievor's ability to perform modified duties. Nor did the Grievor apply to SunLife for STD benefits for compensation during this leave. Thus by letter dated March 26, 2015 delivered via courier to the Grievor's home, Ms. Russo, the Employer's Human Resource's Specialist, told the Grievor that the doctor's note he provided on March 12, "is unacceptable and does not provide us with enough information to substantiate your ongoing absence". Ms. Russo directed the Grievor to "return to work immediately and no later than Monday, March 30, 2015."

[66] However the Employer was subsequently advised that the Grievor was claiming to be permanently and totally disabled, and thus was appealing the termination of his LTD benefits by SunLife. While that appeal was ongoing, in accordance with the Company's practice concerning such appeals, Ms. Russo wrote to the Grievor on March 27, 2015 confirming that, "at this point you are not required to return to work" and that the Grievor could disregard the Employer's earlier March 26 correspondence. This was followed with an updated, but contradictory medical report from Dr. Chaudhari, who advised that the Grievor would in fact be able to return to work on April 28, 2015 with "regular modified duties" (which was consistent with the usual flip­flopping of "fit" and "unfit"· medical notes corresponding with the Grievor' s workplace circumstances). The Grievor's appeal of the termination of his LTD benefits was formally denied by SunLife on April20, 2015, which wrote in relevant part:

ASSESSMENT OF LONG-TERM DISABILITY

The medical information that you have submitted upon appeal outlines that you report ongoing symptoms. Although we acknowledge that you may be experiencing ongoing symptoms, the existence of symptoms does not equate to total disability. There must be clinical medical evidence that the condition causes functional impairment leading to a Joss of work capacity. Furthermore, your attending physician has reported that you are able to return to work effective Apri/12, 2015.

Your file has been reviewed in full, in conjunction with the recently submitted medical information. Upon review of this information, we find that the medical information on file does not support a condition, or symptoms of a severity, that would preclude you from working.

Therefore, .we must maintain our decision to decline your Long-Term Disability claim.

Your Plan sponsor has been advised of this decision in a separate letter that omits medical information.

[Emphasis added]

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[67] With the SunLife appeal dismissed, Ms. Russo wrote to the Grievor on April 20, 2015. Given that the Grievor had booked vacation from April 13 to April 27, 2015 and that his doctor had cleared him for modified duties, he was ordered to report for his next scheduled shift on Tuesday, April 28, 2015. Ms. Russo also warned him that, "Failure to comply may result in discipline up to and including termination from So beys Whitby Retail Support Centre.

[68] The Grievor reported for work at 7 a.m. on April28, 2015; and his conduct that morning was almost a repeat of events during his previous aborted return on March 11, 2015. Mr. Welsh was with the Grievor when he encountered Mr. Serediuk and Mr. Desmedt at the beginning of the shift. All of these witnesses confirmed that the Grievor refused Mr. Serediuk's direct order to join him with his Union representative in the supervisor's office to discuss the Griever's modified duties and that the Grievor made it clear he would not accept those duties. The Grievor' s rhetoric escalated from there. When advised that he would receive a three-day suspension for insubordination and that if he refused to discuss his work assignment when he returned he would then be assessed a five-day suspension without pay, the Grievor exclaimed it would be best for the Employer to simply fire him immediately. The testimony of all four witnesses was consistent with an e-mail report written by Mr. Serediuk that I find accurately described what happened as follows:

This morning I suspended Pete Prescott for 3 days for insubordination for refusing to come into the office with union rep and I to discuss his modified duties. He said his rep is Rick Welsh and he will get any information from Rick. I said it doesn't work like that. He said show me where it is written that I have to come in. I said that that is the direction I am giving him, to come into the office. He said no. I said you are refusing my direction and he said yes. I got Rick Welsh and James Desmedt and the three of us went just outside the office door and spoke with Pete. James said that if he refuses to come in that he would be suspended for 3 days for insubordination. Pete said fine, better yet fire me. Pete then said that he spoken to the Ministry of Labour and to his lawyer because we had a drunk guy in the building, we knew about it, and then that guy ran into him causing more damage to his knee. I did the write up, the four of us went in the office. I offered once more to Pete to do his: modified [duties] and he said no. He then said on Friday when he comes in and refuses again what will happen. I said he would receive a five day suspension, and he said then after that you fire me and this comes to a head. Pete said to tell that guy (Dave Blair) that's where this is going.

Pete was calm and not raising his voice. He also mentioned during all of this that he has been lied to by everyone and the company has stolen from him.

[69] The Grievor accordingly received a three-day suspension without pay for, "Insubordination- Pete refused the direction of Wade Serediuk to come into the office with his union rep to discuss his modified duties." The disciplinary notation also warned him that: "Failure to follow supervisor's direction will result in further discipline up to and including termination."

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OJ Fifth Disciplinary Notation -May 1, 2015 (Five-day Suspension)

[70] Mr. Desmedt met with Rick Welsh prior to the shift of Friday, May 1, 2015 when the Grievor was supposed to report following his three-day suspension without pay. In the course of that meeting Mr. Welsh advised that he told the Grievor to act in a professional manner when speaking with his supervisor, Wade Serediuk. But then Mr. Welsh informed Mr. Desmedt that the Grievor "had no intention of meeting with [Mr. Serediuk] to discuss his modified duties and he will not accept the modified duties that [the Employer] had previously given to him, so [the Employer] might as well go ahead with the five-day suspension".

[71] Thus when the Grievor reported for work he told Mr. Serediuk that he would not meet with him to discuss the modified duties, and consequently Mr. Serediuk issued a five-day suspension without pay to the Grievor, who then left the workplace. The disciplinary notice stated that, "Peter is receiving a 5 day suspension for insubordination. Failure to follow supervisor direction. will result in further discipline up to and including termination." Mr. Desmedt (referred to as "James") was taking notes of the discussions between the Grievor and Mr. Serediuk (referred to as "Wade") when the disciplinary notation was issued (in the presence of Mr. Welsh), which I find on the corroborating testimony of all witnesses to that event is an accurate portrayal as follows:

Pete: There is no need to read it [the suspension notice], just give it to me and I will be on my way.

Wade: I will go over it...[Mr. Serediuk then read the discipline]. I have another FAE here for you to take.

Pete: There is no point. You will be firing me next Friday, so I will wait until this is done. Willi be terminated if I do not come in next Friday to meet with you guys?

James: That would be how the progressive system works.

Pete: So I will be fired on Friday when I return?

James: That is a decision that would be made by a group of people.

[72] On the same May 1, 2015 that the Grievor received his five-day disciplinary suspension without pay, the Union filed a "Workplace Harassment Complaint" on behalf of the Grievor (referred to herein as Grievance No. 7). The Complaint named each of the Griever's supervisors who were alleged to have discriminated and harassed the Grievor on the basis of disability and "other". The text of the Complaint, under the heading: "Complainant's description of what happened: (Who? What? Where? When? Witnesses?)", which was filled out by the Grievor, read as follows:

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Sobeys' management named in above, have harassed me under incapacitate employee's health and safety, and vacations with pay and are in violation of my human rights. This has taken place at the So beys Whitby location over a long period of time.

[73] Ms. Russo wrote to the Grievor on May 4, 2015 (with a copy to his Union) requesting the details of his Harassment Complaint. She asked the Grievor to "provide, in writing, specific details on how you have been harassed by each individual named in your complaint ... [including] ... the date and time for each alleged incident and specifically what happened, the individuals involved in each alleged incident, any witnesses to each alleged incident, why you believe you have been harassed and any other information that may be relevant." She also stated that, "Once we have received the requested information, the company will review and advise you accordingly."

[74] The Grievor subsequently called Ms. Russo on May 6, 2015 in response to her May 4 letter, leaving a voice-mail message for her that stated in relevant part: "Come Friday I'll be receiving a termination and I'll take it because you guys don't follow the contract. You say about writing things down, that's not how the contract goes. You don't have to call me back or send me a letter and another courier." Ms. Russo replied to this voice message in writing on May 7, 2015, advising the Grievor that: "We require specific details (of the Harassment Complaint) as per Article 13.04 (e). Once we receive the requested information the company will review and advise you accordingly."

[75] Ms. Russo also had a telephone conversation with the Union's president, Rick Welsh, reviewing the information that the Employer required in order to investigate the Grievor' s "harassment" allegations. It is clear from Mr. Welsh's testimony (as supported by his written notes of his conversation with the Grievor after he received Ms. Russo's letters) that the Grievor refused to provide his own Union with the additional information requested. The Grievor told Mr. Welsh that what the Grievor had written down on the Workplace Harassment Complaint form, "should be good enough." It was apparent from Mr. Welsh's candid testimony that he did not share the Grievor's opinion; and that in fact the Grievor was acting contrary to the advice on the matter provided by his Union.

(k) Sixth Disciplinmy Notation- May 8, 2015 (Termination)

[76] The investigation into the Grievor's "harassment" complaint never occurred, however, as subsequent events quickly put the employment relationship to its inevitable end. I heard testimony from Messrs. Serediuk, Desmedt, Welsh, and the Grievor concerning the events of the morning of Friday, May 8, 2015, which was the Grievor's first shift following his five-day disciplinary suspension.

[77] In broad overview, as he had previously proclaimed, the Grievor refused to meet with his supervisor to discuss his modified duties and was terminated. The Union's president, Mr. Welsh, prepared a memorandum describing the events of that morning, which I find is an accurate record

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consistent with the testimony of all witnesses (including the Griever's), that is reproduced in relevant part below:

Friday May 8/15-7:15 a.m.- Pete came into my [Mr. Welsh's] office and told me he was done. We talked for a bit. Pete then told me that he already told Wade [Serediuk] to write up the termination.

Pete and I then went to the [supervisor's] office with Wade [Serediuk] and James [Desmedt]. Wade asked Pete once again 'do you want to talk about your modified duties?' Pete said "no, I'm done". Wade asked why Pete won't talk about modified duties? Pete broke out in a rant about Wade harassing him and the Company has been harassing him and no-one follows the [collective agreement]. Pete said, "Do you want my (access) card?" Wade said, "yes and then we will walk you out." And [Wade] asked if he had anything in his locker that he needed. Pete kept saying, "Let's get it done."

James [Desmedt] tried talking with Pete; asked him why he won't do modified duties and that the Company did not want to fire him. Pete cut James off and said, "Let's do it, I'm done."

The discipline was done and I [Mr. Welsh] signed it. Wade got copies for everyone, and then Wade and I walked Pete out.

Once outside Pete went on about how he is being fired because he was hit by a Reach Truck and that how he has "got" the Company. I told Pete the one good thing is that it's all finally coming to a head and we will see where it goes.

[78] Mr. Welsh supplemented his memorandum with the notation in his logbook (and testimony) that Mr. Desmedt asked the Griever a second time why he was refusing the modified duties, repeating that the Company did not want to fire the Griever. But this did not change the Griever's mind.

[79] Consequently the Company terminated the Griever's employment on May 8, 2015 for alleged just cause, setting out its reasons in the termination letter reproduced above. The Union promptly grieved that termination as "unjust", claiming the Employer's actions, "violated the Griever's human rights", and demanding that the Griever be "made whole and just", in what is referred to herein as "Grievance No. 8".

[80] At the conclusion of the Griever's testimony I asked him (without objection from either the Union or Employer) whether he felt he had done anything wrong. I prefaced this question with the supposition that accepting he was experiencing medical problems causing distress, perhaps with the passage of time he might have reconsidered matters. He replied: "No, I don't". When I offered him a chance to elaborate, he added: "All of these problems happened after my injury". And in answering my final question, "Do you feel you have anything to apologize to the Company for?" the Griever testified: "No, I don't because I suffered from a heart attack, stroke and atrial fibrillation."

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IV. The Parties' Arguments

(a) Relevant Contractual Provisions

[81] The following provisions ofthe applicable collective agreement (dated March 1, 2012 to February 28, 2015) are relevant or were referred to by one of the parties during their submissions:

ARTICLE 1- PURPOSE

1.01 The Employer and the Union desire to cooperate in establishing and maintaining conditions, which will promote and improve labour and economic relations between the Employer, and the employees covered by this agreement. The purpose of this Agreement is to secure prompt and fair disposition of grievances, to secure operations without interruptions or interference of work and to provide wages, hours and working conditions as set out in this Agreement. It is recognized by this agreement to the desire of the Employer, he Union and the employees to co-operate fully, individually and

· collectively for the advancement of the said conditions.

ARTICLE 3 - MANAGEMENT RIGHTS

3.01 Subject to the provisions of this agreement, it is agreed that the Employer retains the sole and exclusive right to manage the affairs of the business and to direct the working forces of the Employer. Such functions of management include, but are not limited to the right to hire, enforce reasonable rules of safety, promote, discharge or discipline for cause, layoff employees and maintain efficiency of employees. The Employer has the right to alter, rearrange or change, extend, limit or curtail its operations or any part thereof, to decide the number of employees that may be assigned to work on any job or shift and the requirement to be employed in the performance of such work. Management reseNes the right to introduce a performance and quality of work incentive program.

ARTICLE 12- ADMINISTRATION OF DISCIPLINE

12.02 A disciplinary action shall be removed from an employee's active record after a period of twelve (12) months of employment, provided that the employee has no further discipline in that 12-month period in that particular stream. The four streams shall be standards, absenteeism, general, and health and safety.

ARTICLE 13- PROTECTION FROM HARASSMENT AND DISCRIMINATION

13.01 Sobeys and the Union are committed to providing and maintaining a workplace that is free from discrimination and harassment on the protected grounds set out in the Ontario Human Rights Code.

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13.02 For the purposes of this article the following terms are defined:

Discrimination: Distinction, preference or exclusion based on the protected grounds of the Ontario Human Rights Code which negatively impacts the equality of opportunity in employment, or equality in the terms and conditions of employment.

Harassment: Course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome, that denies individual dignity and respect on the basis of grounds as set out in the Ontario Human Rights code. Harassment may occur as a single encounter or as a series of incidents, persistent innuendoes or threats. At Sobeys all employees are expected to treat others with courtesy and consideration and to discourage harassment.

This includes but is not limited to:

Harassment is not: Properly discharged supervisory responsibilities, including but not limited to disciplinary action, or conduct that does not interfere with the climate of understanding and respect for the dignity of work or So beys' employees.

Prohibited Grounds: The following are protected under the Ontario Human Rights Code: age, race, ancestry, and place of origin, colour, ethnic origin, family status, marital status, disability, and record of offences, citizenship, creed, same-sex partnership, gender or sexual orientation.

13.04 If an employee believes they have been harassed and/or discriminated against on the basis of prohibited grounds the following process should be followed:

(e) If a formal complaint is initiated, the Company will require a written statement I complaint. It is important that the Company receives the complaint in a timely manner so the problem does not escalate or reoccur. Once the complaint is received the Company will initiate a formal joint investigation of the complaint. The shift Union Committee member will be in attendance.

ARTICLE 16- HEALTH AND SAFETY

16.01 The policy of the Company in conjunction with the Union is to do everything reasonable possible to provide a safe and healthy work environment for all employees during hours of employment.

16.03 The Company and the Union jointly agree that health and safety of all employees is of primary importance. The Company and the Union will jointly promote measures to assure the health and safety of all employees.

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ARTICLE 17 -INCAPACITATED EMPLOYEES

17.01 The Employer and the Union recognize their obligations under the Ontario Human Rights Code and the Workplace Safety and Insurance Act to participate and cooperate in returning injured and disabled employees to active employment.

17.02 A worker who is disabled as a result of a non-occupational illness or injury will have the same rights under this agreement as a worker disabled as a result of occupational causes. Every effort will be made to return the worker in an early and safe manner as provided in this agreement.

17.03 The Employer may provide suitable modified duties to an employee while awaiting a Company initiated IME. If it is not deemed feasible to retain the employee on the modified work program due to the medical condition, the Company will ensure that the employee does not incur a· disruption of compensation, provided the employee attends the scheduled I ME, unless they have a valid and a verifiable reason not to attend.

17.04 a) An employee assigned under this provision must submit current medical evidence of his/her disability with restrictions, limitations, and expected duration clearly identified by a duly qualified medical practitioner to the Employer. Upon request for a Functional Abilities Evaluation (FAE) form by the Company, an employee will be reimbursed 50% of the cost to have the form completed provided that the employee provides the company with a receipt.

b) The Employer reserves the right to require an independent medical evaluation by a duly qualified medical practitioner, including specialists to review and evaluate the employee's restrictions and limitations in the following situations:

i) Employee is returning to work from sickness and injury, or

ii) Employee has provided medical information in respect of his/her abiliti to perform work;

iii) Employer is absent and the Employer seeks to confirm that the absent employee continues to be unable to work; or

iv) In the event of unclear or contradictory medical information

17.07 Joint Return to Work Committee (JRTWC)

a) The Company and the Union agree to establish a Joint Return to Work Committee.

b) The Joint Return to Work Committee will comprise of seven (7) members: one (1) employer representative from each shift and one (1) employee representative from each shift, and an HR representative.

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c) The Joint Return to Work Committee will meet monthly or as mutually agreed.

d) The following return to work process will be followed:

i. Sobeys will make every reasonable effort to accommodate employees coming within the scope of this agreement with suitable alternate duties, if available, by reviewing and if necessary modifying their regular duties. In order to accommodate a disabled employee the following shall apply in the order listed below. A committee member will act as an alternative whenever the regular joint return to work committee member for the union is unavailable.

ii. First the disabled employee's present position will be considered for modification. The goal will be to bring the injured/ill worker to the essential duties of their pre-injury job.

e) The JRTWC will be responsible for developing a Return to Work Plan based on the above criteria.

ARTICLE 25- LEAVE OF ABSENCE

25.02 A leave of absence of not less than one (1) day and not to exceed ninety (90) consecutive days may be granted at the discretion of the Employer. The leave of absence will be without pay and without loss of accumulated seniority. The Employer's decision will be communicated to the employee in writing with a copy to the Union. Approval of such leaves will not be unreasonably withheld.

(b) The Employer's Submissions

[82] While taking me through the facts, Mr. Link, counsel for the Employer, challenged the Griever's credibility, asking me to accept the clear and consistent testimony of the Employer's witnesses (and even Mr. Welsh) as supported by their contemporaneous notes to the extent of any conflict in the evidence.

[83] The Employer also emphasized what it said is the well-accepted principle that the search for reasonable accommodation of an employee with a disability is a joint effort of the Employer, Griever and the Union, with the requirement that all parties must act reasonably. In dealing with the Griever's physical limitations, the Employer submitted it had acted reasonably and in.good faith, granting several indulgences to the Griever that would have taxed the patience of most other employers. There was no basis to the Union's claims that the Employer harassed or failed to properly discharge its obligations under the collective agreement and applicable employment statutes to accommodate the Griever's medical limitations, according to the Employer. Instead, the Employer asserted that the Griever acted unreasonably, stridently refusing to discuss, let

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alone properly consider, the modified duties that his supervision attempted to present in the last months of the Grievor' s employment.

[84] According to the Employer, an accommodation of a physical disability does not have to be perfect; and an employee cannot insist upon a specific kind of modification of his or her assignments and/or responsibilities that is to his or her liking, where an employer has acted in good faith to find or modify the work in a 'Yay that satisfies the disabled employee's restrictions. Given that the Union's own RTW Representative, Mr. Adair, apparently approved the Employer's accommodations in the Grievor' s case, it was submitted there could be no dispute that the unreasonable person in the circumstances was the Grievor. Moreover, the Employer pointed out that the Union failed to produce any medical evidence to support the Griever's claim that the accommodations offered were inappropriate. Consequently, on the facts before me the Employer argued that the only conclusion to draw was that the Grievor unreasonably refused a reasonable modified work assignment, which after giving the Grievor fair warning, constituted grounds for terminating the employment relationship.

[85] If that didn't warrant the Grievor' s dismissal for just cause on its own, the Employer submitted that the Grievor' s combative and disrespectful behaviour towards his supervision, extending not only to his direct supervisors but also to the human resources and return to work managerial personnel dealing with his claims, entirely undermined the employment relationship. Insubordination is a serious workplace offence that will justify a severe disciplinary response up to termination, because it represents an unwillingness to subscribe to management's essential control over the workplace. In the present case the Grievor' s insubordination was repeated, and it had reached the point of so poisoning the employment relationship as to make any thoughts of continuing the Griever's employment untenable, according to the Employer. And despite many warnings and the proper application of progressive discipline to correct the Grievor's misguided behaviour, the Grievor's refusal or inability to recognize any wrongdoing and apologize for his misconduct made it inappropriate to exercise arbitral discretion to reduce the penalty of discharge to some lesser sanction, according to the Employer.

[86] The Employer accordingly submitted it had satisfied its onus of proving just cause for discipline and that the Union had failed to discharge its burden to prove that the Employer ever harassed or dealt improperly with the Grievor, requesting that all grievances be dismissed. In support of its representations the Company also referred to Re Garda Security Screening Inc. and UFCW, Local 175 (Cicconne), 2015 CarswellOnt 7297, 123 C.L.A.S. 190 (Ont. Arb.) (Baxter), Barber v. York Region District School Board, [2011] O.H.R.T.D. No. 206 (Ont. Hum. Rights Tribunal) (Price, Vice-Chair), Saskatchewan (Ministry of Labour Relations and Workplace Safety) v. Saskatchewan Government and General Employees' Union (Dunkle Grievance), [2017] S.L.A.A. No.3 (Sask. Arb.) (Ish), Western Grain By-Products Storage Ltd. v. Donaldson, [2015] F.C.J. No. 335 (F.C.A.), Faryna v. Chorny, [1951] B.C.J. No. 152, [1952] 2 D.L.R. 354 (B.C.C.A.), Re Dupont Canada Inc. and Kingston Independent Nylon workers Union (Conner), [2993] O.L.A.A. No. 426, 30 C.L.A.S. 283 (Ont. Arb.) (Macdowell), Re Victoria General Hospital and HEU (Poole), 2003 CarswellBC 3999, 75 C.L.A.S. 366 (B.C. Arb.) (Sanderson),

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Child Development Institute v. C. UP.E., Local 2132, 2012 CarswellOnt 9020, 111 C.L.A.S. 235 (Ont. Arb.) (Charney), Canpar v. US.W.A., Local 1976, 2000 CarswellNat 3897, [2000] C.L.A.D. No. 1003, 62 C.L.A.S. 156, 93 L.A.C. (4th) 208 (Can. Arb.) (M. Picher), Toronto (City) v. C. UP.E., Local 79 (Portillo), 2011 CarswellOnt 4807, 206 L.A.C. (4th) 253 (Ont. Arb.)(Randall), Quality Suites Hotel v. UF C. W., Local 333 (Grievances of Major), 2009 CarswellOnt 7379, 185 L.A.C. (4th) 281 (Ont. Arb.) (Kaplan) and Lecours Lumber Co. v. United Steelworkers of America, Local 1 - 2995 (Vallieres Grievance), [2006] O.L.A.A. No. 512, 86 C.L.A.S. 339 (Ont. Arb.) (Lubarsky).

(c) The Union's Submissions

[87] On behalf of the Union, Mr. Osborne submitted that the Employer "had it in" for the Griever from the first day he returned to work following a lengthy absence for legitimate medical reasons on December 2, 2013. The fact that Mr. O'Toole sent an e-mail about his conversation with the Griever on December 2 to higher management (referring to the Griever's derogatory comments about his supervisor), while excluding Mr. Serediuk who was the subject of their discussion, "had poisoned the minds of management about the Griever", according to the Union, leading to the inference that, "the Employer wanted the Griever gone right from the beginning". Furthermore, the Union argued that the evidence supported the conclusion that Mr. Serediuk did not have any or adequate training in health and safety matters, making it entirely reasonable for the Griever to refuse the modified duties ·offered by Mr. Serediuk. Contrary to the Employer's characterization of the workplace accident on December 9, 2013 as a relatively minor incident, it was submitted that the evidence demonstrated a significant aggravation of the Griever's right knee disability as a result of the accident, confirmed by the Griever's physiotherapist, who documented the loss of mobility in the Griever's right knee to "84 degrees" that only improved to "95 degrees" after several months of physiotherapy. This was sufficient to establish the Griever's total disability to perform the modified work proposed by the Company, and thus the Griever's legitimate refusal to even discuss those modifications, according to the Union.

[88] In criticizing the way the Employer handled the dispute over the modified work assignment, the Union referred to article 17.03 which provides that, "The Employer may provide suitable modified duties to an employee while awaiting a Company initiated IME." Given the Griever's belief that he was unable to perform the modified work offered by Mr. Serediuk, the Union argued the Employer was obliged to accept the information from the Griever on the extent of his disability in the absence of an Independent Medical Evaluation, which was requested by the Union. While the Union conceded that, "We can't force the Company to do an IME", it nevertheless submitted that where the Griever believed he was incapable of performing the modified duties offered by Mr. Serediuk, the Griever's opinion should prevail as he is the one most familiar with the capabilities of his own body and the extent of work he was able to do without reinjuring himself. In such circumstances the Company was obliged to submit the dispute for an IME to resolve the matter if it disagreed, according to the Union. Thus the fact that the Company hadn't accepted the Union's request for an IME supported the Griever's opinion that the Employer's assignment of the modified work was "not dignified or productive",

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which the Union also characterized as "demeaning". This was consistent with what the Union called "the bad faith fayade" of the Employer regularly assigning "unsuitable" work, which the Union charged was part of a campaign to prompt the Grievor's expected refusals and later dismissal for alleged just cause.

[89] That conclusion found additional support from the Employer'.s many requests for updated FAEs, when from the very first FAE the Employer knew that the Griever's restrictions were "permanent" and yet the Employer only offered "temporary" modifications of the Griever's duties. The Union submitted that the many requests for updated F AEs (sometimes on a monthly basis) for no legitimate purpose other than to harass the Grievor, showed that these requests were "disingenuous".

[90] Even though the Union agreed that "insubordination" was a serious workplace offence, an employee is entitled under both health and safety legislation and human rights statutes to refuse a work assignment by a supervisor where there is a risk that it might aggravate a physical disability or harm the employee. (In this regard the Union appeared to be referring to section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, as amended, ("OHSA") prohibiting reprisals by employers in the form of discipline or dismissal where the employee raises legitimate objections to performing tmsafe work). Thus the Union submitted that the many instances where the Grievor refused to speak to his supervisor, who was attempting to assign inappropriate modified duties, were not instances of insubordination. Rather, a worker may refuse an order from a supervisor where the worker honestly believed obeying the order would compromise the health and safety of the worker or was otherwise "unsuitable", thus entitling the Grievor to refuse the work assignments from Mr. Serediuk. The Employer's refusals to accept earlier F AEs from the Griever's doctor (which did not change except to add the restriction on working in cold temperatures), also constituted a form of harassment contrary to article 13 of the collective agreement, in the Union's submission.

[91] Therefore in concluding that all of the grievances should be allowed, the Union noted that article 17.07 (d)(ii) obliges the Joint Return to Work Committee to consider the modification of the Griever's pre-injury position in determining the appropriate accommodations for the Grievor's physical disabilities (which in this case were not limited to his· knee, but also to other medical problems). This, in the Union's submission, must be interpreted to mean that the Grievor is, in the Union's words, "not required to take a crappy job", but rather there was an obligation on the Employer to assign him to "meaningful work", which the Union asked me to conclude had been breached on the evidence before me. This claimed requirement to assign the Grievor "meaningful work" was also part of the Employer's obligation to "reasonably accommodate" an employee "short of undue hardship" under section 17 (2) of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended ("HRC"), in the Union's submission.

[92] The Union then stated at the conclusion of its submissions that: "There is some mental issue to [the Grievor's refusal to accept the modified work]" explaining that the Grievor had developed a belief that, "I am against the world and the world is against me". However, while

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the Union conceded that the Grievor "didn't help himself' in the way he acted towards his supervisors and in his testimony before me, nevertheless the Union asserted that as a long-service employee it was understandable that the Grievor, "had had enough", and that his negative expressions towards the Employer at the end should really be seen as the final straw in the frustration that the Grievor naturally felt as a result of his improper treatment by the Employer over a protracted period of time.

[93] The Union therefore requested that I reinstate the Grievor with full back pay and assess "damages" for the manner of the Grievor's alleged improper treatment and failure of the Employer to reasonably accommodate an employee with a disability in violation of the HRC and the OHSA. But in the alternative, the Union submitted that I had the authority to award damages in lieu of reinstatement if I thought the employment relationship was unsalvageable. In that event the Union urged me to provide the Grievor with "an appropriate severance" based on the Grievor's seniority, with a "benchmark" of at least "three weeks' pay for each year of service."

[94] The Union also referred to excerpts from the following authorities in support of its representations: Decision No. 955/16, 2016 CarswellOnt 6197, 2016 ONWSIAT 1014 (Ont. WSIAT) (Sutherland, V-Chair), Whitaker Cable v. lUE., Local574, 1974 CarswellOnt 1393,6 L.A.C. (2d) 109 (Ont. Arb.) (Brandt), Re Toga Manufacturing Ltd v. UA. W, Local 195, 1974 CarswellOnt 1428, 6 L.A.C. (2d) 381 (Ont. Arb.)(Curtis), Decision No. 628/16, 2016 CarswellOnt 10694, 2016 ONWSIAT 1638 (Ont. WSIAT) (Alexander, V-Chair), Maple Leaf Foods Inc. v. UF.C.W, Local175/633, 1996 CarswellOnt 5786,46 C.L.A.S. 88,60 L.A.C. (4th) 146 (Ont. Arb.) (Kirkwood) and LaPointe v. SNC Lavalin Operations and Maintenance Inc., 2015 CarswellOnt 2112k, 2015 CarswellOnt 2113, [2015] O.L.R.B. Rep. 235 (Ont. L.R.B.) (McKellar, V-Chair).

V. General Principles and Overview of Conclusions

(a) Findings of Facts

[95] I certainly agree with the Union that the Grievor didn't help himself, in either his dealings with the Employer or in testifying before me. His testimony was delivered in a quarrelsome manner that served to confirm the witnesses' characterizations of the Grievor as a person who was argumentative and antagonistic towards the Employer and anyone who didn't agree with him, including Mr. Adair, the Union's RTW Representative, who I find provided the Grievor with appropriate advice in generally supporting the Employer's accommodation proposals. His distain extended to the Grievor' s own physicians to the extent they expressed opinions contrary to the one that the Grievor chose to accept from his physiotherapist.

[96] The Employer asked me to assess the truth of the Grievor's story from "its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions" (per O'Halloran J.A. in Faryna v.

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Chorny, supra, at para. 11 ), which the Employer submitted could not support the Grievor' s various and contradictory assertions. But the assessment of credibility on that formulation is not necessary in the present case where on the evidence I find that the Grievor repeatedly shaded, exaggerated and deliberately misstated circumstances and events to his Employer, the WSIB, SunLife and to me. Indeed there was nothing subtle about those falsehoods, but rather they fell within the category of what Mr. Justice O'Halloran referred to in Faryna v. Chorny as those infrequent cases "in which a witness is caught in a clumsy lie" (at para. 1 0) that was easily detectable where inconsistent with the objective evidence. The Grievor's descriptions of his medical restrictions as a result of his right knee replacement surgery and subsequent workplace accident on December 9, 2013 to the WSIB, SunLife and the Employer were contrary to the opinions of three of his own doctors who were most familiar with the Grievor's condition (i.e.· his personal physician, his orthopedic surgeon and the consulting orthopedic surgeon). The Grievor' s views on suffering from a debilitating stroke that resulted in ongoing blindness, was contrary to·the medical records from the Hospital emergency department, optometrist's notes and records from the Hospital's. stroke prevention clinic.

[97] Given that these medical reports were offered in evidence with the consent of both parties as an exception to the usual hearsay rules governing the receipt of unsworn documentation from medical practitioners for the truth of the facts therein under section 52 of the Evidence Act, R.S.O. 1990, c. E 23, I could give little weight to the letter from the Grievor's registered physiotherapist, who did not testify before me and is not a medical practitioner, suggesting that the Grievor's mobility was less than that reported by the Grievor's own physicians. Even if I accepted the physiotherapist's measurements, it was not clear how the reported degree of reduction in the mobility of the Grievor's right knee after his workplace accident in December of 2013 (i.e. from 105 degrees to 95 degrees), would affect his ability to perform the specific modified duties proposed by the Employer that were prepared on the basis of the F AEs submitted by the Grievor's personal physician. On all material dealings between the Grievor and his supervisors, the Grievor ultimately adopted the Employer's version of events, but only after penetrating and at times exhaustive cross-examination. Even theUnion president's notes of the Grievor' s discussions with Messrs. Serediuk and Desmedt leading to the Grievor' s inevitable termination for insubordination supported the Employer's version of those events.

[98] Thus I could give little weight to the Grievor's evidence to the extent it was contrary to the medical documentation from the Grievor' s own physicians and the Employer's witnesses, who testified with the benefit of written notes of the events in issue that were made during or immediately after those events, which the Grievor ultimately confirmed in cross-examination after initially attempting to prevaricate on the matter.

[99] Having considered all of the evidence, I therefore find that:

(a) The Grievor's physical limitations were those as stated in Dr. Chaudhari's FAEs submitted between December 2, 2013 and May 8, 2015.

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(b) The Grievor was capable of performing "modified duties" within those stated limitations.

(c) The modified duties as prepared by Mr. Serediuk were consistent with the limitations in the F AEs submitted by the Grievor' s doctor and were acceptable to Mr. Adair in his capacity as the Union's RTW Representative.

(d) There was nothing demeaning, undignified or non-productive a[lout the modified duties proposed (if those are relevant considerations). The work offered to the Grievor was neither "crappy" nor "unsuitable"; but it is apparent that the Grievor didn't want to do them.

(e) The Grievor was treated with appropriate respect and consideration by the Employer in addressing the issues related to his previous knee replacement surgery and subsequent workplace accident and medical issues.

(f) The Grievor acted unreasonably in refusing to even discuss, let alone consider in good faith, the modified work offered to him. His actions from his return to the workplace following knee surgery were more consistent with his stated intention to receive permanent disability benefits or force the Employer to give him a "buy-out" package.

(g) And to that end, the Grievor repeatedly challenged managerial authority after returning to work on December 2, 2013 to his termination in May 8, 2015, which included insolent outbursts directed not only at his direct supervisors, Mr. Serediuk and Mr. Desmedt, but also to Ms. Russo and Ms. Chaplin who were attempting in good faith to obtain information related to the Grievor' s disability claims.

[1 00] Two general legal issues emerge from the foregoing factual findings: First, did the parties collectively fulfill their obligations to find a reasonable accommodation for the Grievor's physical disability under the collective agreement and/or the HRC? Second, what was the effect of the Grievor' s insubordinate conduct towards his supervisors as the Employer attempted to assign the Grievor to modified duties?

(b) General Issue No. 1 - Obligations Surrounding Reasonable Accommodations

[1 01] The leading case on the duty of employers, employees and their lmions for accommodating the employment of an employee with a disability is the Supreme Court of Canada's deCision in Central Okanagan School District No. 23 v. Renaud, supra, wherein Sopinka J. set out the following governing principles at paras. 43-4:

43. The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation.

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[ ... ]

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

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

[Emphasis added]

[1 02] The other arbitration and court decisions submitted by the parties include fact-specific applications of the principles from Renaud. They are part of the abundance of case law, "making it clear that if an employee either does not co-operate or turns down reasonable accommodation, then the employer's duty is at an end and discharge is the inevitable result" (per Re Garda Security Screening Inc. SLpra, at para. 263). It is apparent on my findings of fact that the Griever was the one who acted unreasonably, thus exposing him to potential termination for refusing to cooperate with appropriate accommodative proposals.

[103] The foregoing principles also apply in considering whether an employer has fulfilled its statutory requirement to accommodate an employee's disability short of undue hardship under sections 17(1) and (2) of the HRC, which provide:

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

17 (2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(c) General Issue No. 2- Insubordination and its Exceptions

[104] The Griever's refusals to discuss the proposed modified duties with Mr. Serediuk, coupled with his derogatory comments about his supervision and snappish conduct towards the

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Employer's management in addressing the accommodation concerns that were directed towards Ms. Russo and Ms. Chaplin, constituted overt forms of insubordination and insolence. The question raised by the facts of this case is whether the underlying circumstances excuse the Grievor from the traditional disciplinary penalties that attach to such conduct.

[1 05] As I noted in Re Lecours Lumber supra, at para. 68, insubordination occurs where three essential components are satisfied: "First there must be a clear order understood by the grievor. .. Second, the order must be given by a person in authority over the grievor. .. Finally, the order must be disobeyed": per Arbitrator McLaren in Re Hunter Rose Co. Ltd. and Graphic Arts International Union, Local 28-B (1980), 27 L.A.C. (2d) 338, at p. 344. There is no question that those requirements were satisfied in establishing acts of insubordination. Even where the order of a supervisor arguably violates the collective agreement the employee is obliged to obey the order and grieve later, and his or her refusal to do so will typically constitute insubordination that justifies discipline. The rationale for this rule, "is said to lie in the employer's need to be able to control and direct its operations, to ensure that they continue uninterrupted even when controversies arise, and in its concomitant authority to maintain such discipline as may be required to ensure the efficient operation of the enterprise": per Donald J. M. Brown & David M. Beatty, Canadian Labour Arbitration, 4th ed. (Toronto, Ont.: Canada law Book, 2006 (WLNC) at para. 7:3610- "Refusal to follow instructions").

[1 06] However, there are exceptions to this general workplace rule that both the Union and the Employer emphasized in their references to a number of arbitration decisions submitted to me, that each tum on their unique facts .. The authors of Brown & Beatty, supra, have summarized the recognized exceptions at para. 7:3620, as follows:

When the grievance and arbitration process cannot provide adequate relief to employees who obey orders that turn out to be unlawful or illegitimate in some way, the general principle of "obey now/grieve later'' has no application. In these circumstances, arbitrators have consistently taken the view that the harm employees suffer in being required to comply with such orders is more compelling than the employer's interest in maintaining its production and its managerial authority. Employees who had reasonable grounds to believe that complying with their employer's instructions would endanger their health and safety, or require them to perform an illegal act and/or expose them to potential legal liability, were the first exceptions to be recognized. Soon after, it was held that union officials may also refuse to carry out their employer's instructions where obedience would result in irreparable harm to the interests of other employees. Over time, it has come to be accepted that when an employer's direction affects the most personal and private parts of an employee's life, he or she may also be excused from the strictures of the rule. To take advantage of any of these exceptions, however, employees bear the onus of proving that their circumstances fall within one of the exceptions and that they communicated the reasons for their refusal to the supervisor involved."

[Emphasis added]

[1 07] Thus an employee could legitimately refuse a work assignment where he or she had "reasonable grounds" for believing that complying with the supervisor's instructions would

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compromise his or her health. This is a question of fact determined from the totality of the evidence where the onus lies with the employee to establish those "reasonable grounds". There is also the requirement that the employee clearly commtmicate the reasons for his or her objection to the supervisor's instruction in order to take advantage of the "exception". A disagreement of this nature is not license for the employee to engage in insolent or disrespectful behaviour towards management. Although insolence in the sense of directing contemptuous words or actions towards management has been held to be a form of insubordination, isolated acts of this nature do not normally attract the same level of censure as disobedience that has an immediate and direct impact on production. See the discussion in Toga Manufacturing Ltd., supra, at para. 24 where in the face of a grievor who called her supervisor "a pig and other names in Italian" during a dispute over a work assignment and then spat in his direction, Arbitrator Curtis reduced the grievor's dismissal to a three-day suspension without pay.

[1 08] However, there is a limit to how long such disrespectful conduct need be tolerated by an employer. An employee who repeatedly responds to legitimate instructions from management to discuss modifications in his or her work assignments designed to accommodate a disability in an insubordinate and insolent manner is properly subject to termination after sufficient warning and time to consider the matter. This was the result in the Toronto (City) case, supra, where in the context of the refusal of an employee to accept a job referred to as a "CI posting", Arbitrator Randall stated the following at paras. 88- 89:

88. To begin with, I am not satisfied to find that the Grievor honestly believed that his health and safety and well-being were endangered in the Cl posting and accompanying restrictions. Rather, I find that he was motivated by a dislike of the position. While his dislike might well be understandable - the Cl position was a very demanding one - it is not determinative of the legal rights of the parties and I so find.

89. Did he communicate his belief to his Employer in a reasonable manner? No. The Grievor's communications, captured in his correspondence leading up to his termination, was not reasonable. It not only failed to meet his legal requirement to cooperate in his return to work, it was, as the Employer said: "false and inflammatory". The Grievor's demonization of the in Employer simply does not stand up to scrutiny. Rather, I find in accordance with the Employer's submissions, that the dominate narrative for these events, for many years, has been the Grievor's negative attitude, often self-defeating, in the work he has been assigned. I agree that he has sought to use his restrictions to reject jobs that are suitable in order to negotiate a position he preferred. This is not the purpose of the legal scheme: contractual, statutory or Code based and a strong message needs to be sent to prevent employee abuse of the Employer's obligations.

[Emphasis added]

[109] The foregoing words apply equally to the Grievor's repeated "negative attitude" in responding to his supervisors' reasonable efforts to accommodate the medical restrictions in the F AE reports, as reported by his own doctor. I conclude on the evidence that the Grievor failed to meet his legal requirement to cooperate in the search for modified work. Instead, it is evident

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that his blatant insubordination and insolence was part of a misguided scheme to force the Employer's hand in terminating the Griever's employment, with the irrational expectation that he would receive significant compensation as a result.

VI. Detailed Reasons for Decision

[110] Thus applying the foregoing general principles and overview to the factual findings in this case, I come to the following conclusions on each of the eight grievances before me.

(a) Grievance No.1: October 20,2014 -Discipline for Overstaying Break

[111] While the Grievor testified his urgent use of the washroom four minutes before the beginning of his 20 minute break that extended 14 minutes after the break was associated with his physical disability, he never mentioned that at the time to Mr. O'Toole, thereby undermining his already strained credibility at arbitration. The connection between the Grievor having to exercise following right knee surgery and thus drink large quantities of water seems plausible. But to be in the washroom urinating for 38 minutes (which is the effect of the Griever's testimony), is inordinate and suspect (being physically improbable) given the Griever's compromised credibility. There was no medical evidence submitted to the Employer or at arbitration supporting this need.

[112] More in harmony with the preponderance of the evidence, particularly given the Griever's demonstrated antagonism towards management, I conclude his taking a 3 8 minute break was consistent with his growing defiance of authority than any pressing 'call of nature'. There is no question that the Grievor was aware that he must ask for permission to extend his break time beyond the permitted 20 minutes. Adhering to timekeeping is among the most fundamental of employment obligations, any violation of which will constitute just cause for a measllred disciplinary response. Since the Grievor had an disciplinary record at the time for insubordination associated with an August 29, 2014 balance of shift suspension. for refusing to meet with his supervisor to discuss an updated F AE, the verbal disciplinary warning the Grievor received on October 20, 2014 for his failure to comply with timekeeping expectations without reasonable excuse was a mild rebuke that did not violate the collective agreement. ·

[113] Consequently, Grievance No. 1 is dismissed.

(b) Grievance No. 2: October 20, 2014- Sent Home for Updated FAE

[114] There is no dispute on the facts of this grievance, which claims that the Employer breached articles 1, 17 and 17.07 of the collective agreement and violated the Griever's "Human Rights" in furtherance the Employer's alleged "harassment" of the Grievor. The Grievor knew he was to submit an updated FAE by October 16, 2014 when he was expected to return to work following an additional leave of absence. Article 17.04 of the collective agreement states that an

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employee, "must submit current medical evidence of his/her disability with restrictions, limitations, and expected duration clearly identified by a duly qualified medical practitioner to the Employer." ·

[115] I share Mr. Welsh's concern that the requirement for monthly FAEs from an employee with a permanent disability may be inappropriate if shown to be vexatious, subject to any provision in the collective agreement mandating monthly reports that does not exist in this case. As with the interpretation of provisions in any contract, there is a presumption that the parties will "perform their contractual duties honestly and reasonably and not capriciously or arbitrarily" which extends to the obligation of the Employer to act reasonably in requiring such medical documentation: see Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 495 per Cromwell J. at para. 63. This principle is implicit in article 1.01 of the collective agreement, where the parties have expressed their "desire to cooperate in establishing and maintaining conditions, which will promote and improve labour and economic relations between the Employer and employees ... [and to] ... co-operate· fully, individually and collectively for the advancement of the said conditions".

[116] In the circumstances of the instant case, however, I conclude the Employer's requests for updated F AEs on a monthly basis were reasonable at the time of those requests. Given the inconsistent medical reports received from the Grievor's family physician that seemed to change from "unfit" to "fit for modified duties" depending on what was happening in the workplace between the Grievor, his supervisors, the WSIB and SunLife, an updated F AE following the Grievor' s period of extended absence was rationally essential for the Employer to fulfil its statutory obligations under section 17(2) the HRC and the contractual terms of article 17.01 of the collective agreement, "to participate and cooperate in returning injured and disabled employees to active employment."

[117] Article 17.07 of the collective agreement, which sets out the duties ofthe Joint Return to Work Committee, was not violated by the Employer. Mr. Serediuk was the designated Return to Work Supervisor and ~r. Adair was the Return to Work Union Representative on the JRTWC, who worked collaboratively in attempting to reach a reasonable accommodation for the Grievor's disability and a "Return to Work Plan" contemplated by article 17.07. It was the Grievor who acted unreasonably in that regard. The Employer was obliged to ensure that the Grievor was provided with "a safe and healthy work environment" mandated by article 16.01 of the collective agreement and in furtherance of the responsibility that it shared with the Union under article 16.02 to, ''jointly promote measures to assure the health and safety of all employees". The Employer's requests for updated F AEs were consistent with those requirements.

[118] I therefore conclude that the Union's claims of a violation of the collective agreement and human rights legislation in ordering the Grievor home to return with an updated F AE in its "Grievance No. 2" must be dismissed. The fact that the Grievor lost pay for the balance of his shift on October 16, 2014 while he obtained an updated F AE was solely the consequence of his own neglect for which he is not entitled to compensation from the Employer.

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(c) Grievance No.3: January 22,2015 -Incapacitated Employee Sent Home

[119] This is a second Union "harassment" grievance alleging that the Employer's management ·of the Grievor's return to work violated the collective agreement and the Grievor's "Human Rights". As described above, a general "reasonableness" standard applies to the Employer, Grievor and the Union in such matters.

[120] The factual context leading to this grievance is important. The Grievor had been off work since October 28, 2014 after refusing modified duties that Mr. Serediuk amended to provide for handling produce in temperatures at or below 40 degrees Fahrenheit. Since the most recent F AE from the Grievor's physician did not include any restrictions for working in cold temperatures, the Employer acted reasonably in proposing the duties in the cold room, where the evidence supports the conclusion that the proposal was made in good faith in furtherance of legitimate business efficiencies.

[121] When the Grievor left the workplace of his own volition on October 28, 2014 he understood he had to provide an updated F AE with restrictions for working in cold temperatures before the Employer would change the modified work assignment. His failure to do so when he returned to work on January 12, 2015, without advance notice to the Employer after more than two months of absence (during which he claims to have suffered a stroke), was unreasonable. An employer has an obligation to ensure that an employee is fit to perform the assigned work following illness or accident: see Re Inca Ltd. and US. W. (1988), 35 L.A.C. (3d) 108 (Burkett) at p. 111. In the context of these events I find the Employer acted reasonably by requiring the Grievor submit an updated F AE before returning to work. The Grievor could not have been expected to be accommodated with appropriate modified duties without updating his medical limitations in the circumstances.

[122] While the Grievor submitted a doctor's note of the standard one-line variety, stating that, "Peter is medically fit to return for work with regular restrictions, and is medically unfit to work in temperatures less than 4(J F," it was inadequate to enable the Employer to know the extent of the Grievor's restrictions in accommodating his disability (which at that point also included a claim of having suffered from a "stroke"). The Union's claim that the Grievor was somehow entitled to an "Independent Medical Evaluation" (or "IME") under the collective agreement misconceives the mutual rights and obligations of the parties under article 17.04(b). That provision entitles the Employer to demand an IME where it is not satisfied with the medical information provided by an employee's physician; and article 17.03 allows the Employer to "provide suitable modified duties to an employee while awaiting a Company initiated IME".

, However, these stipulations to not apply where the Employer has accepted the medical restrictions of the employee's own doctor as reported on a PRAL form, which occurred in the instant case. There was accordingly no requirement by the Company to send the Grievor for an IME at the Company's expense, where the Company accepted the restrictions reported by the Grievor' s own physician.

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[123] The Employer was thus entitled to deny employment to the Grievor while awaiting an updated F AE in the circumstances. This was not "harassment" or a form of "retaliation" prohibited by OHSA legislation for an employee who had earlier refused to work in the cold as claimed by the Union. Rather I conclude the Employer acted in compliance with its statutory and contractual obligations to ensure a safe working situation for the Grievor, and any financial loss to the Grievor as a result of being sent home for an updated F AE was to his own account.

[124] Consequently Grievance No.3 is denied.

(d) Grievance No. 4: May 1, 2015- Written Warning Issued March 12, 2015

[125] By this time the evidence supports the conclusion that the Grievor had decided to "bring things to a head" by forcing his own termination under a misguided perception that somehow this would result in a sizeable severance package. The Employer has discharged its onus to prove that when asked to discuss the modified duties with Mr. Serediuk on March 11, 2015 the Grievor became "aggressive and argumentative", leaving the workplace without permission while stating he "may not be back to work."

[126] The Grievor's refusal to discuss his modified work assignment with his supervisor constituted a breach of his obligation to facilitate the search for a reasonable accommodation under the principles stated in Renaud, supra. His behaviour towards Mr. Serediuk who was properly fulfilling his role as the "Return to Work Supervisor" designated under the JRTWC (with the participation of the Union's RTW Representative, Mr. Adair) was insubordinate, and his statements were overtly insolent. On the evidence submitted, which included the latest F AE from the Griever's own physician, the modified duties were satisfactory to reasonably accommodate the Grievor' s reported physical limitations. The reasonableness of those duties is supported by Mr. Adair's approval on the matter as well.

[127] I therefore conclude that the Grievor's refusal to discuss the modified duties that were being proposed to him, and the manner of his refusal in dealing with management, constituted disciplinable misconduct for insubordination and insolence that does not fall within the exceptions to the "obey now - grieve later" principle. The facts do not support a legitimate concern over health issues in this case from which the Grievor was entitled to refuse the modified work assignment that the Employer intended to offer. Instead, I find on the evidence that the Grievor's real objection to the modified work was his own belief that the work was "not dignified or productive", which the evidence does not support. But even if it did, the authorities on point consistently affirm that the Grievor need not be offer~ci a "perfect" accommodation to satisfy the Employer's obligation to reasonably accommodate an employee with a physical disability. The modified work offered to the Grievor was legitimate work that was made in good faith. The fact that the Grievor didn't want to do the work or somehow felt it beneath his station did not justify his refusal to even discuss the work assignment with his supervisors.

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[128] Given that the Griever had a disciplinary record at that point which included a verbal warning for the same misconduct on August 29, 2014, the imposition of a written warning for his similar insubordination and insolent conduct on March 11, 2015 was a proportionate disciplinary response in the circumstances.

[129] Accordingly, Grievance No.4 must be dismissed.

(e) Grievance No. 5: April28, 2015- Three-Day Suspension

[130] This grievance must be also dismissed for the same reasons stated in Grievance No. 4. The imposition of a three-day suspension was a proportionate and properly progressive response to the insubordination and insolence that was continuing. The Griever knew, as demonstrated by his own statements at the time, that if he continued this course of action he would face a five-day suspension and then termination for refusing to discuss the modified work assignment.

(f) Grievance No.6: May 1, 2015 -Five-Day Suspension

[131] Grievance No. 6 is dismissed for the reasons stated in Grievance Nos. 4 and 5, above, under substantially identical factual circumstances.

(g) Grievance No. 7: May 1, 2015- Workplace Harassment Grievance

[132] Grievance No.7 must also be dismissed.

[133] Article 13.04(e) of the collective agreement provides that an employee who believes he or she has been harassed and/or discriminated against on a prohibited grotmd (under the HRC) may initiate "a formal complaint" requiring "a written statement/complaint" and that, "Once the complaint is received the Company will initiate a formal joint investigation of the complaint." Article 13.04(e) also stipulates that, "The shift Union Committee member will be in attendance" during the investigation, thereby ensuring the participation of the Union in a harassment complaint. Article 13.04(e) also encourages the Complainant to file a complaint "in a timely manner so the problem does not escalate or reoccur." The Griever purported to submit a complaint tmder that provision of the collective agreement when he wrote on the complaint form supplied by the Union that: "Sobeys' management ... have harassed me under incapacitated employee's health and safety, and violations with pay and are in violation of my human rights. This has taken place at the So beys Whitby location over a long period of time. By the errors of the Company I have had financial hardship over a long period of time." The Employer received this complaint on May 1, 2015.

[134] While there are no time limits in the collective agreement for processing such complaints, the stated importance of receiving a complaint "in a timely manner so the problem does not

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escalate or reoccur" implies an intention to process these complaints expeditiously. On the evidence I find that the Employer, through Ms. Russo, complied with that expectation by responding in a timely manner to the Griever's complaint on May 4, 2015 (i.e. within three days) with the request for particulars. This request was appropriate given the lack of details supporting the complaint. The complaint was written on a form that was prepared by the Union for the use of employees initiating such complaints. That form directs the Complainant to provide a "description of what happened: (Who? What? Where? When? Witness")". To the extent of any ambiguity on the level of particularity expected, I draw the inference that the parties intended such information to be provided by the Complainant in order to facilitate the speedy investigation and potential resolution of the controversy.

[135] It is apparent from the testimony of Mr. Welsh (as reinforced by his hand-written notes) ·that the Union was also of the view that more information was necessary to substantiate the Griever's complaint. Mr. Welsh's notes illustrate the intransigence of the Grievor that I came to recognize as a general feature of his character, in telling Mr. Welsh that the information the Grievor had written on the form "should be good enough". His failure to provide the information, in the context of the disintegrating employment relationship caused by the Grievor' s own misconduct, undermines the veracity of the Grievor' s actual concerns. Indeed, his refusal to provide even the most rudimentary details to substantiate claims of workplace harassment and/or discrimination was more consistent with an ongoing campaign to orchestrate his own dismissal and a severance package from the Employer.

[136] I conclude such conduct was an abuse of the very important negotiated rights of aggrieved employees to have their complaints of workplace harassment and discrimination investigated and disposed of through a collaborative inquiry by the Employer and the Union, justifying the denial of that grievance.

(h) Grievance No. 8: May 8, 2015- Termination

[137] The Grievor got what he repeatedly said he wanted by May 8, 2015, knowing that his ongoing refusal to meet with his supervisor to discuss the modified duties, let alone properly accept any of them, would result in escalating discipline culminating in his dismissal for insubordination.

[138] I conclude that the Employer had just cause to terminate the Griever's employment as the final step of progressive discipline for the following reasons.

[139] The Grievor acted contrary to the requirement of employees to cooperate in the search for a reasonable accommodation of his documented physical disability in order to continue in his employment. The Grievor was repeatedly insubordinate and insolent to his direct supervisors and other managers attempting to address his return to work on appropriate terms with no likelihood of his behaviour improving, but rather becoming more defiant over time. The Grievor

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demonstrated through his disregard for progressive discipline properly issued to him, that he was incapable of acceding to the reasonable direction and control of the Employer in the application of its management rights under article 3.01 of the collective agreement to "direct the working forces". In that regard, the Grievor had shown himself to be completely ungovernable on the most basic of expectations in the employment relationship.

[140] Many employees face medical challenges as they age requiring cooperative workplace accommodations by employers, employees and theirunions. But even where parties disagree on what a reasonable accommodation is, that is not license for an aggrieved employee to act abusively towards his or her supervision. The Grievor's repeated insubordination and explicit contempt for all levels of management, capped by his aggressive belligerence towards his direct supervisors and refusal or inability to recognize any fault on his part, notwithstanding the progressive disciplinary warnings and attempts to conect his inappropriate behaviour, wan-ants the Grievor' s termination for just cause. His failure to seize the opportunity offered during the arbitration proceedings to admit and apologize for his wrongdoing forecloses any ability to reinstate the Grievor with a lesser penalty. ·

VII. Disposition

[141] Thus for the foregoing reasons I conclude that the Employer has established just cause for all five instances of discipline at issue in this case, while the Union has failed to prove any violation of the collective agreement and/or breach of legislative enactments in connection with its three "harassment" grievances related to the joint responsibilities of the Employer, Union and the Grievor to reasonably accommodate an employee with a disability.

[142] This is a sad end to the employment of an individual with more than 14 years of accredited service and a physical disability in addition to other medical problems, who as an older worker will face obvious difficulties finding comparable employment elsewhere. But the Grievor was the author of his own misfortune where his over-the-top defiance and demonstrated hostility towards the Employer (and sometimes his own Union) rendered discharge the only viable option after a tumultuous 17 months. Through his repeated misconduct as the circumstances of his case unfolded and in his bellicose testimony before me, the Grievor burned every possible bridge for his return to this workplace.

[143] Consequently, all eight grievances must be and are hereby dismissed.

DATED AT MARKHAM, ONTARIO THIS 31ST DAY OF AUGUST, 2017

M .Q? C£aib&~4Gl4j-Gordon F. Luborsky, Sole Arbitrator