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Case Name: Alberta v. Alberta Union of Provincial Employees (Gregoire Grievance) Arbitration Between The Government of the Province of Alberta, and Alberta Union of Provincial Employees With respect to a Grievance concerning Phil Gregoire [2008] A.G.A.A. No. 35 Alberta Grievance Arbitration A.C.L. Sims, Q.C. (Chair), S. Franklin (Nominee of Government of Alberta) and J. Gaetano (Nominee of AUPE) Heard: January 8, 10-12, 2007. Award: July 24, 2008. (176 paras.) Appearances: REPRESENTATIVE OF THE GOVERNMENT OF THE PROVINCE OF ALBERTA Sandra Kraatz: Counsel. Margaret Franklin: Co-Counsel. Diana Connelly: Advisor. REPRESENTATIVE FOR ALBERTA UNION OF PROVINCIAL EMPLOYEES Ray Domeij: Counsel. Doug Gamble: Advisor. Phil Gregoire: Grievor. AWARD 1 This case is about whether the Government of Alberta was entitled to dismiss the grievor, Mr. Phil Gregoire, because of his attendance record. Mr. Gregoire was hired on April 1, 1998 as a Corrections Services Officer I in the Calgary Young Offender Centre. He was dismissed on November 15, 2005 for what the Employer maintains are non- culpable reasons. 2 Mr. Gregoire, through his Union, the Alberta Union of Provincial Employees, challenges the Employer's decision as lacking just cause. It also raises an issue as to the sufficiency of Union representation allowed at the time of his termination. This, the Union argues, was sufficiently in violation of the grievor's rights that it renders the termination void from the outset. 3 The Employer's grounds for termination are set out in the termination letter of November 15, 2005. Your most recent absences have initiated a detailed review of your attendance record with the Department and the circumstances surrounding your absences. Your payroll records indicate that you have an excess number of absences from work over the past several years. Specifically, your absences are 48.83 days for 2001, 79.33 days for 2002, 87.14 days for 2003, 52 days for 2004, and 75.5 days up to including November 14, 2005. Your ongoing absence from work brings into question your reliability, creates operational and staffing difficulty and is a hardship on fellow staff members. Your employment history clearly indicates that you have been given every opportunity to improve your attendance record. On October 21, 2002, this was brought to your attention in writing that your attendance at work was a concern. Again, on June 6 and October 23, 2003 this was brought to your attention in writing, at which time you were told that failure to improve your attendance may jeopardize your future employment. This issue was again brought to your attention in a letter dated August 5, 2005 which stated it was the Centre's expectation that you improve your attendance immediately as your employment was in jeopardy. Since the first written warning dated June 6, 2003 you have been absent from work for 169.5 days out of 595 workdays. Your recent absences have indicated that there does not appear to be any resolution to this ongoing issue. For this reason, the Employer has determined that effective today your employment relationship with Alberta Solicitor General and Public Security will be terminated. 4 The letter was signed by Mr. Frank Vorsterman, the Director of the Calgary Young Offender Centre, although it was written for him by Human Resources consultants. He has delegated authority to terminate non-managerial employees within his centre under the Public Service Act. 5 At the time of his dismissal Mr. Gregoire was working at the Correctional Services Worker II level. He was covered by the Union's Master Agreement and by Subsidiary Agreement No. 003 which applies to Correctional and Regulatory Services Employees. 6 The Union's letter advancing this matter to arbitration set out its position and request for redress: We allege the action taken by the Employer is unjust, unfair, improper, unreasonable, discriminatory, disciplinary, constitutes a financial penalty and is a violation/misapplication/misinterpretation of the Collective Agreement, in particular but not limited to Articles 5, 28, 31, 32 and 38. The redress we are seeking is: 1. a declaration that the Employer has violated/misapplied/misinterpreted the Collective Agreement; 2. that Mr. Gregoire be reinstated to his position; 3. that Mr. Gregoire receive all monies, benefits and other entitlements, owed to him pursuant to the terms and conditions of the Collective Agreement, plus interest in accordance with the Judgment Interest Act, R.S.A. and regulations made pursuant thereto; 4. that Mr. Gregoire be otherwise made whole; and 5. any other redress that the Arbitrator deems proper and just. 7 The parties agreed at the outset of our proceedings that the Arbitration Board was properly constituted and that we have jurisdiction to hear and decide the grievor's termination grievance. There are also three other grievances pending. 841811 Suspension 841979 Unfair Treatment 841980 Attendance Management 8 The Employer has preliminary jurisdictional objections to the latter two grievances. The unfair treatment grievance had not, at the time of the hearing, been heard at level 2. Collective Agreement Terms 9 The collective agreement, in force at the time, included the following provision of importance to these proceedings. Article 28 Disciplinary Action 28.01 When an Employee has been given a written reprimand, suspension, disciplinary demotion or is dismissed from employment, the Employee shall be informed in writing as to the reason(s) for such action. The Employee will be provided with a copy of all correspondence or written notices pertaining to his conduct or performance which are placed on his personal file. 28.02 An Employee who is to be interviewed with respect to disciplinary action as referred to in Clause 28.01 shall be notified of the time and place of the interview and if desired by the Employee he may arrange to be accompanied by a Union Representative or Union Steward. When a Union Steward requires time off from work to accompany an Employee to an interview pursuant to this Clause, the Union Steward must obtain prior approval from his Employing Department to be absent from work, and, if approval is granted, leave without loss of pay will be allowed. ... 28.07 Subject to Article 29, an Employee may be dismissed, suspended, demoted or given a written reprimand for just cause. Article 29 Grievance Procedure 29.02 Meetings During Grievance Procedure (a) A Union Steward shall not discuss a grievance, or leave his place of work to investigate a grievance, during working hours without first obtaining permission from his supervisor to do so. Confidentiality 10 The grievor's work at the Calgary Young Offender's Centre involved him in dealing with young offenders who, by law, are entitled to privacy and protection to prevent the disclosure of their identities. We were referred to the specific provision in s. 110 and 111 of the Youth Criminal Justice Act. At the outset of these proceedings, the Board granted an order protecting the confidentiality of all information produced in these proceedings, either oral or written, that had the potential to offend these provisions. Overview 11 In very summary form, Mr. Gregoire's difficulties began in 2000. He was disciplined at that time (although discipline is not the subject of this non-culpable termination). He came under the Directorship of Mr. Frank Vorsterman. Differences developed between Mr. Gregoire and management, particularly Mr. Vorsterman. Mr. Gregoire was of the view that he was being unfairly criticized and harassed. His attendance deteriorated significantly. The Employer responded to his above average absenteeism by taking steps provided for in its Attendance Management Strategy. This involved a series of letters, each setting out his absenteeism figures and the centre's average figures. The tone of the letters escalated, warning him of job consequences if his above average absenteeism did not improve. The Employer maintains that attendance, for this job, is particularly important due to its youth criminal justice system obligations. 12 Mr. Gregoire attributed his absenteeism levels to the normal minor causes of sick leave, some personal losses, and the effects of what he views as harassment. Indeed, he has sued the Employer for harassment. He says he suffered periods of depression for which he received treatment, but he never disclosed this to the Employer, nor to the medical consultants appointed by the Employer to conduct medical assessments. In August 2005, Mr. Gregoire grieved the last letter concerning his absences and a hearing was held. A further review meeting was promised but, before that occurred, he was called in and given a termination letter. The Union argues that the termination is void for lack of appropriate union representation at the termination meeting. It also argues that the termination is inappropriate and without cause, either for non-culpable medical absences or because it was carried out for an improper purpose. The Witnesses 13 In addition to Mr. Vorsterman, mentioned above, the Employer called the following witnesses: * Mr. Kevin Brophy, the Calgary Centre's Deputy Director, who is responsible for the attendance management program. * Mr. John Mason, the Department's Senior Manager of Employee Relations. While Mr. Mason has had a long career in the Government of Alberta he only began in his current position with this department in late October 2005, just a couple of weeks before the grievor's termination. He reviewed the file prior to the decision to terminate being made, but played no active role in the decision at the time. * Ms. Barbara McKnight, the Deputy Director of the Calgary Youth Development Centre. * Ms. Maria Lynn Lizotte, a CSWII and a Team Leader at the Centre, who testified under a notice to attend. * Mr. Kerry Sauve, a CSW at the Centre, who testified under a notice to attend. * Dr. Brijenda Sood, a medical consultant to the Government of Alberta. * Dr. Erwin Fischer, a former medical consultant to the Government of Alberta. * Ms. Jenny Jede, a Systems Analyst with the department, who prepared and explained certain absenteeism reports. * Mr. Kevin O'Brien who, during the times in question, was the Executive Director of the Youth Offenders Branch. 14 The Union called the grievor, Mr. Gregoire plus: * Ms. Diana Brown, an employee of the Calgary Youth Offenders Centre and a shop steward. * Mr. Tim Jackson, a senior corrections officer at the Calgary Correctional Centre and Chief Steward for the Local. * Mr. Doug Gamble, a Union Representative employed by AUPE in Calgary with considerable experience with this workplace. Chronology of Events 15 The Employer characterizes its reasons for termination as involving non-culpable conduct. Its concern over Mr. Gregoire's level of attendance grew from 2000 to November 2005 when he was terminated. These years also involved other differences between Mr. Gregoire and his employer, and one needs a chronological description to understand when and why certain steps were taken and to understand Mr. Gregoire's reaction to certain events. By reviewing this evidence chronologically with some reference to what might be described as culpable conduct, we do not lose sight of the fact that only non-culpable absenteeism is alleged as cause for the dismissal. 16 In addition, the Union raises what amounts to a preliminary objection that Mr. Gregoire's termination was null and void, because of an alleged breach of his representation rights under Article 28.02. An understanding of the preceding events is also important to put that issue in context. Early Employment 17 Mr. Gregoire has a B.A. degree in Sociology and History from the University of Western Ontario. He has worked in youth and child care for over 25 years and is a qualified addictions counselor. 18 Mr. Gregoire described his initial employment with the department which was a part-time on-call position that he held from 1989 to 1996. He took on a full-time temporary position, leading to a full-time permanent position starting on April 1, 1998. When he started in 1989 he worked about 2 shifts a week, mostly between September and April, working as a CSW1 on various units and with various partners. At that time he was also employed with the Alberta Alcoholism and Drug Abuse Commission. In 1996 he left AADAC to take a series of full-time three month term positions working on one of the units. 19 Mr. Gregoire says there were no issues with his work, but no performance appraisals either, between 1989 and 1996. He was never called into the office during that time. After 1996, performance appraisals were done and he received satisfactory 2 ratings. In 1998, he obtained a permanent position at the Calgary Young Offenders Centre, on the Sparrowhawk unit, and in 1999 worked for a year as the addictions counselor. 20 In 2000 Mr. Gregoire successfully bid, along with others from CYOC, on a job in a new program at the Youth Attendance Centre. Staff at the new centre were assigned responsibility for going to the residences of young people in conflict with the law to see whether they were complying with their curfew rules, were having drug or alcohol problems and so on. Employees in this new position had the authority to take youths back to the Calgary Young Offenders Centre in appropriate cases. 21 On the September long weekend in 2000, Mr. Gregoire returned to the Blackhawk unit at the Calgary Young Offender Centre, which housed youths involved in high-end crimes such as murder or sexual assault. The unit also included youths who, by reason of anger or otherwise, exhibited out of control behavior. In February 2001 Mr. Gregoire moved to the Yamnuska unit which dealt with those on remand pending sentencing. In March 2001 he was promoted to the CSWII position. 22 In May, 2000 the Centre's former manager Karen Ferguson left. At the same time, Mr. Frank Vorsterman joined the management team as program director. Mr. Gregoire dates his difficulties from Mr. Vorsterman's arrival. 23 Mr. Gregoire recalls being called into Mr. Vorsterman's office. In his opening statement to him, Mr. Gregoire says Mr. Vorsterman accused him of being a gambler, drinker and womanizer. Unfortunately, the allegation was not put to Mr. Vorsterman in his cross-examination. Mr. Gregoire views this as the start of what he alleges was five years of harassment and, as a result, anxiety. He testified to feeling that he was singled out for special treatment, starting from the time he returned from the Attendance Management Centre and had to deal with Mr. Vorsterman. He believes that, cumulatively, over the five years, the harassment he alleges has had a huge impact on his health and thus on his attendance. When asked about his wish to return to the job Mr. Gregoire testified that his attendance would change if the harassment stopped. 24 Mr. Gregoire says his attendance was not an issue in 2000 or before then. He described himself as having no periods of general illness and very little casual illness. He recalls 2001 being worse than 2000, but his attendance "was not really an issue" until 2002, when he received his first attendance management letter. 25 Mr. Vorsterman described Mr. Gregoire's history as a permanent employee beginning in April 1998. He began as a youth worker on one of the living units and remained there until the spring of 1999. He applied on an internal competition for, and succeeded in becoming, a substance addictions worker on a two year secondment. In February 2000, he asked to go to a temporary position at the Youth Attendance Centre, which was established in 1999 as a federally funded pilot project. One purpose of the job was to conduct surveillance on young offenders released on bail and, for example, if they were not working, to take them to perform community service jobs. His term in that job was cut short because of certain allegations about his performance. This led to his assignment back to the Calgary Young Offender Centre. Up until that point, no concern had been raised about Mr. Gregoire's attendance. 26 On his return, Mr. Gregoire was assigned to the Black Hawk Unit, which was for youths charged with high profile offences or who might present a risk to other young people on the general units. The individuals had to work their way back to units within the main population. 27 In the first part of 2001, Mr. Gregoire was reassigned to the Yamnuska Unit which housed individuals on long term remand or serving long term custodial sentences. He continued to work on this unit for about 2 years after which, in late 2002 or early 2003, he was transferred to the Robson Unit. It was an intake unit which involved a high turnover of young persons. His next transfer was back to Yamnuska when it became the intake unit. Intake units involve more case conferences and more planning for return to the community, and thus a larger paperwork component, then other units. He stayed at Yamnuska until his termination in November 2005. The Attendance Management Letters 28 Mr. Brophy testified about the Attendance Management letters given to Mr. Gregoire. Problems with Mr. Gregoire's attendance, he says, started in 2000, before the Department's attendance management program was introduced. Formal and informal meetings were held. In October 2002, Mr. Gregoire was given a memorandum reading: Your attendance at work is a concern. Your attendance has been discussed with you on several occasions. In the last year you have used 7 casual illness days and 51 general illness days, which is well above the Centre average. It is expected that, you will endeavour to address the amount of time off away from work. 29 Mr. Brophy says no change followed this communication. Dr. Fischer's Examination 30 In February 2003 the Employer decided to send Mr. Gregoire for a medical consultation with Dr. Erwin Fischer. After listing his absences in 2000, 2001 and 2002, the Employer's requisition letter advised the doctor that: Mr. Gregoire has been on a performance contract for the past year and a half as his performance has been unsatisfactory. He has been notified that continual failure to meet expectations will mean the denial of his annual increment. He has acknowledged, reluctantly, that his lifestyle may be problematic; however, he generally denies these issues. It is suspected that he may have a drinking problem. His salary is also being garnisheed. Mr. Gregoire has indicated that his medical issues are related to his employment difficulties. He was disciplined in 2000 for inappropriate behavior towards a female staff member. He claims that he is being harassed by a number of individuals at the Centre, but has not yet filed any formal complaint. A medical consultation has been scheduled for Mr. Gregoire on Tuesday, March 4, 2003 at 3:00 p.m. in Calgary. Based on the information provided above and your interview with Mr. Gregoire, please provide the following information: 1. Is Mr. Gregoire fit to complete the duties of a CSW in an institutional setting, working with young offenders? 2. What other restrictions and limitations, if any, would he have? 3. What is the future prognosis for Mr. Gregoire? 4. Is there any treatment regime required for Mr. Gregoire in order for him to function fully in the position of a Correctional Services Worker II? Thank you for providing us with your medical diagnosis in regards to Mr. Gregoire. I look forward to hearing from you at your earliest convenience. 31 Dr. Fischer was, at the time, the Government of Alberta's Medical Consultant for Occupational Health and Safety. The Union concedes his expertise in that area. Both Mr. Gregoire and Dr. Fischer described the consultation. 32 Mr. Gregoire says that he expected a physical examination when he went to see Dr. Fischer. Rather, they just sat at a table and Mr. Gregoire told him stories as to why he was missing time. He recalls the interview taking 20 minutes followed by 5 minutes of photocopying. After that Dr. Fischer told him he was "ok to go back to work" and that was the end of the matter. He says Dr. Fischer did not ask him if he had a doctor, or seek access to his medical records. He is not sure if he was asked if he was on any medication. He does recall being asked if he had a drinking problem to which he said no, that his alcohol intake was limited to four beers or so while watching a hockey game. He was not referred to anyone else. He agrees he did not say anything to Dr. Fischer about depression. 33 Dr. Fischer recalls Mr. Gregoire telling him he was very unhappy at work and that he felt he was being harassed by his supervisor. He felt "they wanted to get rid of him." Dr. Fischer recalls that Mr. Gregoire did not want to get into the reasons behind the alleged harassment. Dr. Fischer says he was not ill at the time of the interview and when he asked about the reasons for his absences was told of minor medical reasons but that the absences were primarily due to the stress at work. It was Dr. Fischer's conclusion, given the reasons for the absences as Mr. Gregoire described them, that very little was going to change. In Dr. Fischer's view, Mr. Gregoire was "going about it the wrong way" by taking time off. He felt that there may be administrative ways of dealing with the concerns, but that they were not going to be resolved by taking time off work. No psychological testing was undertaken. Dr. Fischer saw no need to recommend a medical board and felt that the problem was not medical. Dr. Fischer says he asked about his medical history and there was no mention of either depression or gout. Had he been on medication for depression, Dr. Fischer said, it would have been long term; such medication is not prescribed short term. Asked if he tested for depression he replied that he did so by talking to him for half an hour. No physical examination was ordered or necessary in the circumstances. 34 Dr. Fischer concluded Mr. Gregoire was a fit man. He recorded his opinion in the following letter sent to the Employer: Mr. Gregoire met with me in Calgary on March 4, 2003. His present medical state was reviewed with him. He does not suffer from any chronic or serious medical conditions and states that his absences have been due to minor unrelated medical conditions and in addition due to "stress caused by harassment by his supervisor." He is on no medication, and denies any alcohol problem. He is at present medically fit to carry out the duties of a CSW in an institutional setting working with young offenders without any restriction or limitations. Given the reason for his absences the prognosis as to regular ongoing work attendance remains guarded. At this stage there is no indication for any treatment required to be followed. The 2003 Attendance Management Letters 35 On June 6, 2003 Mr. Brophy met with Mr. Gregoire to again discuss his attendance. He followed up that meeting by letter setting out Mr. Gregoire's absences for 2000, 2001, and 2002 and comparing them to the Centre's averages. The letter is based on a template from the policy. It read: ATTENDANCE MANAGEMENT Due to your illness we were not able to meet until June 6, 2003. At that time we discussed your overall attendance performance. We discussed your attendance record specifically from January 1, 2000 to December 31, 2002, and to date. Regular attendance of all employees is essential for Alberta Solicitor General to meet its goals and objectives of service delivery, productivity, and cost effectiveness. Attendance at work is the first expectation of employment and is the responsibility of the employee. Employees are expected to attend work when they are scheduled and in a timely manner. Specifically, we discussed how your attendance has an impact on the operation of the Centre, your team and on your work performance. Your record of attendance is as follows: [Editor's note: The table of record of attendance, could not be reproduced online. Please contact Quicklaw Customer Service at 1-800-387-0899 or email@example.com and request the following document: 08aga035Table.pdf.] Your total annual days absent for casual, general and special leave exceeded the Centre average as shown above. The legitimacy of your absences is not being questioned and we will work with you to improve your attendance. The medical consultation with Dr. Fischer has indicated there is no medical limitation to you performing your job functions. Ultimately, it is expected your absences will not exceed the Centre averages. Failure to improve your attendance may jeopardize your future employment. We will meet by October 1, 2003 to discuss your progress on fulfilling these expectations (and the medical consultation results, if applicable). I am confident you will be able to improve your attendance. This correspondence is non-disciplinary and simply confirms our discussion of June 6, 2003. 36 Mr. Brophy's account of Mr. Gregoire's reaction during this meeting was that he did not have any concerns; he was just sick. When asked, Mr. Gregoire declined to elaborate. Mr. Brophy noticed no changes after the June 6, 2003 meeting and letter. 37 On June 24, 2003 Deputy Director Brophy wrote a significant memo to Mr. Vorsterman with suggestions on how to handle Mr. Gregoire's situation. It reads, in full: I am requesting that we reassign Mr. Gregoire to a float position and reassign Mr. Brad Davis CSWII, to cover Yamnuska unit key worker responsibilities, as Mr. Gregoire is unable to. The position on Yamnuska unit requires the regular attendance of a responsible key worker, as the duties and the new act require Correctional Service Workers to be on top of their work loads. The courts require the timely input of information and documentation. The centre requires that in house planning, collateral contacts and future planning is carried out in a timely manner. Mr. Gregoire is unable to fulfill this requirement as is evident in his attendance. This is the 24th of June and as of this date Mr. Gregoire has been at work for three days. His work is being covered by other staff members. For residents who need the attendance of a key worker to facilitate programs, address personal needs and attend to future planning, case conferences and court matters, Mr. Gregoire is failing to provide the basic requirements of his position for his key kids. Mr. Gregoire has displayed a pattern of calling in sick one or [sic] days at a time, on an on going basics. His sickness or family situation is not at question, but his attendance is. The Correctional Service Worker position requires the person to help youth under his care, plan, record, prepare case conferences, problem solve, facilitate assessment and treatment referrals, make collateral contacts with persons in the community that affect the youth, and supply the courts with relevant information to make informed decisions with regards to the youth. This is not being provided by Mr. Gregoire. As the unit manager, I am requesting a reassignment of Mr. Gregoire to a float position and Mr. Davis to replace Mr. Gregoire on Yamnuska unit. I would also like to request that Mr. Gregoire attend a medical review board to assess his ability to attend work on a regular basis. A previous consultation with Dr. Fischer indicated that Mr. Gregoire was fit to attend work. Offers of referrals or help have been flatly turned down. Mr. Gregoire stated that he had no other issues or problems that required attention. However, his attendance and his reasons for being absent, indicate medical problems or issues of one sort or another. Mr. Gregoire has been spoken to on several occasions about his attendance. Each time he indicated that he would try and improve his attendance, and each time it did not improve, but has in fact, gotten worse. Some days off end up being taken as "leave with out pay", as Doctor notes are not provided. His pattern of calling in sick one or two days at time makes it hard to replace him at work or find adequate coverage without assigning a permanent staff member to his position. Therefore I request the medical review board and the reassignments. For your consideration 38 Mr. Vorsterman's view was that the float position was a coveted position that he was not prepared to give to Mr. Gregoire. Nor did he consider it necessary or appropriate, either then, or later, to call for a medical board. 39 There are two float employees per team working on the units. They are not assigned key kids unless they remain of a specific unit for an extended period of time. The float position is a night job which takes flexibility, because of the need to flip from unit to unit, something which, in Mr. Vorsterman's view, Mr. Gregoire lacked. Wage employees fill in for persons that are temporarily absent and do not perform anywhere near the range of work done by a float person. Mr. Vorsterman confirms that, in 2004, Mr. Gregoire, with his Union representative, Mr. Ken Cutrell, may have asked again that he be allowed to go to a float position. 40 Mr. Vorsterman testified that he had met a supervisor who had told Mr. Gregoire he would work with him. Mr. Vorsterman expressed concern that that supervisor was making such comments to Mr. Gregoire when the issues over his absenteeism were being dealt with centrally. He agreed he had heard there were serious personality issues. However, his own evaluation was that what they were dealing with was a performance problem. In his view transferring Mr. Gregoire to another supervisor would not correct that issue, even though keeping him where he was may cause stress. 41 On October 6, 2003 Mr. Brophy met with Mr. Gregoire once again to discuss his attendance, as he had been advised in the June 6 meeting. At that point, for the 2003 year, Mr. Gregoire had taken 92 days of casual, general and special leave, an increase from before. On October 24, 2003 Mr. Brophy sent Mr. Gregoire a letter saying in part: Regular attendance of all employees is essential for Alberta Solicitor General to meet its goals and objectives of service delivery, productivity, and cost effectiveness. Attendance at work is the first expectation of employment and is the responsibility of the employee. Employees are expected to attend work when they are scheduled and in a timely manner. You have the ability to improve your attendance, and I am confident you will be able to improve, as you have agreed you can. The medical consultation with Dr. Fischer has indicated there is no medical limitation to you performing your job functions. Failure to improve your attendance, may jeopardize your future employment. It is expected that you will improve your attendance immediately. We will meet again to review your attendance around the first week in January 2004. Summer - 2004 42 Ms. Lizotte was Mr. Gregoire's partner for about 8 months after she came off maternity leave in April 2004. She described the difficulties of working alongside him, particularly during the last three months when she said his attendance dropped significantly. She testified as well, however, that they each had "different styles of working" and that they did not communicate well with each other and "pretty much each did our own thing." 43 She described difficulties created by not being able to rely upon his presence, and the extra burdens placed on her when his shifts were taken by casual employees. She described three case conferences he missed, one where he called her at home to tell her in advance he would be away and two others where she was thrown in to chair the meeting in his place with no notice at all. In each case she felt she lacked the notice and thus the time needed for the necessary preparation. She says she simply had to scramble to get to know the youths involved. 44 Ms. Lizotte did not know any of the specifics of Mr. Gregoire's absence. She recalled they were both on summer vacation for parts of their time together. Mr. O'Brien's Intervention 45 Mr. O'Brien was generally aware of issues with Mr. Gregoire, having discussed them with Mr. Vorsterman at different times. In 2004, he had discussions with AUPE Representative Ken Cutrell. Mr. Cutrell persuaded Mr. O'Brien that Mr. Gregoire was having trouble coming to work and dealing with the job because of the pressures created by being on a performance contract. His attendance and performance, it was argued, might improve if he could have a new start, free of the inhibitions created by the contract and the feeling that he was continually under a microscope. Mr. O'Brien had a lot of respect for Mr. Cutrell and decided to go along with this unique approach. A conference call was held to firm up the arrangement, following which Mr. O'Brien sent out a confirming letter on October 22, 2004. 46 Mr. Vorsterman says that, in the fall of 2004, Mr. Ken Cutrell met with Mr. O'Brien. They reached an agreement that, contrary to usual practice, would allow Mr. Gregoire to choose his unit, partner and supervisor, in the hope that this would have a positive impact on his performance. Mr. Gregoire chose partner Kerry Soare and a move to the Yamnuska unit which at that point was an intake unit. Mr. Vorsterman's evidence is that, contrary to the hoped for result, Mr. Gregoire's attendance problem increased as the year progressed. 47 Mr. O'Brien's evidence is that, when he agreed to this arrangement he did so in good faith, accepting Mr. Cutrell's representations and thinking the idea worth a try. Mr. Gregoire sees this step in an entirely different light. What Mr. Gregoire knew and what Mr. O'Brien says he did not know until November of that year was that Mr. Gregoire had, by that point, instructed private counsel (unrelated to AUPE) to file a claim alleging that he was being subjected to harassment at work. 48 Mr. O'Brien says he first learnt of this lawsuit when a press clipping dated December 4th to that effect came across his desk, sometime in December 2004. The press release read: Failing to promote a Young Offender Centre employee was no different than firing him, a lawsuit claims. Phil Gregoire seeks damages of $180,000 because he has been "constructively dismissed" even though he's still on the job. Gregoire's statement of claim, a copy of which was obtained yesterday by the Sun, says he has been victimized by "false and derogatory" performance reports. The lawsuit says the corrections service worker has "performed his assigned duties in a dedicated, professional, competent manner," since his hiring in 1997. "Notwithstanding his best efforts, the plaintiff has not been promoted nor has he been able to advance in his employment," it says. "Instead he has been harassed, denigrated, and spurned by his managers and supervisors." It claims supervisors not only filed negative reports, but made "antagonistic and denigrating false statements about (him) to his co-workers." 49 Mr. O'Brien's evidence is that he knew nothing of this action where he agreed to take Mr. Gregoire off the performance contract, but that when he later learnt of it, it made him question whether Mr. Gregoire's attendance and attitude to the job would indeed improve. Mr. Gregoire believes, but provided no evidence to support his belief, that Mr. O'Brien had indeed learnt of his intention to file suit, and only acted on Mr.Cutrell's suggestion to make it look like he was doing something about the harassment Mr. Gregoire complained about without actually doing anything concrete. Mr. Gregoire says he first met with his lawyer to instigate the lawsuit in May of 2004. It was filed in Court on November 26th. Mr. O'Brien had signed the placement plan on October 22, 2004. Mr. Gregoire had, in the meantime, selected his new partner and moved to the new unit under a new supervisor. 50 Mr. Gregoire's evidence is that the October 2004 arrangements did not in fact give him what he wanted. His first choice, he says, was to move back to the attendance centre and his second choice was to move to a float position. Soon after Mr. Gregoire moved to the new unit, he went off on an extended period of general illness lasting from November to February 2005. It was put to Mr. Gregoire in cross-examination that the placement plan did not help his attendance. Again he expressed the view that it was just something designed to look as if Mr. O'Brien had done something over his harassment when he had not. 51 Mr. Kerry Sauve was assigned to work as Mr. Gregoire's partner in November 2004 on the Yamnuska unit. Pursuant to Mr. O'Brien's decision, Mr. Gregoire had approached him in the staffroom and asked him if he would agree to work as his partner. While a little reluctant to agree because he had poor experiences with other new partners, he agreed because he had always got along with Mr. Gregoire. His recollection is that they were partners for 8 or 9 months. He described Mr. Gregoire's attendance as sporadic at times, interrupted by some health issues. When Mr. Gregoire was away, his duties would be performed by a wage employee, a supervisor or just divided up amongst the rest of the staff. At the end, Mr. Sauve asked to be transferred to a float position and he does not recall who became his partner thereafter. Seeking a Doctor's Certificate 52 When Mr. Gregoire was away from November 2004 to February 2005, Ms. Dianne Connelly of Human Resources wrote to Mr. Gregoire seeking information from his attending physician. The letter reads: This will acknowledge receipt of two medical notes from your doctor, Dr. S. Habashy indicating that you are unable to attend work due to medical reasons. Prior to your return to work, the Department requires you present this letter to your doctor along with the attached copy of your position description to answer the following questions: 1) Is Mr. Gregoire able to perform his duties and responsibilities as a Correctional Service Worker 2 in an institutional setting working with young offenders on a regular and sustained basis? 2) What restrictions or limitations, if any, would Mr. Gregoire have in performing his job duties and responsibilities as a Correctional Service Worker 2? 3) What is the prognosis for the future concerning Mr. Gregoire's regularity of attendance at the Calgary Young Offender Centre? A response from your doctor is required prior to your return to work. 53 Mr. Gregoire says he saw the doctor and that the doctor wrote a note in response, but it did not get back to the employer because "no one asked me for it." He testified that the note was still in his wallet, but he did enter it into evidence. He "could not recall" if it addressed the employer's three concerns. When asked why he was off for 3 months over this period Mr. Gregoire could only say he thinks he was depressed and thinks he was on anti-depressants. He was obviously discontent that Mr. O'Brien had not allowed him to go to a float position or back to the attendance management program. The August 5th, 2005 meeting 54 Mr. Gregoire says that, on August 5th, he was called up to Mr. Brophy's office and told a shop steward would be provided. When he was there he met a man in a Corrections Service uniform who turned out to be Mr. Tim Jackson. Mr. Vorsterman's confidential secretary, Barb, was also there. He had never met Mr. Jackson before nor asked him to represent him on this occasion; impossible in any event since he did not know the meeting was going to take place. Mr. Jackson's advice to Mr. Gregoire, at the start of the meeting, was "to let him do all the talking." Mr. Jackson's attendance was in fact arranged by Mr. Brophy who called the Union office to have a steward attend to represent Mr. Gregoire as he was given a letter, set out below. 55 Mr. Jackson is a senior correctional officer employed at the Calgary Correction Centre. Within the Union he acts as the chief steward of Local 3, Chapter 1. On occasion he is seconded to the Union' regional office. He has often represented employees from the correctional system and has since represented Mr. Gregoire in respect to a performance appraisal grievance and attendance management concerns. Mr. Jackson testified that the employer's officials knew, at the time of his dismissal, that Mr. Jackson had been representing Mr. Gregoire. Mr. Jackson has wide experience in representing people in corrections, including termination situations, although Mr. Gregoire's case was his only non-culpable termination. Mr. Jackson was not a Union Representative, just an experienced shop steward. 56 At the August 5th meeting Mr. Jackson says Mr. Brophy was asked some questions about the program and the letter, and about who authorized it. Mr. Jackson says Mr. Brophy appeared frustrated and was unable to answer his questions. Mr. Gregoire says the same thing. Mr. Gregoire says the word "warning" was never used in the meeting, but he came away feeling that his job was in jeopardy, and testified to being "in a state of shock." Mr. Brophy never said directly, however, that Mr. Gregoire's employment was in jeopardy. Mr. Gregoire was cross-examined on his assertion that he was not told directly that his job was in jeopardy. His replies indicated that he felt he had been threatened in a variety of ways since 2000. He said "when you get threatened a whole bunch of times it doesn't mean anything. I've been threatened on lots of levels." 57 Mr. Jackson and Mr. Gregoire both say there was no discussion of any medical reasons for absence at the August 5th meeting, and the employer asked no questions along that line. Mr. Gregoire says, once again, he received no offer of available assistance. 58 Mr. Brophy gave Mr. Gregoire the following letter. It recited the earlier meetings, noted a lack of improvement, and continued. We have offered you help through the Department, the Personnel Administration Office and AUPE resources, however you have been reluctant to access these services. On March 4, 2003 a medical consultation with the government's Medical Consultant indicated that you were able to perform the full scope of your duties as a Correctional Service Worker. Regular attendance of all employees is essential for Alberta Solicitor General and Public Security to meet its goal and objectives of service delivery, productivity, and cost effectiveness. Attendance at work is the first expectation of employment and is the responsibility of the employee. Employees are expected to attend work when they are scheduled and in a timely manner. I have reviewed your overall attendance and specifically your attendance records between November 29, 2004 and the present date. The following results have been confirmed with the IMAGIS payroll system: [Editor's note: The table of overall attendance, could not be reproduced online. Please contact Quicklaw Customer Service at 1-800-387-0899 or firstname.lastname@example.com and request the following document: 08aga035Table.pdf.] The legitimacy of your absences is not being questioned, and we will continue to work with you to improve your attendance. In accordance with the Master Agreement (Article 33.01), you are reminded that a proper medical certificate is required to support absences due to illness. We have arranged a medical consultation for you with Dr. Brij Sood, the government's Medical Consultant, on Wednesday, August 17, 2005 at 1:30 p.m. at #130, 4411 - 16 Avenue, NW, Calgary. It is our expectation that you improve your attendance immediately, as your employment is in jeopardy. We will continue to monitor your attendance and we will meet with you to review these results by October 15, 2005. This correspondence is non-disciplinary and confirms your attendance record. 59 Mr. Brophy says the letter is significant in that it required medical slips, some of which they had not been getting, it warned Mr. Gregoire again that his employment was in jeopardy, and it referred him to Dr. Sood for further examination as described below. 60 Asked about Mr. Gregoire's reluctance to obtain assistance, Mr. Brophy said that, when he reminded Mr. Gregoire that services were available if need be, Mr. Gregoire turned it into a confrontation, asking Mr. Brophy if "he was saying there is something wrong with me." Mr. Brophy did not meet further with Mr. Gregoire after this letter of August 5, 2005. 61 Mr. Gregoire denies he was ever referred to any form of employee assistance or offered any form of help beyond the letter he received and the referrals to Dr. Fischer and Dr. Sood. 62 The arrangement following the August 5th meeting was that there would be a follow-up meeting on October 15th. Mr. Jackson says no such meeting was ever held. Dr. Sood's Examination An appointment was set for Dr. Gregoire to see Dr. Brij K. Sood in Calgary on August 17, 2005. The requisition letter asked for Dr. Sood's opinion on: * Whether Mr. Gregoire was able to perform CSWII duties on a regular and sustained basis? * What restriction or limitation if any would he have? * What is the prognosis for the future concerning his regular attendance at the Centre? * Is any treatment regime required for Mr. Gregoire to function fully in the CSWII position? 63 A position description was sent with the letter. Dr. Sood and Mr. Gregoire each testified about their meeting. The Union accepted Dr. Sood's qualifications. 64 Dr. Sood described examining Mr. Gregoire by "sitting him down and asking all kinds of questions." He says Mr. Gregoire told him all went well from 1997 to 2000 but after that he was harassed by management and they were trying to set him up. Dr. Sood says he did not seek details of this because, he explained, "you only get one side of the story." He took Mr. Gregoire's blood pressure which was normal. He says Mr. Gregoire told him his last time off work was due to psychological problems due to harassment. 65 Dr. Sood concluded from their discussion that Mr. Gregoire was fit for work. He saw no underlying psychological issues, no history of alcohol abuse or gambling. He felt that Mr. Gregoire enjoyed working with youth and that other staff were supportive over his dealings with the youth. His problem was a clash of personalities that affected his dealings with management. This, Dr. Sood felt, could be sorted out by sitting down and talking things through, or by counseling, or by some third party intervention. He found Mr. Gregoire freely shared information. He did not inquire into any other physician's diagnosis and, since he saw no medical issues, saw no need to consult with Mr. Gregoire's physician. He told Mr. Gregoire he found him fit for work. In his view, the reference to "psychological issues" just meant Mr. Gregoire was getting upset and was then unable to concentrate afterwards. Dr. Sood concedes that he probably did not ask about prior medication since his notes show no such question. 66 Mr. Gregoire agreed with Dr. Sood's comment that the examination was more like a visit between old friends. He says Dr. Sood did not ask to consult his doctor and did not ask about medications. He was unsure if Dr. Sood asked whether there were any medical reasons for his absences. Mr. Gregoire estimates the interview at 7-10 minutes while Dr. Sood says it was about 30 minutes. Mr. Gregoire agrees he never discussed or disclosed anything about depression with Dr. Sood. 67 Dr. Sood's opinion is set out in his letter to the employer, which reads: This Correctional Officer came to see me on August 17, 2005. He had been referred to me because of poor attendance which had not improved in spite being warned about it. I had a long discussion about his work environment and work ethics. He has been with his department since 1989. He was an Addiction Counsellor for seven years and enjoys his work with the kids at the Correctional Centre. There are no issues related to his health which could prevent him from attending to his duties regularly and in an appropriate fashion as a Correctional Officer. I am of the opinion that there were problems between him and the management which could be resolved by counseling and arbitration etc. 68 Mr. Gregoire says management never discussed the results of Dr. Sood's report with him or followed it up in any way. He just got the opinion in his mailbox. Grieving the August 5th Letter 69 Mr. Gregoire and Mr. Jackson each described the fact that Mr. Gregoire grieved the August 5th letter, seeking a ruling that it was disciplinary and without just cause. The grievance was heard at level 1 in Calgary, and Mr. Jackson was present to represent Mr. Gregoire's interests at the time. Mr. Jackson also became involved in a second level 1 grievance concerning Mr. Gregoire's concern over a recent performance appraisal. 70 The August 5th letter grievance was heard at level 2 on November 10, 2005 in Edmonton by Mr. Neil Warner, Executive Director of the Community Correction and Release Program. Mr. Mason and someone else from H.R. was present. This date, as events unfolded, proved to be 5 days before Mr. Gregoire's termination; the meeting was on a Wednesday and the termination the next Monday. 71 Mr. Jackson says Mr. Gregoire was never told by management directly, while he was representing him, that his employment was in jeopardy. Indeed, at the level 2 grievance hearing he was specifically seeking assurances that he was not being warned in any disciplinary sense. He also says, between August 5th when the letter was received and the November termination, he was never told that Mr. Gregoire's attendance, during that period of time, was a problem. 72 Mr. Gregoire says he came away from the level 2 grievance meeting somewhat calmed and relieved. No decision was given at the time, but there was apparently some discussion and Mr. Gregoire believed matters went well. 73 Mr. Warner's written response to the grievance was sent on November 29, 2005, 14 days after Mr. Gregoire's termination. It read: This letter is in response to your Level 2 grievance hearing on November 10, 2005 regarding the Attendance Review letter you received on August 5, 2005. I have carefully reviewed the information presented by yourself and your Union Steward, Tim Jackson. It is my opinion, in light of the information presented at the grievance hearing and my subsequent review that the intent of the letter was to make you aware of the Calgary Young Offender Centre's concerns and actions with respect to your absences as well as their ongoing efforts to assist you in meeting the Centre attendance expectations. I am unable to find that there has been a violation or misapplication of the Collective Agreement. Therefore, I hereby deny your grievance. 74 The Employer objected that this letter was only issued after the termination, and questioned its relevance. The Union is prepared to accept that Mr. Gregoire has no right to challenge a level 2 reply in a matter of this nature and that, as a decision on the grievance, it is final and binding. It is prepared to rely on the letter as a firm indication that the August 5th letter was not a disciplinary warning letter. Inferentially, they take from the letter that Mr. Gregoire's employment was not, as of August 5th, in imminent jeopardy. Obviously, the letter was not disciplinary. However, we cannot view it as indicative of any reduction in the Employer's long voiced concerns about Mr. Gregoire's attendance record. The Decision to Terminate 75 Mr. Vorsterman testified that, at the point at which the decision to terminate was made, he knew the number of days Mr. Gregoire had been off in the 2001-2005 period. He had two medical assessments as to why Mr. Gregoire couldn't meet the attendance expectations of a youth worker. Beyond that, he had no notes from any expert saying he was off work for medical reasons. His conclusion was that, no matter what intervention they tried, Mr. Gregoire's attendance was not going to improve. In deciding on termination, he considered the degree to which his attendance exceeded the centre's norms. He considered at least 3 letters to Mr. Gregoire expressing concern about his absences. He considered the fact that there was no indication from the medical people as to why he could not do the job. Finally, he considered the importance of attendance for this job and the impact his absences were continuing to have on the centre. He felt, considering all this, that the criteria for approving termination, set out in the department's attendance management policy, had been met. He consulted with Mr. Kevin O'Brien and human resources officials and then issued the termination letter that had been drafted for his signature. 76 Mr. Vorsterman was questioned on why the decision to terminate was made on November 15, 2005. He conceded there was no particular culminating incident at that point. He says he had put in a request, sometime in October, because in his view the situation was beyond resolution, as the attendance problems were escalating. He was in Saskatoon on the weekend of November 11, 2005. The letter was being prepared for him with a view to his giving it to Mr. Gregoire on the next Tuesday (since Mr. Gregoire was not scheduled to work on the Monday). Prior to this, Mr. Vorsterman had never personally warned Mr. Gregoire that his employment was in jeopardy nor had he personally counseled him on the issue, although he believed others had. 77 Mr. Vorsterman conceded that Mr. Gregoire and his Union steward had suggested that his attendance problem might be caused by stress or harassment from his supervisor, but says "I didn't assume that to be true." The only other person who raised this was Cheryl Beck, saying that Dr. Fisher had made some comments to that effect. He concedes that, over the last few years of his employment, Mr. Gregoire had been under stress, but, in his view, this was due to his failing to perform at the required level for a CSW2. 78 His recollection is that the suggestion that Mr. Gregoire was the subject of harassment had been brought to his attention 5-10 times over the years. When Mr. Gregoire's steward promised to send him specifics, he viewed the issues sent as supervisory in nature, and the allegations quite non-specific. 79 At first he said he was not sure why the medical board was not done. However, he then said he chose instead to rely upon the reviews by Dr. Fisher in 2003 and Dr. Sood in 2005. 80 It was put to Mr. Vorsterman that the guidelines under the Correctional Services Attendance Management Policy (Ex. 15) suggested that a medical board review should be used "to determine fitness for work and/or prognosis for future attendance." Mr. Vorsterman's view was that the policy in question applied to the Adult Facilities division and not to the Youth Branch. There was nothing similar, he said, in the youth branch manual. 81 Mr. Vorsterman's evidence is that he never received any information that Mr. Gregoire was depressed, and had no other information to suggest he suffered from any mental health conditions. Asked if he ever received a request for accommodation from any source he replied "I don't believe so." There was some discussion during the time of Mr. Gregoire wishing to attend a facility in Fiji using leave without pay. He was granted leave for that purpose. He recalled nothing beyond that. The Termination 82 Mr. Gregoire and Ms. Diana Brown each described the events of November 15, 2005 when Mr. Gregoire was dismissed. Mr. Gregoire recalls going to work at 6:45 a.m. that morning and having the usual shift change discussion in the staff lounge. He then went to his unit and, with his partner, performed the count and completed other early morning duties. At 5 or 10 minutes to 8:00 a.m. Mr. Brophy came to the unit and told him there was a meeting in the boardroom he needed to attend. Mr. Gregoire says he asked if it was disciplinary and whether he would need a shop steward. Mr. Brophy replied that a shop steward would be provided. He did not reveal the purpose of the meeting, but Mr. Gregoire understood it to be disciplinary once he was told a shop steward would be present. Mr. Gregoire says he walked into the boardroom and found Ms. Brown sitting there. He says they just had time to look at each other and ask if the other knew what this was all about, which neither did. Then, shortly after Mr. Brophy and Mr. Vorsterman entered the room and sat down. 83 Mr. Vorsterman had a tape recorder which he put on the table, following which he read out the termination letter reproduced at the beginning of this award. That done, and without questions from either side, Mr. Vorsterman told Mr. Gregoire that Mr. Brophy would escort Mr. Gregoire to his locker room and then out of the building. 84 Mr. Brophy proceeded to escort Mr. Gregoire, along with Ms. Brown, to the front door. Mr. Gregoire says, at that point, Mr. Brophy told Ms. Brown to return to her unit as they were two staff down. Mr. Gregoire went home, told his partner the news, and then drove to the Union office. 85 Ms. Brown is one of three Union shop stewards at the centre. She recalls arriving at work that morning and being met on her way in by Kevin Brophy. He told her to go into the Administration Building and sit in the boardroom. When she asked why he replied "to meet with somebody." Once in the boardroom, when Mr. Brophy came in initially she asked who she was to be meeting with and Mr. Brophy said Mr. Vorsterman will tell you. After about 5 minutes Mr. Gregoire arrived. They spoke very briefly; for about 30 seconds. Mr. Brophy came in and said they would be meeting with Mr. Vorsterman. Mr. Vorsterman came in and read the letter, told them it would take effect immediately, and that Mr. Gregoire would be escorted out. At no time, before or after reading the letter, did Ms. Brown have an opportunity to consult with Mr. Gregoire. 86 After Mr. Brophy escorted Mr. Gregoire out of the building Ms. Brown said she told Mr. Brophy she wanted to invoke her rights under the collective agreement to investigate this grievance and to leave work to do so. She said Mr. Brophy replied that she must report for her duties and that she was not being given permission to leave the building. She says she walked to her unit and was upset to the point where two supervisors asked why she was upset and crying. They took her in to the office and she told them she wanted to leave. They called her husband and she went to speak to the manager. The manager gave her permission to leave by taking one of her leave days, but not to investigate the grievance. When she left, Ms. Brown went straight to the Union office where she met with Mr. Gregoire and Union Representative Doug Gamble. 87 Ms. Brown's evidence is that, at the time, she was a level II steward. She was not a Union Representative. While she had some experience, she had never before dealt with a termination, either culpable or non-culpable. She says she felt out of her depth and, had Mr. Gregoire asked her in advance to represent him, her response would have been to contact Union Representative Doug Gamble. She had never represented Mr. Gregoire before, nor had he ever asked that she do so. 88 Ms. Brown agrees that all that happened in the meeting was that the pre-prepared letter was read to Mr. Gregoire and that she was there to witness that event. Neither she nor Mr. Gregoire asked that this stop until they had had time to consult. She had no indication that this was to be a termination until Mr. Vorsterman reached that point in the letter. 89 Mr. Brophy says he was called by Mr. Vorsterman to set up the meeting in which Mr. Gregoire was terminated. He says he told Mr. Gregoire of the meeting and was asked if it was disciplinary, to which he replied "yes, I've arranged for a Union steward for you." He arranged for a temporary employee to replace Mr. Gregoire on the floor and asked Diane Brown to attend in the boardroom for the meeting. Asked whether he allowed Mr. Gregoire to meet with Ms. Brown in her capacity as Union representative, Mr. Brophy said he could have done since she went up to the boardroom and sat waiting for Mr. Gregoire to arrive. The meeting began by Mr. Vorsterman reading the letter of dismissal. 90 Mr. Vorsterman's evidence is that he decided to meet with Mr. Gregoire on November 15, several days in advance. Arrangements were made to have the termination letter written for him and available. He agrees Mr. Gregoire was given no notice of the intended meeting until he was told by his shift manager early in the morning on the 15th that he was required to meet with Mr. Vorsterman. The meeting took place at 7:40 a.m. Mr. Vorsterman does not know what Mr. Gregoire was told other than that he was to meet with him. Asked if he was given time to arrange for a Union representative, Mr. Vorsterman says "he was basically asked to choose one of the stewards on site." He recalls that Dianna Brown was the steward on site and perhaps the only one, but does not know who asked her into the meeting. Mr. Vorsterman agrees that he knew at the time he needed a Union steward as "that is what one does." He says he simply read Mr. Gregoire the letter and then asked him if he had any questions. 91 He did not ask him specifically at that time if there are any medical reasons why his attendance was the way it was. He saw the meeting as the end of a process caused by Mr. Gregoire's cumulative absences. Mr. Gregoire's comment, to his steward at the end of the meeting, was "don't worry about this - it will just be part of the package." After he had read the letter, Mr. Gregoire was escorted to his locker and then escorted off site and steward Dianna Brown was sent back to work. 92 Mr. Vorsterman's concedes that he made the deliberate decision not to tell Mr. Gregoire in advance of the time and place of the interview. He said he was afraid that, if told in advance, Mr. Gregoire would have booked off work. The purpose of the meeting was simply to advise him that he had been terminated; it was a decision that had already been made needing no further investigation. 93 Mr. O'Brien, in Edmonton, was privy to the logistics of Mr. Gregoire's termination. He says plans were being developed towards that possibility as much as two months before the event. The actual letter of termination was being drawn up by the lawyers and H.R. consultants as much as a week before the event. He testified that they do not tell employees in advance they are going to be terminated because they would "book off sick and we would never see them again." He thought Mr. Gregoire would be told to meet with the Centre director over a disciplinary issue and to bring a Union steward. He saw no need to tell the employee the purpose of the meeting. He said he did not differentiate between a steward and a Union Representative. When asked if it made a difference if Mr. Vorsterman selected the steward he said he "would not have a problem with that." Clearly Mr. O'Brien knew that Mr. Gregoire was going to be terminated on the Monday morning several days before it happened. He acknowledged that he had seen Mr. Gregoire in Edmonton on November 10th at the time of his grievance meeting before Mr. Warner. Mr. Jackson was not called, despite his prior representation of Mr. Gregoire, when Mr. Gregoire as terminated. History of Representation Issues 94 Mr. Doug Gamble is AUPE's s designated staff representative for this bargaining group. He described the Calgary Young Offenders Centre as "a difficult place to work", and says he had had other people come to him in situations similar to Mr. Gregoire's. 95 He says the question of management's practice of itself selecting union representatives has been raised in most disciplinary actions from the Centre that he has been involved in, although practices have changed somewhat over the last couple of months following discussions with Mr. Mason on this topic. He contrasted the Centre's practice with that at Calgary Community Corrections where they phone him 5 days in advance of discipline so that he can block off the time to attend. His feeling is that the frontline managers at the Centre "felt they could drag in any steward they choose" and that he has raised this as a concern in every case in which he has been involved. He agreed it had been a past practice but says the Union gave a formal notice that it was a practice that should stop. Mr. Gamble's view is that the right to representation existed not only if it was an interview but if the meeting was going to give rise to any form of discipline or discharge. Arguments on Union Representation 96 These facts, in the context of Article 28 and the parties position's have the potential to raise the following issues: 1. Does the meeting, where Mr. Gregoire was terminated, fall within the scope of Article 28.02? That is was he "... to be interviewed with respect to disciplinary action as referred to in Clause 28.01? In particular: (a) Was this an interview? (b) Was this in respect to disciplinary action, given the termination is alleged to be for non-culpable absenteeism? 2. If 28.02 applied, was it adequate compliance with 28.02 for the Employer to select and arrange to have present a union steward? If not: (a) Is the employee entitled to select the steward, or instead to select a union representative; (b) Is the employee entitled to advance notice of the meeting, or of the meeting and its purpose, in order to enable them to select a steward or union representative? 3. What is the consequence, if any, for the disciplinary action, if the provision of Article 28.02 is breached. That is, is the decision void ab initio, voidable in appropriate circumstances, or otherwise affected by any such breach? 97 The parties referred us to several authorities on the issue of an employee's right to union representation. Brown and Beatty, Canadian Labour Arbitration, 7:2130 Union Representation Re Alberta (Department of Recreation and Parks) and AUPE (1989) 5 L.A.C. (4th) 420 (Beattie) University of Calgary v. Alberta Union of Provincial Employees (Cheltenham Grievance) [2004] A.G.A.A. No. 28 (Smith Q.C.) Network North and O.P.S.E.U. Local 666 (1998) 72 L.A.C. (4th) 61 (Burkett) The Government of the Province of Alberta and Alberta Union of Provincial Employees (Howie) (1995) (unreported decision, June 12, 1995, Moreau) The Government of the Province of Alberta and Alberta Union of Provincial Employees (Cordingley-Wagner) (2006) (unreported decision, November 24, 2006, Hornung Q.C.) 98 In addition, we have considered cases cited within those decisions including: Re Medis Health and Pharmaceutical Services v. Teamsters, 100 L.A.C. (4th) 178 (Satar) Re Greyhound Lines of Canada Ltd. and Amalgamated Transit Union Local 1374, 22 L.A.C. (4th) 291 (McFetridge) Re Canadian National Railway Co. and B.L.E. (1993) 35 L.A.C. (4th) 88 (M.E. Picher) 99 Brown and Beatty summarize the extensive case law on this issue as follows: One of the most important ways that collective agreements shape the structure of the disciplinary process is by guaranteeing that employees will be able to call on their unions for help when faced with the threat of discipline. Representing employees during disciplinary meetings, interviews, etc., has always been seen as a fundamental, substantive right flowing from the union's statutory designation as the exclusive representative of all employees covered by the agreement in all of their dealings over terms and conditions of employment with the employer, including last-chance agreements. The expectation is that, with their experience, union representatives can improve the disciplinary process and make it more balanced by giving employees counsel and advice, and by directing the employer's attention to matters that it might otherwise fail to consider. Precisely who is entitled to what kind of representation, at what point in the disciplinary process, varies with the terms of each collective agreement and the facts of each case. (emphasis added) Typically collective agreements limit the employee's right to the assistance of a union representative to situations in which matters of discipline are at stake. For the most part, arbitrators have interpreted such provisions liberally to include meetings at which there is a reasonable possibility of disciplinary action being taken, or where the employee may inculpate himself or herself in some way, as well as those situations in which discipline is actually imposed. ... On the other hand, arbitrators have ruled that unless an agreement provides to the contrary, representation rights are not applicable to investigations that are still at the fact-finding stage, to informal meetings initiated by the grievor to give his or her version of events, to random searches of employees, to general staff meetings concerned with broad policy questions, to meetings concerning the accommodation of injured workers or to sessions with non-managerial personnel. In addition, some arbitrators have held that an employee's rights to union representation do not apply when non-disciplinary sanctions and terminations are at stake. ... Unless the collective agreement provides otherwise, it is generally assumed that all employees, including probationers, are entitled to whatever representation rights are guaranteed. ... Arbitrators have also said employees must also be given a reasonable opportunity to contact a representative, and in many cases have found that an employer has an obligation to notify the employee of whatever rights of representation the agreement provides. Many arbitrators have likened the role of a union representative to that of an advocate with all the corresponding rights of participation implied. On this standard, it has been held that the right to union representation is not satisfied by having a representative by the employer's side when it discharges an employee over the phone, or by a chance meeting with a union official, or by allowing employees to contact their union representatives after the time they were entitled to assistance had passed. ... 100 We begin with two cases dealing with this identical clause. 101 In Arbitrator Beattie's 1989 A.U.P.E. decision the grievor had been interviewed by management over a car starter, purchased for private use with a government purchase order. The managers involved were suspicious. Prior to the interview, they had prepared a letter suspending the grievor pending further investigation, which they intended to give him if they found his answers unsatisfactory. He was subsequently terminated. He had no representation, nor notice of any right to representation, at the initial meeting. 102 The Union argued that the subsequent dismissal was a nullity on the basis that the obligations in Article 28.02 was mandatory and had not been met. On this, the Arbitrator said at p. 434: The characterization of this article as "mandatory" or "directory" is a difficult one, because of the wording. The issue was reviewed by the board in Re Cascade Construction Ltd. and C.J.A., Local Union No. 2410 (1986), 26 L.A.C. (3d) 108 (Beattie). The board stated at pp. 126-7: (1) On the one hand, the right to union representation at the time of discharge has been, almost without exception, held to be a substantive and mandatory right. Treated in the same manner is the requirement that the employer shall advise the employee of his right to have union representation at the time of discharge. The reasoning is well stated by the board in the Toronto Western Hospital award, supra, at pp. 197-8: "Arbitrators have shown consistent respect for provisions in a collective agreement which give to the employee the right to union representation, whether through the presence of a steward or otherwise, when discipline is imposed. Absent express language in the collective agreement to suggest that such requirements are merely directory, most arbitrators view such provisions as granting a substantive right which is intrinsic to the employee's very ability to avail himself or herself of the protections of the grievance procedure contained in the collective agreement." Awards which are based on this approach and in which the discipline was held to be nugatory are: Re Calgary Public Library and C.U.P.E., Local 116 (1978), 19 L.A.C. (2d) 230 (Mason) Alberta; Field Aviation Co. Ltd. and Int'l Assoc. of Machinists & Aerospace Workers, Local Lodge 2583 (1983), unreported (Anderson) Alberta; Re Metropolitan Transit Com'n of Halifax, Dartmouth & Municipality of County of Halifax and Amalgamated Transit Union, Local 508 (1985), 20 L.A.C. (3d) 203 (Darby) Nova Scotia; Re Clarke Institute of Psychiatry and Ontario Nurses' Assoc. (1985), 20 L.A.C. (3d) 193 (Knopf) Ontario; Re Saville Food Products Inc. and United Food & Commercial Workers, Local 1105-P (1985), 20 L.A.C. (3d) 114 (Brandt) Ontario ... As was observed in the Saville Food Products case, supra, at p. 122: "It is conceivable that such presence could have made a difference and could have altered the company's view" and "that the interests of the grievor would have been very well served by the presence of the steward at the time of the meeting". Although we endorse the rationale of the above cases, and are inclined to the view that the provisions of art. 28.02 are mandatory, we are reluctant to categorically characterize such articles, particularly where there is no sanction for a failure to comply (e.g., deemed null and void) which does not exist in this article. We also are mindful of the "purposive" approach which is gaining wider recognition, particularly in Ontario: see an extensive review of the subject in Archer Memorial Hospital (Lamont, Alberta) and U.N.A., Loc. 29 (Alberta, 1988, unreported (Beattie)) in which the factors to be considered are "reasonable grounds" for and "substantial prejudice" resulting from, the non-compliance. The observation of arbitrator Brent at p. 381 of Re St. Joseph's Hospital, Guelph and O.N.A. (1984), 15 L.A.C. (3d) 376 (Brent) (Ontario), is fitting: Arbitrators should be wary of making categorical statements in decisions of this sort lest they return to haunt them in the context of a situation which clearly calls out for relief from a rigorous application of the time-limits or which clearly dictates that no such relief should be given. The difficulty in categorically characterizing the provisions of art. 28.02 as "mandatory" is that, as distinct from articles which have been interpreted in other cases, there is no express obligation on the employer to advise the employee of his right to have a steward present. It is, therefore, incumbent on the employee to make the decision, once he determines that an interview is "with respect to disciplinary action as referred to in 28.01" (which includes suspension and dismissal). In this case the grievor was called in for an "interview" about the incident, and probably had no way of knowing whether disciplinary action might be taken until, at the conclusion of the meeting, he was given notice of a suspension with pay "pending an investigation". If that is discipline (discussed hereinafter), and he had, at any point, requested that a union representative or union steward be present, he should have been entitled to that representation. 103 Thus, Arbitrator Beattie appears to have held that the clause is not totally mandatory, but that a mandatory obligation to allow representation arose once the grievor asked for that representation. 104 The Employer in that case then argued that while this was "an interview" its purpose was not "disciplinary". The arbitrator held at p. 436 that "the suspension of the grievor, with pay, is not disciplinary." He also held that, had it been disciplinary, and if the grievor was not properly informed of his rights, or was not accorded the benefit of union representation, the Union had in any event waived any objections by failing to raise them in a timely way. 105 Arbitrator Moreau's Howie decision, from 1995, involved these same parties and the same department; the grievor there was a correction officer at the Calgary Correction Centre. The grievor was arrested for several off-duty criminal offences and denied bail. While in custody, his acting Director met him in the cells and gave him a letter saying that he was suspended from duty without pay. The grievor took the letter but did not open it until a few days later. The Union took the position, in arbitration, that the grievor's discipline was null and void because he was not given notice and afforded representation as required by s. 28.02 of the collective agreement. 106 The Union provided the arbitrator there with a long list of authorities on union representation which, as the arbitrator noted, involved a wide variety of contractual commitments. The arbitrator ruled that, in those circumstances, no interview was requested, and that no obligation to notify the employee arose. The decision on this point reads as follows: ... [this collective agreement] does not require the Employer to conduct an interview. The wording of Article 28.02 is prospective in the sense that it is only when an interview is requested that the grievor has the right to arrange for the presence of a Union Steward. The question is then whether the meeting at the Calgary Remand Centre on September 30, 1994 is an interview within the meaning of Article 28.02. Article 28.02 states that the grievor has a right to know the time and place of a disciplinary interview in order that the grievor, if he or she desires, may arrange to be accompanied by a Union Steward. The Union claims that the Grievor was never told in advance of the September 30, 1994 meeting that he was to be disciplined and that he had the right to secure the attendance of a Union Steward. The evidence of the Grievor was that he was taken to the Calgary Remand Centre, told he was suspended, and then handed the letter of suspension. He apparently was not asked any questions about the incidents nor is there evidence that he volunteered any comments about the charges. He was simply told that he was under suspension pending further investigation. This meeting of September 30, 1994 does not, in my mind, amount to an interview within the meaning of Article 28. There is no evidence that the Employer initiated the kind of contact that one would objectively characterize as an interview. An interview is a formal meeting set up to gain information. (emphasis added) The encounter of September 30, 1994 did not result in any new information being exchanged. For example, the encounter of September 30, 1994 did not involve a point-by-point review of the charges, nor any discussion of either side's version of events leading up to the discipline, nor any substantive dialogue over the incidents themselves. The only feature of this meeting that resembles an interview is the fact that the Grievor met face to face with the Employer. At the meeting, he was simply told of the discipline and handed a sealed letter which he stated remained unopened for some time after he was told of his suspension. The September 30, 1994 encounter therefore does not amount to an "interview" within the meaning of Article 28.02. 107 The Employer here argues that what took place on November 15th fell within the reasoning of Arbitrator Moreau's 1995 decision in the Howie case. The Union takes issue with that proposition and argues that it was set up as and in fact was an interview. In our view what categorizes the event as an interview depends on the objective circumstances, not on what management representatives thought at the time they had to do, or on their views on how they should carry that out. Neither Mr. Vorsterman nor Mr. Brophy demonstrated any clear understanding of the right to representation. Many cases characterize a face to face meeting where discipline is imposed as calling for representation. However, they mostly do so in the context of an express right to representation "at a disciplinary meeting" or "when discipline is to be imposed" or some similar phraseology. The parties to this collective agreement have chosen to use the term "interview." Arbitrator Moreau, in the 1985 Howie decision, provided an interpretation of that term for these parties, in a grievance arising from this department. The parties have been free to, but have chosen not to, modify their chosen language in bargaining subsequent to that decision. As Brown and Beatty noted in the extract quoted above, "precisely who is entitled to what kind of representation, at that point in the disciplinary process, varies with the terms of each collective agreement..." Statements concerning the importance of representational rights, and the liberal interpretation to be given to them, must be read in light of the choices the parties have made contractually as to the specific aspects of representation. 108 While we might not have reached the same conclusion as arbitrator Moreau on the scope of the term interview, we think that the fact the clause has remained unchanged since entitles that award to considerable respect. 109 A recent appellate decision from Ontario, upholding the voiding of discipline imposed in contravention of a right to representation, took the same view. [21] In interpreting the agreement, where there has been a consensus developed with respect to a particular issue, we are of the view that it is relevant to consider prior decisions as forming part of the context in which this agreement was negotiated. In such circumstances, it is reasonable to draw the conclusion that a similar disposition of the issue was intended by the parties: see Brown and Beatty, Canadian Labour Arbitration, (4th) at para. 1:3200 Ontario Liquor Control Board v. O.P.S.E.U. Liquor Board Employees Division [2007] Can. L11 7995 (Ont. S.C.D.C.) 110 On the facts here we are satisfied that the decision to terminate Mr. Gregoire on November 15th had been finally made before the meeting was called. The meeting was arranged to deliver him a fait accompli and to have that delivery witnessed. There was no intent to solicit information or to consider any answers or mitigating circumstances Mr. Gregoire might raise. As in Howie, the only aspect of the event that might make it look like an interview is that it was face to face. However, all that happened is he was told he was fired, and why, and he was escorted off the premises. 111 We note that the arguments raised by the Union about Mr. Gregoire's representation are based on his contractual rights rather than any alleged statutory right to representation. This is perhaps because Mr. Gregoire was in fact represented, although (the Union argued) in a way that denied him the scope and choice of representation called for under the Union's interpretation of the collective agreement. We note also that neither Mr. Gregoire nor Ms. Brown expressly asked for any delay to obtain further representation. We make these points because certain of the cases cited to us turn on such points and we do not wish to be seen as ignoring or disagreeing with those authorities. 112 Although we find this case falls within the reach of Arbitrator Moreau's decision, we do find it unfortunate that the managers involved were less familiar then they should have been with the collective agreement's requirements over representation. Situations can easily develop that turn them from a simple meeting to deliver a fait accompli into a more significant exchange going beyond the limits of Arbitrator Moreau's ruling. It is not unusual for persons in such situations to say things in anger or that are inculpatory. It is not unusual, despite initial intentions, for a dialog to develop over the circumstances surrounding the decision. Our concern is that an event could easily, and without it being intended, move from mere delivery into an interview where representation, initially thought unnecessary, becomes necessary. However, that is not the case here and we find the right to Union representation, as described in Article 12.02, and as defined in Howie, was not triggered and was therefore not violated. 113 Given our conclusion on this point, we do not have to deal in detail with the balance of the arguments on representation, although we would note the following to provide some guidance for the future. Point 1(b); the suggestion that representation is only necessary for culpable conduct and not for non-culpable circumstances strikes us as an overly restrictive reading of the contract's provisions. We note that a similar argument was raised before the Supreme Court of Canada in Lethbridge College v. AUPE [2004] 1 S.C.R. 727 in respect to the scope of an arbitrator's remedial authority under s. 142(2) of the Labour Relations Code. The Court rejected a narrow interpretation of that section based on the culpable - non-culpable distinction and we would be inclined to take the same view here. 114 In respect to Points 2(a) and (b), we believe the case law supports the proposition that, when representation is required because an interview is being conducted, then it is the employee's choice of representation not the employers, and employees are entitled to sufficient notice to obtain that representation for themselves. We note Arbitrator McFetridge's analysis in Greyhound Lines (supra), which followed Arbitrator Beattie's AUPE (Parks and Recreation) (supra) decision quoted above. More particularly, we note the comments of Arbitrator Hornung in AUPE (Cordingley-Wagner) (supra) at page 13: Article 28.02 requires that an employee who is "to be interviewed with respect to disciplinary action" as referred to in clause 28.01 shall: "be notified of the time and place of the interview and if desired by the employee may arrange to be accompanied by a Union Representative ..." The Employer does not satisfy that section by simply advising the employee that a meeting will be held. Where the purpose of the meeting is to obtain admissions of culpability or exculpatory information that will be taken into account in making a determination of whether or not disciplinary action should be taken, the Employer owes a duty, in order to comply with the meaning and intent of Article 28.02, of advising the employee that the purpose of the meeting is for investigation of a possible disciplinary matter. If it were to be otherwise there would be no reason to have the continued the sentence which follows in Article 28.02. That portion of the Article requires: When a Union Steward requires time off from work to accompany an employee to an interview pursuant to this clause, the Union must obtain prior approval from his employing department to be absent from work ... Here the Grievor was given no indication that discipline was to be contemplated or that she was to be interviewed with respect to conduct which might be subject to disciplinary action. In order to comply with Article 28.02 as the article intends, the Employer must advise the employee, at a minimum, of the purposes of the interview so that the balance of Article 28.02 can be complied with. ... To simply ask an employee to attend for an investigative meeting that could result in disciplinary action, without advising of the purposes of that meeting, makes it impossible for the employee, and the Union, to comply with the provisions of Article 28.02 and provide the necessary assistance to an employee which was bargained for in the Agreement. 115 On Point 3, we heard significant argument on the "null and void" versus "voidable as a breach of a substantive collective agreement right" debate. We do not need to canvas that debate here, but we note the contrast between the recent line of Alberta arbitration cases following a long established approach adopted in Ontario and elsewhere, and the Alberta Court of Appeal's decision in UFCW Local 401 v. Canada Safeway Ltd. (Alta. C.A.) [1989] A.J. No. 142 (per McClung J.A. for the majority, Stevenson J.A. dissenting) 116 The Court's approach differ from that recently upheld by the Ontario Court of Appeal in the Ontario Liquor Control Board case (supra). Mr. Gregoire's Absence Levels 117 Mr. Mason spoke generally about the Department's Attendance Management Strategy and about the Government and Department's recordkeeping over absences. Mr. Mason testified that, when he reviewed the file prior to the termination, it was evident to him that Mr. Gregoire's level of absence was significantly in excess of what he understood to be the departmental averages, in the final year involving as much as four times the number of days off experienced on average. Mr. Mason described absences among correctional workers as being customarily higher than those for other employees in the government. This, he says, is a phenomena experienced throughout the world in countries with similar correctional systems, presumably due to the stress levels and other working conditions inherent in dealing with incarcerated persons. The rate of absenteeism is somewhat higher yet in adult correctional facilities and remand centres than in juvenile facilities, but both significantly exceed the government average. Mr. Mason estimated these averages as about 15-18 days for young offender centres and as high as 22 days for adult facilities. Mr. Gregoire's absences in 2005, by Mr. Mason's calculation, had reached 78 days up to November 15th. 118 Mr. Mason's calculations, prepared for the hearing, do not fit exactly with those set out in the letter of termination. He produced a series of reports from the department's computer system that detailed each day's work requirements and the reasons recorded for Mr. Gregoire's absence on each day, running from 2001 to the date of termination. 119 The government has one service wide system called "Images" that records payroll and attendance information. However, the department also maintains another, more particular, system that records in more detail the various and often highly specialized shift arrangements used in correctional facilities. The original absentee count was apparently drawn from the Images record whereas Mr. Mason's calculations were based on the department's "Employee Time Management System (ETMS)." Those calculations, in chart form, show the following absences for Mr. Gregoire. [Editor's note: The table of absences for Mr. Gregoire, could not be reproduced online. Please contact Quicklaw Customer Service at 1-800-387-0899 or firstname.lastname@example.com and request the following document: 08aga035Table.pdf.] 120 The Correctional Services Division of the Alberta Solicitor General's Department has a document setting out principles and procedures for management to use in dealing with what it perceives might be attendance management problems. It is designed to deal with what is often called non- culpable or innocent absenteeism, although the border between the two, both in this policy and the law generally, is not always very clear. Using five definitions attributed to the Canadian Attendance Management Guide, it advises managers to investigate past absences and then classify the absence pattern revealed as one of the following: * Frequent absentee * Long duration absence * The pattern absentee * The repetitive absentee * The blameworthy absentee 121 It then asks the manager to determine whether the absences are innocent or culpable, advising that (on page 11) "If culpable, should be dealt with outside [the] attendance management program." No specific guidance is given to distinguish between the two. The intent of the policy is outlined on page 3: Guidelines Regular attendance of all employees is essential for Correctional Services Division to meet its goals and objectives of service delivery, productivity and cost effectiveness. Regular attendance is the employee's responsibility and shall be considered as part of their standard performance. Correctional Services Division will provide an environment for the supportive management of attendance. Correctional Services Division will address attendance issues with the following principles: * To promote an environment where employees attend work as scheduled. * To ensure that all employees are treated reasonably and consistently with regard to management of their attendance. * To promote attendance at an acceptable level by communicating with employees about their attendance and factors contributing to their absences. As part of the Alberta Government, Correctional Services Division is accountable to the public for our funding and provision of services. Communication about absences can promote early intervention on health issues and an environment of support for the employee. 122 The same document summarizes the procedures to be followed, and the ultimate potential for termination for excessive, but non-culpable, absenteeism, at p. 5: * Managers will assess staff absences against the centre standards of average absences per year. If an individual's absence record differs significantly from the centre standards, the individual's absence record will be evaluated. With significantly high absences, Management will determine the required support necessary to assist the employee in sustaining regular attendance. * Managers will use the Guidelines for attendance management when evaluating individual attendance. * Managers will discuss with Human Resource Services to determine what action can be taken to assist the employee. * The primary action taken under this strategy includes discussions with employees about their attendance and offering management support to assist in improving their attendance. * Discussions should be documented and a copy given to the employee. * Follow these procedures to assist employees in maintaining regular attendance. When excessive absenteeism continues to be of concern, it may result in non- culpable termination of employment. 123 The policy includes a series of template letters that tell employees or concerns, expectations and options in situations where the employer perceives an excessive level of absenteeisms. While the steps in the policy are triggered by attendance levels that fall below averages, Mr. Mason's evidence is that it is not applied where there are known reasons for the absences and where they are unavoidable. He gave, as an example, an employee with kidney failure whose dialysis regime required regular time off. The policy provides for termination once it is determined that, over an extended period of time, there has been a pattern of high absenteeism that has not improved. The Problem Absenteeism Causes for the Centre 124 Mr. Vorsterman has been the Director of the Calgary Youth Development Centre for the last 7 years of his almost 30 year career with the Ministry. He described the difficulties absenteeism causes to the carrying out of the Centre's mandate under the law, and the impact it has on young offenders and upon co-workers. 125 He described the role of the facility and the administration's tasks and responsibilities under the Youth Criminal Justice Act. The Centre's clientele fall into several categories. They receive all young people charged with or convicted of offences under the Criminal Code or under bylaws. He described the way youth are handled from the point of arrest through to trial, sentencing and the administration of sentences. The Provincial Youth and Family Enhancement Act also impacts on what centre staff must do, as to a degree does Provincial legislation covering youth prostitution and substance abuse. 126 Residents of the Centre must usually be at least 12 but not yet have reached their 18th birthdays. However, some young offenders will be on remand or serving youth sentences after their 18th birthdays so may, at times, be as old as 20-22. The average age of males is about 16-16 1/2 years old. Females constitute 15% of the residents and have a lower average age, between 14 1/2 and 15 1/2 years old. The charges that bring them into the system vary in severity from break and enters or failure to comply with probation orders up to violent offences. Ten to 15% of the Centre's population are serving time for 1st or 2nd degree murder. 127 One responsibility of the centre is educational. Most of the residents have academic difficulties, often running three or four years behind the academic levels of their age group at large. Many have difficulties with authority and either use, or are at risk of using, alcohol or illicit drugs. Violence is a problem with a number of children; either they are violent themselves or their background involves a history of violence or sexual abuse towards them. Some have learning disabilities and others mental health issues. Between 15% and 20% have some form of mental health diagnosis so treatment programs and psychiatric care has to be coordinated. A small percentage suffer from fetal alcohol disorder. 128 Mr. Vorsterman described the approach the legislation requires centre's like this to take towards the young offenders over which they have custody. The first and foremost factor is that, because these young people are still maturing, they need to be treated differently than adults. The goal is to rehabilitate the individuals and reintegrate them into the community. For each individual the centre must create a plan setting down what they can do, within the institution, to help with integration. 129 The centre has a director, senior deputy director and a total of 108.5 full-time equivalent staff positions plus 165 contract positions or support staff affiliated with the Calgary Board of Education. There are 25 wage employees used to fill in for permanent staff during absences. The centre uses a three shift system, 365 days per year, 24 hours per day. Deputy directors manage each shift, with 18 employees reporting to them, distributed between the several living units in the facility, one of which is a closed unit. On each shift, 14 youth workers (2 per unit) report to a team leader who reports to one of the deputy directors. There are then three people responsible for security. The youth workers are all classified as CSW 1's or 2's while the security people are Correction Officers 1 or 2. 130 Each young person who passes through the facility is assigned "a key worker." It is a person to whom the young offender can turn and who is responsible for parenting and maintaining the basic living requirements; for example, getting ready for school, housekeeping and grooming etc. This key worker is responsible for the young person's case management reports, liaising with parents and probation officers and so on. The worker's second responsibility is security, watching for things like contraband or security breaches. The third responsibility is for case planning; working with the various individuals involved with the person to develop the place and goals for community reintegration. 131 Continuity and responsibility is important for the young person. If trust is to be developed, each young person must know they have a reliable person to go to who is assigned to them, available, and familiar with their issues, plans and concerns. This helps maintain the young person's links to the community and prevents their feeling, or actually being, lost in the system. It is part of each youth worker's job to maintain responsibility for 2 or 3 individuals in this way on their assigned unit. Their responsibilities apply to a degree even if a youth spends only a brief time in the unit before release. However, all those in custody for over 30 days need a plan, and have a case conference called to deal with their situation, involving all the significant persons involved in the young person's world. The results of such meetings have to be documented and followed up. This is so whether the person stays in custody or is going to be released into the community, in which case planning has to be done for schooling, living arrangements, probation officers and so on. Further documentation is required if the person is brought back for violating the terms of their release. 132 On a day-to-day basis, young persons in custody are assessed, rated on a scale of 1-4 and have their privileges varied as they move up or down that scale. Logs are kept and employees have to pass on information to their successors during each shift change. 133 In the senior units, there are basically two workers per shift, so the relationship between those persons is important in addition to their relationship with the young people they supervise. There is a similar, though less direct, need for a good working relationship between the other two teams who work the contiguous shifts. Consistency of information and approach is needed to prevent the youths playing off one worker against the other. 134 Mr. Vorsterman gave his perspective on the Attendance Management Strategy, describing why attendance is important at the centre level. Within the Calgary Young Offenders Centre, Mr. Kevin Brophy was assigned as the person responsible for the strategy. Each year they take a look at the attendance statistics for all their employees. The head office in Edmonton provides them with an average rate, against which these attendance figures can be checked. Each staff member would be compared to this average, and if they exceeded the average, a number of questions would be asked as to why that was so. If there was a explanation, such as an absence for major surgery, the issue might not be pursued. Otherwise, they would have payroll go back and take a closer look at the individual's record of absenteeism. At this point, Mr. Brophy would sit down with the employee and discuss the employee's perception of the problem with a view to reducing the rate of absenteeism. They would arrange for a review after 3 months to assess progress. If none, they would formalize the process with a letter setting out the concerns and expectations. The employee would be given detailed information on their attendance and might be referred to a government physician or the Employee Assistance Diagnostic Unit to "see if there was something going on." This is because there might be issues in the employee's personal life affecting their attendance that they do not wish to share. Mr. Vorsterman's view is that the attendance management strategy is not disciplinary. 135 The attendance management reviews in Mr. Gregoire's case showed the serious absentee record alluded to above. Mr. Vorsterman described the operational difficulties it created. First, he said, undue absenteeism provides a poor example for the young people in their change. Many have difficulties, for example, in showing up for school or maintaining regular attendance at work. It is difficult to inculcate such values if centre staff fails to demonstrate them in their own working lives. Second, each employee is a key worker for 2 or 3 young people. If this key worker is away, the young person has to rely on a back-up, and such substitution may affect planned activities. This is a particular problem when the worker misses a case conference because the back-up person will have less insight into the young person or else will have to assume extra work to bring themselves up to the necessary level of familiarity. This puts a particular strain on the absent worker's partner on the unit. They have to pick-up too much of the slack, begin to work around their partner and be prepared to step in at all times. Partnership he says "in like a marriage yet you cannot chose your partner." 136 Unpredictable absence also puts a burden on the shift supervisor who has to try to call in a replacement wage employee, often on very short notice. If not, they have to solicit overtime and then pay time and one half and double time. Similarly, and particularly so with persons on some units, the supervisor needs to arrange meetings concerning the young offenders and have to rearrange those meetings when the person's key worker is away. This sometimes prejudices the young person and sometimes causes problems with the statutory requirements for plans to be compiled within specified timeframes. It makes more difficult the scheduling of other involved professionals like psychologists, teachers, unit supervisors, program supervisors and so on. The young person's release may be dependent upon the holding of such meetings and the timely completion of the resulting reports and other documentation. Often these meetings cannot just be adjourned, and the absent worker's partner or the unit supervisor has to fill in, Mr. Vorsterman's evidence is that all these consequences occurred in the case of Mr. Gregoire's absences. 137 Further, absenteeism affects ongoing training. Some of this training is mandatory for the individual to be involved in specialty teams. CPR training is one example, which is necessary to be on the team that handles medical emergencies. Training is often scheduled for Saturday and Sunday mornings, when the young people are allowed to sleep in longer than normal. Failure to attend on weekends is therefore particularly significant for training. 138 Very little of the evidence given by Mr. Gregoire touched on, let alone contradicted, this evidence about the importance regular attendance has for the centre's programs. He demonstrated little insight into the burdens his absences, particularly with little notice, placed on his co-workers, his clients or the administration. 139 We are satisfied on the evidence that Mr. Gregoire's position is one where routine and reliable attendance is a very important aspect of achieving the program's goals and the Centre's legal obligations towards the youth in conflict with the law it is charged with supporting. Management's concern with his inability to achieve reasonable attendance levels must be assessed against this need which is more acute than for other, less critical, positions in the provincial public service. The Employer's Argument 140 The Employer justifies its termination as a non-disciplinary dismissal. The test to be met in such circumstances is set out in the seminal decision in: Re Edith Cavell Private Hospital and Hospital Employees Union (1982) 6 L.A.C. (3d) 229 at 233 (Hope) It is recognized in arbitral jurisprudence that poor job performance can be treated as culpable or non-culpable by the employer. ... We conclude, having regard to the onus imposed upon the employer, that the assertions with respect to poor job performance are non-culpable and the employer must meet the test applicable to a dismissal on that basis. It is not open to an employer alleging a want of job performance to merely castigate the performance of the employee. It is necessary that specifics be provided. An employer who seeks to dismiss an employee for a non-culpable deficiency in job performance must meet certain criteria: (a) The employer must define the level of job performance required. (b) The employer must establish that the standard expected was communicated to the employee. (c) The employer must show it gave reasonable supervision and instruction to the employee and afforded the employee a reasonable opportunity to meet the standard. (d) The employer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that reasonable efforts were made to find alternate employment within the competence of the employee. (e) The employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in dismissal. 141 The Edith Cavell case was recently the subject of comment in the Supreme Court of Canada decision in: Board of Governors of Lethbridge Community College and Alberta Union of Provincial Employees and Sylvia Babin [2004] 1 S.C.R. 727 142 The specific question the Court had to address was whether the remedial jurisdiction for arbitrators set out in s. 142(2) of the Alberta Labour Relations Code was confined to cases of culpable discharge or discipline, or extended to non-culpable allegations of the type dealt with in Edith Cavell. The Court took a broad approach to s. 142(2) and said, at paragraphs 42-45: 42 Further to that point, I note that the categorization of employee conduct as either culpable or non-culpable and the subsequent requirement for cause in either case somewhat obscures the issue before the arbitrator. It has been argued that in cases of non-culpable conduct such as incompetence, cause [page751] may only be found to exist where the employer has abided by the five criteria set out in Re Edith Cavell, supra. Absent a finding that these criteria have been met, the arbitrator is required to reinstate the employee on the basis that the employer has not established that there was cause for dismissal or discipline of the employee. Put differently, the argument posits that the arbitrator lacks the capacity to make any other remedial disposition, save reinstatement. 43 In my opinion, this narrow and mechanistic approach to employee conduct and arbitral authority does not take full account of the arbitrator's dispute resolution mandate, nor does it consider adequately the myriad of employment circumstances that employees and employers confront. As a result, I do not believe that the criteria set out in Re Edith Cavell by themselves determine the framework for analysis. More particularly, they should not be seen, in and of themselves, as dictating the terms of remedial authority exercised by the arbitrator. 44 Further, one must consider whether the distinction between culpable and non-culpable conduct is relevant in the particular context. The theory underlying culpable discharge, namely that the employer is engaged in a contractual relationship with the employee and is thus entitled to the "benefit of the bargain", does not in my opinion differ greatly from that underlying non-culpable discharge. A failure to meet the obligations and reasonable expectations of employment whether by virtue of culpable misconduct or deficient performance of a non- culpable character equally constitutes a disruption of the employment relationship. Arbitrator Hope's comments in Re City of Vancouver and Vancouver Municipal and Regional Employees Union (1983), 11 L.A.C. (3d) 121 (B.C.), at p. 140, on this point are apt: It must be remembered that the question of whether conduct is culpable or non-culpable is an elusive question directed at drawing inferences as to an employee's state of mind on the basis of his conduct. In the final analysis it is the conduct and not the state of mind which determines [page752] the issue of continued employment. An employee who cannot perform is no better off than an employee who will not perform, if the rights of the employer are to be respected. 45 Moreover, many of the procedural requirements in cases of unsatisfactory, albeit non-culpable performance, as explained in Re Edith Cavell, supra, appear equally relevant to discharge or discipline for culpable conduct. The arbitration board in Crane Canada Inc. and U.A., Loc. 170, Re (1990), 14 L.A.C. (4th) 253 (B.C.), noted, at p. 281, that an employer's failure to define the requisite level of performance or to communicate that level adequately to the employee might well become relevant in ascertaining whether or not the employee's allegedly deficient performance should be characterized as blameworthy. 143 Turning specifically to non-blameworthy absenteeism, the Employer refers us to: Shelter Regent Industries and I.W.A.-Canada Local 1-207 (Marples) 124 L.A.C. (4th) 129 (Ponak) 144 That case involved a grievor with successive absences who also alleged a substance abuse problem. Arbitrator Ponak set out the test for this specific type of case in the following words at p. 142: In the current case, the proper analytical approach is for the arbitrator to determine whether the tests for a non-culpable dismissal for excessive innocent absenteeism have been met. These tests, which are well supported by the authorities, are: 1) was the absenteeism excessive; 2) was the employee warned that his or her absence was excessive and failure to improve could result in discharge; 3) was there a positive prognosis for regular future attendance at the time of dismissal; and 4) if the absenteeism was caused by an illness or disability, did the employer attempt to accommodate the employee to the point of undue hardship prior to dismissal (Canadian Labour Arbitration, 3rd ed. (Aurora, Ont.: Canada Law Book), paras. 7:6110 and 7:6120. 145 And at p. 143 he said: The third question is whether at the time of the discharge there was reason to expect regular attendance in the future. I agree with the Employer that once it had established that the record of absenteeism was excessive, the evidentiary onus shifts to the Grievor to establish a likelihood that his future record of attendance will be different from his past record of attendance (Re Edmonton (City) and Re Canadian Erectors). In the current case, the Grievor relied on his own testimony of what lay at the root of his attendance problems as well as medical and treatment program records (Exs. 16, 17, 18). The Employer challenged the weight to be accorded the medical and treatment records in the absence of testimony from those who had treated the Grievor. I agree with the Employer's submissions that such documents must be viewed with caution in the absence of direct evidence from those who created the documents (Re LaSalle Police). 146 On the facts of that case Arbitrator Ponak noted that although the grievor testified to taking certain treatment, that treatment did not improve the grievor's attendance record and therefore, at p. 144 "... provides no basis for a finding that the Grievor's attendance was likely to impose as a result of treatment." 147 On the question of a duty to accommodate, the Arbitrator said, at p. 147, after accepting (based on the grievor's own assertion) that he had an alcoholism problem: Just because an employee has an illness or disease, does not mean he is automatically entitled to accommodation, however. An employee must bring his illness to the attention of his employer in a timely manner unless circumstances prevent him from doing so. The Grievor said nothing about his continued alcohol and drug abuse following his treatment in 2001 and said nothing about his substance abuse when terminated. He did not provide a doctor's note as requested for his last two days of absence in October 2002. He received a written warning about his unacceptable absenteeism in May 2002 that included an offer from the company to provide assistance "if there is anything we can do to help you rectify this problem". The Grievor did not ask for assistance. 148 The Employer argues that this failure to put forward a disability when the opportunity arose is identical to the situation at hand. The arbitrator asked at p. 147: Notwithstanding the Grievor's silence, should the Employer still be held responsible for failing to realize at the time of discharge that the Grievor had a substance abuse problem that might be connected to his absenteeism? I conclude that the answer to this question is no. While the Employer knew that the Grievor had undergone treatment for substance abuse early in 2001, following treatment the Grievor's attendance problems persisted. The Grievor's absences had been attributed in the past to a number of different sources, principally stomach problems for which he had been off work for long periods of time, making it difficult to readily identify any single source as the cause of his continuing attendance problem. Despite numerous medical interventions and substance abuse treatment, the Grievor's poor attendance record had never changed. There was no evidence that the Grievor was drunk or on drugs while at work: on the contrary he was characterized as a good worker when present. The Grievor himself conceded he did not know at the time of his discharge why he was absent so frequently. There was never any nexus established between the Grievor's substance abuse and his attendance problems. and at p. 149: In my view the duty to accommodate does not extend, without a compelling explanation, to a situation in which an employee chooses to not reveal the basis upon which he is seeking accommodation until months after he is terminated. For that reason, the Employer did not violate a duty to accommodate the Grievor at the time he was dismissed. The Employer has satisfied the other tests for terminating an employee for excessive innocent absenteeism. Accordingly the grievance must be denied. 149 This arbitrator canvassed the question of the onus of proof to establish a likelihood of improved future attendance, and the use of inferences from past failures to attend, in Government of Alberta and Alberta Union of Public Employees (Shupak) (2001) 100 L.A.C. (4th) 326 (Sims) 150 The Board there began by quoting Arbitrator Moreau's summary of the law in Alberta and AUPE (Jeffrey) (unreported decision, January 9, 1992) summarized at (1992) 26 C.L.A.S. 70 2. Is there a reasonable likelihood the Grievor's attendance will improve? The Employer argues that an inference may be drawn from the Grievor's record that her attendance is not likely to improve. In support, counsel cites the test set out in 1978 by Arbitrator O'Shea in Niagara Structural Steel (St. Catharines) Ltd. and United Steelworkers, Local 7012 (1978) 18 L.A.C. (2d) 385 at p. 392: While we are of the view that the company must establish the repetitive and consistent absenteeism which has precipitated its decision to terminate the Grievor, the Company is entitled to rely on the assumption that such repetitive and irregular absenteeism is likely to continue unless other evidence to the contrary is available. Once such a record is established by the company, the onus shifts to the Grievor to establish that the conditions which caused his absences of which the company complains, no longer exist and therefore there is substantial evidence which tends to indicate that there is good reason to believe that the Grievor will be able to provide regular and consistent attendance to his duties in the immediate and foreseeable future. In the instant case, apart from the Grievor's assertion in this regard, the Grievor offered no medical evidence or other substantial evidence to support his assertion. In Molson's Brewery (Ontario) Ltd. and United Brewery Workers, Local 304 (1984), 13 L.A.C. (3d) 112, Arbitrator G.J. Brandt endorsed a similar view at p. 125: An employee faced with evidence from which such a reasonable inference could be drawn and who fails to provide evidence which would dispute that inference takes the risk that a Board of Arbitration would draw the inference indicated by the evidence. In the Molson's Brewery decision, although no medical evidence was adduced by the Grievor other than the medical certificates indicating absenteeism for a variety of reasons, the Board decided there was insufficient evidence to draw an inference that the Grievor could not attend regularly at work in the future. What Arbitrator Brandt does not explicitly say, but seems to suggest, is that in order to justify termination for innocent absenteeism the record, in itself, must demonstrate a clear basis for the inference that non-attendance will persist. This is consistent with the warning of Arbitrator Weatherill who stated in Re Victoria Hospital, London and London and District Building Service Workers' Union, Local 220 (1979) 24 L.A.C. (2d) 172 at p. 175: A board such as this must, we think, be careful in making any such assumption, which is essentially in the nature of a prognosis, something which in most cases ought to be made on the basis of expert evidence. 151 In that case, the grievor's physician testified that: ... there was no ongoing condition evident from her medical record which would indicate she is incapable of reporting to work regularly in the future. 152 No evidence was called to refute that assertion and Arbitrator Moreau found this sufficient to uphold the grievance. Here, the grievor's physician did not testify, but the Union argues that Dr. Sood's evidence is to like effect. 153 The Shupak decision went on to quote the following summary of the law from D'Andrea, Corry and Forester, Illness and Disability in the Workplace: How to Navigate through the Legal Minefield (Aurora, Ont.: Canada Law Book) (looseleaf) [at p. 231]. In other cases, arbitration boards have been reluctant to place the entire evidential burden on the employer to establish that the employee is incapable of regular attendance in the future. In these cases, once the employer has presented evidence of undue absenteeism, the onus shifts to the employee to establish a reasonable likelihood of regular attendance in the future. Alternatively, other boards, unwilling to shift the onus, have held that undue absenteeism raises a presumption that the absenteeism will continue in the future unless there is evidence to the contrary. In the final analysis, however, while the application of the Massey-Ferguson test may vary from case to case, the result seems to be the same, regardless of who has the onus. Arbitrator Sargeant held that the employee has the onus of showing that she is capable of regular attendance in the future in Hamilton- Wentworth (Regional Municipality) and C.U.P.E. Local 167 (Mrs. X) (Re). The grievor had progressed through all seven levels of the Employer's Attendance Management System. The grievor's absenteeism was due to spousal abuse, illness, narcotic and alcohol abuse. The board held that once the attendance record is determined to be unacceptable, then the onus lies with the grievor, and not with the employer, to show that there is a good prognosis for reasonable attendance in the future. Based on the evidence before the board, this evidence had not been satisfied. The only evidence of a reasonable prognosis was the grievor's own evidence. There was no specific medical evidence presented and no clear and cogent evidence that the grievor was capable of regular attendance in the future. As a result the grievance was dismissed. 154 The Shupak award also relied upon the following extract from: Re Northern Telecom Canada Ltd. and C.A.W. Local 27 (1990) 16 L.A.C. (4th) 71 (Kennedy) at p. 79: In my view, it is clear that the company has on the evidence established a past record of absenteeism that cannot be tolerated. Its extent and nature has already been described in this award. It must, therefore, be decided whether on the evidence it is likely that that record will be projected into the future and that the grievor is incapable of regular attendance into the future. It is my view that the weight of arbitral authority is to the effect that the ultimate onus of satisfying a board of arbitration that the grievor is incapable of regular attendance into the future rests at the end of the day on the company. However, where there exists a past record of excessive absenteeism that has not improved in face of efforts on the part of the company to encourage such improvement, the company is entitled to draw from that fact an adverse inference as to the likelihood of regular attendance in the future. If that inference is to be rebutted, it is for the grievor to provide evidence to persuade the board that there is a reasonable basis to believe that the past record will not necessarily continue into the future, and where that explanation relates to medical matters, to support the grievor's views with appropriate expert medical corroboration. 155 To similar effect see three other decisions referred to in Shupak at p. 379: Re Atomic Energy of Canada Ltd. (Chalk River Nuclear Laboratories) and O.P.E.I.U. Local 404 (1982) 5 L.A.C. (3d) 248 at 252 Integrated Messaging Inc. and UFCW Local 832 (Lambert-Ward) (1999) 84 L.A.C. (4th) 221 Re Niagara Structural Steel (St. Catharines) Ltd. and U.S.W.A. Loc. 7012 (1978) 18 L.A.C. (2d) 385 (O'Shea) at 392 156 The employer here draws our attention particularly to the conclusion in Shupak at p. 384 which, it argues, is significant given what it argues is Mr. Gregoire's failure, in his own evidence, to assert affirmatively that his attendance can and will improve, except perhaps subject to his own caveat "... if the harassment stops." We are therefore left with the question - has the Employer established cause for non-culpable termination? The inference was fairly drawn at the time of Ms. Shupak's termination that her chronic disabilities would continue and could not soon be accommodated. Ms. Shupak neither testified nor called evidence to refute the assumption upon which this decision to terminate was made. Had Ms. Shupak been able to offer evidence that she could indeed perform work within the range of reasonable accommodation no doubt she would have done so. We must conclude that the chronic nature of her disability prevented her from doing so. The Union's Argument 157 The Union begins by emphasizing that the legitimacy of Mr. Gregoire's absences has not been questioned and that the Employer has presented its case entirely as a non- culpable termination. This is supported by his evidence that he was seeking medical treatment and was, at times, on medication. In addition, Mr. Gregoire testified to some difficult personal and family situations that go some distance to explaining his absences at the time. 158 The Union argues that, in terms of future attendance, it is prepared to rely on Dr. Sood's evidence that Mr. Gregoire was not, as far as he could see, suffering from any medical condition that would impair his ability to attend work in the future. 159 Mr. Brophy, it is argued, put forward a suggestion in 2003 that would have mitigated the consequences of Mr. Gregoire's absence by putting him into the float position. Mr. Gregoire himself had suggested a return to his prior job. Mr. Brophy's suggestion was, unreasonably in the Union's submission, rejected by Mr. Vorsterman, as was the suggestion that his absenteeism be examined by a medical board. This would have given the Employer the opportunity to establish whether his prognosis for future attendance was in fact as poor as the Employer alleges. Rather than that, the Union argues, we have Dr. Sood's positive opinion. Dr. Sood's uncontradicted evidence, it is said, also obviates the need for the Union to call supporting evidence to the same effect from Mr. Gregoire's own physician. Dr. Sood, it notes, saw no need to contact Mr. Gregoire's physician. The onus of proving a poor prognosis, the Union argues, is ultimately on the Employer and it is an onus it has failed to meet. Mr. Gregoire has given his own evidence that the deterioration in his health and consequently his attendance was due to the harassment he perceived himself being subjected to at work. To the extent it is necessary to establish a nexus between the harassment and his absences, the Union asserts that Dr. Sood's report provides that link. 160 Mr. Gregoire, it is argued, was suffering from a disability. The harassment and other circumstances caused his depression for which he at times at least received medication. As such, he is owed a duty of accommodation. The Union refers us to the discussion on that topic at section 7:6120 of Brown and Beatty, Canadian Labour Arbitration. In addition, it refers to section 14.3.2 in Mitchnick and Etherington, Leading Cases in Arbitration. The latter text notes that a person can be discriminated against because of a perception of a disability without their necessarily being objective evidence of being disabled. However, ordinary ailments like coughs and colds are not disabilities. Both parties draw our attention to the following extract from the Mitchnick and Etherington text: As an Ontario board of inquiry stated in Ouimette v. Lily Cups Ltd. (1990), 12 C.H.R.R. D/19, the result of adopting too low a threshold, whereby the definition of disability would extend to common, everyday illnesses, would be to detract from the "high purpose" which the legislation was designed to serve (at para. 67). This point was explored in greater detail by Justice Cameron of the Newfoundland and Labrador Court of Appeal in Evans v. Health Care Corp. of St. John's (2003), 223 Nfld. & P.E.I.R. 1. The central issue in Evans was whether the mere fact of a poor attendance record, characterized by "disparate, unrelated and temporary episodes of injury or illness", constituted a "physical disability" within the meaning of the province's Human Rights Code. The Court held that, on the face of the record alone, such transient illnesses did not establish the existence of a disability. However, the Court noted, "it may be possible that use of sick leave demonstrates a frailty of health which may result in [a finding of] a disability." 161 The Union argues firstly, that the Employer, through Mr. Vorsterman, treated Mr. Gregoire adversely because he perceived him as being a drinker and an alcoholic. Secondly, the evidence that Mr. Brophy suggested a medical board shows the Employer was sufficiently aware of the potential for there being a disability that a duty to accommodate arose. In the face of the ongoing absences the best that can be said is that the Employer kept itself willfully blind until after the termination. 162 The Union argues that it is wrong in principle for the Board to accept the Employer's argument that Mr. Gregoire would not take responsibility for his absences. This, it says, was entirely contrary to the Employer's advancing the case on the basis of non-culpable conduct. 163 A person facing discharge, it is argued, is entitled to adequate warning that termination is a likely consequence. This, the Union argues, the Employer failed to do. Mr. Vorsterman did not warn Mr. Gregoire directly that he was facing termination. The August 4th letter was grieved, and the grievance hearing was reassuring rather than cautionary. However, it is clear in retrospect that senior departmental officials were working towards his termination from August to November. We are asked to draw an adverse inference from the failure to call some of the officials involved, particularly the Assistant Deputy Minister. Sending Mr. Gregoire to see Dr. Sood, particularly in light of his findings, was no warning. The Union argues that, while Mr. Gregoire received several letters under the Attendance Management Strategy, these were seen as "form letters" and could not fairly be viewed as warnings. 164 The Union urges the Board to set aside the termination and, in a general sense, to reinstate Mr. Gregoire. It suggests that at that point the parties met to discuss how to accommodate him with a different posting where he will be free of the harassment he perceives from Mr. Vorsterman and others in management, and where any remaining medical disabilities can be addressed. Decision 165 We propose to follow the four step outline set out in the Shelter Regent Industrial case (supra). The first question is whether Mr. Gregoire's absenteeism was excessive. We find that it was; consistently and over a number of years. We heard much evidence and argument as to just which data was the more accurate or complete. We recognize there are some differences as to how averages were calculated, just what was included in certain totals, and whether some of Mr. Gregoire's absences were appropriately included towards the total. While we reviewed this evidence in detail, at the end of the day the fact remains that Mr. Gregoire's absences were, even if he gets the benefit of all these arguments, way in excess of the absences experienced by the vast number of his colleagues. They amount to a very significant percentage of his scheduled working days. We question whether the centre average is a very helpful benchmark, but he is so well beyond that debate on that question is of virtually no consequence. We accept that a few others have absences approaching or even exceeding his level. First, we are not adjudicating their cases, but in any event we accept the Employer's explanation that (a) some are also under serious review and (b) cases where someone is off due to cancer or similar conditions call for different treatment than the type of absences Mr. Gregoire exhibited. His absences were objectively and consistently excessive, and the Employer's need for attendance, given his job and the centre's responsibilities, was particularly high. 166 The second question is was Mr. Gregoire warned that his absence was excessive and failure to improve could result in discharge. We find that Mr. Gregoire was so advised and warned. Perhaps no more evidence is needed that Mr. Gregoire's own reply when asked whether he took a particular warning as a threat of discharge. It was to the effect that when management has been warning you of adverse consequences for so long the effect wears off. We have set out in detail the various letters Mr. Gregoire received. He was given oral warnings of the need to improve his attendance as well as those given in writing. To the extent Mr. Gregoire's own evidence downplays them; we prefer the evidence of Mr. Brophy and Mr. Vorsterman on this point. We similarly prefer Mr. Brophy's evidence that he pointed Mr. Gregoire to sources of outside help and the Employee Assistance Plan option but was met with confrontation rather than interest. 167 We do not accept the argument that the grievance decision over the August 5th letter and meeting was reassuring and implicitly countermanded any warning. The Union grieved to seek assurances that it was not disciplinary action and it was successful in that. However, neither the hearing nor the (post-termination) result diminished in any way the warning that was delivered. Similarly, we do not accept Mr. Gregoire's view of Dr. Sood's examination. At that point, the purpose was in large part to explore, once more, whether there was some hitherto unknown cause of the continuing absences. His saying he found Mr. Gregoire fit for work hardly amounted to an indication that the absences to that point were any less of a concern. If anything the contrary was true. 168 The third question is whether there was a positive prognosis for regular future attendance at the time of dismissal. We find that there was not. Dr. Sood's opinion does not go that far. The length, volume and pattern of absences up to that point, and the absence of any improvement in the face of repeated counseling and warnings, raised a clear inference that such a pattern of absence was likely to continue. This went unrebutted by medical evidence adduced by Mr. Gregoire. At one point he had been asked for his doctor's opinion, which he says he obtained but never gave to his Employer because he was not asked for it again. He did not produce that note or letter at the hearing, although he said it was still in his possession. While he made his medical records available to the Employer for review, he did nothing to put those records in evidence, either through his attending physician or otherwise to support a suggestion that improved attendance could be expected. For all that, the most damaging point is Mr. Gregoire's own evidence that his attendance would improve if the harassment stopped. He quite clearly sees his absences as the Employer's own fault. While much might be said of this, we think Dr. Fischer had it about right when he observed that Mr. Gregoire "was going about it the wrong way" by taking time off. He felt there may be administrative ways of dealing with his concerns, but they were not going to be resolved by taking time off. In our view, Mr. Gregoire's evidence suggested that many of his absences were, at their core, his way of fighting back at what he perceived to be unfair disciplinary action, unfair action over his absences or active harassment. 169 The fourth question is, if the absenteeism is caused by an illness or disability, did the Employer attempt to accommodate the employee to the point of undue hardship prior to dismissal. This question raises several issues. First, Mr. Gregoire testified before us that, at certain times, he suffered from and took medication for depression caused by personal circumstances and by what he perceived to be workplace harassment. Mr. Gregoire's own evidence on this was vague and lacked particulars as to treatment, duration and so on. It was open to him to call supporting medical evidence and he did not do so. It was open to him to tell Dr. Fischer or Dr. Sood about this, or to take up the offers we find were in fact made for an EAP referral. He did none of those things. 170 We accept that an Employer who has reason to suspect a person may be suffering from a disability, but who does not know of it or is unwilling to admit to it, may nonetheless be under a duty to accommodate that disability. However, there is a limit to what an Employer must do in the face of employee non-disclosure, summed up in the adage about leading horses to water. In our view, Mr. Gregoire actively resisted seeking any accommodation because of his own view that it was the Employer causing or at least justifying his absences by its harassment. His lawsuit is but one example of that. That suit was filed at the same time as the Employer in fact took steps, at Mr. Cutrell's urging, to try to accommodate Mr. Gregoire. We reject as unfounded Mr. Gregoire's answer that Mr. O'Brien was only acting to avoid adverse publicity from the lawsuit; we are satisfied neither Mr. O'Brien nor Mr. Cutrell knew of that action at the time they agreed to lift Mr. Gregoire's performance contract to take the pressure off him for a while. At the time, Mr. Gregoire was clearly taking his own counsel and following a different route than the Union was pursuing on his behalf. It is simply disingenuous to fault Mr. O'Brien for his action while at the same time entering into the deal without actively disclosing the action he had instructed private counsel to launch. 171 We recognize that it is the Employer's onus, ultimately, to establish that it had sufficient grounds to justify termination for non-culpable reasons. We find the Employer has met that onus and accordingly dismiss the grievance. 172 After reaching this decision, but before issuing our award, the Supreme Court of Canada issued a decision dealing directly with the interrelationship between non-culpable absenteeism and the duty to accommodate. Hydro-Quebec v. Syndicat des employees de techniques professionelles et de bureau d'Hydro-Quebec section Locale 2000 (SCFP-FTQ) 2008 SCC 43 issued July 17, 2008. 173 The Court's decision turned on two points, allegedly decided in error by the Quebec Court of Appeal. The first was the standard the employer had to meet to prove undue hardship and the second, the date at which that assessment must be made. On the first point the Court noted, at para. 13: ... in the employment context, the duty to accommodate implies that the employer must be flexible in applying its standard if such flexibility enables the employee in question to work and does not cause the employer undue hardship. and at para. 14: ... the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship. [15] However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee's duty to perform work in exchange for remuneration. and at para. 17: [17] Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties - or even authorize staff transfers - to ensure that the employee can do his or her work, it must do so to accommodate the employee. Thus, in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4, the employer had authorized absences that were not provided for in the collective agreement. Likewise, in the case at bar, Hydro Québec tried for a number of years to adjust the complainant's working conditions: modification of her workstation, part-time work, assignment to a new position, etc. However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship. [18] Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory. 174 On the second point, the Court noted at para. 21: ... A decision to dismiss an employee because the employee will be unable to work in the reasonably foreseeable future must necessarily be based on an assessment of the entire situation. Where, as here, the employee has been absent in the past due to illness, the employer has accommodated the employee for several years and the doctors are not optimistic regarding the possibility of improved attendance, neither the employer nor the employee may disregard the past in assessing undue hardship. [22] The Court of Appeal's approach led it to criticize the employer for not trying to accommodate the complainant after February 8, 2001, the last day she reported for work. Even if the employer had not known the reasons for the complainant's absenteeism at the time it agreed to accommodate her, her personal file, including the record of her past absences, was nonetheless entirely relevant for the purpose of putting the experts' prognosis for the period after February 8 into context. The Court of Appeal found that the employer did not know the nature of the complainant's mental disorders and therefore could not have taken action in this regard. Believing that it had detected an error in the arbitrator's approach, the Court of Appeal reinterpreted the evidence and concluded that a gradual return to work was a possible accommodation. My view is that it is in fact the Court of Appeal that erred and that that court should not have interfered with the arbitrator's assessment of the evidence. 175 This recent restatement of the law on these points does not alter our initial decision and in fact reinforces it. 176 This is the unanimous award of the Board and signed, with the nominee's consent, by the Chair on behalf of the full board. A.C.L. SIMS, Q.C. qp/e/qlrds
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