Telus Inc. v Telecommunications Workers Union

Grievance File Nos.: 2013.014

2013.021

2013.123

IN THE MATTER OF AN ARBITRATION

Under the Canada Labour Code, R.S.C. 1985, c. L-2

B E T W E E N:

TELUS INC.

(the “Company”),

- and -

TELECOMMUNICATIONS WORKERS UNION

(the “Union”),

AND IN THE MATTER OF THE GRIEVANCES OF TRACY BAKER REGARDING

ALLEGED UNJUST SUSPENSION AND TERMINATION.

SOLE ARBITRATOR:

APPEARANCES

For the Union:

Gordon F. Luborsky

Marisa Pollock, Counsel

Benjamin Katz, Counsel

John Hockley, Business Agent

Isabelle Miller, National Vice President

Leighann Neal, Shop Steward

Tracy Baker, Grievor

For the Company:

John D. R. Craig, Counsel

Jackie VanDerMeulen, Counsel

Deanah Shelly, Counsel

Debbie Leclerc, Manager, TELUS

Ronnie Olsen, Manager, TELUS

Sofia Alonso, TELUS Labour Relations

HEARD:

March 3, 6, 7, November 24, 26, December 1, 2, 3 and 5, 2014,

June 9, 10 and July 29, 2015, January 12, 14, May 10, 11, 12,

June 6, 28, 30, September 18 and 30, 2016

Toronto, Ontario

DECISION:

November 1, 2016

January 9, 2018

REASONS FOR DECISION:

Page 2 of 196

REASONS FOR DECISION

I.

Introduction

With the consent of the parties I issued my “Decision” without reasons concerning three

[1]

grievances filed by the Union on behalf of the Grievor, Ms. Tracy Baker, challenging as unjust:

(i) a five-day disciplinary suspension without pay by letter dated November 12, 2012 for having

allegedly “misappropriated company time”, improperly “accessed [the Grievor’s] own personal

account for non-work related reasons” and “lack of professionalism when dealing with clients”

(“Grievance No. 1”); (ii) the Grievor’s “first dismissal” from employment effective January 11,

2013 for alleged “refusal or neglect to report to work” (“Grievance No. 2”); and (iii) the

Grievor’s “second dismissal” from employment by letter dated March 11, 2013 addressed to the

Union for alleged “inappropriate access and misuse of TELUS resources, breach of the corporate

security policy, and failure to follow a management directive” (“Grievance No. 3”).

[2]

The Decision was rendered in a “bottom line” fashion on November 1, 2016 after

reviewing and considering the extensive oral and documentary evidence and submissions

presented by the parties over the 22 days of hearings that extended some two and one-half years

in order to provide an expedited result, with the parties’ agreement that I would retain

jurisdiction to issue my fulsome “Reasons for Decision” at a later date.

[3]

In my Decision I dismissed Grievance No. 1, the five-day suspension without pay.

However, I allowed Grievance No. 2, the Grievor’s first dismissal effective January 11, 2013, as

well as Grievance No. 3, the Grievor’s second dismissal by letter dated March 11, 2013. A copy

of my Decision is attached hereto as Appendix A.

[4]

I accordingly ordered the Company “to reinstate the Grievor forthwith to the position she

held on January 11, 2013 with compensation to make her whole for all losses calculated from

that date to the date of her reinstatement” among other forms of relief set out in paras. 13 – 17 of

the Decision, reproduced below:

Remedy

Page 3 of 196

¶ 13. Having regard to the foregoing, the termination letter dated January 11, 2013 shall be

removed from the Grievor’s employment record.

¶ 14. The Company is ordered to reinstate the Grievor forthwith to the position she held as of

the date of her termination on January 11, 2013, with compensation to make her whole for all

losses calculated from that date to the date of her reinstatement.

¶ 15. The termination letter dated March 11, 2013 shall also be removed from the Grievor’s

employment record.

¶ 16. The remedy in allowing the March 11, 2013 termination grievance is encompassed within

the reinstatement and compensation order concerning the January 11, 2013 termination dealt with

by Grievance No. 2.

¶ 17. In addition to retaining jurisdiction to deliver Reasons for Decision in accordance with the

parties’ agreement recorded above, I shall remain seized to resolve any dispute concerning the

interpretation and/or implementation of the relief ordered herein and calculation of the

compensation payable to the Grievor, as requested by the Union at the outset of these arbitration

proceedings.

[5]

The following are now my detailed Reasons for Decision in determining these three

grievances that also addresses a post-Decision remedial dispute between the parties. I am

grateful to the parties for their forbearance that permitted me the additional time required to

provide a comprehensive explanation of my findings and conclusions on the evidence and

arguments submitted over this lengthy case.

II.

General Background and Overview of Grievances

[6]

The Company, interchangeably referred to as TELUS, is a Canadian national

telecommunications provider of a wide range of telecommunications products and services

including internet access, voice transmissions (landline and mobility), entertainment, healthcare,

video and Internet Protocol Television (IPTV) having some 45,000 employees. Its Headquarters

is located in Vancouver, British Columbia, but at all material times the events of the present

grievances primarily arose out of the Company’s operations in Scarborough, Ontario, although

there is a British Columbian involvement as well.

[7]

At the time of the relevant events the Grievor, Ms. Tracy Baker, lived in the City of

Oshawa, Ontario, in her parents’ house, just east of Scarborough. She began her career with one

of the Company’s predecessors in or about November of 1998 which was her first full-time job

upon completing college at the age of 19 or 20, working in a call centre environment where she

Page 4 of 196

interacted with customers in connection with their telecommunications services. The Company

acquired that predecessor corporation about one year later and over the next 13 or 14 years, the

Grievor held various positions in the call centre with growing responsibilities in matters that

included: (a) “Mike Activation”, referring to the two-way dispatch networks for new corporate

clients; (b) “Loyalty and Retention”, which is a functional unit intended to secure the continuing

patronage of customers (often with offers of what were described as “free perks”), where the

Grievor also handled “escalated calls” from dissatisfied customers (usually concerning billing

issues); (c) “Channel Care”, where she provided support for dealers on system issues and was

cross-trained to oversee corporate accounts of various sizes and complexities; to finally handling

(d) cellphone and related services for the Company’s largest corporate clients such as major

banks, heath care facilities and governmental agencies requiring special skill and attention. In

her last position as a “Corporate Support Agent” (or “CSA”) the Grievor received “in-bound”

calls from very large corporate clients where customer service is key to the Company’s

competitiveness, and as such the Grievor was given broad discretion to issue credits (up to $400)

and to add users or features to a customer’s account on her own initiative to satisfy the

customer’s immediate and ongoing needs.

[8]

While the Grievor reported to the Company’s Scarborough office which is a call centre

where hundreds work, she was permitted to work from her (parents’) home under the Company’s

“At Home Agent Program”, which is restricted to those employees who are felt to be trustworthy

and able to work with minimum supervision. That Program is established under article 16 of the

collective agreement which states in article 16.04 that in the event the Company decides to

terminate the program: “The Company will normally provide sixty (60) days written notice to

the participating employees and the Union…although it is recognized that in exceptional or

unusual circumstances the Company may provide less than sixty (60) days’ notice.”

[9]

Prior to the events leading to the Grievor’s five-day suspension without pay and her

subsequent discharge the Grievor had been working as an At Home Agent for six years, and

there was no suggestion that the Grievor received discipline from the Company at any time, but

certainly there was none during the two-year “sunset clause” under article 10.03 of the collective

agreement (reproduced below) that requires the removal of such discipline from an employee’s

record if clear during that period.

Page 5 of 196

[10] However the situation changed quickly in the fall of 2012.

[11] The first discipline issued to the Grievor arose out of alleged events that occurred from

June 13, 2012 to November 12, 2012 (hereinafter “Period 1”) resulting in a five-day suspension

without pay served from Friday, November 9 until Friday, November 16, for reasons that are

described in the following letter from the Grievor’s then manager, Ms. Debbie Leclerc, dated

November 12, 2012:

Subject: 5 Day Suspension

Dear Tracy,

This letter is confirmation of our meeting on November 8, 2012, and serves as written notice of

your five day suspension with respect to your recent misconduct.

Over the past several months, you have repeatedly and deliberately misappropriated company

time by call avoidance, having excessive call pick up times, and by queue surfing. You have also

accessed your own personal account for non-work related reasons, and you continue to

demonstrate lack of professionalism when dealing with clients.

During our investigative meeting on November 8, 2012, you failed to take accountability for your

behavior. Tracy, this behavior is unacceptable. Your actions have resulted in calls being

abandoned and have created a poor customer experience. In addition, it impedes our ability to

meet customer service level targets and provide consistent, high quality service to our clients.

I would like to clarify my expectations that:

 During company-paid time, it is imperative that you be performing work-related activities.

 You are expected to wear your headset and turn the volume/ringer on so that you can

hear calls coming in.

 Immediately upon completion of a client call and the follow-up work associated with that

call, and immediately after scheduled breaks, you are to place yourself back into an

available state to take the next waiting call.

 You are expected to answer calls as soon as they come into your line with minimal delay.

 You are not to access your personal account using Knowbility or Smartdesktop for any

reason.

 You are to conduct yourself in a professional manner with clients, using positive word

choices and positive tone.

The behaviors that you have been demonstrating are inexcusable and cannot be tolerated. Your

conduct is contrary to TELUS’ expectations, and clearly acceptable (sic). In order to impress upon

you the seriousness of this situation and convince you to take immediate steps to correct your

behavior, you are suspended for five days as of Friday November 9, 2012. You are to report for

work as scheduled on Friday November 16, 2012 at your scheduled start time. Please be advised

that if the issues noted are not addressed, or if there are any other issues with performance or

misconduct that arise, further disciplinary action will be taken up to and including dismissal.

Page 6 of 196

[12] The Union consequently filed its grievance “2013.021” dated November 16, 2012

(Grievance No. 1) alleging that the discipline was without just cause in violation of articles 8 and

10 of the collective agreement in effect from June 9, 2011 to December 31, 2015, the relevant

portions of which are set out below:

ARTICLE 8 – MANAGEMENT RIGHTS

8.01

Unless otherwise explicitly agreed to in this agreement, management retains the exclusive

right to manage its operations in all respects including the direction of the working forces.

The Company agrees that any exercise of these rights shall not contravene the provisions

of this agreement.

…

ARTICLE 10 – JUST CAUSE

10.01 An employee who has successfully completed the probationary period, shall not, for

disciplinary reasons, receive a written warning, suspension or be dismissed, except for

just cause.

An employee may request the presence of an available Union representative at a meeting

between a manager and the employee if the purpose of the meeting is to impose

discipline. The requested presence of a Union representative may be by way of

teleconference where a Union representative is participating in either the At Home Agent

or work styles program or any other situation where the parties mutually agree.

Disciplinary action is to be confirmed in writing, with a copy to the Union

…

10.03 Upon request from an employee, letters confirming disciplinary action of a written warning,

or suspension of five (5) days or less, shall be removed from the employee’s file two (2)

years after the date of the incident provided there are no incidents of a similar nature

within that two year period. Upon request from an employee, all other letters confirming

disciplinary action shall be removed from the employee’s file five (5) years after the

incident provided there are no incidents of a similar nature within that five year period.

[13] The Grievor’s “first dismissal” was issued to her by letter dated January 11, 2013 for

“refusal or neglect to report to work” arising out of the Grievor’s absence from the workplace for

alleged stress related illness beginning November 28, 2012 to that date (hereinafter “Period 3”),

which was couriered to the Grievor’s home. The termination letter was signed by her new

manager, Mr. Ronnie Olsen, who set out the following reasons for the Grievor’s termination:

This letter is further to our correspondence dated January 7, 2013 and December 21, 2012, via

letter regarding your absence from work since November 28, 2012.

Page 7 of 196

I have attempted to contact you via telephone and courier on the dates above. I specifically

required that you contact me via telephone or report to work by today, Friday, January 11, 2013. In

addition, several voice mail messages have been left for you by me and Health Services.

The purpose of this letter is to inform you that we have terminated your employment with TELUS

based on your refusal or neglect to report to work. To date, TELUS has not received any

documentation which supports your absence from work. As well, you have not returned to work as

directed.

Your failure to report to work or provide sufficient information to explain your absence is totally

unacceptable. Therefore your employment is terminated immediately. Your record of employment

and final earnings will be forwarded under separate cover.

[14] The Union responded to this first dismissal letter with its grievance “2013.014” dated

January 21, 2013 (Grievance No. 2), claiming that the Company’s actions violated articles “4, 8,

10 ET AL” and the terms of a Memorandum of Agreement set out at Appendix B – East of the

collective agreement under the title, “Team TELUS Flex Benefits”. The relevant portions of

Article 4 and Appendix B – East state:

ARTICLE 4 – DISCRIMINATION

4.01

The Company and the Union shall not discriminate on the basis of race, national or ethnic

origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability

and conviction for which a pardon has been granted and as otherwise provided by the

Canadian Human Rights Act, unless proper and just cause exists.

…

MEMORANDUM OF AGREEMENT

APPENDIX B – EAST

TEAM TELUS FLEX BENEFITS

It is agreed and understood that Regular full-time and Regular part-time employees covered by

appendix B will participate in the Team TELUS Flex Benefits plan as it is described on the TELUS

intranet (“Team TELUS Flex Benefits Manual – For regular full-time and regular part-time team

members covered by Appendix B of the collective agreement with the TWO”). In addition,

Temporary employees covered by Appendix B will continue to participate in the team TELUS Flex

benefits plan as it is described on the TELUS intranet (“Team TELUS Flex Benefits Manual – For

temporary team members covered by Appendix B of the collective agreement with the TWU”).

…

[15] I was not told the specific details of the Team TELUS Flex Benefits as they relate to

short term disability absence (except for the testimony of Ms. Bargen, considered below). The

details of that plan are apparently set out on an internal Intranet feed available to all employees.

However I was informed that it provides substantially the same benefits that regular full-time

Page 8 of 196

employees in Western Canada receive under Appendix A – West of the collective agreement,

the relevant portions of which are as follows:

MEMORANDUM OF AGREEMENT

APPENDIX A – WEST

BENEFITS

REGULAR EMPLOYEES:

It is agreed and understood that Regular full-time and Regular part-time employees covered by

Appendix A will be eligible to participate in the following benefit plans:

Sickness or Non-Occupational Accident Disability Absence

1. An employee who is unable to work because of sickness or non-occupational accident is

eligible for short term disability benefits as provided for under the terms and conditions of the

short term disability plan provided the employee’s absence meets the plan requirements in

accordance with the following:

Years of Service

0 – 3 months

Days at 100%

Days at 70%

Nil

10

25

75

100

130

Nil

120

105

55

30

Nil

4 months to 2 years

3 years to 5 years

6 years to 10 years

11 years to 15 years

16 years an over

2. The Company agrees to expedite the payment of short term disability benefits providing the

employee has followed the established claim procedures and the required documents have

been received by the Company. Under normal conditions, the employee’s short term disability

benefits payments will appear on their regular pay.

3. An eligible employee will receive payment under the plan for the first two (2) weeks of absence

pending receipt of the required medical documentation.

…

[16] Also of some relevance in this case are articles 4.01 (Discrimination) and 8.01

(Management Rights) that are set out below:

ARTICLE 4 – DISCRIMINATION

4.01

The Company and the Union shall not discriminate on the basis of race, national or ethnic

origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability

and convection for which a pardon has been granted and as otherwise provide by the

Canadian Human Rights Act, unless proper and just cause exists.

ARTICLE 8 – MANAGEMENT RIGHTS

Page 9 of 196

8.01

Unless otherwise explicitly agree to in this Agreement, management retains the exclusive

right to manage its operations in all respects including the direction of the working forces.

The Company agrees that any exercise of these rights shall not contravene the provisions

of this Agreement.

[17] In the course of the grievance meetings between the parties to discuss the first dismissal

grievance (Grievance No. 2), the Grievor was dismissed a second time by letter dated March 11,

2013 for events that the Company alleged occurred between November 13, 2012 and November

27, 2012 (hereinafter “Period 2”). That letter, written by Ms. Cheryl Fraser who is identified as

the Company’s Senior Labour Relations Consultant was never delivered to the Grievor directly,

but rather was addressed to the Union’s Business agent, Mr. John Hockley. It sets out the

reasons for the Grievor’s second dismissal in relevant part as follows:

Re:

T. Baker – Dismissal for Cause

…

I am writing to advise you of the company’s position with respect to the above employee, who was

terminated for cause effective January 11, 2013. As I discussed with you in the Step 3 grievance

meeting, on November 27, 2012 the Company conducted an investigative meeting with Ms. Baker

regarding her inappropriate access and misuse of TELUS resources, breach of the corporate

security policy, and failure to follow a management directive.

As you are aware, Ms. Baker’s employment was terminated for reasons unrelated to the alleged

inappropriate actions. These inappropriate actions were not included in the reasons for termination

as Ms. Baker had not returned to the workplace for a sufficient length of time to allow for this matter

to be concluded. Notwithstanding this, the Company maintains that we have sufficient evidence to

demonstrate that Ms. Baker engaged in actions that were inappropriate and in violation of the

TELUS’ Ethics and Security Policies.

Without prejudice to the Company’s position on grievance 2013.014, should Ms. Baker be

reinstated as a result of the parties arbitrating the above matter (2013.014), this letter serves to

advise that a second dismissal will be deemed to have been initiated effective today. The cause of

the second dismissal is Ms. Baker’s inappropriate access and misuse of TELUS resources, breach

of the corporate security policy, and failure to follow a management directive.

[18] After seeking clarification of the Company’s March 11, 2013 letter and being advised by

Ms. Fraser on May 8, 2013 that the Grievor’s alleged misconduct during her five-day suspension

until her November 27, 2012 investigative meeting, “remains a legitimate basis on which

TELUS would be entitled to terminate Ms. Baker’s employment” and that, “TELUS reserves the

right to rely on this misconduct in the future”, the Union filed its grievance “2013.123” dated

Page 10 of 196

May 23, 2013 challenging the Company’s “second dismissal” of the Grievor as unjust in

violation of articles “8, 10, ET AL and any other provisions and statutes” (Grievance No. 3).

[19] The parties agreed at the outset of the hearings into these matters that I was properly

appointed and had jurisdiction to determine all three grievances submitted.

III.

Overview of Conclusions

[20] On behalf of the Company, which acknowledged it had the burden to prove just cause for

disciplining and discharging the Grievor, I heard testimony from Ms. Debbie Leclerc, who as a

“Manager of Business Client Experience” or “BCX Care” was the Grievor’s immediate

supervisor in the fall of 2012, Mr. Ronnie Olsen, who as a “Manager of Business Client Care”

became one of the Grievor’s supervisors in the late fall and winter of 2012 – 2013, Ms. Diane

Bargen, a Registered General Nurse (and former Registered Psychiatric Nurse who allowed that

registration to lapse in 2002) working as a “Case Consultant” for the Company’s “Health

Services” (referred to as “TELUS Health”) based in Burnaby, British Columbia, Ms. Jenny

Reynolds who identified herself as “a Manager in Business and Corporate Departments” but at

the relevant time was an acting manager, Mr. Vince Marasco, who was a “Manager, BCX Care –

Business Client Experience” and Mr. Cory Wain, who as the Company’s “Director of

Information Services” testified in reply about a technical issue that arose in the evidence.

[21] The Grievor was the only witness called by the Union, who began her testimony before

me on June 10, 2015. Her examination-in-chief took approximately one-half of a hearing day to

complete; following which she was extensively cross-examined during the next four and one-half

hearing days that stretched over a period of 11 months to May 10, 2016.

[22] Within that interval I issued a Preliminary Award dealing with the Company’s mid-

hearing demand for the production of the Grievor’s cellphone telephone records that I allowed,

reported in Re Telus Inc. and TWU (Baker) (2016), 269 L.A.C. (4th) 400 (Can. Arb.) (Luborsky),

where I also made the following observations about assessing the Grievor’s credibility to that

date at paras. 41 and 42:

¶ 41

After some three and one-half days of cross-examination at the hands of skillful counsel,

one’s arguable perception of the Grievor at this point might be of a person who is obviously tense,

confused at times, and who has often been visibly distraught. At least one of the stated purposes

Page 11 of 196

of the Company’s demand for the production of the Grievor’s cellphone telephone records is to

challenge the veracity of the Grievor’s testimony on matters that I have concluded are not

collateral, but rather within the broad factual matrix or at least surrounding circumstances of the

case before me. However, in assessing credibility to the extent it may be relevant to the

issues in dispute, whether any deficiencies in the Grievor’s testimony are reflective of her

general lack of sincerity in the sense of a deliberate attempt to mislead, which is what the

Company apparently seeks to establish in part by its production demand herein, or reveals

the discordant workings of an emotionally troubled mind that becomes exacerbated by

various levels of stress now arguably on full display after several days of comprehensive,

exacting and at times relentless cross-examination, which may be consistent with the

Union’s apparent theory of the Grievor’s case, has yet to be determined.

¶ 42

That determination must obviously await the parties’ submissions in the fullness of time,

when all of the evidence is finally before me.

[Emphasis added]

[23] While the Grievor’s cross-examination was certainly comprehensive, exacting and long,

it was illuminating on the issue flagged in the foregoing excerpt of my Preliminary Award. By

that point it was apparent that the overarching theory of the Company’s case was that the Grievor

demonstrated she was a dishonest employee, who the Company described as “calculating and

strategic”. The Company asserted that the Grievor acted in deliberate disregard of Company

policies and reasonable expectations, whose claim of illness to the point of being incapable of

attending work when instructed to do so could not be believed but rather was more consistent

with an individual attempting to “flee” or “escape” the disciplinary consequences of her past

misconduct. The Company stated I could give no weight to the Grievor’s testimony that was

subject to serious credibility deficiencies, and thus it submitted it had just cause to terminate the

Grievor’s employment in all of the circumstances of this case.

[24] The Union’s broad theory of its case was that the Grievor had been a long-term employee

with increasing responsibilities and a clear disciplinary record when she began exhibiting

physical and then emotional difficulties amounting to a disability that snowballed and eventually

culminated in her inability to attend work for medical reasons as substantiated by her physicians.

The Union accordingly presented the Grievor as a person who had become deeply troubled and

was subject to confusion, particularly where the Company’s instructions were unclear and its

treatment of the Grievor unjust, that the Union claimed had occurred in this case. And to the

extent the Grievor exhibited such confusion in actions during her employment or in her

Page 12 of 196

testimony before me, they were more consistent with and confirmatory of her general troubled or

ill state of mind as a result of her ongoing mistreatment and reactive disability than a deliberate

attempt to mislead the Company or me, which did not constitute just cause to terminate the

Grievor’s employment while in a demonstrably vulnerable state.

[25] This was one of those rare cases in which the Grievor’s exhaustive cross-examination by

the Company, although at times excruciating, nevertheless assisted me in recognizing and

accepting the Union’s submissions that the Grievor was exhibiting signs of a deeply troubled

individual during her employment (and continuing afterwards) with ongoing physical and

emotional disabilities consistent with her physicians’ medical certificates, whose actions and

testimony before me were more reflective of an employee who did not intend to mislead or to be

dishonest with either the Company or before me, particularly where I also found that much of the

Grievor’s confusion was contributed to by the Company.

[26] While the factual circumstances said to support the issuance discipline are intertwined,

for analytical purposes it is convenient to divide the continuum of the many events leading to

each instance of the Company’s discipline of the Grievor and the grievances from the Union that

followed into three temporal periods that are referred to hereunder as: “Period 1” being the

events leading to the Grievor’s five-day disciplinary suspension and the Union’s Grievance No.

1; “Period 2” leading to the Company’s March 11, 2013 “second dismissal” and the Union’s

Grievance No. 3 (which was issued out of temporal order); and “Period 3” corresponding to the

events largely based on extensive medical documentation filed in this case that chronicle the

Grievor’s physical and mental health from November 28, 2012 leading to the Grievor’s “first

dismissal” of January 11, 2013 which was disputed by the Union’s Grievance No. 2.

[27] Thus as indicated by my Decision dated November 1, 2016, for the reasons set out below

on all of the evidence and submissions before me, I ultimately came to the conclusion that in

connection with Grievance No. 1, the Grievor was displaying physical and likely developing

mental health problems during Period 1 of the narrative in this case leading to her first discipline,

the five-day suspension without pay. Although I found that many of the Company’s allegations

of misconduct during this timeframe were not proven or could not be relied upon for various

reasons described below, the one area of misconduct that was shown on the evidence to have

Page 13 of 196

occurred on a balance of probabilities standard, were incidents of “call avoidance” that

notwithstanding the Company’s inability to prove the other claims of inappropriate behavior in

Ms. Leclerc’s letter of November 12, 2012, I concluded was sufficient to justify discipline at the

level of sanction imposed on that occasion. This was the case even though it was also apparent

on the evidence that the Grievor was showing the beginnings of physical and/or mental disability

that she hadn’t clearly alerted the Company to, which the Company might have otherwise had

the obligation to consider in modifying its response and offering reasonable accommodations.

Nor could I find sufficient mitigating circumstances justifying the reduction in the quantum of

discipline issued in that instance, even though I determined the quantum to be at the high end of

an appropriate proportional response.

[28] However the evidence supports the conclusion that the Grievor’s physical and developing

mental distress was continuing, and that her disability was exacerbated during the “Period 2”

events commencing on or about Tuesday, November 13 (which was during her five-day

suspension) to Tuesday, November 27, 2012, which I also found that the Company contributed

significantly to in ways described below and was too ready to jump to the worst conclusions

about the Grievor’s motives and behavior without justification. On the evidence I concluded that

the Grievor did not violate the collective agreement during this timeframe, and that any mistakes

by the Grievor were mitigated by the Company’s contribution to the understandable confusion in

her mind. But if the Company had grounds to discipline the Grievor for her actions during this

period, which I would have assessed at the lowest in the range of acceptable sanctions, it chose

not to exercise the right before discharging the Grievor for other reasons on January 11, 2013.

Thus there is a valid argument that the Company’s attempt to assert separate alleged cause to

terminate the Grievor’s employment two months later in its March 11, 2013 letter for events that

the Company was aware of prior to terminating her on other grounds, constituted an improper

attempt to expand or change its reasons for termination, rendering any legitimate discipline for

proven misconduct during that period ineffective. Even if the Company had just cause to

discipline the Grievor for any of the events of Period 2 from November 13 to 27, 2012, I found

that discharge was not a proportionate response.

[29] During Period 3 of the relevant events from November 28, 2012 to the Grievor’s first

dismissal on January 11, 2013, I concluded on the evidence that was particularly drawn from the

Page 14 of 196

Grievor’s extensive cross-examination and the medical documentation filed in these proceedings

by the Company, which was also in the possession of and thus known to the Company before it

made its decision to dismiss the Grievor, that the Grievor was either legitimately ill or certainly

believed she was as supported by her physicians’ reports and incapable of attending work, which

rendered the Company’s actions in terminating her employment for alleged “refusal or neglect to

return to work” as unjust in all of the circumstances of this case.

[30] For reasons that I will also explain below, I could only give limited weight to the

opinions of the Company’s Case Consultant from TELUS Health, Ms. Diane Bargen, whose

purported independence in evaluating the medical documentation provided by the Grievor’s

physicians to support the Grievor’s ongoing absence as a person who was “totally disabled” was

undermined by contacts from the Grievor’s new supervisor, Mr. Olsen, at the beginning of the

Grievor’s appeal for short term disability (“STD”) benefits. Mr. Olsen told her that the Grievor’s

reported medical problems were really improper attempts to avoid her termination that she knew

was coming, which the evidence showed had tainted the reasonable assessment of her claim by

TELUS Health from the outset. The revelations from Ms. Bargen’s cross-examination

(doubtlessly unintended by the Company), were among the key considerations in my decision to

allow the Union’s Grievance No. 2.

IV.

Overview of the Organization of these Reasons

[31] To appreciate the reasons for my Decision on the grievances before me, it is necessary to

go through the evidence of the events leading to my factual findings during each of the three

temporal Periods itemized above in some detail. As the parties could see throughout their

presentation of this case, in accordance with my usual practice I was typing a detailed transcript

of the testimony and submissions (although not always verbatim) that by the end had

mushroomed to over 500 pages in length. The documentation supporting the transcript and the

extensive authorities later relied upon by the parties in argument, increased that size three-fold.

[32] In order to marshal this considerable volume of material, I asked the parties to provide

me with a point-form timeline of what they regarded to be the key events and documents as

revealed by the evidence that I could then follow as a guide in dealing with the evidentiary

disputes and issues submitted to me for determination in this case. In due course I received an

Page 15 of 196

outline from the Company listing 76 key factual events (that were cross-referenced to the

essential documentation and oral testimony), and one from the Union listing 228 key events and

documents. Thus in focusing on what the parties themselves considered to be the most important

factual assertions and supporting documentation, I substantially adopted the Company’s timeline

as supplemented by the Union’s contribution, which overlapped with the Company’s list in

providing more detail that I incorporated as appropriate. Also, in arriving at my factual findings

concerning each of these key events, I have explained my assessment of the evidence and the

weight, if any, that I could give to it in arriving at my findings of fact to the extent possible as I

recount the evidence surrounding each of these events, rather than deferring that explanation to

the end of these lengthy Reasons when I consider the parties’ submissions in detail. In so doing I

had the advantage of considering the specific evidence under consideration in the context of all

of the evidence that was presented to me that may not have been apparent until I had heard all of

the evidence and considered the parties’ submissions in this case.

[33] For the most part, the events presented to me were well-documented that is a window

through which the relevant facts may be recounted; although there was a hearsay character to a

number of the assertions in some of this documentation that while admissible, became an factor

in my later evaluation of the weight that I could give to certain allegations of fact that the

Company relied upon to support the discipline. Moreover, all of the medical reports relied upon

by the Grievor to substantiate her claims of illness (primarily during Period 3) were submitted

into evidence by the Company from the Grievor’s records on file with TELUS Health with the

Grievor’s (and the Union’s) consent.

[34] These medical notes and opinions provided by the Grievor’s physicians were accepted

into evidence for the truth of the information reported therein by the Grievor’s physicians, on

which the Grievor was exhaustively cross-examined. It was never suggested that the medical

documentation was other than what it purported to be; namely, the professional opinions of the

Grievor’s physicians based on their consultations with and examinations of the Grievor at the

time that the relevant events in the Grievor’s employment were unfolding. Nor was there any

demand made by the Company that the Grievor’s physicians be required to testify in order to

prove their medical observations and opinions as reflected in their reports. Rather, the Company

disputed the sufficiency of this medical documentation to support the Grievor’s claims of

Page 16 of 196

underlying “total disability” justifying her absence from work (primarily during Period 3),

arguing that they were insufficient for the Grievor to satisfy her onus to prove that she had a

disability at all, amid the Company’s charges of improper “doctor shopping” for the medical

opinions she wanted.

[35] Also, I considered the Company’s general policy in responding to what it has referred to

as “gaps” in performance of employees as part of the backdrop that has relevance to all three

temporal periods under consideration, which provided me with an organizational perspective on

which to view the expectations of the parties. In that regard the Company filed a document dated

October 29, 2006 entitled, “Responses to Performance Improvement Gaps”, which is not

disputed to be the Company’s “guideline” to the way it is expected to handle incidences of

culpable misconduct, non-performance and absenteeism in the workplace. It constitutes a form

of notice to employees and the Union of the Company’s practice in administering discipline in

such matters through a progressive approach, while reserving the Company’s right to skip or add

to the sequence of performance or discipline administration as circumstances dictate. It clearly

makes a distinction between “culpable” and “non-culpable” performance issues requiring

different corrective approaches, which as circumstances would later show the Company didn’t

follow in its actions towards the Grievor.

[36] In the normal course, the Company’s policy in the case of conduct deemed to be

“culpable”, is to follow progressive discipline beginning at what it calls, “Step 1” which is a

“Meeting of Concern, Coaching and Counselling”, all of which is acknowledged not to be

disciplinary in nature, but rather is intended to alert the employee to the Company’s requirements

with assistance in meeting those expectations. As a non-disciplinary meeting the parties also

acknowledged that the specific criticisms about the employee’s performance raised in such

meetings was not to be relied upon later as independent grounds supporting future discipline.

The Company’s policy document goes on to announce a standard progressive disciplinary

response in the event that the Meeting of Concern does not achieve the desired results, beginning

at “Step 2” with a “Written Warning”, at “Step 3” with a “1^stSuspension”, “Step 4” with a “2^nd

Suspension” that is finally dealt with by “Dismissal” where the required improvement in

performance or conduct has not been accomplished, which is categorized as “Step 5” in the

Company’s progressive disciplinary regime. Similar steps are documented by the Company in

Page 17 of 196

its policy for non-performance issues determined to be “non-culpable”, in circumstances where

the employee is “Not Performing to Standard” and for “Absenteeism”, based on the issuance of

escalating “Letters of Concern” to the employee that, if not satisfactorily addressed, may result in

the non-culpable dismissal of the employee for inability to perform to the expected standards.

And if an employee’s attendance fails to meet a reasonable expectation, dismissal may follow

under the Company’s policy where an initial “Meeting of Concern” and four subsequent “Letters

of Concern” have not resolved the matter, after the Company considers (and applies where

appropriate) measures to reasonably accommodate any disabilities revealed by the

circumstances.

[37] On this latter point, the Company’s policy expressly states that, “If the cause of the

absenteeism is due to a disability, TELUS will have to meet the duty to accommodate test prior

to proceeding to dismissal” and also that, “The search for a suitable position (to accommodate

the employee) may require a period of time.” Although the Company’s document also states that

(as of 2006) its “Absenteeism Program is currently being developed”, any development in that

regard was not identified in the evidence.

[38] The Union’s eventual submission before me was that the Company failed to follow its

own published policies in handling the Grievor’s alleged non-performance, culpable misconduct

and absenteeism by the Company’s inexplicable “rush to judgement” of such a long-service

employee in this case, by supervisors who had barely worked with her before. I ultimately

concluded that the Union was substantially correct in that assessment.

V.

Period 1: June 13, 2012 – November 12, 2012

[39] My findings of fact concerning the events during this first temporal period are derived

primarily from the testimony of Ms. Leclerc and Mr. Olsen, with support from Ms. Reynolds,

Mr. Marasco and Mr. Wain for the Company, as documented by a cache of e-mails, memoranda

and reports, and from the Grievor’s explanations at the time the events were unfolding and as

offered in her testimony. Those findings may be summarized as follows.

[40] Ms. Leclerc was a manager in two periods during 2012 from the beginning of January to

the last week of March and then from July 1 to November 26 with spotty attendance in her last

Page 18 of 196

two weeks before she was off a second time until June 4, 2013 (which was after the Grievor had

been dismissed). She was responsible for front-line Corporate Support Agents (or “CSAs”)

handling service calls for large corporate clients identified as multimillion dollar companies,

government agencies and health care systems, which she characterized as among “the most

valuable that TELUS has and we have to keep them with us.” In describing the importance of

this clientele (referred to as “platinum accounts”), Ms. Leclerc emphasized that, “At any time

there are competitors that want to take that business, so it is imperative that our level of service is

impeccable”. Providing exemplary customer service for these accounts is the expectation and

goal of the Company.

[41] The Grievor was one of those CSAs who was first assigned to Ms. Leclerc’s “Team” in

May of 2012. However, since Ms. Leclerc was absent from work at the time until July 1, 2012,

the Grievor initially reported to Ms. Jenny Reynolds who was the “acting team manager”,

although she was also a member of the Union’s bargaining unit. Thus the evidence shows that

Ms. Leclerc’s contact with the Grievor was limited to the four and one-half months from July 1

until her discipline and events immediately following November 12, 2012 over the Grievor’s

some 14 years of service to the Company, and even then there was little face-to-face contact

between them. That is because the Grievor was one of only nine “At Home Agents” (hereinafter

“AHA”) who were considered sufficiently reliable and competent to be permitted to work from

their own homes with minimal supervision instead of working out of the Company’s

Scarborough call centre with the remainder of Ms. Leclerc’s employees. These are regarded “the

best of the best” or “elite” employees, and by that time the Grievor had been an At Home Agent

for six years.

[42] While I was provided with much information on how the Company connects the AHAs to

its call centre operations (requiring that I digest a great amount of cyber-electronic terminology

and what was loosely referred to as “TELUS-Speak”), it is sufficient to note that the AHA’s

home working area is automatically connected to the call centre through appropriate electronic

and computer equipment supplied by the Company in a manner making it virtually

indistinguishable from a physical desk within the call centre itself. For purposes of this narrative

I have avoided using the technical jargon and TELUS-Speak extensively pressed upon me except

in a limited number of instances.

Page 19 of 196

[43] Consequently, a supervisor located in the Company’s Scarborough office can listen in

real time to the AHA’s telephone conversations with clients and watch exactly what the AHA is

seeing and doing on the computer screen (although apparently not in real time but rather via a

“screen shot” record utilizing a computer software program known as “e-QUALITY”) at the

AHA’s location in handling a customer’s call. The Company provides all of the necessary

computer hardware, software and connections to the AHA’s office through what is referred to as

a “Virtual Private Network” or “VPN” line that is intended to allow the AHA to interact

seamlessly with the call centre. Telephone calls are routed to the AHA’s location in the same

way that such calls are distributed to CSAs working out of the Scarborough office. If the

supervisor wishes to interact directly with the AHA, even while the AHA is dealing with an

inquiry, there is a separate communication system (referred to as “MOC” which the Grievor

called, “Communicator”) that electronically substitutes for physically standing beside and

listening to the Corporate Support Agent while speaking to the customer.

[44] As with all telephone agents (generally referred to as “Customer Service Agents”)

working in the call centre, the AHAs’ activities are contemporaneously recorded on a

computerized log that documents every incoming and outgoing call, dropped call, hang-up, etc.,

as well as tracking when the AHA is doing follow-up office work associated with the call, has

technical problems requiring the cessation of service for a period of time or while taking a break

for personal reasons. The AHAs typically wear a Company supplied headset and when a call

comes in they will hear a “beep” in their ear that is also associated with an audible ring and

flashing light on a display monitor (known as a “Plantronics” dial pad or “box” connected to the

headset), and the customer’s account which is apparently identified through the telephone

number immediately pops up on the AHA’s computer screen through a software facility known

as “COSMO” that was described as the “application used to answer calls”. There are a number

of additional software applications referred to in the testimony of witnesses and the

documentation that were reviewed with me in some detail (including one called SMART

DESKTOP) that are unnecessary to describe for purposes of the present narrative. It is sufficient

to note that through COSMO and other application software the AHA has the relevant account

information required to immediately address the customer’s inquiry or concern.

Page 20 of 196

[45] Like all Customer Service Agents generally, the AHA is expected to answer the call

promptly (with a five second goal), and whenever a call is finished or dropped for different

reasons (including a hang-up) and all work associated with that call has been completed (which

typically involves making a notation to the customer’s account file of the outcome of the call),

the AHA is marked as available for receiving the next telephone call from a customer and placed

at the bottom of the electronic queue for receiving such calls, which can result in the Customer

Service Agent sitting beside the telephone and computer screen for a period depending on call

volumes at the time. Having a record of the AHA’s activities enables the Company to compile

statistics on the employee’s performance (in terms of number of calls answered, “dead air calls”,

time taken to deal with calls and supporting record-keeping work, personal time off, etc., referred

to as Key Performance Indicators or “KPI”), which is judged against the standards established by

the Company that are reviewed with the employee on a regular basis. In this regard Ms. Leclerc

testified the Company’s productivity target for the CSAs was 32 calls per day.

[46] Ms. Leclerc’s evidence is that of all of the Corporate Support Agents she managed during

2012, the Grievor was the only one she ever received complaints about, which Ms. Leclerc

responded to by providing additional coaching to the Grievor, although the evidence before me

of such actual coaching was limited. This was in addition to the normal two coaching sessions

per month and telephone monitoring provided by the manager for all agents on a regular basis,

which Ms. Leclerc acknowledged are non-disciplinary.

[47] Over the Union’s objection I permitted Ms. Leclerc to elaborate, as part of the general

background to the present dispute based on her experience with the Grievor prior to the events

leading to the Grievor’s five-day suspension without pay, on why Ms. Leclerc had developed “a

poor opinion of the level of customer service” that the Grievor was providing which included,

she claimed, “many instances of complaints”.

[48] In explaining further, Ms. Leclerc offered her assessment that the Grievor, “had a very

laid back approach when dealing on the phones – she seemed as though she was uncaring when

dealing with actual clients as opposed to a dealer (who may be more accepting of the internal

jargon).” Ms. Leclerc also expressed the view that, “The way (the Grievor) conducted herself on

the phone made (the clients) fell stupid” and consequently Ms. Leclerc said she noted, “There

Page 21 of 196

was frustration on the call that sometimes arose between (the Grievor) and clients”, prompting

Ms. Leclerc to coach the Grievor “about (her) tone of voice”. It was not clear from the evidence

whether Ms. Leclerc had come to these conclusions by actually listening to the Grievor, or on the

basis of the reports of others considered below.

[49] Notwithstanding these concerns, as well as the claimed importance of the Grievor’s role

in dealing with what the Company considered to be its “platinum” clientele for which Ms.

Leclerc testified “it is imperative that our level of service is impeccable”, the Grievor was not

disciplined at that time for misconduct arising out of Ms. Leclerc’s stated observations (which on

the evidence presented to me could only have occurred after July 1, 2012 when Ms. Leclerc

returned from leave).

[50] Moreover, no steps were taken by the Company to remove the Grievor’s privilege of

working from her home under the AHA program as a trusted employee who required minimal

supervision prior to the Grievor’s suspension on November 12, 2012, which the parties agreed

the Company had the right to do at any time in the reasonable exercise of its managerial

discretion.

(a)

June 26, 2012 Meeting of Concern

[51] The first substantial notation of any complaint regarding the Grievor’s performance is an

e-mail memorandum dated June 13, 2012 from Mr. Eric Mantha, who is identified on the e-mail

as a “Client Service Manager”, which is addressed to Ms. Leclerc. Ms. Leclerc’s evidence is that

she was on leave from the Company from the end of March 2012 until July 1, and Ms. Reynolds

testified that she severed as acting manager for Ms. Leclerc from May 7 to July 1 of that year and

then again for the second extended absence by Ms. Leclerc starting November 26, 2012.

[52] Thus Ms. Reynolds, who was still in the bargaining unit at the time and didn’t become a

member of management until June of 2014, was nevertheless directly responsible for the

Grievor’s day-to-day supervision on June 13, 2012. Ms. Leclerc testified that Ms. Reynolds

eventually received Mr. Mantha’s e-mail memorandum and provided it to Ms. Leclerc when the

latter returned to work in July.

Page 22 of 196

[53] Over the Union’s objection, I permitted the Company to admit this memorandum into

evidence for the limited purpose of setting the background circumstances in the same way that

Ms. Leclerc’s earlier testimony of alleged complaints respecting the Grievor’s conduct prior to

Ms. Leclerc’s second leave in 2012 had been admitted into evidence. I did not accept this

document as proof of the allegations therein in the absence of testimony from Mr. Mantha to the

extent it might have been relevant to the grievances before me (having noted that the information

in Mr. Mantha’s memorandum was partially based on certain hearsay allegations of fact by the

customer and thus in Ms. Leclerc’s hand constituted “double hearsay”). And the Company never

provided me with the direct evidence to prove Mr. Mantha’s assertions in that e-mail, while as

indicated later in this narrative it apparently relied upon those allegations of the Grievor’s

misconduct as part of the grounds supporting the five-day suspension issued to the Grievor on

November 12, 2012.

[54] The e-mail from Mr. Mantha complains about the Grievor’s alleged mistreatment of a

platinum account customer on June 12, 2012 and the Grievor’s subsequent conversation with the

customer and Mr. Mantha (along with another TELUS representative identified as “Mike”) that

Mr. Mantha claimed was, “arrogant, rude and uncooperative” and which he deemed to be

“totally unacceptable”. It appears from Mr. Mantha’s memorandum that a dispute arose during

the call when the Grievor asked Mr. Mantha and the other TELUS employee on the line to

identify themselves and provide their employee numbers which they did, but when asked to do

the same by Mr. Mantha the Grievor refused to reveal her name and TELUS number. Mr.

Mantha’s memorandum also states that he contacted both the customer representative (who was

on the call) and Mike the next morning, “To ensure I was not the only one having a bad

perception of (the Grievor)” who “both confirmed they had the same perception”.

[55] Responding to that alleged incident, Ms. Reynolds convened what the Company later

characterized as its “First Meeting of Concern” with the Grievor on June 26, 2012, in accordance

with its published guidelines in addressing such issues. Ms. Reynolds documented this meeting

in an e-mail record she sent to herself that day but which the Exhibit submitted into evidence by

the Company indicates she didn’t forward to Ms. Leclerc until November 2, 2012, nor was there

any evidence that a record of this Meeting of Concern was provided to the Grievor who I

consequently found didn’t receive it. Mr. Mantha’s allegations were discussed with the Grievor,

Page 23 of 196

who testified that she wasn’t given any documentation concerning the matter in advance and had

little recollection except to remember her discussion with Ms. Reynolds that was not a face-to-

face meeting but rather conducted over the telephone.

[56] Ms. Reynolds’ notes confirmed by her testimony indicate an apparent dispute between

the Grievor and Mr. Mantha on their call who the Grievor is reported to have described in those

notes as “irritating her”, with the Grievor expressing security concerns (apparently over

disclosing her name on the call) and the view that she did nothing wrong. Ms. Reynolds’ notes

also record that she advised the Grievor to “please provide (her TELUS identification number) to

internal employee if they ever ask it” (sic) and that if the Grievor didn’t feel comfortable with

something, to “keep (her management) in the loop so that if a complaint comes down the pipe we

understand what is going on.” Then Ms. Reynolds’ notes indicate she told the Grievor that, “If

someone asks (you) for (your TELUS number) or some type of information, please tell them to

speak to your support person” and that the Meeting of Concern ended with Ms. Reynolds asking

for and receiving the Grievor’s agreement that “going forward” she would give her “support

person a heads up if there is an issue”. (I was told that a “support person” is the TELUS-Speak

terminology for an employee’s direct supervisor).

[57] I found on the foregoing evidence that there was nothing about this specific incident or

subsequent Meeting of Concern placing the Grievor on notice that she had done anything wrong

and explicitly warning her of the possibility of discipline for repeating such conduct in the future.

Rather, the message provided to the Grievor was confusing in that it suggested both that she

should disclose her TELUS identification number to an internal TELUS employee when asked

(without considering there was an outside customer on the call under review that might cause

legitimate security concerns), while at the same time advising the Grievor that in the future she

should keep her management “in the loop” and instruct people asking for her TELUS

identification number to contact her support person. The evidence would later show that there

was much confusion in the messages and in the way that management dealt with the Grievor

over the ensuring four months, most if not all of it being of its own making.

(b)

Evidence of Developing Medical Issues

Page 24 of 196

[58]

In the period after June 26 but before what the Company has characterized in its

timeline as the “Second Meeting of Concern” with the Grievor convened on October 5, 2012, the

evidence before me also shows there were things beginning to happen in the Grievor’s life that

the Union points to as part of its “key events timeline” not only having a material impact on the

Grievor’s performance and behavior during Period 1, but which later had a cascading effect on

the circumstances leading to the Grievor’s “first dismissal” on January 11, 2013 by the end of

temporal Period 3 in the narrative surrounding the three grievances in this case.

[59] While working as an AHA the Grievor was in regular e-mail contact with Ms. Leclerc

concerning her day-to-day activities (that was directly connected to the TELUS call centre

through the VPN at the Grievor’s home), and those e-mail records indicate that the Grievor

advised Ms. Leclerc of her need to be absent from work to attend medical appointments on

September 14 and September 24, 2012.

[60] This is substantiated by a medical record (under the title, “Patient Encounter History”)

prepared by the Grievor’s family doctor, Aliya Adil, who reports that the Grievor was consulted

on matters related to the results of a recent colposcopy examination, which is a procedure for the

investigation of cervical cancer. The Grievor testified that this examination was prompted by the

discovery of abnormal cells that need to be regularly checked for the risk of cancer; which was

naturally concerning to a relatively young woman contemplating the possibility of having

children. (As discussed below, she later had surgery for the removal of three large uterine

fibroids approximately four months after her first dismissal).

[61] The medical record also indicates the Grievor was complaining about “a bit of urine

incontinence if coughs”, which the Grievor testified in the course of cross-examination was

becoming an issue requiring her to be absent from her desk more often than usual for personal

hygiene breaks, and was generally upsetting as a developing problem before the events at work

precipitating what she claimed to be a major stress reaction, described below. The medical

documentation submitted into evidence by the Company indicates that the next time the Grievor

saw Dr. Adil was on November 15, 2012, which was during her five-day disciplinary suspension,

and by then was complaining to Dr. Adil that she was urinating two to three times per hour.

Page 25 of 196

[62] I was cognizant of the need to be careful when scrutinizing such medical documentation,

since outside of the reports of the objective results of clinical procedures, to the extent there may

be a legitimate presumption that the patient is being truthful in self-reporting symptoms to the

physician, which is then relied upon by the physician in diagnosis and treatment, that

presumption is a rebuttable one that must only be accepted with care. This is particularly the

case when claims of stress related illness are asserted, where there may be a tendency to question

the reliability if not veracity of such claims in the context of an ongoing employment dispute.

The Company expended a great amount of its cross-examination of the Grievor challenging the

medical problems she reported to her physicians (as documented by their records) and alleging

“doctor shopping” in further efforts to discredit those reports, which in my opinion were not only

unsuccessful but tended to support the view of the Grievor as a very confused and troubled

individual, that I will address later in these Reasons.

[63] The significance of the September 24, 2012 medical report at this juncture is that it shows

the Grievor’s later medical claims did not suddenly arise, but rather the emergence of problems

related to what the Grievor testified was increasingly requiring her to be absent from her desk

before any discipline was issued, sets the framework for the growing anxiety and distress that

was in harmony with the Grievor’s descriptions of her medical problems that followed in the

course of her lengthy cross-examination. And it is also consistent with the explosion of the

reported symptoms developing as a result of the extreme stress she claims to have later been

experiencing in the workplace, largely as a consequence of the confusing and inconsistent

actions of management, described below.

[64] In short, the medical documentation to this point as elaborated upon by the Grievor,

discloses an individual who was, as of the end of September of 2012, already exhibiting some

fragility in at least her physical condition and a certain confusion about and preoccupation with

her developing medical problems, as corroborated by that documentation. It also forms the

backdrop for assessing the veracity of the Grievor’s later statements to Ms. Leclerc, described

below, and the Grievor’s actions in connection with Ms. Leclerc’s concern that by the end of

October the Grievor seemed to be taking an inordinate amount of personal time off during the

workday that the Grievor indicated was related to health issues requiring frequent bathroom

Page 26 of 196

breaks, as later borne out by the medical documentation in which she reported that she needed to

urinate two to three times per hour.

(c)

October 5, 2012 Second Meeting of Concern

[65] In the sequence of key events, the Company then points to what it characterizes as the

“Second Meeting of Concern” with the Grievor more than three months after the First, that was

documented in an e-mail from Ms. Leclerc to the Grievor dated October 12, 2012 confirming the

details of their discussion on the matter that occurred the week before on October 5, 2012, which

both Ms. Leclerc and the Grievor testified about. There is no suggestion that in the lead-up to

their October 5 meeting that the Company had raised any criticisms of the Grievor’s quality or

quantity of work during any of the regular bi-monthly meetings between Ms. Leclerc and the

Grievor to review her “KPI numbers” as tracked by the Company’s activity log. On Ms.

Leclerc’s testimony there should have been at least six such meetings in that timeframe.

[66] However, Ms. Leclerc testified she received a complaint on October 4, 2012 regarding

the Grievor’s interaction with a representative of one of the Company’s corporate clients named

Robert Wong. Mr. Wong asserted by e-mail that in dealing with the Grievor on a billing issue,

he didn’t appreciate what he alleged to be the Grievor’s, “attitude in handling my call and her

laughing at me a couple of times while I tried to understand Telus Air Card contract and what

happens to those Air Card when they are placed on Vacation Discount when their contract ends”

(sic). Ms. Leclerc confirmed in her testimony that she never spoke directly with Mr. Wong; nor

was there any evidence to suggest that Ms. Leclerc listened to a recording of that alleged

telephone conversation, if one existed. (On this latter point I was led to believe on the evidence

that such recordings were frequently preserved).

[67] When Ms. Leclerc forwarded the customer’s e-mail to the Grievor on October 4 asking

for comment, the Grievor responded within 15 minutes by return e-mail that she ‘vaguely

remembered the call’ and was sure that she tried to help Mr. Wong but that, “there might have

been an English barrier because I kept repeating myself. As well I believe he couldn’t give me

the aircard details or pin on the acct so therefore told him I was limited on what I could discuss.

He was not satisfied”.

Page 27 of 196

[68] Ms. Leclerc testified that in reviewing her records she then discovered (apparently for the

first time) that there was another e-mail complaint about the Grievor more than three months

earlier on June 25, 2012 (received while Ms. Leclerc was on leave) that was written by a TELUS

employee concerning the alleged conduct of the Grievor in transferring a customer call that this

TELUS employee did not consider appropriate. The e-mail charged that, “This is not the first

time Tracy tries to push calls our way for stuff we have nothing to do with, but she also literally

lied about it!” There was no indication that the Grievor was given any opportunity to answer

these allegations, or, again, that Ms. Leclerc ever listened to a recording of the call to satisfy

herself of the legitimacy of the complaint, if one existed.

[69] Ms. Leclerc consequently convened a “Meeting of Concern” on October 5, 2012 with the

Grievor that Ms. Leclerc documented in the following e-mail addressed to the Grievor a week

later on October 12, 2012:

This email is to outline our discussion that took place on Friday Oct 5. I have received complaints

from clients advising you were argumentative and negative during their interactions with you. I

understand there are always two sides to every story; however, you now understand the

importance of tone and position word choices and how they can impact your call flow. This email is

to outline my expectations of you going forward and should these behaviours arise again, I will

have no alternative but to move to disciplinary action.

Be aware of your tone – that’s all the client has to go with when dealing with clients over the phone.

Project a happy helpful tone of voice.

Use positive word choices. Just because you can’t give the client what they are asking for doesn’t

mean we can’t position it in a positive way so they understand why we’re saying no.

Any further complaints with regards to your interactions with clients, may result in disciplinary

action being taken. Please be aware of tone and word choices and let’s ensure you IVR survey

results and internet quality scores reflect this.

[70] There are three issues that I noted from this evidence that was relevant to my

consideration of Grievance No. 1 challenging the Grievor’s five-day suspension without pay.

[71] First, in the face of the Grievor’s denials of any wrongdoing, all of the assertions of fact

underlying this Meeting of Concern (as with the previous one handled by Ms. Reynolds) where

not accepted as proof of the allegations; but rather were allowed to establish the background

context of the discussions between the Grievor and Ms. Leclerc at that time. To the extent the

Page 28 of 196

Company later relied upon these alleged “customer complaints” as one of the grounds for issuing

discipline to the Grievor, no direct evidence of such malfeasance was presented to me.

[72] Second, the Meeting of Concern was non-disciplinary, and in preparing for the Meeting

of Concern Ms. Leclerc reviewed her files to be in a position to discuss all reported instances of

inappropriate conduct with the Grievor, with the express warning that, “Any further complaints

with regards to (the Grievor’s) interaction with clients, may result in disciplinary action being

taken”, indicating to the Grievor that she was in jeopardy for future alleged misconduct of this

nature, but not at risk for being disciplined for the past alleged misconduct that was the subject of

the Meeting of Concern.

[73] To the extent the Company later, in its five-day suspension without pay to the Grievor

dated November 12, 2012, appears to base the discipline in part on the past alleged “rudeness

and unprofessional conduct”, any reliance on those past alleged events had already been spent as

part of the Company’s published policy on the administration of culpable and non-culpable

performance “gaps”, which I concluded the Company was not entitled to resurrect as separate

incidents justifying discipline.

[74] Lastly, as bad as Ms. Leclerc painted the Grievor’s tone and conduct with its highly

valued platinum customers, there remained no suggestion at least until the Grievor’s five-day

disciplinary suspension that it had lost confidence in the Grievor’s continuing ability to work in

the privileged position as one of a handful of At Home Agents, which in my opinion undercuts

the seriousness with which the Company professed to take the Grievor’s alleged “rude and

unprofessional conduct” at the time, if not the veracity of those claims.

(d)

Allegations of Continuing Rude and Unprofessional Conduct

[75] The only evidence I received on the issue of alleged “rude and unprofessional conduct”

by the Grievor after the October 5, 2012 Meeting of Concern, which is the period for which the

Grievor was on notice of potential disciplinary consequences of such conduct, arises out of

another e-mail communication dated October 30 ,2012 under the heading, “Employee Mentoring

System” from a TELUS employee to Ms. Leclerc concerning the Grievor on what was identified

under the “subject” line as, “Rude behavior with a client”. The reporting TELUS employee

Page 29 of 196

indicated he had “recently encountered a very angry and frustrated client” who was apparently

raising a difficulty with retrieving data from her wireless device with a concern that all of the

data on her device would be lost (which is a prospect that would be understandably upsetting). In

the course of addressing the problem with the client, the reporting TELUS employee commented

that the client said she asked to be transferred back to “Corp Billing as she wanted to officially

complain about the last billing agent who was rude to her”, who was identified through the

Company’s monitoring records as the Grievor. The TELUS writer of this e-mail then recounts

what he claims the client told him of being, “almost in tears and very frustrated as she could not

get a straight answer from (the) billing agent” (emphasis added).

[76] Ms. Leclerc did not confront the Grievor with these allegations at the time, but rather

waited more than one week until the “investigative meeting” (as contemplated under the

collective agreement) convened with the Grievor and her Union representative on November 8,

2012 that will be described below, where in the course of telling the Grievor that Ms. Leclerc

had, “listened to many calls where the conversations went sour because of word choices”, she

stated: “And I’ve received many complaints where – one on October 30^th– where the client was

in tears” (emphasis added). The Grievor denied that this was caused by her, stating further: I’d

like to see that one because I have no idea what that’s about”. In the course of her discussion at

the investigative meeting with the Grievor and her Union representative, Ms. Leclerc admitted

that she “didn’t listen to the transaction” (which I infer from their reported discussion on the

matter, was likely available for her review).

[77] This was one of the incidents of “rude and unprofessional conduct” later relied upon by

the Company in issuing the five-day suspension without pay in its November 12, 2012 letter of

discipline and the only one that was after the meeting of October 5 that the Company identified

as the “Second Meeting of Concern”. Aside from mischaracterizing the contents of the

“Employee Monitoring Service” e-mail by telling the Grievor that as a result of her actions the

client “was in tears” when the term “almost in tears” was reported (and which is subject to a

number of interpretations), I was asked to accept what amounted to double hearsay on a matter

of some importance respecting the Grievor’s professionality, which in the face of the Grievor’s

denials I could give little, if any, weight. That was particularly the case where the evidence also

Page 30 of 196

indicated the potential availability of a recording of this encounter that the Company neither

provided nor explained why it couldn’t.

[78] But even more importantly, it was clear that Ms. Leclerc who hadn’t listened to the

impugned interaction herself, was nevertheless quick to condemn the Grievor on the strength of

what others had alleged and without taking into account the contextual circumstances and maybe

the reasonableness of the client’s conduct at that time. Indeed, throughout Ms. Leclerc’s

consideration of allegations of rude and unprofessional conduct by the Grievor, it is clear on the

evidence that although critical of the Grievor’s “tone” and her “word choices”, she never

testified that the actually heard (either at the time of the alleged misconduct or afterwards via

recordings) the Grievor speaking rudely or unprofessionally to any customer, that she dealt with

by issuing any discipline in accordance with the Company’s progressive disciplinary policy at

the time to address a “gap” in the Grievor’s performance for “culpable” misconduct.

[79] What both parties point to as the next event in the narrative occurs on October 31, 2012.

Ms. Leclerc confirmed in cross-examination that the Company introduced a new method of

“scoring” the performance of Customer Service Agents in October 2012 that Ms. Leclerc utilized

in compiling what amounted to a performance appraisal on the Grievor that she forwarded to the

Grievor on October 31. The form (referred to as a “QCE Evaluation”) indicates that based on

Ms. Leclerc’s recent listening to the Grievor’s interaction with an unidentified client caller, her

performance was considered insufficient because of her “very low, quiet, non-engaging voice”

that further criticized her “tone” as “completely low and unengaged”; as well as not showing

appropriate “empathy” with the client’s situation, that when consolidated with other measures of

performance resulted in an overall score of only 60%. (Given my earlier observation, the fact

that Ms. Leclerc didn’t take this opportunity to refer to any past “rude and unprofessional

conduct” at the same time, undermines the veracity of those claims, at least to October 31).

[80] Ms. Leclerc conceded that this document was not intended to be disciplinary in nature,

but rather identified areas for future coaching and that it set out expectations on the matters

criticized for follow-up purposes. That it achieved some of this goal seems apparent from the

Grievor’s response to the QCE Evaluation, where she constructively asks Ms. Leclerc about

certain technical elements that Ms. Leclerc replies to with further direction on the matter of her

Page 31 of 196

inquiry. However it did raise the question by Union counsel as to whether Ms. Leclerc found it

odd that the Grievor, who had to that point been considered sufficiently trustworthy and

competent to work as an At Home Agent for six years would suddenly have such difficulties,

which Ms. Leclerc (not unreasonably) could not answer, although it was a fair observation.

(e)

Subsequent Events Leading to the Disciplinary Suspension

[81] The next day, November 1, 2012, the Grievor asked Ms. Leclerc to provide her with a

“Practitioner’s Assessment Form” referred to as “PAF”. In cross-examination, Ms. Leclerc

confirmed that she had an earlier undocumented conversation with the Grievor during October,

where Ms. Leclerc asked the Grievor about what appeared to Ms. Leclerc to be an inordinate

amount time away from work that the Grievor was taking during the day (which is marked on the

electronic log as “PERSONO AUX” for “Personal Auxiliary Time”, and also referred to as

“personal AUX”). In response, the Grievor referred to medical issues requiring additional

personal AUX, and was advised by Ms. Leclerc that employees who needed more time off “to go

to the bathroom” should have their doctor fill out a PAF, that Ms. Leclerc acknowledged saying

in her testimony. I took from Ms. Leclerc’s reference to ‘going to the bathroom’ as knowing

about the general claim by the Grievor of a problem in that area, although at a very base and

vague level of comprehension at that point. The Grievor testified she had also raised the matter

of her need for additional bathroom breaks with Mr. Mark Plumber, who was a management peer

of Ms. Leclerc’s (and apparently former supervisor of the Grievor), who suggested that she get a

PAF to authorize more time off for that purpose, as well.

[82] The Practitioner’s Assessment Form is signed by the TELUS employee (referred to as a

“Team Member”) authorizing his or her physician to answer a series of detailed questions

identifying the employee’s, “Medical Condition” under subheadings that include, “Diagnosis”,

“If providing a psychological diagnosis please complete DMS IV”, and “Describe signs and

symptoms of the illness/injury of the Team Member”, along with particulars of the employee’s

“Treatment” and “Rehabilitation”.

[83] The form is intended to elicit short-form answers to specific questions designed to assess

the employee’s “eligibility for benefits”. In singing the form, the employee expressly authorizes

“TELUS Health Services to contact the practitioner in writing for any additional relevant

Page 32 of 196

information that they may require for this purpose.” It will assist the future discussion of the

Grievor’s subsequent claim for disability benefits under the “Team TELUS Flex Benefits” plan,

by setting out this authorization that must be signed by the Team Member, as follows.

I authorize the Practitioner identified below to release information about me that is relevant for the

purpose of considering my eligibility for benefits and to establish my fitness for work and/or level of

disability. This form may be released to TELUS Health Services situated in any province of

Canada. I also authorized TELUS Health Services to contact the practitioner in writing for any

additional relevant information that they may require for this purpose, provided a copy of the

information request is sent at the same time to myself. It is understood that health information

received by TELUS Health Services department will be kept in strict confidence. These consents

are valid for six months or until I return to full-time employment, whichever shall first occur, unless I

revoke them in writing.

[84] Ms. Leclerc’s reaction to the Grievor’s request for a PAF in her testimony was equivocal;

at one point referring to it as “coincidental” to the events that were happening with the Grievor’s

employment but at another point in cross-examination conceding that she regarded it with some

“suspicion” at the time. If that was the case, no evidence for the basis of any suspicion was

expressly presented by the Company.

[85] On the same day that she requested the PAF, the Grievor also informed Ms. Leclerc on

November 1, 2012 that the Grievor had applied for an internal job posting in another TELUS

department for a position as a “Business Analyst II”. Ms. Leclerc regarded this, too, a

“coincidence” as related to the ongoing employment issues with the Grievor. However I took

this as evidence consistent with the actions of an employee, before the subsequent events leading

to the discipline issued in this case, attempting to remove herself from a situation of potential

future conflict with her supervisor.

[86] On November 7, 2012, in preparing for the upcoming November 8, 2012 investigative

meeting described below, Ms. Leclerc testified that she noticed from the review of screen shots

of the Grievor’s computer through the e-QUALITY program, that the Grievor had accessed her

personal TELUS mobility account on one occasion. This, according to Ms. Leclerc, was “strictly

forbidden” and in violation of the Company’s Ethics Policy that employees know about through

taking an on-line “Integrity Course”, which the Company’s records indicated the Grievor

completed on September 27, 2012. Since Corporate Support Agents had the ability to provide

account holders with generous discounts, give free features and change rate plans, Mr. Leclerc

testified that “from the temptation alone it is frowned upon by the Company” and she asserted in

Page 33 of 196

evidence it was the Company’s policy that, “under no circumstances can you access your own or

family’s accounts”. In this case it is not suggested that other than accessing her account the

Grievor in fact did anything to change the account.

[87] When the Grievor was later confronted about this in the November 8, 2012 investigative

meeting described below, and asked specifically what her understanding “of accessing

Friends/Families or your own account was”, the Grievor responded that she “didn’t really know

much about it”. While acknowledging that she did look at her own account on that occasion, she

said she “didn’t change anything” on her account, and denied knowing about what Ms. Leclerc

told her was the Company’s policy that such access was “a breach of security or ethics”. I

concluded that this answer was entirely reasonable in the circumstances; although it is clear that

Ms. Leclerc considered it “evasive”.

[88] The Company’s “Ethics Policy” in effect as of February 2012 is a 33-page booklet that

was entered into evidence, as was the on-line “Integrity in all Things” course that the Grievor

completed on September 27, 2012, which is a 179-page document that employees access on-line

(referred to as e-learning). When asked in cross-examination to point out the specific policy

prohibiting an employee from looking at his or her own account, Ms. Leclerc couldn’t do so;

although she indicated that there was a “case study” in the documents that clearly prohibited

such conduct and that handling accounts for family or friends was also forbidden by the

Company’s ethics. I was not shown the case study she referred to, nor was I given a copy of the

specific policy (or page number in either of these documents) that expressly proscribed all

contact for any purpose by an individual Customer Service Agent with his or her own account.

[89] While there was reference in the Company’s Ethics Policy to prohibitions on employees

self-dealing on matters for themselves or their friends and relatives under the heading, “Conflict

of Interest” (on pages 27 – 32), which I carefully reviewed, it consists of six-pages of text

(towards the end of a 33 paged document) on the general topic of conflict of interest that does

not, in my assessment, express a clear rule to satisfy the test in Re KVP Co. and Lumber and

Sawmill Workers’ Union, Loc. 2537 (1965), 16 L.A.C. 73 (Robinson), that affirms an employer’s

right to unilaterally impose rules of conduct, provided they are: (1) not inconsistent with any

collective agreement, (2) not unreasonable, (3) clear and unequivocal, (4) brought to the attention

Page 34 of 196

of the employee affected before acted on, (5) that warn the employee of the possible

consequences of discharge from a breach of the rules, and (6) are consistently enforced. As I

shall discuss later in these Reasons, in the absence of such clarity I could not find on the

evidence before me that the Grievor knew or reasonably should have known about a Company

rule ‘strictly forbidding’ such conduct at the time. And in any event, there was no allegation that

the Grievor ever engaged in any form of “self-dealing” by merely viewing her own TELUS

mobility account. This is not to suggest that the Company would not have legitimate concerns

about a Customer Service Agent viewing his or her own account for the very reasons that Ms.

Leclerc identified. But if the Company is going to discipline an employee for such conduct it has

the onus to show a clear rule prohibiting such conduct that is consistently followed, which was

not demonstrated on the evidence presented to me.

[90] On November 2, 2012 the Grievor sent an e-mail to Ms. Leclerc alerting her to a problem

related to her At Home system, in which the Grievor wrote that: “in COSMO I am getting two

calls in at a time. So when I go into state after call work another call is waiting in my COSMO.

Most of the time this ends up as a drop call.” As she explained in her testimony, the Grievor

claimed she was experiencing a number of technical problems with her At Home office VPN

connections and the laptop computer provided by the Company, and in this e-mail she alerted her

manager to a problem that she believed was causing a high incidence of “dropped calls”.

[91] Dropped calls occur when a telephone call waiting in the electronic queue isn’t there

when the CSA answers (creating a situation of “dead air”), which Ms. Leclerc testified might

happen on average once or twice per shift for a variety of reasons. In most instances of dropped

calls the Corporate Support Agent doesn’t know if the customer is on the line, and so is

instructed to wait several seconds while inviting an answer with a set script that is to be read

before releasing the call (which is recorded on the electronic log as a gap in time).

[92] In the responding e-mail from Ms. Leclerc, the Grievor was asked to “log out” and

“reboot”, which the Grievor did and later reported that, “so far it looks okay! But just wanted to

make sure you are aware of this!” This was the first record of a number of problems the Grievor

would later claim she experienced with the systems in her At Home office. The Grievor testified

that she brought a number of such concerns to Ms. Leclerc’s attention during this timeframe, and

Page 35 of 196

may have sought assistance from the Company’s technical resources (described below) but

received no response to her concerns.

[93] Ms. Leclerc testified that the technical difficulties raised by the Grievor were not

common, but she acknowledged they did happen from time to time and that there were ways to

remedy these problems, such as shutting down and rebooting the system. However, Ms. Leclerc

also testified that if rebooting didn’t work there was an internal TELUS service known as

“Single Point of Contact” which was referred to as “SPOC” that was available to effect repairs or

provide technical assistance where the system was operationally slow or when there was a

problem with the “Virtual Private Network” or “VPN” line connection. Ms. Leclerc confirmed

that when the VPN went down the At Home Agent was unable to receive any calls or e-mails

which typically required help from SPOC to reinstate. SPOC was also available to remedy

malfunctions with one of the many computer software applications as well as being the source

for replacements, repairs and upgrades in hardware and other equipment required by the AHA to

perform his or her work, including the Grievor’s laptop computer she used as an At Home Agent.

[94] To highlight a developing issue that will become apparent in the description of events

during Period 2 of the narrative in this case, aside from hearing much evidence from the Grievor

about the problems she claimed to be having with her At Home office systems, Ms. Leclerc

wasn’t asked whether in dealing with SPOC the CSA had to go through his or her manager, or

was permitted to approach SPOC directly for the technical assistance considered necessary.

Certainly there was no clear Company rule or policy on the matter ever identified. And as the

evidence before me later demonstrated, the SPOC personnel did not seem to hesitate in dealing

directly with an At Home Agent in the absence of express written or verbal authorization from a

supervisor when approached by the AHA for technical assistance. Rather as Mr. Olsen later

confirmed in his testimony, the SPOC technicians accept telephone calls from Customer Service

Agents and issue a “ticket” that is logged as a point of reference for all work done by the SPOC

technician in response to the request, and the usual practice is for the CSA to contact SPOC

directly. Thus the Grievor testified she didn’t think there was anything wrong with personally

dealing with SPOC on any issues related to the operational functionality of her At Home

systems, and the supporting circumstances substantiated that view. Certainly there is no

evidence before me indicating that Ms. Leclerc made it clear to the Grievor that she was either

Page 36 of 196

not to contact SPOC on her own, or only to do so with the express advance permission of her

supervisor. Moreover, to the extent that Mr. Olsen was later critical about the Grievor’s conduct

in addressing her concerns with SPOC directly instead of first bringing those concerns to him,

there was no evidence before me to show that Mr. Olsen (or any other supervisor) had expressly

directed the Grievor to do so before the events for which she was later criticized and disciplined.

(f)

Allegations of “Call Avoidance”

[95] While the foregoing events were occurring, a separate investigation was ongoing to

determine whether the Grievor was engaging in the improper practice of “call avoidance”, which

in the Grievor’s five-day disciplinary suspension letter dated November 12, 2012 is referred to as

“misappropriated company time”. The investigation began with an incident on October 25, 2012

involving Mr. Ronnie Olsen, who was a Manager of Business Client Care and a peer of Ms.

Leclerc, supervising a similar unit of about 20 employees at the Scarborough call centre.

[96] Mr. Olsen doesn’t know the Grievor at this point in time except to possibly notice her

name on e-mail chains going out to the CSAs generally or when Ms. Leclerc directed her staff of

some 20 individuals on October 23, 2012 to contact Mr. Vince Marasco (another peer manager)

or Mr. Olsen if they required assistance while Ms. Leclerc was absent from work for personal

reasons. The Grievor likewise didn’t know Mr. Olsen except maybe to see him around the call

centre and his name on e-mails (or to receive a request from him as a supervisor for her home

address in order to arrange for upcoming annual home visits of an At Home Agent which was

apparently standard Company procedure). The records indicate that Ms. Leclerc was directing

her staff to contact different supervisors (sometimes listing Mr. Olsen as one of several managers

but not to any exclusive degree) on other matters that included the need to schedule overtime to

handle an anticipated heavy workload after October 23, in Ms. Leclerc’s absence.

[97] Beginning at least by the first week of November (if not earlier) I found on the evidence

that Ms. Leclerc’s attendance had become understandably spotty due to the illness of her father,

and there appeared to be some confusion as to who was responsible for the Grievor’s day-to-day

activities at different times. As described further, Mr. Olsen testified that he became responsible

for Ms. Leclerc’s employees on November 6, 2012, yet the only record of an announcement to

that effect was an e-mail from Mr. Olsen himself dated November 13, 2012, in which he wrote to

Page 37 of 196

Ms. Leclerc’s team: “As most of you know, Deb will be out of the office for the next week or

two. While Deb is away please reach out to myself for any support you may need. Please free to

message, email or call me.” (I came to the conclusion that Mr. Olsen was in error when he

testified he began supervising Ms. Leclerc’s employees on November 6 because on all of the

evidence presented to me Ms. Leclerc in fact conducted the subsequent disciplinary meeting with

the Grievor on November 8 and thus was in the workplace at that time). Ms. Reynolds testified

that she was acting manager in place of Ms. Leclerc from November 26, 2012. In addition, it is

apparent from the record of e-mails sent by Ms. Leclerc to her staff that she was alerting them to

her unavailability at different junctures in this timeframe with directions to seek the “support” of

a number of different supervisors that did not identify a clear singular replacement for her, until

Ms. Reynolds was identified as the “acting manager” for the Grievor’s “team”.

[98] It wasn’t apparent to me that when Mr. Olsen stated in his November 13 e-mail, “While

Deb is away please reach out to myself for any support you may need” (emphasis added), that

this was intended as a clear managerial instruction that Ms. Olsen was now the only supervisory

authority for all of Ms. Leclerc’s employees, including the Grievor. Rather, I concluded on a

plain reading of those words that this was a general offer of assistance, to be used or not as the

team member considered necessary, as opposed to what Mr. Olsen later asserted to be a directive

that all matters pertaining to anything in the Grievor’s employment was to be referred to him, to

the exclusion of all others.

[99] Mr. Olsen, who made the decision to discharge the Grievor by November 28, 2012 for

alleged misconduct after just over two weeks of dealing with her directly, and later wrote the

discharge letter dated January 11, 2013 leading to Grievance No. 2, joined the Company in 2001

selling telephones in one of the Company’s corporate stores, eventually becoming a front-line

supervisor in 2005 and after “Leadership Training”, as a Manager of Business Client Care at the

Scarborough call centre in February of 2012. He testified he knew Ms. Leclerc was experiencing

personal issues prior to November 12, 2012 and that he was going to be “supporting her team”

while she was away from the office. In that regard, Mr. Olsen was monitoring the queue of

incoming calls to the centre at 8:30 a.m. on October 25 (apparently from a computerized station

inside the call centre) when he noticed that three Corporate Support Agents were shown on the

system as available but hadn’t received any calls for up to 30 or 35 minutes, which included the

Page 38 of 196

Grievor, and he was concerned there might be a technical problem in properly routing incoming

telephone calls to them.

[100] Thus in an effort to test the system, Mr. Olsen called into the queue from an outside

telephone number as if he was a customer. Since the Grievor was shown by the system as

having waited the longest of the three CSAs at 35 minutes (and she was the only At Home Agent

in that group), Mr. Olsen anticipated his call would be routed to the Grievor if the system was

working properly. He noted through his monitoring of the system that he was connected to the

Grievor’s VPN telephone line, and he could hear the telephone ringing from his end indicating

that the call had gone through, but then after the telephone rang for 29 seconds the call was

disconnected. This was far in excess of the goal of five seconds that Customer Service Agents

were expected to answer each call, and there seemed to be no reason for the call to have been

disconnected outside of the Grievor deliberately releasing the call.

[101] Mr. Olsen anticipated the Grievor should have heard his call “beep” in the Grievor’s

earphone along with an audible ringing sound and flashing light from the Plantronics box. At the

same time the Grievor should have received through the COSMO application on her computer

screen details of the telephone number and account that went with it, which Mr. Olsen could see

from his call centre vantage-point, was populating the Grievor’s computer screen. When his

telephone call was disconnected he could see by monitoring the system that the Grievor was

reported doing “after-call work” (during which time she was not available for any new incoming

call), following which she indicated by pressing a key on her computer (or some other device)

that she was available for another call. When Mr. Olsen then tried to contact the Grievor through

the independent office communicator referred to as “MOC” at 8:40 a.m. inquiring whether the

Grievor was “available for a moment”, he received no reply to that and to his follow-up message

at 8:47 a.m. asking: “Are you there?”

[102]

Mr. Olsen reported these observations in an e-mail to Ms. Leclerc, and the decision

was made (apparently by both Ms. Leclerc and Mr. Olsen, although the evidence is vague on that

point) to conduct what was referred to as an “AVAYA trace report”. The AVAYA trace report

is a computer-generated record of the Grievor’s second-by-second activities from the beginning

of each workday (usually between 8:00 a.m. and 9 a.m.) until the end of her scheduled shift

Page 39 of 196

(often 4:00 p.m. to 5:00 p.m.). Ms. Leclerc and Mr. Olsen decided to commence their trace of

the Grievor’s activities going back to Friday, October 19 that continued until mid-day of

Wednesday, November 7, for a total of 13 ½ shifts (during which time the Grievor worked 12 ½

shifts from her home and one day from the call centre on November 6, 2012).

[103] The concern raised by Mr. Olsen’s observations was that the Grievor might be engaging

in the practice known as “call avoidance” (although, again, it was unclear in the evidence

whether Ms. Leclerc, who had been supposedly monitoring the Grievor and having bi-monthly

meeting with her, shared that concern). Call avoidance is typically revealed by the CSA hanging

up on customers after only a few rings (resulting in the CSA going to the bottom of the queue for

the next call which could take some time depending on call volume, which is also referred to as

“queue surfing”), or taking too long to answer causing an unusual number of “dropped calls”

when the client hangs up, or taking an inordinate amount of personal time off during the shift

which under the Company’s standards should be no more than six minutes per day. Every time

a call is dropped by the customer or released by the Grievor, the Grievor would be placed at the

bottom of the queue and thus there might be some time again before another call is routed back

to her. Such conduct has two immediate consequences: First, the customer is likely annoyed

and dissatisfied with the level of service that is understandably concerning to the Company in a

competitive environment. Second, it usually results in the customer calling back who is then

placed into the queue to be serviced by a different CSA, thereby stretching the Company’s

resources that may impact the Company’s capacity to deal with the customer demand.

[104] It was in this timeframe that Ms. Leclerc had the discussion with the Grievor regarding

her excessive personal AUX time off during her shift that prompted their conversation about the

Grievor’s purported medical issues and the Grievor’s later request for a PAF to apparently

substantiate her ‘need to go to the bathroom’.

[105] I was taken through each day of the AVAYA trace report, along with being provided

explanations of the various ways that the Grievor’s activities were coded by the system in some

technical detail, which showed every second that she was on the system and available for a call;

how long it took her to answer a call; the number of dropped calls; the number of “hang ups” by

the Grievor; the amount of time she spent doing after-call work; and how much she spent on

Page 40 of 196

personal AUX time off (that was in addition to the unpaid meal break and two 15-minute paid

breaks during each shift). Ms. Leclerc and Mr. Olsen reviewed the data from the AVAYA trace

report which was summarized in a “statistical analysis” that was also entered into evidence.

[106] It is not necessary to go through all of the data presented to me. My general assessment

of that data, without including the November 6 date when the Grievor worked from the

Scarborough call centre, indicates that the Grievor rarely achieved the goal of answering

incoming calls within five seconds of the ring (being just over 10% of the time); with about 22%

of the calls answered between five and nine seconds; 40% answered between 10 and 19 seconds;

almost 20% between 20 and 29 seconds and just over 9% not answered until the ringing

extended more than 30 seconds. Ms. Leclerc testified the data revealed 156 instances of the

Grievor not responding to telephone calls for 15 seconds or more over 12 ½ shifts. The data also

showed that the longest ring times occurred on October 23 (which is recorded as 1 minute),

October 30 (2 minutes 39 seconds), October 30 (1 minute 35 seconds) and November 1 (at 1

minute 6 seconds). This was while the system indicated the Grievor was at her desk and marked

as available to take a call. There were also seven “customer hang ups” during this interval and

the Grievor hung up on 25 occasions before answering a call, usually within 30 seconds of a ring

representing a significant departure from the expected norm of only “two or three per shift” that

was the experience of Ms. Leclerc in such matters. The Grievor’s personal AUX time off

outside of permitted meal and rest periods was also excessive when compared to the expected

target of six minutes. Over the 12 ½ shifts that she worked as an At Home Agent the data

indicates the Grievor took an average of 14 ½ minutes per day for personal time ranging from a

low of 3.27 minutes on the full shift of October 25 to a high of 21.5 minutes on October 26.

[107] I concluded from this data and the explanations provided by Ms. Leclerc and Mr. Olsen

that ring times were much higher than what would normally be expected, as were the incidents of

“hang ups” and “dropped calls” by the both the AHA and the customer. The data also supported

the conclusion that the Grievor’s personal AUX time was significantly above the six minute

expectation that AHAs would generally take in the course of a normal shift.

[108] When confronted with the results of the AVAYA trace report in her examination-in-

chief, the Grievor testified that as she had previously advised Ms. Leclerc, the Grievor was

Page 41 of 196

experiencing a number of “system issues” that included an apparent problem with her

Plantronics device causing her to lose calls when two came into her station at the same time.

However, she admitted that because she started work early in the morning and didn’t want to

disturb the other occupants of her house, she turned the ringer off (which she claimed was loud)

that she testified she knew was against Company policy, with the result that she either missed or

didn’t respond to calls as quickly as she should. While she apologized for that in testifying, it is

clear she did not admit her misconduct or apologize at the time. In addition, she claimed to be

having ongoing problems with her Virtual Private Network (“VPN”) crashing and requiring her

to frequently “reboot” to get it running again (and later developed a problem with her laptop

computer requiring its replacement), which she told Ms. Leclerc about but which Ms. Leclerc

denied in her testimony.

[109] Moreover, because of her increasing need to use the bathroom over this period, and

anticipating that there would be enough time between calls to attend to those needs, the Grievor

testified that, “I just thought it would be ok to go to the washroom” without specifically

indicating her unavailability on the system for personal time off, which the Grievor also knew

was against the Company’s policy. She conceded in her evidence-in-chief that: “I should have

put myself into personal AUX and I know that was wrong.” In cross-examination the Grievor

estimated each washroom break took “two to three minutes”, which viewed with the medical

documentation later provided to the Company supports the finding that she was leaving her post

for that duration at least “two to three times per hour”.

[110] The Grievor denied that she was purposely trying to miss calls, stating: “That was not

my intention at all. I got too relaxed I think working from home and I slacked a bit; and I am

sorry”. When asked why she didn’t respond to Mr. Olsen’s MOC message at 8:40 a.m. on

October 25, the Grievor testified she didn’t know who it was calling and didn’t use that system

(which she referred to as “Communicator”) very often, indicating that she usually has that

system closed because she gets messages from British Columbia for another employee also

named Tracy Baker in error, and that the Communicator causes other operating systems to “lag

(and) take longer for things to open”. (As an aside, the Company filed a number of e-mails that

name the Grievor along with Mr. Olsen as one of at least 20 and sometimes double that number

Page 42 of 196

of individuals copied on the e-mail, to support the Company’s position that the Grievor should

have known who Mr. Olsen was at the time).

[111] In re-examination, Mr. Wain who is the Company’s Director of Information Services,

disputed the Grievor’s allegations of difficulties with the Plantronics box resulting in the dropped

calls claimed by the Grievor, amid much technical backup and obvious expertise on the matter,

causing me to doubt the reliability of the Grievor’s observations in that regard on a balance of

probabilities standard.

[112] Rather, as I shall elaborate upon later in these Reasons, I concluded from this evidence as

corroborated, in my view, by the effect of her intense cross-examination, that the Grievor was

taking chances with her timekeeping in response to a developing medical problem requiring

frequent bathroom breaks, which she failed to report to her supervisor with sufficient clarity of

detail to reasonably put the Company on notice of the possible need to accommodate an

employee with a disability.

[113] While she may not have intended to avoid calls, the effect of her timekeeping conduct

that she knew to be against Company policy, coupled with her decision to disable the ringer on

her Plantronics device so not to disturb others in the morning that she also knew to be against

Company procedures, caused the Grievor to miss calls and inconvenience customers that

justified a disciplinary response.

[114] As I elaborate upon below, even employees who have a disability are required, in my

opinion, to alert the employer about the disability in a clear and timely manner so to allow the

employer to assess and if appropriate, accommodate the situation short of undue hardship. The

fact that an employee has a developing disability affecting the employee’s work is not license for

the employee to disregard the rules on his or her own initiative (or to be “slack” as the Grievor

described about timekeeping issues), and in doing so in this case the Grievor placed herself at

risk of receiving legitimate discipline, particularly given the lack of supervision and trust placed

in the Grievor by the Company to perform to its reasonable standards, which the Grievor was

aware of at the time.

Page 43 of 196

[115] Whether the quantum of the penalty is affected by the disability (where the employee

might be understandably embarrassed to discuss such personal matters with the employer and/or

the problem develops gradually over time and may not be immediately apparent) is a matter to be

considered when questions of mitigation arise as part of that determination.

(g)

Investigative Meeting of November 8, 2012 and Immediate Aftermath

[116] Nevertheless, to Ms. Leclerc and Mr. Olsen the AVAYA trace data demonstrated classic

call avoidance behavior. Thus Ms. Leclerc convened an investigative meeting with the Grievor

and her Union representative, Mr. Brian Turner on Thursday, November 8, 2012. Mr. Morasco

attended the meeting as a second member of management who kept notes that were entered into

evidence. Since Mr. Marasco’s sole purpose in attending the meeting was to act as a Company

witness and recorder of the discussions, both Ms. Leclerc and Mr. Marasco testified that his

notes are considered “accurate”. The Grievor was given no advance notice of the specific items

to be discussed and thus testified she was “very shocked that this was happening and I was very

defensive” when she was unexpectedly confronted with a number of events going back several

months (recognizing she was handling some 32 calls per day). Ms. Leclerc had prepared for the

meeting with a number of typed questions covering her areas of concern under the headings,

“Professionalism”, “Call Avoidance/Short Calls”, “Ring Time” and “Ethics”.

[117] As their discussions around “Professionalism” and “Ethics” have already been dealt with

above, it need not be repeated in detail except to note that the Grievor testified the reason she had

accessed her own mobile phone account was to test the system as she was having difficulties

with one of the software applications and wanted to see how it operated when she put in her own

telephone number (which is cross-referenced to her account). While she didn’t say that

expressly to Ms. Leclerc, the Grievor did tell her that she didn’t know that she was doing

anything wrong and didn’t try to change anything in her own account.

[118] Ms. Leclerc also went through the June 13, June 25 and October 4 incidents of alleged

rude and unprofessional conduct before confronting the Grievor with the new allegations of such

behavior on October 30, where Mr. Marasco’s notes indicate that the only thing that Ms. Leclerc

said to the Grievor in relation to that incident was that the customer “was in tears” because of the

Grievor’s behavior, which the Grievor stated was, “Not from me”. (I noted that Ms. Leclerc

Page 44 of 196

provided none of the context of that October 30 event as disclosed by the more detailed e-mails

and records filed with me, nor does it appear that this e-mail complaint was ever shared with the

Grievor). Based on their discussion on the issue of Professionalism and Ethics, Ms. Leclerc

concluded that the Grievor had breached Company’s “strict” policy prohibiting looking at her

own account and, significantly to Ms. Leclerc, the Grievor was not prepared to acknowledge and

take responsibility for her unprofessional and rude conduct.

[119] When it came to details of the AVAYA trace report suggesting call avoidance, the

Grievor had no recollection of Mr. Olsen sending her a MOC message on October 25, but did

repeat the information in the prior e-mail to Mr. Leclerc complaining about technical difficulties

with receiving two calls at the same time, causing her to lose calls. Except for the problem the

Grievor claimed to be having with the Plantronics box, Mr. Marasco’s notes do not show that she

told them about the additional technical issues that she later testified about, which is consistent

with Ms. Leclerc’s evidence on the matter. Nor do they reflect the Grievor’s further testimony

that she claimed to have reminded Ms. Leclerc about the problems she had already reported

concerning her “VPN going down”, that Ms. Leclerc never responded to. Near the end of the

investigative meeting, the Grievor’s evidence is that she asked Ms. Leclerc, ‘if it was OK to call

SPOC to go over the issues and problems she was having with her systems’ so that Ms. Leclerc

would know that “these were the issues (the Grievor) was having.”

[120] The evidence before me does not reveal a clear or any answer to that question, and it is

not reflected in Mr. Marasco’s notes; however those notes were limited to recording the answers

to the specific questions that Ms. Leclerc asked, not to anything else discussed or independently

raised by the Grievor. Rather, in response it appears the Grievor was advised that she was not to

work for the rest of that day and on the following, Friday, November 9.

[121] The Grievor returned with Mr. Turner, her Union steward, for a disciplinary meeting with

Ms. Leclerc on Monday, November 12 to receive the letter of that date, reproduced above,

imposing a five-day suspension for having “misappropriated company time”, improperly

“accessed [the Grievor’s] own personal account for non-work related reasons”, and for “lack of

professionalism when dealing with clients”. On this occasion Mr. Mark Plumber witnessed the

issuance of discipline as the second member of management but was not called to give evidence.

Page 45 of 196

Ms. Leclerc testified that she considered terminating the Grievor’s employment at that time

given the seriousness of the Grievor’s misconduct, but decided upon a five-day suspension

instead because of her length of her service and clear disciplinary record.

[122] Thus Ms. Leclerc testified that the Grievor was advised she was suspended without pay

for five working days effective Friday, November 9, 2012, returning to work on Friday,

November 16, 2012. Ms. Leclerc also testified she told the Grievor that “at the end of the five-

day suspension (the Grievor) was to return to the office and work from the office until further

notice”. But there was no written notation of the cancellation of the Grievor’s At Home Agent

status in the letter of discipline or any other letter to the Grievor at the time. And when

questioned about it, the Grievor claimed that she didn’t remember ever being told that she was to

report for work only at the call centre after her suspension. In that regard it is convenient to set

out below the last paragraph of Ms. Leclerc’s November 12, 2012 disciplinary letter to the

Grievor, which does not expressly tell the Grievor that her AHA status has been removed or that

she is from that point on, only to work out of the Scarborough call centre:

The behaviors that you have been demonstrating are inexcusable and cannot be tolerated. Your

conduct is contrary to TELUS’ expectations, and clearly acceptable (sic). In order to impress upon

you the seriousness of this situation and convince you to take immediate steps to correct your

behavior, you are suspended for five days as of Friday November 9, 2012. You are to report for

work as scheduled on Friday November 16, 2012 at your scheduled start time. Please be

advised that if the issues noted are not addressed, or if there are any other issues with

performance or misconduct that arise, further disciplinary action will be taken up to and including

dismissal.

[Emphasis added]

[123] Indeed, I concluded it was not an unreasonable interpretation of this letter that the

Grievor’s status as an At Home Agent was unaltered by the discipline and that the Grievor was

instructed “to report for work as scheduled…at your scheduled start time” with no restrictions

imposed on the location of the Grievor’s future work to the call centre only. Further to that, the

evidence before me indicated that there was a significant amount of expensive electronic

equipment provided by the Company to the At Home Agent, to enable the AHA to work from

home (such as a computer, headsets, Plantronics box, etc.). Yet I found that there was nothing

mentioned in the November 8 or 12 meetings; or suggested in the November 12, 2012 letter of

discipline, requiring the Grievor to return that equipment to TELUS or to make arrangements for

Page 46 of 196

its return. This is more in harmony with an intention not to remove the Grievor from her

position as an At Home Agent, or at least that failure sufficiently obscures the matter to make

any confusion the Grievor may have about her status, understandable as likely at the time.

[124] At least in the Grievor’s mind, and having had the opportunity to watch the Grievor over

many days of cross-examination where her tendency to react in a confused and disoriented

manner while under pressure was apparent, I found from her actions at the time and afterwards in

weighing all of the evidence on a balance of probabilities standard that she did not realized or

perhaps even hear the verbal instructions from Ms. Leclerc that she would no longer be permitted

to work from home given the obvious stress she was under during the disciplinary meeting.

[125] In addition to the absence of any written directive clearly telling the Grievor that she was

being removed from the AHA program and from that point on would only be permitted to work

out of the Company’s Scarborough call centre, as the evidence later presented to me shows,

when the Grievor did report for work at the call centre she wasn’t provided with her own desk,

but rather was allowed to use any available desk with telephone and computer connections,

which was the procedure followed for At Home Agents whenever they came into the

Scarborough call centre to perform work. Thus from the Grievor’s perspective, when she

worked in the call centre on Friday, November 16 and Monday, November 19, as described

below, there would have been nothing to alert her of a change in her AHA status.

[126] To be sure, the Union does not dispute that the Grievor was to work in the call centre

after returning from her suspension. Mr. Turner, the Union steward who accompanied the

Grievor at the November 12, 2012 disciplinary meeting, confirmed to Mr. Olsen in the

subsequent investigative meeting held on November 27, 2012, described below, that Ms. Leclerc

told the Grievor that, “I need you to work the office until further notice”, which was consistent

with Ms. Leclerc’s testimony on point. However, I found it significant that Mr. Marasco’s notes

of the November 8 investigative meeting did not show any explicit notification or even threat by

Ms. Leclerc to the Grievor that she was no longer considered to be an At Home Agent. I also

noted that Mr. Marasco did not record anything recording Ms. Leclerc as having given the

Grievor a clear direction in that regard. The Company did not produce Mr. Plumber as a witness

to the events of the November 12 disciplinary meeting who may have shed light on the clarity of

Page 47 of 196

Ms. Leclerc’s direction to the Grievor in that regard, but I don’t have that evidence. Accepting

that Ms. Leclerc used the words, “I need you to work the office until further notice”, I found

those words to be sufficiently general and vague not to clearly place the Grievor on notice of the

Company’s expectations going forward.

[127] In order to support the discipline that was to follow (during Period 2 described below)

the onus is on the Company to prove that the Grievor’s supervisor told her in clear and

unequivocal terms that: (a) she was no longer in the AHA program; and (b) that henceforth she

was to report only to the call centre, which the Grievor knew or should have reasonably known at

the time. On the equivocal message of the disciplinary letter on that point alone, I concluded the

Company had not met its burden. And in the circumstances under which the evidence indicates

the Grievor was told that Ms. Leclerc ‘needed her to work in the office until further notice’, at

the end of a meeting that was understandably emotionally stressful to the Grievor, seemingly as a

passing remark, does not have the sufficient clarity for the Company then to base its later

discharge of the Grievor.

[128] Given the consequences that the evidence later disclosed of the Grievor continuing to

work at home on one day after her disciplinary meeting, the Company must show clarity in Ms.

Leclerc’s direction in that regard, and its failure to do so undermines the very serious disciplinary

response that it later imposed for the Grievor’s alleged “failure to follow a management

directive”, which is relied upon as a ground for terminating the Grievor’s employment in its

letter dated March 11, 2013.

[129] Thus on the evidence presented to me consistent with all of the surrounding events before

and afterwards, I concluded that it seemed most likely on a balance of probabilities standard that

Ms. Leclerc’s statement, “I need you to work the office until further notice” was made at the end

of the disciplinary meeting while the Grievor was upset and in the process of leaving the meeting

room, that resulted in the Grievor simply not hearing or registering those instructions (and

recognizing their import), that were never confirmed in writing at the time or subsequently

throughout the ubiquitous e-mail correspondence between them.

[130] After the November 12, 2012 disciplinary meeting, Ms. Leclerc asked Mr. Olsen to

arranged for the Grievor’s VPN to be disconnected which was accomplished by 5:00 p.m. that

Page 48 of 196

evening. As a result, the Grievor’s home office was no longer connected to the call centre and

thus she was not receiving any telephone calls from customers or e-mails from supervisors that

would otherwise be routed to her home office. The Grievor attended a chiropractor appointment

that afternoon or evening as well, for a low back complaint and musculoskeletal concerns, for

which she had been receiving ongoing treatment for the past month, and thus may not have been

back to her home office before the VPN connection was disabled. Once disconnected from the

system the Grievor had no direct e-mail contact with her supervisor from her home until the VPN

was reconnected in the circumstances described below.

(h)

The Unfortunate Timing of Ms. Leclerc’s Absenteeism

[131] The timing of the disconnection of the Grievor at the end of the day of Monday,

November 12 is important in assessing what happened next, and, particularly, the legitimacy of

Mr. Olsen’s criticisms (and later discipline) of the Grievor’s conduct based on the e-mail that he

sent to Ms. Leclerc’s staff the next day.

[132] Ms. Leclerc sent an e-mail in the morning of November 12 to her staff, which included

the Grievor although it is likely the Grievor didn’t receive it before her VPN was disabled,

advising them that because of a family medical emergency Ms. Leclerc would be away from

work. If anything was needed in her absence to the end of the week of November 13 – 16 she

wrote, “please reach out to Vince (Marasco), Lisa (Bruley) or Ronnie (Olsen) and with a little bit

of luck, I will see you all next Monday” (November 19).

[133] This was not a clear direction by Ms. Leclerc that the Grievor’s day-to-day employment

now came under the exclusive responsibility of Mr. Olsen that was later asserted by the

Company to support subsequent discipline to the Grievor related to the “second dismissal”, even

if the Grievor had been capable of receiving this e-mail communication from Ms. Leclerc.

VI.

Period 2: November 13 – November 27, 2012

(a)

Who’s In Charge?

[134] Thus it was in the foregoing context that Mr. Olsen wrote his memorandum in the

afternoon of Tuesday, November 13 to Ms. Leclerc’s complement of about 20 Corporate Support

Page 49 of 196

Agents stating that in Ms. Leclerc’s absence, “please reach out to myself for any support you

may need.” Of course, by this point the Grievor would not have received this e-mail because her

VPN had been disabled and she wasn’t anywhere in the workplace. Later evidence would reveal

that the earliest that the Grievor would have likely seen the e-mail from Mr. Olsen was on

Thursday, November 15, when the Grievor printed off her e-mails at the call centre, with the

Company’s knowledge, while the Grievor was on suspension status.

[135] On Monday, November 19 (which was after the Grievor’s suspension), Ms. Leclerc

advised her staff by e-mail that she had returned to work and instructed them to, “revert back to

my support over Ronnie’s until further notice”, but was off work again on November 20 and 21,

2012. Although the e-meal records indicate that Ms. Leclerc was working at the call centre on

November 22 and 23, 2012 and had e-mail communications with the Grievor on both of those

days, Ms. Leclerc left the workplace permanently by November 26, 2012 and testified that she

didn’t return until June 4, 2013 which was after the Grievor’s termination. She had no further

dealings with the Grievor, nor is there any indication that she communicated the results of what I

found to be a very important meeting that she held with the Grievor in the late afternoon of

Friday, November 23, which was Ms. Leclerc’s last working day.

[136] She was temporarily replaced by Ms. Reynolds who wrote to Ms. Leclerc’s employees on

Monday, November 26, 2012 the following e-mail message at 1:00 p.m. under the heading,

“Where is Debbie?”

Hello Team,

Debbie will be on leave again effective immediately. As you know, her father is not well and she

needs some time to be with him.

My cell # is [omitted]. Please save it in your phone, just in case. If you are SICK or running late,

please call me.

If you need anything, please let me know.

[137] In looking carefully at this e-mail, I noted that a copy is not shown going in the address

header to Mr. Olsen as well (or indeed to any other manager), which is unfortunate given what

Mr. Olsen later told me in testifying of the negative impressions he formed about the Grievor’s

trustworthiness and credibility, described below. The Grievor sent the following e-mail to Ms.

Reynolds immediately afterwards at 1:01 p.m. supporting the conclusion that the Grievor

Page 50 of 196

reasonably understood that Ms. Reynolds was now in charge and was the one to be contacted in

the event of any future absenteeism due to illness:

Hello Jenny,

Does this mean you are taking over her matters? Are you the new acting team manager?

[138] There was no evidence that Ms. Reynolds dissuaded the Grievor of that apparent

conclusion in any reply communication to her. When Ms. Reynolds was asked in cross-

examination if she responded to the Grievor’s e-mail, Ms. Reynolds testified: “I don’t recall if I

responded to that specific e-mail”. And notwithstanding suggesting earlier in her examination-in-

chief that she understood Mr. Olsen was the Grievor’s supervisor at that time, when asked to

clarify she testified: “I don’t remember”. Furthermore, when asked whether there is any

practice of advising employees generally when a team member is moved from one supervisor’s

team to another’s (thereby changing the team composition), Ms. Reynolds testified: “Yes I guess

I could have, looking back; I didn’t do anything perfectly”. And in response to the specific

question in cross-examination of whether Ms. Reynolds sent the Grievor an e-mail instructing

her to report to Mr. Olsen, Ms. Reynolds testified: “I don’t remember”.

[139] As later events would soon show, this was a very important juncture in the circumstances

leading to the Grievor’s eventual termination for alleged just cause, where the identification of

the Grievor’s direct supervisor during Ms. Leclerc’s spotty attendance and after she left the

workplace permanently, was a central component of the Company’s rationale for dismissing the

Grievor. On the above-noted testimony I not only found, in weighing all of the evidence, that

there was no notification made by Ms. Reynolds that notwithstanding the obvious reading of

their exchange of e-mails on November 26 that the Grievor would somehow know she was now

supposed to report to Mr. Olsen, but I also came to the conclusion that Ms. Reynolds’

equivocation on the matter was incredible. And this is not the only time I found unreliable if not

overtly incredible testimony by other Company witnesses, as described below.

(b)

A General Perspective on Events During Period 2

[140] The events during what is identified herein as “Period 2” during the two weeks from

Tuesday, November 13 to Tuesday, November 27, 2012 are well documented; the real question

Page 51 of 196

is why the Grievor did what she did and whether her actions (and her intentions underlying those

actions) constituted proper grounds for any level of sanction, had the Company decided to

discipline the Grievor in a timely manner, which it did not do. If her conduct did warrant a

disciplinary response that the Company could impose two months after her termination for other

reasons, was discharge appropriate?

[141] The evidence is also conclusive that by the end of that brief two week period, Mr. Olsen

had determined that the Grievor’s actions, as stated in the March 11, 2013 termination letter

reproduced above, constituted “a serious breach of trust” and “willful violation of TELUS

policy” justifying the termination of the Grievor’s employment for alleged “inappropriate access

and misuse of TELUS resources, breach of the corporate security policy, and failure to follow a

management directive”.

[142] Throughout this lengthy case I was never provided with a copy of the specific TELUS

policy that the Grievor was alleged to have ‘willfully violated’ or a clear “corporate security

policy” referred to in Ms. Olsen’s letter, justifying her summary dismissal. Mr. Olsen’s further

reference to the Grievor having ‘failed to follow a management directive’ apparently referred to

the Grievor’s alleged working from home when she was on suspension, and for working from

home on November 20, 2012 as described below, which as noted above was undermined by a

lack of clarity by Ms. Leclerc concerning the Grievor’s status after their November 12, 2012

meeting, coupled with the overall uncertain communications from Ms. Leclerc to her staff and

with Mr. Olsen, particularly surrounding the discussions with the Grievor in their November 23

meeting described below (which was understandable given the personal distractions Ms. Leclerc

was obviously experiencing at that time).

[143] Nevertheless, but for the events beginning on November 28, 2012, it certainly is clear

that Ms. Olsen believed the Company had all of the information respecting the Grievor’s alleged

misconduct necessary to sustain the Grievor’s dismissal for just cause at that time, and it is not

disputed that Mr. Olsen would have dismissed the Grievor on that day.

(c)

The Grievor and SPOC – General Observations

Page 52 of 196

[144] On the evidence of the Grievor’s and Ms. Leclerc’s discussions during their November 8

and 12 meetings, consistent with the Grievor’s actions afterwards and her explanations of those

actions in testifying before me, I have concluded that nothing was said to the Grievor as she left

the November 12, 2012 disciplinary meeting that she could not approach SPOC directly for what

appears to have been for two purposes: first, to address what she perceived to be difficulties with

her At Home operating systems in order to get ready to return to work as an At Home Agent; and

second, to properly document those difficulties in an effort to seek personal vindication or to

further defend her conduct before Ms. Leclerc that led to her five-day suspension.

[145] The documentation filed with me indicates the Grievor had directly approached SPOC in

the past and that the practice of different managers on whether employees could contact SPOC

concerning technical problems without their manager’s involvement or preapproval varied

throughout the Company. Contrary to what Mr. Olsen’s later assertions on the matter, there was

no evidence presented to me of a clear, unequivocal Company rule or policy applicable to all

managers and reasonably communicated to the Grievor that employees in the Grievor’s position

were prohibited from contacting SPOC on their own for assistance. Rather, the weight of

evidence is to the contrary.

[146] Also for the reasons stated above, I came to the conclusion that the Grievor hadn’t heard

or didn’t realize on the basis of a clear instruction from Mr. Leclerc that she no longer could

consider herself part of the AHA program and could only work from the call centre office in the

future, at least until the situation was later clarified by Ms. Leclerc in circumstances reviewed

below. This is based on a careful comparison of the testimonies of Ms. Leclerc, Mr. Olsen and

the Grievor, along with my observations of the Grievor during many days of cross-examination

on the minutia of her activities in this timeframe, leading to a determination of what seems most

likely and consistent with all of the surrounding circumstances, and having regard to a

consideration of the Grievor’s essential character as revealed by her lengthy cross-examination.

[147] While one must be cautious in relying upon the demeanor of witnesses in assessing the

evidence, my observations on the Grievor over so many hearing days revealed her character as a

person who has the tendency to become disoriented and confused when placed under pressure

that was on full display during her cross-examination. Moreover, given Ms. Leclerc’s absences at

Page 53 of 196

crucial times in the events related to the grievances before me, I concluded there was reasonable

uncertainty in the Grievor’s mind as to who was responsible for her day-to-day supervision

during and immediately after the Grievor’s disciplinary suspension amongst not only the

Grievor, but clearly Mr. Olsen as well. For example, the evidence shows that on days Mr. Olsen

claimed the Grievor was supposed to report exclusively to him, there were contradictory e-mails

indicating the Grievor was to report back to Ms. Leclerc and then to Ms. Reynolds.

[148] All of these events were occurring against the backdrop of medical reports indicating the

Grievor was experiencing more acute problems associated with the need to urinate several times

per hour that combined with what was happening at work led to the development of a medically

identified stress reaction at the time. The evidence of the Grievor’s deteriorating mental health

was consistent, as indicated below, with Mr. Olsen’s testimony that the Grievor left their

subsequent November 27, 2012 investigative meeting to discuss her alleged misconduct during

this time period, in a “teary-eyed” state which had foretold (if not being the proximate cause for)

the explosion of the substantiated medical disability that followed.

(d)

Mr. Olsen’s Perspective of Events at this Time

[149] Thus Mr. Olsen, who had no real background with the Grievor and hadn’t been at the

November 8 or 12 disciplinary meetings, but who suddenly considered himself to be in the

position of the Grievor’s immediate supervisor in the absence of Ms. Leclerc and had likely

formed a negative impression of her based on his participation in the AVAYA trace reports,

testified that he received information on November 21, 2012 indicating the Grievor “was

working at home after her suspension”, in the following circumstances.

[150] Mr. Olsen saw the Grievor on Friday, November 16, 2012 when she attended at the

Scarborough call centre at the conclusion of her five-day suspension, assisting her with “system

related concerns”. The Grievor testified she went to the call centre that day because the laptop

computer at her home office had ceased functioning (in her words it was “fried”), and hence she

could only work from the call centre. Consistent with her usual practice as an At Home Agent,

the Grievor was not given a permanent desk assignment but rather she was permitted to use any

available desk in a relatively large setting. Certainly, there is no evidence that Ms. Olsen met her

when she reported back to work or assigned her to her own desk. Rather, she was left on her

Page 54 of 196

own to settle at whatever available work station she wanted as had always been the case while

she was an At Home Agent.

[151] The next working day for the Grievor was Monday, November 19. Mr. Olsen testified

that he saw the Grievor in the call centre that day but didn’t talk to her explaining, “I support a

team of 20 members and Debbie (Leclerc’s) team, so I rely heavily on the system to tell me

where my team members were”; and he further noted that, “our office geographically has 200

work stations around” making it difficult to see every one of his employees. Aside from

contradicting Ms. Reynolds’ testimony that she was now “acting manager” for Ms. Leclerc’s

team, what this told me is that Mr. Olsen spends a great amount of his time looking at a

computer screen; not interacting directly with his employees. Mr. Olsen confirmed that “At

Home Team members have the ability to sit where they want in the office” and that since he had

meetings throughout the day, “I would have no indication (the Grievor) was not in the office.”

The Grievor testified she couldn’t work from home that day because she was still waiting for a

new laptop and hence could only do her work from the Company’s call centre office.

[152] The foregoing circumstances are consistent with the documentation filed in this case that

includes an e-mail from a “Technology Analyst II” in SPOC addressed to the Grievor on

November 13, 2012, with a copy shown going to the Grievor’s supervisor, Ms. Leclerc, that

stated: “Let me know when you are able to come to 300 Consilium Place (which is apparently

SPOC’s location) so I can replace your laptop. It looks like the file system is corrupted you

would require replacement laptop”. This corroborates the Grievor’s claim that there was a

legitimate problem with her laptop computer that may have been ongoing for some time. The

Company has never disputed that the Grievor’s laptop computer she normally used in the AHA

program was inoperative at that time. Nor did it dispute that the Grievor had returned the

defective computer to the Company by that time.

[153] On Monday, November 19 the Grievor was working in the call centre and, as indicated

above, Ms. Leclerc sent an e-mail to her staff including the Grievor at 11:31 a.m., advising them

that she was back in the office and thus, “Please revert to my support over Ronnie’s until further

notice”. At 3:29 p.m. the Technology Analyst II from SPOC wrote an e-mail addressed to Ms.

Leclerc, with a copy to the Grievor, which is headed: “AHA laptop for laptop desktop

Page 55 of 196

replacement program – [Baker, Tracy]” and in the body of that e-mail the SPOC technician

writes: “A laptop bundle (backpack) is ready for pickup for the above mentioned AHA. When

will you be able to visit the Service Centre…to pick up the backpack for the agent?” The

documentary evidence shows that Ms. Leclerc sent an e-mail to her staff later at 6:57 p.m., in

which she advised them she wouldn’t be in the office tomorrow (i.e. November 20) but that, “If

you need anything please reach out to Ronnie, or Lisa or Vince”.

[154] I made two observations about this documentation and the testimony surrounding these

events when considered in the context of all of the evidence I heard. First, the reference in this

e-mail to the Grievor as an “AHA” is confirmatory of the Grievor’s belief at that time (i.e.

November 19) that she was still an At Home Agent. Second, the evidence shows that Ms.

Leclerc was working as the Grievor’s manager on that day, which the Grievor would also

reasonably know. Ms. Leclerc didn’t reply to the e-mail in order to “correct” any mistake that

the Grievor was no longer entitled to the privileges of the AHA program with a copy to the

Grievor. The Grievor’s shift ended at or about 5:00 p.m. that day (while Ms. Leclerc was

reporting that she had returned to her supervisory role) and the Grievor picked up the new laptop

on her way home. There is no suggestion that the SPOC technician challenged the Grievor’s

ability to receive the new laptop without her supervisor being present or even signing off on the

exchange, which was consistent with the Grievor’s testimony that different managers had

different practices when it came to letting staff deal with SPOC directly, and that consistent with

her past experiences she didn’t think she was doing anything wrong.

[155] The Grievor then connected the laptop to the Private Virtual Network (“VPN”) that had

by that time been restored to her home office, and worked from home on Tuesday, November 20,

2012, without incident. In fact Mr. Olsen testified he could see by monitoring the system that the

Grievor was taking calls like any other Corporate Support Agent, but didn’t know that the

Grievor was working from home because he is glued to a computer screen. Thus while working

at home, there is no suggestion that the Grievor was shirking her responsibilities in performing

her usual work for the Company, or that her work was deficient in any way. I reflected on this

observation when I came to asses Mr. Olsen’s major concern (described below) that the

Grievor’s conduct in working from home on November 20 was akin to “going behind my back”.

Page 56 of 196

There was no evidence to suggest that Grievor was hiding herself from (at least) Mr. Olsen’s

electronic eyes at the time.

[156] Before reviewing Mr. Olsen’s subsequent reaction to the knowledge that the Grievor

worked at home on Tuesday, November 20, 2012, it is instructive to first consider the actions of

Ms. Leclerc. As indicated by the productions, Ms. Leclerc sent an e-mail to her team members

on Wednesday, November 21 advising them that she continued to be off work that day, but that

she would be back the next day, November 22, and in the interim stated: “If you need anything,

please see Lisa, Ronnie or Vince.”

[157] Mr. Olsen testified that the Grievor was instructed to report to him in Ms. Leclerc’s

absence, which the documentary evidence doesn’t substantiate as Mr. Olsen was one of three

different supervisors identified by Ms. Leclerc who the Grievor could consult in her apparent

discretion. The Grievor testified that she didn’t know who in the Company she should be

dealing with in Ms. Leclerc’s absence and didn’t feel that, “Ronnie (Olsen) was giving me any

support”. The Grievor also testified in cross-examination that she worked at the call centre on

Wednesday, November 21 because she wanted to meet with her Union steward, Mr. Turner, to

clarify her status. There is no evidence before me concerning what, if anything, Mr. Turner told

her. However, the Grievor’s evidence was that she was sufficiently confused about whether she

should be working at home or in the call centre office after apparently speaking with Mr. Turner

that she contacted Ms. Leclerc on November 21 to clarify the matter, which was not contradicted

by Ms. Leclerc in her evidence. This does not appear to be the actions of an employee seeking to

go behind management’s back, although it may be indicative of an employee suddenly realizing

she may have made a mistake.

[158] As noted below, Mr. Olsen found out on Wednesday, November 21 that the Grievor had

worked from home the day before, and, believing he was exclusively in charge of the Grievor at

that time, on his own initiative (i.e. without consulting with Ms. Leclerc) took steps to

investigate what he came to consider to be “a serious breach of trust” on the Grievor’s part. But

on the next day, Thursday, November 22, 2012, the documentation shows that Ms. Leclerc was

back at work, and she wrote the following e-mail to the Grievor at 3:47 p.m. that was entitled,

“New Laptop”:

Page 57 of 196

Hi Tracy,

I’m sorry I wasn’t able to meet with you today but I will meet with you tomorrow for sure. I’m going

to put some time in my calendar and will send an invite in the morning. I understand while I was

away you were issued a new laptop. I wasn’t aware of this and need some information off of it for

asset inventory. Can you please bring the laptop with you into work tomorrow? Thanks in advance

and we’ll talk tomorrow.

Debbie

[159] The foregoing e-mail leads to the inference that Ms. Leclerc had at least by that time read

the previous e-mails from the SPOC technician that she was copied on, the first one being dated

on November 13 while the Grievor was suspended and the second dated November 19

identifying the Grievor as a member of the AHA program, which was the Grievor’s understating

at the time as well, that I found was reasonable in the circumstances. Yet Ms. Leclerc said

nothing in the foregoing e-mail to the Grievor dissuading her of the impression that she was still

a member of that program. Rather, both the tone and content of Ms. Leclerc’s e-mail are

consistent with the Grievor’s stated belief that she had done nothing wrong by approaching

SPOC directly for technical assistance with her At Home operating systems, which she needed as

an At Home Agent. Indeed it seems that Ms. Leclerc’s only concern at that point was to get

information from the new laptop related to “asset inventory”.

[160] While Ms. Leclerc testified in her examination-in-chief that she didn’t understand why

the Grievor would need a new laptop because she was supposed to be working from the call

centre (where computers are provided to the employees), her documented actions seem

inconsistent where no criticism of the Grievor’s conduct was made by Ms. Leclerc at that time.

Moreover, Ms. Leclerc agreed that there are instances where managers tell their employees that

they can pick up laptops directly with their manager’s permission from SPOC, supporting the

Grievor’s testimony of her understanding. There is no suggestion in Ms. Leclerc’s subsequent

meeting with the Grievor or in any e-mail to the Grievor at the time that the Grievor was ‘going

behind her back’ as the Grievor’s direct supervisor or acting improperly.

[161] Ms. Leclerc indicated in her November 22 e-mail that she would meet with the Grievor

the next day, which was Friday, November 23, 2012 and the evidence before me respecting that

meeting is sketchy at best. I heard nothing from Ms. Leclerc about that meeting in either her

examination-in-chief or cross-examination. However the Grievor produced a copy of an e-mail

Page 58 of 196

that she wrote to herself in order to memorialize the 3:15 p.m. meeting she had with Ms. Leclerc

that day. In her notes, which from the e-mail header was written at 3:35 p.m., a mere 20 minutes

after the commencement of the meeting and thus was reasonably contemporaneous, the Grievor

wrote to remind herself that the following matters were discussed with Ms. Leclerc:

1. Working in office until further notice

2. November 9/2010 (sic) suspension started until November 15/2012 non pay

3. Discussed why I got a new lap top and told her about issues in the office

4. A lot of spoc tickets

5. Advised her I want a copy of my green files and want to print things off

6. Debbie took lap top

[162] The Grievor testified in cross-examination that she had little recollection of the specific

conversation in that meeting, except to confirm that as indicated by her notes, Ms. Leclerc told

the Grievor that she would be working in the call centre until further notice, and that Ms. Leclerc

took the Grievor’s new laptop because the Grievor would not need it (although the Grievor also

testified that Ms. Leclerc, “didn’t explain much”). The Grievor also recalled telling Ms. Leclerc

about the many SPOC tickets she had received because of the ongoing problems with her At

Home office systems and that Ms. Leclerc had been copied on various e-mails with the SPOC

technician indicating that the Grievor could pick up the laptop.

[163] I infer from this evidence and the failure of the Company to ask Ms. Leclerc any

questions about this meeting (even in reply) to dispute the Grievor’s version of events that,

consistent with her conduct, the Grievor continued to be confused about whether she could work

at home or not as of November 23, and consequently sought clarification from Ms. Leclerc who

made it explicitly clear that the Grievor was only to work from the call center office, “until

further notice”. I concluded that this was the first time any clear directive that the Grievor could

only work from the call centre was made, thus resolving any confusion on the matter that the

Grievor reasonably had until that time. Even then, telling the Grievor she was to work in the call

centre “until further notice” (and without making arrangements for the removal of her At Home

electronic equipment), is supportive of the Grievor’s impression that her essential status as an At

Home Agent hadn’t changed. Furthermore, I found that even knowing that during her

suspension the Grievor received “a lot of SPOC tickets” and the new laptop computer, which the

Grievor fully disclosed, that Ms. Leclerc did not tell the Grievor she had done anything wrong or

Page 59 of 196

faced disciplinary sanctions for that conduct. Ms. Leclerc took no steps to suspend or notify the

Grievor of any pending disciplinary action as a result of events prior to that meeting.

[164] The next scheduled workday for the Grievor was Monday, November 26, 2012, and by

then Ms. Leclerc had permanently left her employment and the Grievor along with the other

members of Ms. Leclerc’s team was advised to refer any issues to Ms. Reynolds, which the

Grievor was still sufficiently confused about to seek clarification that Ms. Reynolds was now

their acting manager, which was not disputed by Ms. Reynolds in any return e-mail to the

Grievor at the time.

[165] Yet Mr. Olsen testified that he was responsible for the Grievor at this time which is

inconsistent with the foregoing evidence, and his actions and conclusions must be scrutinized in

the foregoing context as an individual who was laboring under his own misconceptions of his

responsibility and authority over the Grievor at that time.

[166] Mr. Olsen evidence is that he found out on November 21 from one of the Union’s

stewards who was inquiring as to the Grievor’s status that the Grievor had worked from home on

November 20. Instead of consulting directly with the Grievor on the matter who was working

out of the call centre that day (and the evidence would later show had only worked from home on

the one day of Tuesday, November 20), Mr. Olsen contacted Ms. Heather Farrell, who has some

managerial responsibility for the At Home Agent program, to inquire whether the Grievor’s VPN

had been disabled. He received Ms. Farrell’s reply by e-mail at 5:44 p.m. (after the Grievor had

left for the day), who wrote (with some TELUS-Speak) to Mr. Olsen, in part that: (a) “Turns out

on November 13^th(the Grievor) logged a bunch of tickets with SPOC (more than 5)…she also

requested her history of tickets on November 13^th”; (b) “The (SPOC) tickets ranged from having

issues with (a specific software application), computer not rebooting, missing files, getting calls

after log out and so on. So to remedy the tickets she was provided with a new laptop around

November 19^th”; (c) “At Home Program did not receive an email regarding the laptop swap.

Agent logged a ticket on November 19^thfor not being able to login to Cisco VPN…”; (d) “SPOC

had no idea (the VPN) was disabled so the agent couldn’t work from home and re-enabled it…”;

and (e) “I have had (corporate) security re-disable the (VPN) as of 4:00 p.m. this evening.”

Page 60 of 196

[167] This response, which to Mr. Olsen meant that the Grievor had been improperly working

while she was under suspension, and had been going directly to SPOC for assistance outside of

his knowledge (as he considered himself to be her supervisor at the time) that from Mr. Olsen’s

perspective was not permitted under Company policy, prompted Mr. Olsen to commence an

investigation, again on his own initiative.

[168] Ms. Leclerc was back at work on November 22 and 23 and in fact as noted above was

dealing with the Grievor on some of these matter, but there is no evidence that Mr. Olsen

discussed the situation with Ms. Leclerc on November 22 or November 23 while Ms. Leclerc

was working in the call centre office, nor is there any suggestion that they coordinated their

efforts or “investigation” in any way. As an aside it is to be noted that the Company never

alleged that the Grievor was doing any “work” from home on November 20 in the sense of

taking normal calls from customers and logging their requests, etc., for which she would not

have been paid by the Company if she had. To Mr. Olsen, any contact by the Grievor with

SPOC on anything to do with her operating systems (particularly during a period of time that Mr.

Olsen considered himself to be her supervisor) constituted the performance of work that she was

prohibited from doing, notwithstanding that she wasn’t being paid for such “work” and

regardless of what her motives might have been. The Grievor later explained that the only thing

she was doing at home during her suspension was trying to get things ready for her return to

work after her suspension.

[169] Thus Mr. Olsen took me through a detailed rendition of the results of his investigation

into the Grievor’s conduct, and consequently I heard about some 20 different instances of the

Grievor contacting SPOC herself for assistance with her computer systems in the period

commencing November 13 up to and including apparent contacts on November 26 and the

morning of November 27, 2012 (which of course was when Ms. Reynolds was the acting

manager), none of which was ever disputed by the Grievor.

[170] Each contact with SPOC generated a written “ticket” of SPOC’s involvement in the

specific inquiries and request for assistance by the Grievor that was filed with me and

exhaustively explained. While I heard much evidence about Mr. Olsen’s findings based on this

documentation, it is not necessary to recount all instances of the Grievor’s contacts with SPOC

Page 61 of 196

over this timeframe. It is sufficient for present purposes and I so found that commencing on

November 13 while on suspension, the Grievor contacted SPOC by telephone to receive a

history of all of the SPOC tickets that she had requested going back to April 9, 2011, and that she

had received technical assistance from SPOC for problems with her home office systems in the

past. This was precisely what she had asked Ms. Leclerc about in their November 12, 2012

disciplinary meeting, to which Ms. Leclerc doesn’t seem to have responded.

[171] Among other things, the Grievor also asked SPOC for advice and assistance with the

operational problems that she alluded to during her investigative and/or disciplinary meetings

with Ms. Leclerc, including: (a) receiving two calls at the same time on her Plantronics device

causing her to lose calls; (b) difficulties with the MOC communicator that she said caused her

system to operate slowly; (c) difficulties with her home laptop computer that the Grievor claimed

was “fried” and needed replacing (that was later substantiated by SPOC); (d) ongoing problems

with a number of application software programs that she needed to perform her work; (e)

inability to connect with the call centre from her home office because her VPN was disabled that

prompted SPOC to reconnect her system to the network (since as indicated by Ms. Farrell’s e-

mail SPOC was given no notification that the Grievor’s status as an At Home Agent had been

revoked); and (f) a number of additional problems that the Grievor claimed she was having with

the computers or operating systems that she was using while in the call centre after returning

from her suspension in the period from November 16 to November 27, 2012.

[172] From the results of his inquiries Mr. Olsen had formed the opinion that the Grievor was

able to get her VPN restored by, “not being forthcoming with our SPOC team about the situation

she was in regarding her discipline”. He also discovered that the Grievor had obtained a new

laptop computer that she requested on November 13 which he testified was “very concerning

because it was participating in work-related activities while being suspended”. He then testified

that the Grievor, “was able to work from home on (November) 20^thwithout (me) having any

knowledge of this”, which Mr. Olsen perceived as the Grievor “going behind my back”. Mr.

Olsen later referred to general “security concerns” respecting the Grievor’s conduct by working

from home and/or ordering SPOC tickets “without permission”, but didn’t identify any explicit

rule addressing such concerns in his testimony before me.

Page 62 of 196

[173] From Mr Olsen’s standpoint, the Grievor was not permitted to consult SPOC without his

express permission and thus she should have been referring all of these matters to him as her

immediate supervisor before contacting SPOC. Had she done so, Mr. Olsen testified the

Company would have saved the unnecessary expenditure of SPOC resources and time on matters

that Ms. Olsen would have been able to resolve (or more directly, to set the Grievor straight

about) immediately. Consequently, Mr. Olsen summoned the Grievor and her Union steward,

Mr. Turner, to an investigative meeting on November 27, 2012 to discuss the results of his

inquiries into the Grievor’s conduct while on suspension and afterwards.

(e)

The Grievor’s Perspective of Events at this Time

[174] When confronted with all of this, the Grievor maintained her belief that she had done

nothing wrong. Having been unprepared for her disciplinary meeting with Ms. Leclerc on

November 8, she wanted to get a history of all of her SPOC contacts in order to support her

claim that she had been experiencing difficulties with her At Home systems for some time before

she was disciplined. She also testified that she “didn’t think it was a big deal to call SPOC

(while she was under suspension on November 13) to look into work-related issues” that she had

been experiencing with her operating systems before her suspension, asserting that she was

“trying to prepare myself to get back to work”. The Grievor insisted her ‘VPN would go down

daily” and that she had other operating problems which she called SPOC directly for assistance

and informed Ms. Leclerc about by e-mail. As an At Home Agent she had contacted SPOC on

her own in the past without objection and she kept Ms. Leclerc informed of her efforts to get a

replacement laptop, which she believed was all that was required.

[175] The Grievor testified she didn’t know what was happening when Mr. Olsen contacted her

in the call centre her before her lunch break on November 27, asking her to attend a meeting with

him and her Union representative. After initially telling Mr. Olsen that she was scheduled to

start a break, the Grievor testified, “two minutes later (Mr. Olsen) was hovering over me and he

said, ‘Let’s meet’”. Notwithstanding she felt the need to go to the bathroom at that time, she

went with Mr. Olsen to a meeting room where Mr. Vince Marasco was waiting. She thought that

they might be meeting to discuss her earlier five-day suspension, and thus she brought with her

all of the SPOC tickets to prove the difficulties she had been having with her At Home systems.

Page 63 of 196

(f)

The November 27, 2012 Investigative Meeting

[176] Thus Mr. Olsen convened a formal investigative meeting with the Grievor and her Union

representative with Mr. Marasco taking notes, which were entered into evidence and purported to

be an accurate record of what occurred. Consistent with the practice of TELUS supervisors in

such situations, Mr. Olsen had prepared a series of typed questions in advance that he went

through with the Grievor in the course of their meeting that lasted about one hour.

[177] Mr. Olsen testified that at the outset of the meeting he could see that the Grievor had

reams of SPOC tickets and papers with her that she was apparently relying on to defend her

actions leading to her previous five-day suspension without pay. But Mr. Olsen made it clear he

wasn’t interested in that.

[178] Rather, Mr. Olsen asked the Grievor a series of questions taking her through the events

after her suspension on November 12, that focused on the reasons why, during her time on

suspension, she (a) had contacted SPOC without telling her supervisor; (b) had acquired a new

laptop without her supervisor’s knowledge; (c) had arranged for her VPN to be reinstated; (d)

hadn’t spoken with Mr. Olsen, who asserted he was her supervisor at the time, to receive

permission for any of those actions; and (e) after her suspension she continued to contact SPOC

herself about difficulties she was having with the office systems instead of referring all matters

to Mr. Olsen. As an aside, it was never suggested by Mr. Olsen that any of the problems raised

with SPOC, either during her suspension or while working in the call centre, were not genuine

technical difficulties the Grievor believed she was having at that time. Also, Mr. Olsen testified

that in deciding in advance the questions he would ask the Grievor, he was “looking for certain

answers” and it is apparent that his investigation was designed to get the answers that he was

looking for that, in his mind, would incriminate the Grievor. But that didn’t happen, leading to

Mr. Olsen’s conclusion that she was “evasive”.

[179] The Grievor’s response to Mr. Olsen’s questions was consistent with the testimony she

gave before me and with all of the documentation related to the mixed and imprecise messages

the Grievor was receiving from her supervision at that time. As reflected in the notes recorded

by Mr. Marasco, the Grievor repeated that she didn’t know she couldn’t call SPOC while she

was on suspension which she asserted, “was basically my time too” and that one of the reasons

Page 64 of 196

she contacted SPOC was to get the records of all of the SPOC tickets she had opened to address

the problems she said she was having with her At Home systems. When pressed further by Mr.

Olsen on why she contacted SPOC at all, she is recorded as saying: “Sorry, I was preparing

myself for getting back to work so that I wouldn’t have any issues. My laptop didn’t work.”

[180] When asked about her replacement laptop and whether she had permission from her

supervisor to obtain the laptop, the Grievor told Mr. Olsen that, “I think that Debbie (Leclerc)

was back by then. She was cc’d on the e-mails to SPOC. I didn’t want to bother Debbie since

she was having personal issues.” The Grievor maintained that because she had copied Ms.

Leclerc on her e-mails to SPOC concerning the laptop that she assumed she didn’t need to refer

the matter to Mr. Olsen or to any of the other supervisors that Ms. Leclerc had previously

identified she could contact for support in Ms. Leclerc’s absence.

[181] When pressed as to why she came to work at the call centre on Friday, November 16 and

Monday, November 19 when she claimed she thought she was still an At Home Agent, the

Grievor explained that she couldn’t work at home because her laptop was “fried” and she only

picked up the replacement laptop when she left work on November 19, by which time Ms.

Leclerc was also back at work and had been copied on the e-mail from SPOC concerning the

matter, leading the Grievor to believe that she was doing nothing wrong and was acting with the

full knowledge and approval of Ms. Leclerc.

[182] The Grievor confirmed that she reconnected her laptop to her At Home office system

either that evening or the next day and worked from home on November 20, because she didn’t

think she couldn’t. She had asked SPOC earlier to reconnect her VPN because she believed she

was still going to be working as an At Home Agent. She told Mr. Olsen that the only person she

contracted while working at home was her Union steward, Mr. Turner. (I inferred from what

happened next, that Mr. Turner likely asked her why she was working from home at that time

when she was supposed to be at the call centre, although I didn’t receive direct evidence on what

the Grievor and Mr. Turner actually discussed on November 20).

[183] In response to Mr. Olsen’s further questions about why she came back to the call centre

on November 21, the Grievor told him she wanted clarification from Mr. Turner on her status as

an At Home Agent (which is consistent with the above-noted inference). The Grievor also told

Page 65 of 196

Mr. Olsen that she had contacted Ms. Leclerc by e-mail that day as well to get clarification from

her directly, but Ms. Leclerc didn’t respond. (And the evidence indicates that Mr. Olsen did not

contact Ms. Leclerc or do anything to substantiate this claim by the Grievor). Mr. Turner then

confirmed to Mr. Olsen that in the November 12 meeting with Ms. Leclerc, she told the Grievor

that, “I need you to work the office until further notice”, which the Grievor maintained she

hadn’t remembered, and that was why she was asking for clarification.

[184] When confronted by Mr. Olsen that she had been seen in the call centre office on

Thursday, November 15, which was the last day of her suspension, the Grievor explained that

she wanted to print her e-mails that she couldn’t access while her home VPN was shut down.

Mr. Marasco’s notes reflect at this point in the meeting that Mr. Marasco acknowledged he had

given permission for the Grievor to come into the workplace to retrieve and print-off her e-mails.

There was consequently no suggestion by Mr. Olsen that by viewing and printing her e-mails

related to her work that the Grievor had been improperly “working” on that day.

[185] When asked by Mr. Olsen why the Grievor didn’t contact him when she was having

“AHA connection issues” the Grievor replied that, “I didn’t feel like I had support. I didn’t want

to go to every Manager. I took ownership of my issues.” When next questioned by Mr. Olsen

what the Grievor thought the cost to TELUS was for all of tickets that she had logged with

SPOC, the Grievor responded, “No idea”. (As an aside, that “cost” wasn’t identified to me,

either). And when offered at the end of the investigative meeting the opportunity to say ‘anything

else you would like at this time’ the Grievor is recorded as responding:

Yeah, I actually would. No one is really giving me full direction in regards to my at-home

connection. I had to pay for my own move. If my at-home connection is going to be removed, I

want that money back. I haven’t gotten e-mail responses from my managers. I’ve sent Debbie

(Leclerc) e-mails in regards to system issues. She never got back to me. There have been many

issues.

[186] Mr. Olsen testified that on the basis of the Grievor’s answers, he had found the Grievor to

be “really non-responsive” and that the Grievor “was being evasive”. Confirming the Grievor’s

subsequent testimony on point, Mr. Olsen noted that at beginning of the investigative meeting

the Grievor “had a stack of papers with her” and that “she seemed ready to defend the five day

suspension.” But when Mr. Olsen started asking her his questions he testified that the Grievor,

“seemed a little surprised” and that near the end of the meeting that the Grievor, “seemed a little

Page 66 of 196

teary-eyed, but not in a way that indicated we should stop the meeting.” Rather to Mr. Olsen the

Grievor seemed, “calm” and the meeting ended shortly thereafter.

[187] The Grievor testified she “didn’t understand what was going on.” She maintained that

she answered Mr. Olsen’s questions as best as she could, but she became “really upset to the

point I was balling” and that she felt, “really intimidated” and was “very bothered by the

questions they asked me.” She further testified that, “I didn’t expect another investigative

meeting; I didn’t know I couldn’t get a laptop. I just really wanted to have clarification of things

and get back to work.”

[188] In reviewing Mr. Marasco’s notes of the investigative meeting, I could find no basis for

Mr. Olsen’s conclusion that the Grievor was “non-responsive” or “evasive” to the specific

questions he asked. Out of the 56 questions that he asked (all but two directed to the Grievor that

were asked of Mr. Turner), there were some 13 questions or comments intended to elicit a

response from the Grievor identifying who she thought her manager was at any given time and

whether she believe she had to get the manager’s permission for doing the things she did.

[189] I found that none of her answers was unreasonable given her knowledge of circumstances

as supported by the documentary evidence and timing of various events. For example:

Question #1: Mr. Olsen asked the Grievor, “While your Manager…was out of

the office during the week of November 12 – 16, who were you advised to contact

during her absence?” (The notation beside this question indicates that he was

expecting the Grievor to refer to Ms. Olsen’s November 13 e-mail instructing the

employee to contact him). The Grievor nevertheless responded, “I believe

(Debbie) sent an e-mail out for everyone – for us to contact you (Ronnie), Vince

and Lisa”. I found this was an accurate response given that the Grievor’s e-mail

access had been disconnected by November 13 when Mr. Olsen distributed his e-

mail.

Question #2: Mr. Olsen then asked: “Did you receive an e-mail for support from

myself?” which was a more direct reference to his November 13 e-mail. The

Grievor responded, “I don’t remember. I’d have to check. I don’t remember.”

Mr. Olsen interpreted this as being “evasive”; but the evidence supports the

conclusion that the Grievor would not have likely received this e-mail until she

printed off her e-mails on November 15 when she attended at the call centre. With

all of the e-mails she was likely reviewing at that time it was not unreasonable

that the Grievor would not be aware or remember Mr. Olsen’s November 13 e-

mail.

Page 67 of 196

Question #9: In connection with the Grievor’s activities in contacting SPOC

directly for assistance with her At Home systems while on suspension, Mr. Olsen

asked: “Who else could you have contacted for that (permission)?” The Grievor

responded, “Honestly, I didn’t think that was an issue”. This answer that Mr.

Olsen interpreted as non-responsive is consistent with the Grievor’s practice of

contacting SPOC directly in the past, as confirmed by the evidence.

Question #13: Mr. Olsen asked: “If your computer was fried, what Manager was

available for you to contact?” The Grievor responded: “No one. I don’t

remember. I think that Debbie was back by then.” On the evidence before me

this answer was reasonable as well. The Grievor had been communicating with

Ms. Leclerc at that time.

Questions #46 – #47: With respect to the Grievor’s claimed efforts to have

problems with her VPN connection to her At Home office addressed by SPOC,

Mr. Olsen asked her which manager she contacted for permission, to which she

responded, “I didn’t think I contacted anyone. I didn’t see it as a big concern. I

didn’t want to harass anyone.” In following up, Mr. Olsen is then recorded as

having asked: “Why did you not contact myself when you had these AHA

connection issues?” I found that the Grievor’s recorded response, “Maybe,

previously, I didn’t feel like I had support. I didn’t want to go to every manager.

I took ownership of my issues”, was a reasonable one given her past direct

dealings with SPOC, the less than clear instructions from Ms. Leclerc, in the

context of the turmoil at the time concerning the identity of the Grievor’s

supervisors which seemed to be changing on a daily basis.

[190] One question that was not put to the Grievor, however, was whether the Grievor knew

her direct supervisor from November 13, 2012 up to and including the date of the investigative

meeting to whom all matters related to her day-to-day activities as a CSA were to be referred,

was Mr. Olsen. This was obviously Mr. Olsen’s belief.

[191] The Grievor testified that by the end of the November 27, 2012 investigative meeting she

was, “so distraught that I could barely speak, and I was crying and they told me to leave.”

Instead of driving to work, the Grievor had started taking the bus after her suspension in order to

lessen her daily stress. As she had a “major headache”, “didn’t feel well” and was “walking

sideways” after exiting the bus on her way home after the investigative meeting, she went to an

“urgent care” walk-in clinic in a plaza close to her home, where she was examined by one of the

attending physicians who told that her she was “under stress”, as described further below.

(g)

The Grievor’s Medical State at this Time

Page 68 of 196

[192] After she was suspended by Ms. Leclerc the Grievor saw her family doctor, Dr. Adil, on

November 15, 2012. The medical documentation that was in the Company’s possession before

the Grievor’s first dismissal indicates the Grievor told Dr. Adil that the Grievor was urinating

two to three times per hour, which the Grievor also reasserted in her testimony.

[193] The Grievor’s evidence is that she consulted with Dr. Adil on the matter because Ms.

Leclerc had suggested she could get a note from her doctor authorizing additional time off if she

needed to use the washroom, but no doctor’s note was apparently provided to the Grievor on that

occasion, or when the Grievor’s conversation with Ms. Leclerc on the matter occurred sometime

earlier in late October.

[194] After her meeting with Mr. Olsen on November 27, 2012, the medical documentation in

the possession of the Company before the Grievor’s first dismissal indicates that the Grievor

received a note from Dr. Bahman Torkian, the urgent care physician she saw that evening.

Referring to the Grievor and dated November 27, 2012, it stated: “This note is to certify sickness

causing medically unfit and unable to attend to work/school” for the period November 26 – 30,

2012. Dr. Torkian also gave the Grievor a prescription for 10 pills of Apo-Lorazepam (0.5 mg.),

which is a drug for the short-term relief of the symptoms of excessive anxiety that was to be

taken “as needed”, that the record of her prescription purchases (also given to the Company)

indicates the Grievor filled immediately.

[195] I was subsequently advised (through the testimony of Ms. Bargen) that Lorazepam is the

generic name for the commercial brand known as “Ativan”.

(h)

The Decision to Terminate the Grievor’s Employment

[196] At or about the same time, Mr. Olsen had made the decision to terminate the Grievor’s

employment for alleged just cause. He testified that he would have terminated her employment

even if she didn’t have a recent five-day disciplinary suspension on her record, because of the

seriousness of her misconduct during and after her disciplinary suspension. He explained that as

a result of his investigation he concluded the Grievor knew she wasn’t to work from home, and

that as an At Home Agent for the past five to six years, the Grievor also knew that “any

connectivity issues, system issues, should have come to myself” (meaning, Mr. Olsen

Page 69 of 196

specifically). He also found that the Grievor had been “very evasive” during the investigative

meeting and that in working from home, the Grievor ‘essentially went behind Mr. Olsen’s back

by not telling Mr. Olsen about the VPN, laptop and working from home’. Mr. Olsen testified

that, “based on that I felt she was completely untrustworthy after all of these scenarios.”

[197] He consequently had e-mail communications with the Company’s Labour Relations

Consultant, Cheryl Fraser, who helped prepare a termination letter based on the information

provided by Mr. Olsen. At the bottom of the e-mail that Ms. Fraser wrote to Mr. Olsen with her

suggestions for the appropriate wording of the termination letter, she also wrote: “Nice work on

this one Ronnie” to which she attached a “smiley face” icon.

[198] While the termination letter was written under Ms. Leclerc’s name, Mr. Olsen intended to

sign and present it to the Grievor the next day the Grievor was expected into work at the call

centre, on Wednesday, November 28, 2012. It is reproduced below:

November 28, 2012

Tracy Baker

Channel Care Analyst II

Subject: Termination of Employment

Dear Tracy,

An investigative meeting was held with you on November 27, 2012 regarding a breach of trust.

Our investigation revealed that you inappropriately accessed and misused TELUS resources,

breached our corporate security policy and failed to follow a management directive. Your actions

were a willful violation of TELUS policy. During the investigation meeting you were evasive and

failed to take responsibility for your actions.

Your actions constitute a serious breach of trust, and violation of TELUS’ Ethics and Security

Policies. The need for trust is pivotal to any ongoing employment relationship and you have

undermined and irreparably harmed that bond of trust with your actions. Consequently, effective

immediately your employment with TELUS is terminated.

Your final pay will be processed as soon as possible and will include any payment that may be due

under the terms of the collective agreement or in accordance with any provisions of the Canada

Labour Code. Your Record of Employment will be mailed to you.

Sincerely,

Debbie Leclerc

Page 70 of 196

Manager, Business Solutions

VII.

Period 3: November 28, 2012 – January 11, 2013

[199] In its opening statement the Company described the Grievor as a “runaway employee”

during this next period in the narrative of events leading to her “first dismissal” on January 11,

2013, who the Company alleged was trying to do everything she could to avoid the termination

she knew was coming, and whose claims of being ill with a stress/anxiety related disability

(referred to in her last medical report as “major affective disorder”) to validate her continuing

absenteeism during this period could not be believed.

[200] In reviewing the totality of the evidence and considering the Grievor’s testimony during

her examination-in-chief and cross-examination in the context of the supporting documentation

and what seems most in harmony with all the surrounding circumstances I respectfully disagree

with that characterization, although it was certainly Mr. Olsen’s and later, Ms. Bargen’s

perception at the time. My findings during this temporal period are based on a careful review

and evaluation of the testimony of these two Company witnesses along with the Grievor’s

reports of her physical and emotional state as supported by the medical notes received from the

Grievor’s physicians, that were in the Company’s possession and which it had the opportunity to

consider before it decided to terminate the Grievor’s employment on January 11, 2013.

(a)

The Grievor Doesn’t Report for Work

[201] Thus with Dr. Torkian’s note in hand, the Grievor didn’t report for work on Wednesday,

November 28. Instead, she sent an e-mail to the person she believed to be her “acting manager”,

Ms. Reynolds, at 9:44 a.m. advising her that, “I am sick today. My shift is 9AM – 5PM. I called

SMB WFM this morning as well to let them know.” This e-mail was forwarded to Mr. Olsen at

11:01 a.m. that morning by Ms. Reynolds, which Mr. Olsen claimed he was “surprised again” to

receive because, as he testified: “I had just had an investigative meeting with her and there were

10 questions about who she should contact, and the next day she contacts Jenny Reynolds and

not myself” (emphasis added). This answer suggests a clear direction to the Grievor that Mr.

Olsen was now responsible for all aspects of the Grievor’s day-to-day employment, including

Page 71 of 196

notifications for illness, was conveyed to her during the investigative meeting or at some point

beforehand, which the evidence does not support.

[202] Rather, in reviewing the e-mail of Ms. Reynolds to Ms. Leclerc’s team members dated

November 26, 2012 in which she stated that, “If you are SICK or running late, please call me”

(capitalization in original), and having regard to my findings as to her veracity in testifying on

the matter, I found it was clear that the Grievor was doing exactly what she had been instructed

to do in cases of absenteeism due to illness. Since Mr. Olsen was apparently not copied on Ms.

Reynolds’ e-mail, I found that he was the one confused; and that the negative impression he

formed of the Grievor reporting her illness to anyone other than Mr. Olsen as a further example

of the Grievor “going behind my back” was unjustified. At the very least, even if Mr. Olsen was

the Grievor’s supervisor at that time, there is ample evidence to support the Grievor’s genuine

confusion.

[203] Thus to the extent that the Grievor may be criticized or even face legitimate discipline for

her conduct during Period 2 from November 12 to November 27, 2012, where the documentary

evidence shows that there was a virtual musical chairs of five supervisors circling in and out of

the Grievor’s world in that timeframe (i.e. Debbie, Jenny, Vince, Lisa, Ronnie), with little to no

communication amongst those supervisors on different aspects of the Grievor’s day-to-day

employment, the Company’s contribution to that confusion must be weighed against it in

mitigating any disciplinary finding.

(b)

The Grievor’s Claim for Short Term Disability

[204] On Thursday, November 29, the Grievor visited the Brooklin Medical Centre where her

doctor practiced, obtaining a note (from one of the physicians in the Centre, although the

signature is illegible) that stated: “Patient unable to work for week effective from November 29,

2012.” This note thus purported to cover the Grievor’s absence from work for medical reasons

until Thursday, December 6, 2012.

[205] The Grievor also saw her regular physician, Dr. Adil, at or about 5:41 p.m. that evening.

Dr. Adil had been the Grievor’s “family physician” for only six months at that point and the

“Patient Encounter History” of her visit with Dr. Adil is the written record that the doctor

Page 72 of 196

prepares contemporaneously with each visit. Consistent with the Grievor’s testimony, it records

that the Grievor visited Dr. Adil to discuss feelings of extreme anxiety and stress, which after

examination Dr. Adil diagnosed as: “Anxiety neurosis, hysteria and neurasthenia.” (I understood

that neurasthenia is a condition generally characterized by fatigue, headache and irritability that

is associated with depression or emotional stress).

[206] Dr. Adil’s written record of the visit also indicates that they discussed in detail the

reasons for the extreme anxiety the Grievor was feeling, which Dr. Adil described in her notes

as, “+++stress at work”. The Grievor is also noted as advising Dr. Adil that her workplace, “is

accusing her of not doing work properly…(and)…says basically work is trying to fire her.” In

addition to recounting the Grievor’s reported symptoms that included difficulties sleeping,

feelings of anxiety and crying (although no depression or suicidal tendencies), it reported she

was offered “Ativan” that the Grievor was reluctant to use. In testifying the Grievor explained

she had used Ativan before but, “didn’t like it at all” because it caused her to feel ‘flighty, sleepy

and to slur her speech’, asserting that she was “not good with medication” and preferred instead

to deal with such things “naturally” through exercise and diet. Dr. Adil nevertheless gave the

Grievor at prescription for 30 tablets of Ativan in 0.5 mg dosage that the Grievor was to take

nightly. While it appears that the prescription was unfilled, I noted that this was the same drug

and dosage she had received at the walk-in clinic on November 27, which the documentation in

these proceedings indicate the Grievor filled immediately. Dr. Adil’s medical record of their

November 29 visit concluded with the notation that the Grievor was to be off work for one week,

at which time there would be a follow-up assessment of the Grievor (which would have been

Thursday, December 6, 2012).

[207] Earlier the same day, the cellphone records filed in these proceedings (described further

below) indicate that Mr. Olsen called the Grievor on her TELUS cellphone at 1:22 p.m., leaving

a voice-mail message for her (the precise message being unclear in the evidence, but likely

requesting that the Grievor contact Mr. Olsen). The cellphone records show that Mr. Olsen

called the Grievor again at 9:33 a.m. on Monday, December 3, leaving another voice-mail

message for her to call him.

Page 73 of 196

[208] Mr. Olsen’s testimony, supported by the Grievor’s cellphone records, was that the

Grievor called Mr. Olsen on Monday, December 3, 2012 (at 10:53 a.m.) confirming her illness

and inability to work. The Grievor spoke directly with Mr. Olsen, but she identified the date as

December 2 in her testimony, which is likely in error (as to the precise date only) because that

was a Sunday. (In later evaluating the evidence concerning the specific dates and frequency of

such calls, I was cognizant of the fact that the Grievor was testifying at this time without the

benefit of referring to her cellphone records to refresh her memory on the specific dates of her

telephone or voice-mail contacts with Mr. Olsen, which were not admitted into evidence until the

last day of her cross-examination in circumstances described below).

[209] Mr. Olsen also sent the Grievor an e-mail at 12:06 p.m. on December 3, 2012 confirming

their conversation that the Grievor needed to provide the Company with a Practitioner’s

Assessment Form (“PAF”) in order to receive short term disability benefits (“STD”) while off

work, a copy of which Mr. Olsen included as an attachment to the e-mail. It is instructive to read

the following portions of the two page document that was attached to the PAF and addressed,

“To the Practitioner”:

To the Practitioner

The purpose of this form:

1. To enable the Occupational Health professional to assess the Team Member’s fitness for work

or level of disability.

2. To ensure your patient’s claim for disability benefit receives proper consideration.

...

Short term disability payments will be made available when a team member:

 has applied for STD by completing the required medical forms following an absence of 10

consecutive days, and when the medical documentation substantiates the disability

absence duration, and aligns with disability best practices. All medical documentation

must be received in Health Services by specified dates or benefit payments will be

jeopardized.

 has signed appropriate medical consents.

 is under the regular care of a licensed physician, and follows recommended treatment /

rehabilitative plans as outlined.

 maintains regular and open communication with their manager and Health Services.

Page 74 of 196

 provides additional medical documentation, by specified dates, as requested by Health

Services.

 actively participates in all appropriate medical, rehabilitative, return to work and

assessment processes.

 consults with a third party physician, appointed by the company, if required.

 where possible, schedules medical / rehab services so that they do not interfere with

scheduled work.

 Obtains prior approval from Health Services to travel out of town or country. Travel

cannot interfere with recovery or treatment schedule.

[Emphasis added]

[210] Notwithstanding the ability of the Company to require the Grievor to consult with a third

party physician appointed by the Company, the Company never requested that the Grievor be

examined by a physician of its choice in order to substantiate her claims of being unable to work

due to reactive stress/anxiety (or “major affective disorder” as it was also described), in the

context of her application for STD benefits and claimed unfitness to report for work.

[211] Moreover, even though the PAF authorized the Company to speak directly with the

Grievor’s physician in order to clarify the PAF or to seek additional information about the

Grievor’s condition, this was not demanded by the Company in addressing what would later

amount to the Company’s conclusion that the information provided by the Grievor’s physicians

was insufficient to support a finding of total disability required to sustain both a short term

disability claim and her right to remain off work.

[212] Thus to the extent that the Company maintained that the Grievor was not really ill (or

sick enough) to prevent her from reporting to work thereby justifying her dismissal, there was

nothing outside of the medical documentation provided by the Grievor’s own physicians that was

relied upon by the Company or submitted to me. As I noted throughout this case, the Company

never challenged the information provided on the various medical forms by the Grievor’s

doctors. Its position (at least up to the last PAF submitted by one of the Grievor’s physicians on

January 8, 2013, on which I received no direct evidence to explain the Company’s rationale) was

that the information provided on these forms and accompanying medical notes was insufficient

Page 75 of 196

to show that the Grievor was not fit for work in order to receive STD or to justify her continuing

absence.

[213] While a copy of the Company’s STD plan was not filed, Ms. Bargen testified that the

Plan was paid directly by TELUS to full-time eligible employees (i.e. not through an insurance

company), which granted employees up to 130 days of pay until the employee was in the

position to apply for long term disability (“LTD”) benefits, the latter benefits being underwritten

by a third-party insurance carrier. (This is consistent with the STD plan made available to

employees in Western Canada, as indicated by Appendix A, reproduced above). Hence at the

STD level of benefit coverage, it is TELUS that decides directly whether the employee is “totally

disabled” in order to make the STD payments required under the collective agreement. The

term, “totally disabled” as applied by TELUS is described in the various letters that later denied

the Grievor’s STD claim, a sample of which is reproduced below.

In order to qualify for short term disability benefits, an individual must be totally disabled from

performing their job duties. “Totally Disabled” means “the team member has a medical impairment

which prevents him/her from performing the essential work duties”.

[214] Mr. Olsen also confirmed in his December 3, 2012 e-mail that the Grievor had advised

him she would be seeing her doctor “on Thursday December 8 (which must be a typographical

error on his part because December 8 was a Saturday in 2012) and he asked the Grievor to

“contact myself once the PAF has been submitted on Thursday.”

(c)

The Role of TELUS Health

[215] Ms. Bargen, who as identified above is a Case Consultant in TELUS Health, generally

described the TELUS Health unit as a facility within the Company that is intended to provide an

independent assessment of employees’ claims of injury or illness for purposes of STD coverage

and workplace accommodations in a manner that protects the confidentiality of the employees’

medical information from operational personnel. She testified that the role of TELUS Health in

the case of a claim for STD benefits is to review the medical documentation received from the

employee’s physicians, and from that (and presumably any other necessary investigations) to

determine whether the employee is “totally disabled” as that term is defined under the short term

disability plan, in order to approve STD coverage.

Page 76 of 196

[216] Once a PAF was received in the TELUS Health office (located in Burnaby, B.C.), a file is

opened and a Case Consultant is assigned to shepherd the file through the process; however, in

addition to Ms. Bargen the record indicates at least two others were involved in dealing with the

Grievor’s claim at various times; being Ms. Kathleen McLeod, an administrative coordinator,

and Mr. Douglas Carra, described as a “Senior Case Consultant” who had some role in training

Ms. Bargen, and is also identified on the written records as the “Disability Team Lead”. Mr.

Carra’s professional qualifications (i.e. whether he held degrees as a Registered Nurse or other

health practitioner) was not identified in the evidence. Another presumed administrative clerk

named Ginny Burton was peripherally involved in processing the file at different junctures, as

well. The TELUS Health records reveal that Ms. Bargen ceased any involvement in the

Grievor’s file as of December 20, 2012, with Mr. Carra taking over her role from that time to the

Grievor’s termination.

[217] There is a computerized record of the dealings by the TELUS Health personnel with each

file in what is referred to as a “Case Progress Note Report” (also referred to as “Case Progress

Notes”), that the Case Consultants and administrative staff add to, more or less

contemporaneously, in recording the receipt of documentation/e-mails and their specific dealings

on a file (although there were exceptions to that practice with notations added later in time).

This document was entered into evidence by the Company and relied upon as a comprehensive

digest of the Company’s dealings with the Grievor’s disability claims through TELUS Health.

These records helped piece together the details of conversations and correspondence between

TELUS Health and the Grievor, along with communications between TELUS Health and

TELUS operational management at various junctures in the narrative of this case.

[218] Specifically, the Case Progress Notes as supplemented by the testimonies of Ms. Bargen,

Mr. Olsen and the Grievor, along with the filed medical records, support the finding that by

December 4, 2012 TELUS Health had received a copy of the Grievor’s November 29 medical

note from Dr. Adil, and had also received copies of the earlier medical notes from Dr. Torkian

dated November 27 and the physician in Dr. Adil’s office, also dated November 29, in or about

this time (although the precise date of receipt is not clear).

Page 77 of 196

[219] Ms. McLeod addressed an e-mail to Ms. Leclerc advising her that TELUS Health

received “a doctor’s note for Tracy today regarding an absence”. It asked Ms. Leclerc to forward

a PAF to the Grievor’s doctor returning it to TELUS Health as soon as possible, since TELUS

Health would not open a file for the Grievor until it received a PAF. Of course, Ms. Leclerc was

no longer working at TELUS, and thus the e-mail eventually made its way to Mr. Olsen.

However, Mr. Olsen’s e-mail of December 3 indicates that a PAF had already been forwarded to

the Grievor by that time. For some unexplained reason, the Case Progress Notes Report shows

that Ms. McLeod and Ms. Burton regularly sent e-mails updating the status of the Grievor’s STD

claim with every new medical note submitted by her physicians to the attention of Ms. Leclerc

(often without copying Mr. Olsen on the e-mail) until the Grievor’s termination on January 11,

2013. This continued even after Mr. Keith Fischer sent an e-mail to Mr. Carra on December 31,

2012 advising that Mr. Fischer was “supporting [the Grievor] right now while Debbie [Leclerc]

is off”, after which the TELUS Health communications were sent to both, but often did not

include Mr. Olsen. The essential confusion on the management side as to who was responsible

for the Grievor at this point is demonstrated by these records; and as it turned out I found that

this continuing confusion materially impacted the Company’s dealings with the Grievor’s STD

claim for reasons that will become apparent below.

[220] On Thursday, December 6, the Grievor attended at a follow-up consultation by Dr. Adil.

Dr. Adil provided a contemporaneous “Patient Encounter History” for the Company which was

forwarded to TELUS Health. That document reported in relevant part that Dr. Adel outlined a

diet and exercise plan for the Grievor (to address other immaterial medical issues) and that they

discussed the treatment options for a large uterine fibrosis that included surgery (which had been

a matter of some concern for a while that the Grievor testified she had been “upset” about) along

with ordering lab tests for the Grievor. There was also an update on the Grievor’s “mood” which

was described as “still not good”, indicating that the Grievor continued to be ‘a bit anxious’ for

which she was receiving Ativan. And it revealed that the Grievor “will talk to a

psychologist/counsellor on phone today”.

[221] In her testimony the Grievor confirmed that at or about that time she was in contact with

a counsellor who had been recommended through the Company’s Employee Assistance Program

(“EAP”). Her evidence is that she received psychological counselling “over the telephone” to

Page 78 of 196

help her cope with her issues for “a couple of times or once a week, depending on our schedules”

for “a couple of weeks” during this timeframe, which was not contradicted by the Company

(although Ms. Bargen questioned the sufficiency of such counselling, as described below). The

Grievor testified that she found this counselling “very helpful.”

[222] On Friday, December 7, 2012, the Grievor saw Dr. Adil for the second time that week, in

order to prepare the PAF requested by the Company, which required that she be examined again.

In the Patient Encounter History of that examination (which was provided to the Company at

some point in this timeframe), the Grievor’s doctor diagnosed her medical condition as, “anxiety

neurosis, hysteria and neurasthenia”. The medical note describes the Grievor as an individual

whose “stress at work” was “still ongoing”, which was characterized by Dr. Adil as, “+++stress”

and “anxious[ness]”, and Dr. Adil also reported the Grievor would be “[speaking] with a

counsellor today through work”. The medical record, consistent with the Grievor’s testimony

indicates the Grievor continued to be unable to work, and it concludes that the Grievor would be

reassessed in one week.

[223] This examination was followed by Dr. Adil filling out the PAF required by the Company,

that the fax signature line on that document indicates was transmitted by Dr. Adil’s office

directly to the TELUS Health unit at 10:38 a.m. (Eastern Time) on Friday, December 7, 2012.

The PAF was signed by the Grievor, expressly authorizing the Company to: “contact the

practitioner in writing for any additional relevant information that they may require for [the

purpose of establishing the employee’s fitness for work and/or level of disability].” As the

evidence would later show, TELUS Health did not avail itself of that opportunity

notwithstanding its stated concerns about the sufficiency or clarity of the information and detail

provided by Dr. Adil.

[224] The PAF was also signed by Dr. Adil who diagnosed the Grievor’s medical conditions as,

“Stress/Anxiety”, and in describing the Grievor’s “signs and symptoms of the illness/injury”,

wrote: “+++stress at work, anxiousness”. In itemizing the treatment that the Grievor was

receiving, Dr. Adil wrote she was taking Ativan, counselling through her workplace sponsored

Employee Assistance Program, and that she would be seeing an Obstetrician and Gynecologist

(identified as Dr. J. P. Rubabaza) to be assessed for the treatment of large uterine fibroids (that

Page 79 of 196

ultimately might require surgery). Dr. Adil also noted on the PAF form that in her medical

opinion the Grievor was temporarily unfit for work, and that the Grievor’s medical condition

would need to be ‘reassessed in two weeks’.

(d)

Mr. Olsen’s Communications with TELUS Health

[225] The Grievor’s cellphone records indicate that she called Mr. Olsen at 10:37 a.m. on

December 7, 2012 which was about the same time the PAF was being faxed to TELUS Health in

Burnaby. While I didn’t hear about the content of that telephone call, I infer from the Case

Progress Notes Report that the Grievor told Mr. Olsen her PAF was being sent to TELUS Health.

That is because the Case Progress Notes record that an e-mail from Mr. Olsen to Ms. McLeod

was received in the morning of December 7, 2012 (with a copy to Ms. Fraser of Labour

Relations) wherein Mr. Olsen wrote the following under the salutation, “Hi Kathleen”:

I was advised by team member Tracy Baker that she was having her Doctor fill out and send a

PAF yesterday, Thursday, December 5th. Can you please advise if you received it?

This is a very specific situation regarding performance management that requires

immediate attention, (sic) your quick reply is appreciated.

[Emphasis added]

[226] As an aside, December 5 in 2012 was a Wednesday (not a Thursday); with December 6

and 7 falling on Thursday and Friday of that week. Mr. Olsen’s error in this regard is of no

consequence as he took steps to follow up his e-mail with a direct telephone call to Ms. Bargen

of TELUS Health on Monday, December 10, 2012 (apparently after speaking with Ms. Fraser

who was also listening on the call). This call was documented by Ms. Bargen in the Case

Progress Notes at 12:20 p.m. (Pacific Time) on December 10, 2012.

[227] Once the Grievor provided TELUS Health with a signed PAF from her physician, a

formal file was opened and Ms. Bargen was assigned as the Case Consultant on the file. Her role

is to determine whether the medical information provided to the Company supports an

employee’s claim of being “totally disabled” in order to qualify for short term disability benefits.

She testified that in a typical month she might be assigned 10 to 20 new files; and had received

as many as 25 new files in one week. The Case Progress Notes indicate that her first substantive

Page 80 of 196

contact with the file occurred when Mr. Olsen called her. (At least, that is the very first entry

that Ms. Bargen made on the Case Progress Notes Report in the Grievor’s file).

[228] Mr. Olsen testified that in their telephone call, he provided Ms. Bargen with details of the

Grievor’s recent employment issues and told her that “[he] was about to terminate Tracy when

she called in sick”, which he told her was ‘concerning from a labour relations perspective’. Mr.

Olsen wanted to know when TELUS Health would deal with the Grievor’s disability claim “so

we could have an understanding of what my next steps were going to be”. Mr. Olsen testified

that Ms. Bargen, “shared with us that the claim had already been reviewed and was denied. She

shared that with us at the outset of the call”. However, Mr. Olsen was advised that the Grievor

had the right to appeal the rejection of the claim, and that Ms. Bargen would be communicating

with the Grievor to receive more documentation that was required. Mr. Olsen testified that the

reason he wanted to speak with Ms. Bargen, “was around the timelines and sharing with [Ms.

Bargen] what had occurred in the [call centre] office”. In cross-examination he confirmed that at

the time it was his opinion that the Grievor’s filing of a claim with TELUS Health for short term

disability benefits was more related to her attempts at “fleeing discipline”.

[229] Ms. Bargain testified that she came into work late on Friday, December 7, and thus didn’t

review the PAF from the Grievor’s physician until the morning of Monday, December 10.

(However, as indicated above, if in fact she did review the file that morning, she didn’t make any

notation to that effect in the Health Services contemporaneous records.) She recalled the

telephone call from Mr. Olsen and Ms. Fraser, who she testified, “wanted to give me some

background information on the status of this employee, so that I would have a complete picture.”

Ms. Bargen noted that Case Consultants have “a list of pending claims” that causes some

administrative delay in dealing with individual files. However, when she reviewed the Case

Progress Notes recording Mr. Olsen’s e-mail to Ms. McLeod of December 7, 2012, she

interpreted the e-mail, “to mean that they wanted me to bring this case to the top of the list, to be

addressed sooner rather than later.” And the evidence shows that is precisely what she did.

[230] Ms. Bargen documented the December 10, 2012 telephone conversation with Mr. Olsen

as her first substantive entry in the Case Progress Notes Report at 12:20 p.m. that day (Pacific

Time), which Mr. Olsen confirmed in his testimony, “Seems very accurate”. Since this note is

Page 81 of 196

referred to later in the Case Progress Notes Report in circumstances described below, which I

found had a material influence on the final decision on the Grievor’s claim, it is appropriate to

set out Ms. Bargen’s note in its entirety as follows (with “TM” referring to the Grievor as a

“Team Member” and “LR” referring to the TELUS “Labour Relations” Department):

Attended a conference call at the request of the TM’s manager. He wanted to provide information

on this case and also wanted LR (Cheryl Fraser) to be able to provide some information from their

side as well.

This TM was a work from home agent for the past 6 years. She has been employed at TELUS

since 1998. There were issues with her performance and following an investigation, was

suspended without pay for 5 days starting November 12, 2012. At that time her work from home

privileges were revoked. During her suspension, she was trying to work from home, which caused

additional breaches in security. Upon her return to work, she was required to work from the office.

At that time there were additional performance issues that arose and she was asked to leave the

workplace and not work or return to the office until specifically requested to do so by her manager.

Her manager has tried to get in touch with her to arrange for her to come in following that incident,

but he has not been able to reach her to set it up.

The TM subsequently submitted the PAF for short term disability starting on November 28, 2012.

The manager and LR identified that she has had very little sick time leading up to the particular

claim, so are of the opinion that it is related to above situation.

[Emphasis added]

[231] If Ms. Bargen had determined that the Grievor was not eligible for STD benefits based on

her review of the Grievor’s medical file prior to her telephone conversation with Mr. Olsen and

Ms. Fraser on December 10, 2012, that is not what the Case Progress Notes Report says, which

Ms. Bargen was writing into at the time to contemporaneously record her actions. Rather, the

Report indicates that at 12:40 p.m., which was 10 minutes after the telephone conversation with

Mr. Olsen, Ms. Bargen attempted without success to contact the Grievor for the first time for

more information, writing the following in the Report log:

Attempted to call the [Grievor] to discuss her claim. Left a message with a request to return my

call. If she does not return my call, I will try again on Wednesday December 12, 2012. If she still

does not return my call, I will deny the claim and notify her by written courier letter. The

PAF that was submitted has minimal information on it and supports the likelihood that the

problem is a workplace issue. The PAF indicates “+++stress at work and anxiety” with an aside

that the [Grievor] has large uterine fibroids that will need to be removed at some point in the future.

The physical medical condition would not support this sick leave since she has not seen the

specialist as yet and possible surgery has not been booked.

The physician has prescribed Ativan, but the dosage and frequency is not identified. The physician

also indicated that the [Grievor] would be seeking counselling through the [EAP], but again no

Page 82 of 196

indication that the [Grievor] has followed through with this. The frequency of seeing the doctor was

identified as “as needed”.

[Emphasis added]

[232] Contrary to Ms. Bargen’s and Mr. Olsen’s testimony, the foregoing Case Progress Notes

support the finding that Ms. Bargen had not made the decision to deny the Grievor’s claim prior

to their December 10 telephone conversation, which could only have been on the basis of a

relatively short review of the Grievor’s medical documentation as of that morning, which if it did

occur, she didn’t feel significant enough to document at the time. Instead of providing an

independent assessment, and notwithstanding Ms. Bargen’s claims otherwise in her testimony

before me, I concluded from a consideration of all of the evidence in context, that Mr. Olsen’s

allegation that the Grievor’s absence was due to workplace performance issues became the lens

through which Ms. Bargen evaluated the medical documentation which predisposed her towards

viewing the matter as entirely a workplace dispute as opposed to the possibility of a legitimate

health problem arising out of the workplace, regardless of the medical documentation she or the

Company would later receive.

[233] The evidence of Ms. Olsen’s telephone conversation with Ms. Bargen at the very

beginning of her involvement with the Grievor’s file, in my assessment smacked of managerial

interference which undermined any sense that Ms. Bargen was acting as an impartial arbiter of

the medical documentation that I could rely upon as such. Rather, it cast her in the same net with

Mr. Olsen and Ms. Fraser who were seeking to remove the Grievor from her employment as a

person they believed to be deceitful and who had breached her position of trust. Anyone else

reading the Grievor’s Case Progress Notes Report would see the record of Mr. Olsen’s

allegations of workplace misconduct as the first substantial entry on the Report, which likely

affected any independent perspective of the medical documentation.

[234] Consistent with that viewpoint, in studying the Case Progress Notes after December 10,

2012, it is apparent that the Grievor’s performance issues raised by Mr. Olsen in his telephone

conversation with Ms. Bargen is repeatedly referred to as part of Ms. Bargen’s rationale in

continuing to deny the sufficiency of the medical documentation provided by the Grievor’s

physicians, notwithstanding the evidence also showing that her physicians were attempting to

answer the demands for more information. And it may also explain why Ms. Bargen simply

Page 83 of 196

didn’t ask the Grievor’s physician(s) for clarifications if she thought the medical information on

the PAF was deficient. That early notation in the Grievor’s Case Progress Notes Report

recording Mr. Olsen’s allegations of disciplinable misconduct and marking her medical claims as

an employment dispute was also referred to by others dealing with the Grievor’s health file, right

up to the final assessment by the TELUS Health consulting physician, as described below.

[235] Ms. Bargen testified that the information provided by Dr. Adil in the PAF was

insufficient to substantiate any illness because the PAF did not use the proper terminology to

describe a medically recognized condition or valid diagnosis that she found acceptable to her

knowledge as a Registered Nurse (with experience as a Registered Psychiatric Nurse) and many

years as a Case Consultant. Even though Dr. Adil indicated on the PAF that in her medical

opinion the Grievor was ‘temporarily unfit for work’, Ms. Bargen testified that Dr. Adil’s

diagnosis of “Stress/Anxiety” was not a recognized medical diagnosis, but rather it described a

“symptom”. Dr. Adil’s answer to the “signs and symptoms of the illness” question asked for on

the PAF as, “+++stress at work” and “anxiousness”, was also invalid terminology depicting no

form of disease that would cause disability, according to Ms. Bargen. The fact that Dr. Adil

referred to “stress at work” supported the conclusion that this was a workplace issue, in Ms.

Bargen’s assessment. Also, the prescription listed in the PAF of Ativan was, to Ms. Bargen, not

a proper “treatment” for the Grievor’s alleged condition; particularly where there was no dosage

indicated or frequency of use, and where there was also no indication on the PAF that the

Grievor had actually filled the prescription. And while acknowledging there was a reference to

the Grievor seeking counselling, Ms. Bargen was concerned because there was no indication on

the PAF that the Grievor was actually receiving counselling (with documentation identifying the

name of the counsellor and dates of any counselling sessions) for any emotional or psychological

disease, causing her therefore to reject that information as unsatisfactory.

[236] Yet Ms. Bargen took no steps to contact Dr. Adil (in writing by e-mail or letter

correspondence) to advise her what, specifically, was needed to remedy the deficiencies in the

PAF to support the Grievor’s claim of being incapable of working that she had the right to do by

the terms of the authorization signed by the Grievor or to seek clarification of Dr. Adil’s opinion.

This was occurring against the backdrop of what Ms. Bargen described in testifying as her busy

workload, and obvious pressure being placed on her by TELUS operational management to

Page 84 of 196

move the Grievor’s file “to the top of the list” so that Mr. Olsen could proceed with his stated

intention to terminate the Grievor’s employment as soon as possible, which Ms. Bargen was

aware of from the very beginning of her involvement. At this point it is apparent on the evidence

of this and subsequent events that Mr. Olsen and Ms. Bargen believed the Grievor was

attempting to use the “sick card” to avoid the termination that she knew was coming.

[237] Consequently in the next encounter that Ms. Bargen had with the Grievor, the Case

Progress Notes Report, consistent with Ms. Bargen’s testimony, records that Ms. Bargen spoke

by telephone with the Grievor in the afternoon of Wednesday, December 12, 2012, and after

receiving the Grievor’s answers to a medical questionnaire in which Ms. Bargen scored the

Grievor’s “cooperation” on the form as “mixed” (because, as Ms. Bargen testified, the

information she elicited from the Grievor through the questioning “was not openly

volunteered”), Ms. Bargen informed the Grievor that she would be denying her claim.

[238] As corroborated by her notes, Ms. Bargen told the Grievor, “There is not sufficient

justification to approve the claim – particularly given the issues in the work place immediately

prior to her submitting it” (emphasis added), which supports the inference that Ms. Bargen’s

mind was on the workplace issues immediately prior to the Grievor’s claim for disability

benefits, as those issues had been described to her by Mr. Olsen, in viewing and assessing the

medical documentation. Ms. Bargen also advised that another reason for denying the Grievor’s

claim was that “she was not receiving any significant treatment – only Ativan and maybe

counselling with the TELUS EAP program” with no indication of the dosage or the frequency of

medication usage (which I noted parenthetically is not specifically requested on the PAF). Ms.

Bargen informed the Grievor of her right to appeal the negative determination, which the Grievor

said she would do.

[239] This conversation was followed with a letter dated December 12, 2012 written by Ms.

Bargen to the Grievor, reproduced in relevant part below.

We have received and reviewed your recent Practitioner’s Assessment Form for Disability benefits.

…

The medical information received is insufficient to confirm you eligibility for disability coverage

based on the definition of total disability. The primary cause of your work absence as indicated

on the PAF appears to be workplace related. The information provided states you are suffering

from stress at work and anxiety. The degree of the two identified symptoms does not allow us to

Page 85 of 196

justify your complete incapacity to perform your regular duties for your employer. There is no

confirmed formal treatment plan indicated other than the prescription of one medication with no

identified dosage or frequency and the possibility of seeking counseling through the Employee

Assistance Program.

As the cause of your absence appears to be a workplace situation, we cannot consider your

case for Disability benefits. Workplace matters are best addressed through open

communications between the Team member and their manager and therefore, a work

absence is not appropriate for your case.

Accordingly, we have declined your claim for Short Term Disability benefits and we have advised

your manager of our decision.

Please contact your manager as soon as possible to discuss your return to work.

If you disagree with this decision, please confirm to us, in writing, of your intent to appeal within 5

business days of receipt of this letter.

In addition, you will be required to submit any new medical information that you would like to bring

to our attention as well as the medical information requested below. It will be our pleasure to review

your file after receiving this information.

 Copy of your clinical notes including all dates of treatment over the past 6 months

detailing the progression of your medical condition;

 Copy of confirmation of purchase of medication since the beginning of your disability

and/or proof of other treatment prescribed (appointment schedule with the EAP as well as

the name of the counsellor);

 Practitioner’s Assessment Form (PAF) duly completed by your physician. It must describe

in detail the degree of severity of the observable symptomatology, the treatments

currently under way and your response to these treatments, the schedule of appointments

with your physician and any consultations, as well as the objective medical limitations that

are incompatible with your regular duties and how these limitations prevent you from

performing your regular duties.

Any fees incurred in obtaining the above information are solely your responsibility.

Please note that new medical information must be received in our office within 10 business days

(14 calendar days) of receipt of this letter. If you are unable to meet this deadline for reasons

beyond your control, please contact the undersigned to discuss the circumstances.

[Emphasis added]

[240] The Grievor received Ms. Bargen’s December 12 letter via courier at 4:10 p.m. (Eastern

Time) on Thursday, December 13, 2012. The Grievor saw Dr. Adil before 9:00 a.m. the next

day, on Friday, December 14 for her annual physical examination, which had apparently been

scheduled for some time and wasn’t intended to address the Company’s requirement for a new

Page 86 of 196

PAF to support the Grievor’s appeal. The Patient Encounter History associated with that visit

indicates that the Grievor was “upset” over her likely need for surgery to remove large uterine

fibroids; but otherwise assessed the Grievor, as “healthy”. It was unclear on this record whether

Dr. Adil was including the Grievor’s mental/emotional health along with her general physical

condition in making that assessment, but consistent with the evidence of Dr. Adil’s subsequent

dealings with the Grievor, I concluded it was not intended to cover the Grievor’s ongoing stress

reaction to the circumstances at her workplace.

[241] The Grievor scheduled a separate appointment with Dr. Adil to fill out a new PAF and

review the other matters referred to in Ms. Bargen’s letter on Monday, December 17, in the late

afternoon. However, Dr. Adil told the Grievor she would not be preparing another PAF as the

original PAF contained all the information that Dr. Adil considered necessary to support her

opinion that the Grievor continued to be temporarily unfit for work with a stress related illness.

Nonetheless, Dr. Adil faxed 14 pages from the Grievor’s clinical file to TELUS Health

containing all of the “Patient Encounter History” notes and records of all medications given to

the Grievor over the past six months (as requested in Ms. Bargen’s denial letter), that included

the Grievor’s prescription for 0.5 mg dosage of Apo-Lorazepam and references to her ongoing

EAP counselling. These records also show that Dr. Adil had diagnosed the Grievor’s ailment as,

“anxiety neurosis, hysteria, neurasthenia”, which did not affect Ms. Bargen’s evaluation because

to her, the doctor did not use the proper terminology to describe any known medical condition.

Ms. Bargen did not contact Dr. Adil in order to clarify her concerns, or to inform Dr. Adil what,

precisely, she needed to substantiate a finding of total disability. Nor was there any suggestion of

requiring the Grievor to be examined by another physician of the Company’s choice in order to

substantiate Dr. Adil’s medical opinion on the PAF that the Grievor was ‘temporarily, totally

disabled’ and unable to return to work.

[242] In another Patient Encounter History that Dr. Adil prepared contemporaneously with her

examination of the Grievor on December 17, 2012 (that was later provided to the Company), Dr.

Adil reported in relevant part that the Grievor did not feel well enough to go back to work,

stating: “bit anxious, ++stressed at work as work place is picking on her for minor things,

impaired sleep/headache, not suicidal, not depressed, also anxious about uterine surgery…takes

Page 87 of 196

Ativan p.m.” There was also a discussion recorded in the notes that suggested the Grievor “will

try to go back to work on modified duties”, which did not occur.

[243] The Grievor advised Ms. Bargen on December 17 that she intended to appeal TELUS

Health’s initial decision to deny STD benefits. In Ms. Bargen’s Case Progress Notes Report of

Tuesday, December 18, 2012 (at 2:44 p.m.), she wrote that she had “reviewed the additional

medical information submitted by [the Grievor’s] doctor”, which she found to be “basically the

same as what was provided in the original PAF”. As such, she concluded the information was not

sufficient to reverse the denial of the Grievor’s claim for STD, writing, “The issue still appears to

be a work place issue and is best resolved in the work place.”

[244] Ms. Bargen consequently left a voice-mail message for the Grievor, which the Grievor

returned on December 19, 2012. The Case Progress Notes Report as supported by Ms. Bargen’s

testimony indicates that she then had the following conversation with the Grievor at or about

11:23 a.m. (Pacific Time), formally advising her that her appeal had been denied:

[The Grievor] called back. I notified her that we were unable to reverse the denial for her claim.

She repeatedly said that she could not understand why. She stated that her manager was

“harassing” her at work and were accusing her of not doing her job properly. I explained

that these factors clearly indicate a workplace issue and that it is best resolved in the

workplace through open communication between herself and her managers. She just kept

saying that she couldn’t understand why she would be denied since the problem was stress and

anxiety. I explained serval times that the issue was workplace related and was best resolved

there, otherwise there would never be any resolution.

She stated that she would be taking the issue to her union. She was also requesting that I send

the original denial letter to her email because she does not have the original one – she left it at her

doctor’s office.

[Emphasis added]

[245] (As discussed later in these Reasons, this was the first time that the Grievor alleged her

supervisor had been “harassing” her. This allegation of “harassing” behaviour became a focal

point in the Company’s subsequent cross-examination of the Grievor and the granting of the

Company’s request for an order disclosing the Grievor’s cellphone records.)

[246] The Case Progress Notes Report entry at 12:01 p.m. (Pacific Time) on December 19,

consistent with Ms. Bargen’s testimony on point, record that Ms. Bargen followed-up this

telephone conversation with a formal letter written to the Grievor denying the Grievor’s appeal.

Page 88 of 196

This letter was delivered to the Grievor by courier and received by her in the afternoon of

December 20, 2012.

[247] The next entry in the Case Progress Notes, one minute later at 12.02 p.m. (Pacific Time)

on December 19, 2012, records that Ms. Bargen had sent an e-mail to Mr. Olsen (copied to Ms.

Fraser) advising that the Grievor’s appeal had been denied. That e-mail stated in relevant part:

Hello Ronnie,

This is to follow up with you about the leave that began on November 28, 2012 for your employee

Tracy Baker.

We initially received a Practitioner’s Assessment Form on December 3, 2012, and based on our

review at that time, we determined that the medical information was insufficient to support the

claim. The claim was subsequently denied and the Team Member was notified both verbally and in

writing.

The Team Member elected to appeal this denial and submitted additional medical information

which was received on December 18, 2012 for our consideration.

The additional medical information provided was insufficient to support this leave and does not

correspond to the notion of total disability preventing her from performing her duties.

Since the medical documentation is insufficient to support the claim and the Team

Member’s eligibility for short-term disability has not been established, each day this Team

Member is absent should be coded “AS” unpaid.

A letter is being couriered to the Team Member today advising her of our review findings. She

should receive the letter some time tomorrow. I have also spoken to her today and notified her of

the denial. The Team Member informed me that she will be contacting her union representative to

discuss next steps.

Thank you.

[Emphasis added]

[248] I was advised by Ms. Bargen that the term, “AS” in the foregoing e-mail referred to

“unpaid sick”, which was the way the Grievor’s continuing absence was to be coded for payroll

purposes (to ensure that the Grievor would not be paid while off work). Mr. Olsen described this

as the code for, “absence unpaid”.

(e)

The December 20, 2012 “Dividing Line”

Page 89 of 196

[249] In considering the circumstances of Period 3 in this case leading to the Grievor’s first

dismissal on January 11, 2013, the date of Thursday, December 20, 2012 emerges as a surprising

dividing line of some significance. After that day, three events seem to be ongoing

simultaneously over the next three weeks (although it should be noted that about half of that

interval fell over the Christmas/New Year’s holiday period, where little happened).

[250] First, Ms. Bargen left for vacation on December 20, 2012 and her involvement with the

Grievor came to an end as of that date. She was replaced by Mr. Douglas Carra of TELUS

Health who became responsible for the Grievor’s file as Senior Case Consultant. After receiving

Ms. Bargen’s letter denying her second appeal of the Company’s decision to reject her claim for

STD benefits, the Grievor contacted Mr. Carra by e-mail dated December 20, 2012 notifying him

that she wanted to appeal the decision, and asking him what the appeal process was. Mr. Carra

responded to the Grievor by e-mail dated December 21, 2012, telling her, in part: “We would be

pleased to review medical information that has not been submitted previously” and giving her

further instructions in that regard on the nature of the necessary medical information, which he

advised the Grievor, “must be provided at your own expense and is required to be submitted

within 10 days.”

[251] In cross-examination, Ms. Bargen noted that employees were permitted two appeals of

decisions by TELUS Health to deny their claims for benefits, which had been provided to the

Grievor. However, Ms. Bargen also agreed that if the Grievor wanted to submit additional

information after the second appeal, TELUS Health would have reviewed and considered it in

potentially reversing its decision on STD eligibility, which is consistent with Mr. Carra’s e-mail

of December 21, 2012 inviting the Grievor to submit any new medical information she had.

[252] Second and likely prompted by Mr. Carra’s stated willingness to consider “medical

information that was not submitted previously”, the Grievor began seeing another doctor named,

Robert Verdonk, at or about the end of December 2012 in addition to Dr. Adil. The Grievor

testified that she had seen Dr. Verdonk previously at a walk-in clinic located two blocks from her

home, initially in connection with a sinus infection, but later began seeing him on a regular basis

for the treatment of the Grievor’s ongoing anxiety and stress disorder, which she testified was

causing her to “cry daily”. Ms. Bargen was asked about Dr. Verdonk’s appearance as the

Page 90 of 196

Grievor’s physician in her examination-in-chief. Although she had never dealt with Dr. Verdonk

before, Ms. Bargen looked up Dr. Verdonk’s profile on the Ontario College of Physicians and

Surgeons website indicating that Dr. Verdonk had been in the practice of family medicine since

November 28, 2005. This document was filed with me on consent.

[253] Ms. Bargen testified that while it was common for patients to have any number of

specialists working along with the family doctor, she considered it “unusual” for the Grievor to

have had two family doctors at the same time, being Dr. Adil and Dr. Verdonk that she believed

might pose a health hazard for a patient if one family doctor didn’t know what the other was

doing. The Grievor was cross-examined about this as well, with the suggestion that there was

something wrong in the nature of improper “doctor shopping” by the Grievor securing the

services of another family doctor at this time, along with maintaining her professional

relationship with Dr. Adil, which the Grievor denied.

[254] I could find no basis for the Company’s supposition. It was apparent from the Grievor’s

testimony that by December 20 she had become somewhat dissatisfied with Dr. Adil’s attention

to the written forms that TELUS Health required, and the Grievor continued to feel unwell as a

result of ongoing anxiety and stress in spite of the treatment provided by Dr. Adil. Like any

patient who is faced with the problem of a physician who is not providing the relief or level of

attention the patient is seeking, the Grievor was entitled to look elsewhere for medical advice,

which as the evidence later demonstrated helped the Grievor in coping with the problems she

claimed to be experiencing at that time. Moreover, there is no suggestion that Dr. Verdonk

wasn’t a qualified professional who didn’t provide appropriate medical services to the Grievor,

that included his preparation of a new PAF dated January 8, 2013, which Ms. Bargen was asked

about. That PAF, which will be described in detail below (along with Ms. Bargen’s assessment),

factored significantly in my findings on whether the Grievor was disabled during Period 3, and

certainly as of the date of her first dismissal on January 11, 2013.

[255] The third ongoing event in this period was the evaluation of new medical documentation.

Once Mr. Olsen became aware of Mr. Carra’s appointment as the new Case Consultant, he didn’t

hesitate to make his perspective on matters known to Mr. Carra, thus continuing the pattern of

attempting to influence the supposed independent assessment of the new medical documentation

Page 91 of 196

by TELUS Health. The Company didn’t call Mr. Carra as a witness to speak to the additional

medical information received from a number of different physicians in the last three weeks to the

Grievor’s termination, nor to explain his reasons for apparently rejecting that new information as

having any effect on the Grievor’s claim for STD. Moreover, to the extent that I received a

medical opinion from a “Dr. Wilson”, who was identified as the Consulting Occupational

Physician of TELUS Health at the time (who according to Ms. Bargen worked one day per

week), and who was purportedly given the Grievor’s file to assess whether it disclosed proof of a

disability that would prevent her from attending work, in the absence of hearing from Dr. Wilson

or Mr. Carra to indicate exactly what Dr. Wilson based his medical opinion on (particularly

given Ms. Bargen’s testimony about the PAF submitted by Dr. Verdonk, reviewed below), I

could not give that opinion much if any weight.

[256] The Company’s failure to call Mr. Carra to explain why he found the additional medical

information submitted by the Grievor’s physicians, and in particular, Dr. Verdonk’s final PAF

insufficient to support the Grievor’s claim of being totally disabled and unable to work, having

regard to the appropriate placement of the Company’s shifted onus in this case and particularly

in view of Ms. Bargen’s later testimony of her assessment of that final PAF, left me with medical

documentation from the Grievor’s physicians supporting the Grievor’s claim of being unfit for

work that was not explicitly contradicted by the Company.

(f)

Mr. Olsen and the Grievor on the Road to Termination

[257] The Grievor’s cellphone records confirm that after Mr. Olsen received Ms. Bargen’s e-

mail of December 19 (at about noon) advising that the Grievor’s second appeal had been denied,

he called the Grievor within two hours at 1:55 p.m. leaving a voice-mail message ordering the

Grievor to report back to work on Friday, December 21, 2012. The Case Progress Notes indicate

that Mr. Olsen’s call to the Grievor was made before the Grievor received Ms. Bargen’s formal

letter of December 19 denying her second appeal. Those Case Progress Notes also show that the

Grievor sent an e-mail to Mr. Carra at 2:48 p.m. on December 20, stating: “I received this letter

today and I would like to appeal this decision. What is the appeal process?” The Grievor also

sent an e-mail to Mr. Olsen in the morning of December 20 in response to his earlier voice-mail

message, advising him that she would not be in to work because: “I am not feeling well today as

Page 92 of 196

I have an ear infection and a major headache.” She wrote to Mr. Olsen again by e-mail dated

December 21, 2012 with a copy to TELUS Health, in which she advised that she was appealing

the Company’s decision to decline her request for STD, and that, “My next doctor appointment

is December 28 for follow up and more documentation will be submitted to health services. My

family doctor has me off work until January 3, 2013.” She also sent Mr. Olsen a separate e-mail

at 9:00 a.m. on December 21 stating: “My doctor has written me off work which health services

is aware of. I will not be into work today as I am sick.”

[258] It was clear on the evidence that Mr. Olsen wanted the Grievor to return to work

immediately so that he could terminate her on Friday, December 21, 2012 as he was scheduled to

leave on vacation at the end of that day until Wednesday, January 2, 2013. He intended to use

the same termination letter prepared for the November 28, 2012, when the Grievor didn’t return

to work because of claimed illness.

[259] By then, however, the Grievor had notified Mr. Carra that she wished to appeal the

Company’s decision, asserting that she continued to be ill and unable to work as confirmed by

her doctor. Mr. Olsen’s subsequent actions are consistent with what I found to be his

understanding that he could not terminate the Grievor’s services while her claim of being unwell

and unable to work remained under active consideration by TELUS Health.

[260] Mr. Olsen consequently sent the following letter to the Grievor dated December 21, 2012,

directing her to report for work on January 2, 2013, reproduced in relevant part below:

Re: Insufficient Medical Information/Report for Work

…

You have been absent from work since November 28, 2012. The PAF you submitted does not

support your absence from work. You were requested to provide additional medical documentation

to support your absence, which has been reviewed. As you are aware, the additional medical

information does not support your continued absence from work. As such, you are considered to

be absent unauthorized.

You were contacted via phone and directed to report to work today, Friday December 21, 2012.

You have failed to report to work as directed.

It is our expectation that you return to work immediately on Wednesday, January 2, 2013 at 9:00

a.m. to provide additional medical information to support your absence. Failure to report to work or

contact me to explain your continued absence will be considered job abandonment and may result

Page 93 of 196

in the termination of your employment. I expect you to contact me immediately at [phone number

redacted].

…

[261] At or about the same time, Mr. Olsen sent an e-mail dated December 21 to Ms. Fraser

with a copy to Mr. Carra of TELUS Health, advising them of his letter to the Grievor demanding

her return to work on January 2, 2013, and confirming he would be on vacation until that date.

(Mr. Olsen testified that he chose January 2 as the day for the Grievor’s return to work,

notwithstanding acknowledging that he knew the Grievor had a medical appointment scheduled

for December 28 and that she was asserting she had a note from her doctor excusing her from

work until January 3, 2013).

[262] In his e-mail of December 21, 2012 Mr. Olsen also directed the following comments to

Mr. Carra, consistent with what I found to have been his past attempts to interfere with the

independent evaluation of the Grievor’s medical documentation and to speed the process along

so that he could dismiss the Grievor with minimal delay:

Doug – Could you please look out for more documentation from Tracy Baker today? She has

indicated she is sending more medical to appeal the decline on her original appeal. Please advise

ASAP if the additional medical provided will result in approving the claim.

Based on the information I am aware of, I believe the reason for the claim started in the

workplace, therefore should be resolved in the workplace.

[Emphasis added]

[263] In response to Mr. Olsen’s e-mail, Mr. Carra wrote to him later that day stating in part,

that: “[The Grievor] has emailed me to request what information is required to submit an appeal.

I have advised her that we require a detailed medical report from her MD to be provided within

10 days.” The e-mail went on to inform Mr. Olsen that “just moments ago” TELUS Health had

received “a letter from her therapist for an unrelated condition…not from an MD (which) does

not provide sufficient information for us to reconsider her case.” This communication to Mr.

Olsen was, from a review of the Case Progress Notes, before Mr. Carra had notified the Grievor

that the information from her therapist was not acceptable, which was consistent with a view of

TELUS Health as being more an arm of management than an impartial authority for assessing an

employee’s entitlement to benefits under the Company’s STD plan.

Page 94 of 196

[264] In the period from December 21, 2012 to January 2, 2013, the documentary record

consistent with the Grievor’s testimony confirms that the Grievor was taking steps to address her

perceived compromised medical state and to provide TELUS Health with new medical

information as instructed by Mr. Carra in support of her further appeal.

[265] Thus during this interval the Grievor submitted a letter from her Chiropractor, Adam

Armstrong, DC, dated December 21, 2012 describing a visit on November 12 for low back pain

and the nature of the Grievor’s ongoing treatment for musculoskeletal concerns “for the last

month”. (This was evidently the letter from her ‘non-MD’ therapist that Mr. Carra told Mr. Olsen

he had dismissed out of hand as insufficient).

[266] In the five-day period commencing Monday, December 17, 2012 to Friday, December

21, 2012 inclusive, the documentary record indicates the Grievor had at least 15 separate

communications with TELUS Health and/or management consisting of: (1) the Grievor’s

telephone call to Ms. Bargen on December 17; (2) a voice-mail message from Ms. Bargen to the

Grievor on December 18; (3) a responding voice-mail message from the Grievor to Ms. Bargen

on December 19; (4) Ms. Bargen’s unsuccessful attempt to reach the Grievor by telephone on

December 19 and leaving a voice-mail message to her; (5) a telephone call from the Grievor to

Ms. Bargen on December 19 returning her earlier call; (6) Mr. Olsen’s voice-mail message of

December 19 ordering the Grievor to return to work on December 21; (7) an e-mail

communication from Ms. Bargen on December 19 enclosing a copy of Ms. Bargen’s earlier

December 12 letter rejecting the Grievor’s earlier appeal (as previously requested by the

Grievor); (8) Ms. Bargen’s formal letter rejecting the Grievor’s appeal on December 20; (9) the

Grievor’s e-mail of December 20 to Mr. Carra notifying him of her request to appeal the

Company’s latest denial of her STD claim; (10) the Grievor’s e-mail to Mr. Olsen dated

December 20 advising him that she would not be reporting to work on December 21 because of

continuing illness; (11) another e-mail from the Grievor to Mr. Olsen on December 21 advising

she would be faxing additional documentation to TELUS Health; (12) an e-mail communication

from Mr. Carra on December 21 acknowledging her appeal; (13) the Grievor’s apparent

forwarding of a fax from Adam Armstrong, DC to TELUS Health on December 21; (14) receipt

of Mr. Olsen’s letter of December 21 by courier delivery at 3:46 p.m. (advising the Grievor of

her requirement to report for work at 9:00 a.m. on January 2, 2013); and (15) a voice-mail

Page 95 of 196

communication on December 21, 2012 from the Grievor to Mr. Olsen’s telephone at or about

6:28 p.m. that evening, responding to the earlier message.

[267] I shall have more to say about this level of communications between the parties, when I

consider the Company’s submissions later in these Reasons that the Grievor’s testimony in its

entirety could not be believed because she overstated the number of specific telephone contacts

she had with Mr. Olsen in this timeframe amid her allegations that Mr. Olsen was “harassing”

her. Certainly the evidence supports the finding that there was a great deal of contact (often in

the form of voice-mail and e-mail communications) between the Grievor and various levels of

TELUS Health and managerial officials during this period.

[268] It was against the foregoing backdrop of communications before and immediately

afterwards along with ongoing complaints of extreme stress and anxiety, that the Grievor was

examined by Dr. Adil, at or about mid-day on December 21, 2012. Consistent with the Grievor’s

testimony, Dr. Adil’s Patient Encounter History written at or about the time of the examination

records Dr. Adil’s continuing diagnosis of: “Anxiety neurosis, hysteria, neurasthenia”. It notes

that the Grievor reported her workplace was “harassing her” and that “work called her 3 times

yesterday”. It states that the Grievor was experiencing more headaches and anxiety, with

feelings of anxiousness, low energy and impaired sleep. As a result of the examination Dr. Adil

prescribed “Pristiq” (an anti-depressant) and clonazepam (used in the treatment of panic

disorders or anxiety), cautioning the Grievor against driving as these medications may cause

drowsiness. And as requested by the Grievor, Dr. Adil promised to refer her to a psychiatrist to

help her deal with these difficulties (although the Grievor testified that Dr. Adil ultimately did

not send her to a psychiatrist, as originally promised).

[269] There is a gap in the record over the Christmas holiday but immediately thereafter, the

medical records produced through Dr. Adil’s office indicate that on December 26 the Grievor

attended at the emergency department of an Oshawa Hospital Clinic for the treatment of “right

lower quadrant pain”, the details of which remain vague in the evidence, but which appear to

have been related to the Grievor’s ongoing gynecological issues.

[270] On December 27, 2012, the Grievor saw Dr. Adil to consider a number of continuing

problems for which she had been regularly consulting with Dr. Adil; including the Grievor’s

Page 96 of 196

recent emergency attendance at the Oshawa Clinic for abdominal pain, her feelings of extreme

anxiety and stress, and to review an upcoming appointment with Dr. Gregory Athaide, who is a

specialist in Obstetrics & Gynecology, for a second opinion on her issues with uterine fibroids,

bladder frequency and cervical dysplasia (apparently related to her colposcopy of abnormal

cells). The Grievor testified that the appointment with the gynecological specialist had been

scheduled for 10:30 a.m. on January 2, 2013 sometime earlier, which was the day that Mr. Olsen

had in his December 21 letter directed her to report at 9:00 a.m. Her evidence was that Dr.

Athaide’s office (located in Whitby) was about 45 minutes to one hour travel time from the

Scarborough call centre, and that she had alerted Mr. Olsen to this appointment. Dr. Athaide’s

medical report of the Grievor’s attendance at his office was entered into evidence to confirm her

visit on January 2 (that was later provided to TELUS Health), which the Grievor testified she did

not want to move as such appointments with medical specialists are difficult to get.

[271] When cross-examined about Dr. Adil’s report on the Patient Encounter History for

December 27 that described the Grievor’s mood was “stable”, and that while the Grievor was not

suicidal, “she did not feel good enough to go to work”, the Grievor responded that she was

“crying every day”, which is consistent with the medical reports. The Grievor also confirmed in

cross-examination that between November 28 and December 27, she had seen Dr. Adil on seven

occasions for treatment of her ongoing issues. She had also been to a walk-in clinic immediately

after the November 27 investigatory meeting (with Dr. Torkian) and on December 31

(considered below), for a total of nine medical visits over a period of about four and one-half

weeks. (The Company later pointed to this as evidence of “doctor shopping”. However, I saw it

as consistent with the dire physical and emotional crisis she felt herself descending into at the

time).

[272] On December 27, 2012 at the Grievor’s request, Dr. Adil’s office faxed a medical note

dated December 21 from the Grievor’s primary Obstetrician & Gynecologist, Dr. J. P. Rubabaza

to TELUS Health (documenting her 10th visit to a physician since November 27, not including

her emergency attendance at the hospital). Consistent with the Grievor’s testimony and prior

medical reports submitted into evidence, this document recorded an additional medical

examination of the Grievor on December 21 in connection with a number of gynecological

problems, including what is described as “crippling pain” while the Grievor was on her menses

Page 97 of 196

that had developed by that point, increased fatigue at such times that is reported as “affecting her

life” and that she “has to miss work” as a result; a review of “abnormal cells” with the notation

of “undergoing colposcopy”, and the ongoing problem of a large uterine fibroid which was

upsetting to her.

[273] The Grievor was also keeping TELUS Health apprised of her efforts to secure additional

medical documentation to support her appeal of the Company’s denial of STD benefits in

accordance with Mr. Carra’s earlier direction of December 20, sending an e-mail to Mr. Carra on

December 28 confirming that a “specialist report” (from Dr. Rubabaza) had been sent to the

attention of Diane Bargen the day before, and that the Grievor had other appointments scheduled

for January 2, 2013 and January 9, 2013. She concluded by advising Mr. Carra that she was,

“still gather(ing) more information”. This communication was duly confirmed in a responding e-

mail from another administrative coordinator in TELUS Health on December 28, 2012, which

also advised the Grievor that: “Health Services is currently experiencing higher than anticipated

claim volumes. This is resulting in longer than normal response and adjudication times. We

sincerely apologize for this delay and any inconvenience.” That same warning of increased

response and adjudication times due to claim volumes was repeated in the record from TELUS

Health to the end of the Grievor’s employment.

[274] Both Mr. Olsen and the Grievor confirm that the Grievor contacted Mr. Olsen on

December 28, 2012 (obviously utilizing the telephone number that Mr. Olsen referred to in his

letter of December 21 that she was to use while he was on vacation, although that is not certain).

Notwithstanding that both Mr. Olsen and the Grievor confirm this telephone communication, it

was not included in the cellphone records later produced to me, causing me to question the utility

of that as a definitive record of all of the telephone contact between the Grievor and Mr. Olsen in

the relevant timeframe, which later was a topic of some contention between the parties and

submissions by the Company in support of its claim that the Grievor’s testimony could not be

believed in its entirety, as discussed below. Indeed, I was advised as part of the “stipulations” of

the parties concerning the Grievor’s cellphone records submitted into evidence, those records

only covered one telephone number from Mr. Olsen, which did not include other telephone

numbers that he might have called the Grievor from in the course of these ongoing events. As

discussed below, I concluded on that basis (combined with the corroborating evidence of

Page 98 of 196

telephone calls that were not recorded on the cellphone records) that those records did not

disclose all of the telephone communications between the Grievor and Mr. Olsen.

[275] Mr. Olsen’s evidence is that he remembered a telephone discussion with the Grievor on

December 28 in which she informed him she wouldn’t be able to report for work on January 2

because she had a doctor’s appointment that day. Mr. Olsen testified: “I told her I provided her

with almost two weeks to be able to get back to work. If she had a doctor’s appointment she

could change that over two weeks and I told her it was imperative she returned that day and if

she was going to have more time off she would need to fulfill the requirements of medical

documentation required from Health Services for the appeal.” In response to this, Mr. Olsen

testified that the Grievor told him she “wasn’t going to return to work until her doctor said she

was ok to”, which elicited Mr. Olsen’s reply to the Grievor that: “she would either need medical

documentation to support that or she needed to report for work.”

[276] As the year was ending on December 31, the Grievor had an urgent attendance at the

CMC Medical Centre, which is a walk-in clinic located in a Wal-Mart store close to her home.

She was treated for a sinus or general viral infection by Dr. Verdonk, who prescribed an inhaler

for her, which she filled that day or the next.

[277] The PAF later prepared by Dr. Verdonk states that December 31, 2012 was the “date of

first visit”; however the Grievor testified that she had in fact seen Dr. Verdonk before. While the

Company pointed to this as a discrepancy undermining the Grievor’s credibility, I did not

consider it material in this case. Regardless of any prior visits that the Grievor may have had

with Dr. Verdonk, (and indeed I did not take the notation on the PAF as determinative of the first

time that Dr. Verdonk had ever seen the Grievor as opposed to seeing the Grievor in connection

with the matters related to her STD claim), the documentation filed with me indicates

definitively that she began to see Dr. Verdonk afterwards on at least a weekly basis, for

counselling and psychotherapy to help her in coping with ongoing anxiety and stress.

(g)

The Grievor’s Abortive Meeting with Mr. Olsen on January 2, 2013

[278] The Grievor testified she was feeling very ill with a fever on January 2, 2013 as a result

of the viral infection she had initially seen Dr. Verdonk about, less than 48 hours earlier, when

Page 99 of 196

she nevertheless reported to the Scarborough call centre at 9:00 a.m. as Mr. Olsen had instructed

in his December 21, 2012 correspondence. While testifying that she should not have gone into

work that day before her doctors had cleared her, and that she was still ill with an infection

requiring her use of a puffer and medication, she felt that it was important that she meet with Mr.

Olsen given that he told her it was “imperative” she do so, and even knowing that she would

have to leave very soon afterwards for her scheduled appointment with Dr. Athaide at 10:30

a.m., which she had told Mr. Olsen about in advance. She maintained in the face of relentless

cross-examination that he didn’t know that Mr. Olsen intended to fire her that morning. Their

meeting, or rather brief encounter, didn’t last very long.

[279] Mr. Olsen’s testimony (as supplemented by an e-mail memorandum he wrote to himself

five days later on January 7) is that the Grievor reported to him at the call centre at 9:10 a.m. As

recorded in Mr. Olsen’s e-mail memorandum that he referred to in recounting the events, upon

arriving the Grievor came to Mr. Olsen’s desk and advised him “that she was not feeling well

and would have to leave for the day.” The Grievor told Mr. Olsen that, “she had a fever and

could not stay.” Mr. Olsen responded by asking the Grievor, ‘to stay in a seat that he designated

while he made phone calls to Health Services and Labour Relations’ but that the Grievor

responded: “You won’t get them now (because) they are in the West”. Mr. Olsen nevertheless

told the Grievor he would try to reach them and “to stay while (Mr. Olsen) made a few calls.”

[280] Mr. Olsen then left for his office to supposedly make telephone calls to TELUS Health

and to Ms. Fraser of Labour Relations. He testified he had already prepared a termination letter

for the Grievor, which was the same letter he intended to give her on November 28, 2012 that

was updated by changing the date of the letter and replacing his name for Ms. Leclerc’s on the

signature line. While Mr. Olsen’s didn’t explain in testifying what, exactly, he needed to call

TELUS Health and Labour Relations about; it seems a reasonable inference that he was inquiring

about the status of the Grievor’s medical appeal to make sure he was able to issue the

termination letter to her. I received no evidence concerning the outcome of that call, and the

Case Progress Notes from TELUS Health do not record any call from Mr. Olsen to anyone in

TELUS Health on that day, and certainly not just after 6:10 a.m. Pacific time, which is when Mr.

Olsen testified he made his call.

Page 100 of 196

[281] Instead, the Case Progress Notes reveal that at 9:46 a.m. (Pacific Time) on January 2,

2013 Ms. McLeod noted on the TELUS Health records that a medical note from the Grievor’s

gynecologist, Dr. Rubabaza (dated December 21) had been received indicating the presence of a

“fibroid 8*8 cms” with the notation of a recall appointment scheduled for the Grievor in four

weeks. The Case Progress Notes also show that, at 9:49 a.m., Ms. McLeod sent an e-mail to

Debbie Leclerc with a copy for Keith Fischer in which Ms. McLeod wrote in relevant part:

Health Services received an updated Doctor’s Note for the above noted team member on

December 28, 2012. It has been referred to our Case Consultant, Diane Bargen and will be

reviewed as soon as possible.

A decision will be made and communicated to you shortly.

Health Services is currently experiencing higher than anticipated claim volumes; this is resulting in

longer than normal response and adjudication times. We sincerely apologize for this delay and any

inconvenience.

If you have any questions regarding the status of this claim, please contact the case

consultant directly.

[Emphasis added]

[282] There is no indication on this e-mail that Mr. Olsen was copied with this updated

information, suggesting that in fact he did not receive it. Also, the reference in that e-mail to the

“higher than anticipated claim volumes…resulting in longer than normal response and

adjudication times” appears as an ongoing warning in the communications from TELUS Health

to the end of the Grievor’s employment. This is consistent with a view of TELUS Health at this

time of rushing files through the system and making mistakes, like the repeated misidentification

of the Grievor’s supervisors throughout and the misdirection of important communications.

[283] Notwithstanding the erroneous reference to Ms. Leclerc as the Grievor’s supervisor and

referral to Mr. Fischer, I found on this documentary evidence and in particular the lack of any

reference to Mr. Olsen’s purported telephone call to TELUS Health (which would have occurred

before the health unit had opened) that: (a) Mr. Olsen likely never did contact TELUS Health on

January 2; and (b) that the Grievor’s further appeal of the decision to deny STD benefits

remained under active reconsideration by TELUS Health at that time. It is even unclear whether

Mr. Olsen contacted Ms. Fraser of Labour Relations for direction, who did not testify in these

proceedings. I make these findings notwithstanding Mr. Olsen’s testimony before me in which

Page 101 of 196

he stated that “after I spoke with Health Services and Labour Relations” (emphasis added) he

returned with the updated termination letter that he intended to issue to the Grievor, only to find

that the Grievor “was not back in the seat where I left her”, which Mr. Olsen further claimed had

only been 10 minutes earlier. In my assessment, that was a lot to do in merely 10 minutes,

leading me to question the reliability of that time estimate.

[284] Given the inconsistencies of Mr. Olsen’s testimony with the documentary evidence and

what seems more likely in the circumstances (particularly given the time of day that he claimed

to have made the call to TELUS Health which would have been shortly after 6 a.m. Pacific

Time), I found that Mr. Olsen’s evidence in this regard was unreliable if not deliberately

incredible. Given what TELUS Health was advising Mr. Fischer by e-mail at the same time

(who does not appear to be communicating with Mr. Olsen on the matter), that TELUS Health

had received more medical documentation that was being assessed, it seems more likely on the

totality of the evidence best in harmony with all surrounding circumstances that Mr. Olsen would

not have received authorization to proceed with the Grievor’s termination that morning, had he

in fact asked, because her claim remained under open consideration at that time.

[285] Mr. Olsen consequently testified that he “walked around the floor looking for [the

Grievor] and ran into Mark Plumber, who is a management peer, and who told him that he saw

the Grievor leave the call centre. This was consistent with the Grievor’s evidence on point, who

testified that she was feeling very unwell with a viral infection for which she was using an

inhaler and taking medication. After waiting for a period of time for Mr. Olsen to return (which

on the Grievor’s recounting seemed to be more than 10 minutes) and not wanting to be late for

her scheduled appointment with Dr. Athaide, the Grievor admitted that she left. She confirmed

that she saw Mr. Plumber while in the elevator on her way exiting the building, who she

testified: “I told him I was sick and going home, and he said if I am sick to go home”. Mr.

Plumber was not called as a witness in these proceedings to contradict that testimony or to

dispute the Grievor’s assertions of her obvious medical distress at that time.

[286] Thus Mr. Olsen recorded in his e-mail memorandum dated January 7, and repeated in his

testimony before me, that: “[The Grievor] did not inform me that she was leaving. I did not

receive a call, email or any other notification” (emphasis added). However, on the evidence

Page 102 of 196

before me, I found that Mr. Olsen’s assertion that he did not receive “a call, email or any other

notification” from the Grievor not to be entirely accurate. He may not have received a telephone

call or e-mail from the Grievor at that very moment, but he did later in the day from which he

would reasonably have understood the reasons why she had left.

[287] The uncontradicted evidence before me is that after leaving the call centre the Grievor

attended her examination by Dr. Athaide at his office in Whitby (who, as indicated above,

confirmed that attendance in his January 2 medical report that was later forwarded to TELUS

Health). Sometime thereafter on that same day (the precise time being unclear) it is apparent that

the Grievor saw Dr. Verdonk again, who provided the Grievor with a medical note dated January

2, 2013 that stated: “Please excuse Tracy for work Jan 2 – 4 /13 for medical reasons. Thank

you.” The fax signature line of the copy of this note received by TELUS Health indicates that it

was faxed directly from Dr. Verdonk’s office at 4:00 p.m. (Eastern Time) that afternoon (which

Ms. McLeod later acknowledged receiving in the Case Progress Notes Report entry for January 3

at 2:46 p.m., Pacific Time).

[288] The Grievor subsequently sent an e-mail to Mr. Olsen at 6:13 p.m. (Eastern Time) on

January 2 asking for his assistance in obtaining a “release form” that she said “Douglas from

Health Services” had indicated she could “get from work”, and advising him that her doctor had

provided her with a note “for today being sick until Friday which I can fax to you”, that she also

told him had been “forwarded to Health Services”.

[289] Mr. Olsen interpreted the Grievor’s reference to a “release form” as a request for another

Physician Assessment Form (PAF). And consistent with that, the Case Progress Notes Report at

TELUS Health show that the Grievor sent an e-mail to Mr. Carra at 6:03 a.m. on Thursday,

January 3, 2013, stating in relevant part that:

As per our conversation yesterday, my doctor is requesting a release of information form. You

indicated that you don’t have one to send to me. You also advised me I can get this form once I

am back to work. I have sent an e-mail to Ronald Olsen to request this form. My doctor will send

more information pertaining to what you are looking for below in your email. As soon as the

release of information form is presented to the doctor (sic).

[Emphasis added]

Page 103 of 196

[290] The Grievor sent another e-mail requesting this form to Mr. Olsen dated January 3, 2013

at 9:48 a.m., asking Mr. Olsen to, “Please assist me with this by sending this to my email

address”, and further advising him that: “I had worded this request incorrectly with the previous

email I sent you last night.” (It is to be recalled that the first PAF requested for Dr. Adil’s use

was also was provided by Mr. Olsen in an e-mail transmission to the Grievor, leading to the

conclusion that the fact that Mr. Olsen was now asked to provide this form was not an unusual

request). The cellphone records indicate that the Grievor also had a direct telephone conversation

with Mr. Olsen on January 3, 2013 at 11:37 a.m. (which I did not hear evidence about but was

likely related to her request), and that Mr. Olsen consequently sent another PAF for the Grievor’s

doctor.

[291] The evidence shows that the Grievor was taking further steps to provide Mr. Carra with

additional medical information in support of her appeal of the Company’s denial of her claim for

STD benefits, in compliance with Mr. Carra’s earlier instructions to her.

[292] Thus on Friday, January 4, 2013, the Grievor attended again at Dr. Verdonk’s office

receiving from Dr. Verdonk an updated medical certificate that stated: “Please excuse Tracy

from work Jan 4/13 until Jan 12/13 for medical reasons. I will reassess her Jan 8/13.” The fax

signature line on this document indicates it was faxed directly from Dr. Verdonk’s office to

TELUS Health at 2:05 p.m. on January 4. The TELUS Health Case Progress Notes Report (as

entered by Ms. McLeod) records receipt of this medical note on Monday, January 7, 2013 (which

was the next business day) at 9:24 a.m., Pacific Time. Ms. McLeod accordingly sent an e-mail

addressed to Debbie Leclerc at 9:26 a.m. that day advising Ms. Leclerc that Health Services had

received Dr. Verdonk’s medical note. This e-mail does not show a copy being sent at the same

time either Mr. Fischer or Mr. Olsen; however in a subsequent e-mail from Ms. McLeod to Mr.

Fischer at 9:34 a.m. she forwarded that message to Mr. Fischer, with the notation, “Forwarding

this to you because of Debbie (Leclerc’s) absence.” Consistent with the ongoing confusion by

TELUS Health of exactly who was responsible for the Grievor at this time, it is evident from this

documentation that Mr. Olsen did not receive Ms. McLeod’s e-mail and thus was not aware of

Dr. Verdonk’s updated medical note.

Page 104 of 196

[293] The Grievor’s cellphone records confirm a telephone conversation the Grievor had with

Mr. Olsen just afterwards at 2:55 p.m. in the afternoon of Friday, January 4, 2013, in the course

of which Mr. Olsen told the Grievor that she must report for work at 9:00 a.m. on Monday,

January 7, 2013 because there was insufficient medical proof of her claim. It is apparent from

what happened next that this communication greatly upset the Grievor (which I found was not an

unreasonable reaction given that she had just sent in her medical note from Dr. Verdonk to

TELUS Health asking that she be excused for medical reasons until January 12).

[294] As confirmed by the written documentation filed with me, the Grievor saw Dr. Adil

shortly following Mr. Olsen’s telephone call on January 4, 2013, which Dr. Adil’s Patient

Encounter History indicates was at 5:47 p.m. That record, consistent with the Grievor’s

testimony shows that Dr. Adil was seeing the Grievor in connection with a continuing diagnosis

of, “Anxiety neurosis, hysteria, (and) neurasthenia” and was in an obvious upset state of mind. It

reports on the Grievor advising Dr. Adil that her earlier appeal of the Company’s rejection of her

claim for STD benefits had been rejected, and asking Dr. Adil for a further detailed medical

report that she could submit to TELUS Health (as requested in Mr. Carra’s earlier e-mail that the

Grievor evidently shared with Dr. Adil). It noted that the Grievor felt “stressed out for multiple

things” that included her recent diagnosis with uterine fibroids (which she found

“overwhelming”), a hostile work environment causing her to be “very stressed at work” with

“impaired sleep”, “headaches”, being “very anxious” and “not able to go to work” for which Dr.

Adil noted the Grievor was “on pristiq and clonazepam.” It also reported that the Grievor was

‘recently sick due to cold/cough for which she had been seen in a walk-in clinic’ and that the

Grievor told Dr. Adil: “she is sure work will fire her on Monday (January 7).” Dr. Adil also

writes that the Grievor was crying during this conversation with her.

[295] In response to the Grievor’s request of January 4 for a more detailed medical report that

she could submit in support of her appeal, Dr. Adil sent a letter dated Monday, January 7, 2013

by fax to the attention of Doug Carra of TELUS Health, which the fax signature line on that

letter indicates was received by TELUS Health at 10:05 a.m. on Tuesday, January 8, 2013. That

letter is reproduced in relevant part below:

Dear Mr. Cara

Page 105 of 196

I am writing in response to your e-mail to my patient Tracy Baker. Tracy has been complaining of

stress and emotional instability since November 2012. Basically she says she is going through a

lot of stress at work. She states her work environment is getting more hostile and picky for her. As

a result of this she cannot sleep properly, feels anxious, and has headaches on and off (lack of

sleep).

Furthermore, she states her recent diagnosis of uterine fibroids has been overwhelming on her.

She has seen gynecologists Dr. Rubabaza and Dr. Athaide. She furthermore adds she is already

stressed and worried about her abnormal pap smears (patient is being followed at Colposcopy for

low grade cervical dysplasia since October 2011).

Tracy has started Pristiq (50 mg) and Clonazepam (0.5 mg) on December 21, 2012 (Tracy is also

being followed by a counsellor). She does not feel significant improvement so far and still does not

feel good enough to return to work.

Hopefully, this information will be sufficient for you. Please do not hesitate to contact me if any

concerns arise.

Truly Yours

“Dr. Aliya Adil”

[296] Ms. McLeod confirmed on the Case Progress Notes Report, receipt of Dr. Adil’s letter by

TELUS Health at 10:32 that day. Consistent with her general practice on this file, Ms. McLeod

sent an e-mail notification to Mr. Fischer, with a copy to Debbie Leclerc, at 10:34 a.m. advising

them that, “Health Services received an updated Doctor’s Note for [the Grievor] on January 8,

2013 [which] has been referred to our Case Consultant, Diane Bargen and will be reviewed as

soon as possible. A decision will be made and communicated to you shortly”. As in the previous

e-mails of this type, Ms. McLeod noted that: “Health Services is currently experiencing higher

than anticipated claim volumes; this is resulting in longer than normal response and adjudication

times” for which she apologized for “this delay and any inconvenience”. The letter also invited

the recipients to “please contact the case consultant directly” if they had “any questions

regarding the status of this claim”. Similar to the previous letters alerting TELUS management

to the new developments on the Grievor’s file, there was no indication that this e-mail was ever

received by Mr. Olsen, which his later actions and testimony before me suggests was the case.

[297] The Grievor, maintaining that she was not well enough to return to work, and relying on

the medical notes from Dr. Verdonk and Dr. Adil that were faxed to TELUS Health, didn’t

report at 9:00 a.m. on January 7, 2013 as directed by Mr. Olsen. However to Mr. Olsen, this was

further confirmation of his view that the Grievor was trying to avoid the inevitable termination

Page 106 of 196

letter she knew was coming, without advance notice and medical authorization for her absence.

Mr. Olsen had already updated the termination letter that he had previously intended to give to

the Grievor by changing the date on that letter to January 7, 2013 (which was filed with me).

Otherwise the discharge letter was the same as the one waiting for the Grievor on November 28,

2012. But because the Grievor didn’t report to the call centre claiming that she remained ill and

unable to work, it wasn’t given to her at that time.

[298] Instead, Mr. Olsen sent the Grievor the following letter dated January 7, 2013 addressed,

“Dear Tracy”, demanding that she “return to work immediately on Wednesday January 9, 2013”,

or face certain employment consequences, which was delivered by courier to the Grievor’s home

that same day at 1:59 p.m.

Re Insufficient Medical Information/Report for Work

…

You have been absent from work since November 28, 2012. The medical information you have

submitted does not support your continued absence from work. You were requested to provide

additional documentation to support your absence, which has been reviewed. As you are aware,

the additional medical information does not support your continued absence from work. As such,

you are considered to be absence unauthorized.

You were contacted via phone and directed to report to work on Friday December 21, 2012. You

failed to report to work as directed. You were subsequently contacted via both phone and letter on

December 21, 2012 and advised to report to work on Wednesday January 2, 2013. You reported

for work briefly that day; however you left the workplace without advising management and despite

management’s direction to you to stay until they had an opportunity to speak with you. You were

advised via phone on January 4, 2013 that you are required to report to work on Monday January

7, 2013 at 9:00 a.m. You have once again failed to report to work as directed.

It is our expectation that you return to work immediately on Wednesday January 9, 2013 at 9:00

a.m. or provide additional medical information to support you absence. Failure to report to

work or contact me to explain your continued absence will be considered job abandonment and

may result in the termination of your employment. I expect you to contact me immediately

at [telephone number redacted] or on my cell phone at [telephone number redacted].

Yours truly,

Ronnie Olsen

Manager – Business Client Care

[Emphasis added]

[299] When Mr. Olsen was asked in his examination-in-chief what prompted him to send the

foregoing letter, he testified that: “I have a team member off since November 28 with no medical

Page 107 of 196

documentation to support her claim (emphasis added). Given that Tracy reported to work on

January 2 and left, I didn’t know if she was ever going to return to be honest, and I wanted her to

know the requirement to return to work on January 7, but didn’t.” It is apparent from that

testimony that Mr. Olsen was not aware, or chose to ignore, the medical documentation that she

submitted to TELUS Health on January 2, January 4 and January 7 (the latter one likely received

by TELUS Health after he wrote his January 7 letter).

[300] Having provided medical documentation to the Company prior to the return to work

deadline of January 7 demanded by Mr. Olsen, there was no evidence before me to suggest that

the Grievor intended to abandon her employment that Mr. Olsen had warned in this and previous

correspondence would be the result of her failure to report for work. As I shall discuss later in

these Reasons, I found that the Grievor was responding to the Company’s demands by

submitting new medical documentation that Mr. Carra had previously indicated would be

acceptable; and to her reasonable knowledge the Company hadn’t rejected her further appeal.

Such conduct does not show an intention to ‘abandon’ one’s employment.

[301] And consistent with that, the cellphone records later produced and submitted into

evidence confirm that the Grievor contacted Mr. Olsen by telephone at 4:20 p.m. on January 7,

2013 as demanded by Mr. Olsen in the last sentence of his letter. While there is little evidence of

what, exactly, the two talked about, in answering a question in cross-examination as to why she

told Dr. Adil that she thought she was going to be “fired from work”, the Grievor testified that

she felt she was being pressured to come into work when she was not well, and had “told Ronnie

that [the Grievor] was trying to get information”.

[302] The “information” the Grievor was referring to was medical information not previously

provided in support of her claim, that Mr. Carra had stated the Company would be “pleased to

review” in his e-mail to the Grievor of December 21, 2012, and which the evidence supports the

finding she was actively pursuing in seeing both Dr. Verdonk and Dr. Adil for the purpose of

obtaining that new information.

[303] As the apparent culmination of that effort, the Grievor attended a medical appointment

with Dr. Verdonk on Tuesday, January 8, 2013. The Company already knew that Dr. Verdonk

was going to reassess the Grievor on that date from the earlier medical note submitted to TELUS

Page 108 of 196

Health on January 4, described above, and from the Grievor’s January 3 e-mail to Mr. Carra

“requesting a release of information form” that she told Mr. Carra would allow her doctor, “to

send more information pertaining to what you are looking for below in your email” (referring to

Mr. Carra’s earlier December 21 e-mail to the Grievor).

[304] Mr. Olsen also knew that the Grievor was intending to have a doctor prepare another PAF

for submission to TELUS Health to support her continuing absence as a result of his telephone

contact with the Grievor in response to her request for the “release form”, as early as her e-mail

to Mr. Olsen of January 2, 2013.

(h)

Dr. Verdonk’s PAF of January 8, 2013

[305] It is in the foregoing context that the Grievor was examined by Dr. Verdonk on

Tuesday, January 8, 2013, who then filled out and submitted to TELUS Health another

Practitioner’s Assessment Form. A notation by Ms. McLeod on the Case Progress Notes Report

at 10:21 a.m. (Pacific Time) on Wednesday, January 9, 2013 confirms that the new PAF was

received by TELUS Health. She prepared a summary of the PAF indicating that the Grievor had

been diagnosed with “major affective disorder/anxiety disorder”, that she had “uterine fibroids”,

“abdominal pain (the cause of which had not been determined)”, had a possible viral infection

“with reactive airway”, was taking “meds” (of unspecified nature), “sees (a doctor) weekly for

supportive psychotherapy”, with “U/S pending” (which is presumed to refer to an ultrasound),

and “expected RTW guarded; Feb. 07/2013” (understood to be reference to a guarded predictive

return to work date of February 7, 2013).

[306] The answers to the questions on this PAF are much more responsive, and detailed, than

the answers on the previous PAF of December 7, 2012 prepared by Dr. Adil. In understanding

exactly what this new PAF means (at least to an official of TELUS Health), I was assisted by the

cross-examination of Ms. Bargen, who was extensively taken through the document.

[307] Ms. Bargen was removed from having any responsibility as Case Consultant for the

Grievor’s TELUS Health file after she left for vacation on December 20, 2012. She testified that

she had returned to work before January 8, 2013, but she wasn’t reassigned to the Grievor’s

claim because it had by then been taken over by Mr. Carra, who it was determined would

Page 109 of 196

continue to deal with the file in order to ensure “a consistent approach”. But for that decision it

is apparent that Ms. Bargen would have likely been the Case Consultant responsible for

assessing Dr. Verdonk’s latest PAF for the Grievor. Her testimony in cross-examination

supports the conclusion that Dr. Verdonk’s PAF contained all of the information that TELUS

Health usually looks for in accepting claims for STD benefits.

[308] Thus in cross-examination Ms. Bargen was asked for her assessment of some of the

answers written by Dr. Verdonk to the specific questions on the TELUS Health PAF form,

without objection by the Company. In doing so, Ms. Bargen made it very clear that: “I had no

dealings with this form at all; I did not make any decisions based on it” and that: “I can only

state that I declined the initial appeal: Other than that it would just be me reading notes created

by someone else (as) I was not involved.”

[309] Having made it abundantly clear that she had nothing to do with assessing Dr. Verdonk’s

January 8, 2013 PAF at the time, which she reiterated was now Mr. Carra’s responsibility, and

about which she also claimed to know nothing, Ms. Bargen nevertheless offered the following

assessment of the information provided by Dr. Verdonk on that PAF from her perspective as a

Case Consultant with TELUS Health at the time.

[310] Dr. Verdonk had ticked off the boxes on the PAF form indicating that the Grievor was

suffering from “an illness” that had arisen “on the job” for which he was following up with the

Grievor, “weekly”. When asked on the form to state his diagnosis of the Grievor’s medical

condition, he wrote: “Major Affective Disorder”. In cross-examination Ms. Bargen agreed that,

“this doctor had given a proper diagnosis” in the sense of using terminology recognized by

medical practitioners as depicting a specific disability or disease.

[311] The second question under the general heading of “Medical Condition” on the PAF

asked: “If providing a psychological Diagnosis, please complete DMS IV.” I understood that

“DMS IV” was a reference to the “Diagnosis and Statistical Manual of Mental Disorders” (or

“DMS”) published by the American Psychiatric Association, that is a “five axis model” designed

to provide a comprehensive diagnosis of a patient’s mental health, used as well in Canada as a

diagnostic tool and that “IV” referred to the latest version of that model. This part of the form

Page 110 of 196

had been left blank by Dr. Adil in her December 7, 2012 PAF, however Dr. Verdonk completed

this section of the PAF in detail, as reviewed below.

[312] When questioned about “Axis I” (which is one of the factors for assessing mental disease

in the DMS manual under the general rubric of “psychological disorders”), Dr. Verdonk wrote:

“Major Affective Disorder/Anxiety Disorder”. In her cross-examination, Ms. Bargen confirmed

that this terminology described a recognized “psychological disability”. Under “Axis II”

(referring to the measure of personality disorders) Dr. Verdonk reported “P.D. NXD” which is

understood to mean “personality disorder not yet determined.” For the PAF measure under “Axis

III” (which in the DMS model refers to physical problems that may be relevant to diagnosing and

treating mental disorders) Dr. Verdonk had written: “Uterine Fibrosis, Abdominal Pain (Not Yet

Determined), Viral VRT with Reactive Airway”, which the Grievor’s medical history showed

she was suffering from at the time (although it was not clear on the form what “VRT” that is

handwritten, was referring to). Ms. Bargen confirmed that all of these were recognized criteria

of analysis for the proper diagnosis and treatment of mental disorders by health care

professionals.

[313] In response to the next major question on the PAF asking the practitioner to, “Describe

the signs and symptoms of the illness/injury of the Team Member”, Dr. Verdonk had written:

“Depressed mood, unable to cope with life right now, intimidated by work supervisors, viral

bronchitis with virus like symptoms, chronic abdominal pain (not yet determined) with diagnosis

of uterine fibroids – frightens her”. In cross-examination Ms. Bargen agreed that the report of

the Grievor’s “depressed mood” and being “unable to cope with life right now” was a sign of

depression, which was consistent with one of the medications prescribed for the Grievor reported

under the heading “Treatment”, that Ms. Bargen identified as “an anti-depressant”.

[314] In answering the next question in the PAF to, “describe active treatment…including

frequency and duration…” under the general heading of “Rehabilitation”, Dr. Verdonk wrote:

“Sees me weekly for supportive psychotherapy”, which Ms. Bargen acknowledged was what she

“was looking for”, as an appropriate type of “active treatment with a counsellor or therapist”.

[315] Dr. Verdonk’s response to the next major question on the PAF asking for a description

of, “the functional limitations that are impacting the Team Member’s ability to work”, was that

Page 111 of 196

the “patient is totally disabled, low energy, poor concentration, feeling overwhelmed,” which

Ms. Bargen acknowledged to be the description of “proper symptoms”. And in another question

on the PAF asking for “any other relevant medical information that would assist us in the review

of this case”, Dr. Verdonk wrote in legible part: “Patient very fragile right now – feels

persecuted and abused,…[illegible]…has little insight into this medical situation, (and) the meds

will take a month to have an effect”. Ms. Bargen agreed that the anti-depressant drug prescribed

for the Grievor would take one month to impact the Grievor’s health.

[316] Finally, Dr. Verdonk noted on the PAF, under the question: “What is the prognosis of

the Team Member’s illness/injury with regards to return to work” that the Grievor’s return to

work was “guarded”, and when asked for his medical opinion as to whether the Grievor was fit

for work with or without modified duties, he ticked off the boxes that stated “unfit for work” and

“temporarily”, with an expected return to work date of February 7, 2013.

[317] When Ms. Bargen was directly asked in cross-examination whether she would have

approved the Grievor’s claim on the basis of Dr. Verdonk’s PAF, she didn’t answer directly.

She chose instead to say that ‘she would have reviewed it’. I inferred from Ms. Bargen’s

testimony and her prevarication on that question, most in harmony with all of the surrounding

circumstances, that if she had assessed the new PAF she most likely would have approved the

Grievor’s claim for benefits under the Company’s STD plan, particularly where it was apparent

on her testimony that Dr. Verdonk’s PAF addressed the specific deficiencies that Ms. Bargen

criticized the earlier one provided by Dr. Adil. On this point I concluded that Ms. Bargen was

less than candid, for the obvious reason that she did not want to seem being critical of a co-

worker. But, to be clear, Ms. Bargen emphasized, repeatedly in her testimony, that she was no

longer responsible for the Grievor’s file when the new PAF was presented to TELUS Health,

suggesting that all questions on the matter should be directed to Mr. Carra.

[318] Of course Mr. Carra was not called as a witness by either the Company or the Union, and

thus any reason he may have had for rejecting the Grievor’s claims on the new medical

information submitted by the Grievor in response to his earlier December 21, 2012 e-mail to her,

including Dr. Verdonk’s PAF, was not presented to me. Based on a reading of the Case Progress

Notes Report submitted by the Company to corroborate its dealings with the Grievor’s claim,

Page 112 of 196

there is also a question of whether the Company even considered Dr. Verdonk’s PAF before

making its final decision on her appeal.

[319] In that Report, Mr. Carra is recorded as preparing a summary of the Grievor’s case for

submission to Dr. Wilson at 5:17 p.m. (Pacific Time) on January 8, 2013, which was several

hours before Ms. McLeod’s entry of 10:21 a.m. on January 9, 2013 that TELUS Health had

received Dr. Verdonk’s updated PAF. It is noteworthy that in the record of Mr. Carra’s

summary of the Grievor’s case for Dr. Wilson, he specifically included as part of the “Claim

History” substantially all of the original note to file that Ms. Bargen wrote on December 10,

2012 in which she reported the content of her first telephone conversation with Mr. Olsen and

Ms. Fraser at the outset of the claim, reproduced above, where Mr. Olsen informed Ms. Bargen

of the disciplinary circumstances leading up to the Grievor’s request for STD. He also stated in

that entry the “Reason for seeking Dr. Wilson’s opinion/consultation” was: “Your opinion on

the latest MD letter received and if the case should remain closed or allowed for a certain period

of time.”

[320] The Case Progress Notes Report indicates that the “latest MD letter” that Mr. Carra was

referring to was Dr. Adil’s January 7, 2013 letter which was received by TELUS Health in the

morning of January 8, 2013, as recorded by Ms. McLeod in her note of 10:32 a.m., that day. By

that time, the Case Progress Notes indicate that Dr. Verdonk’s January 8, 2013 PAF had not been

received. The first reference in the Case Progress Notes to the receipt of Dr. Verdonk’s PAF is

Ms. McLeod’s notation at 10:21 a.m. on January 9, 2013.

[321] The next relevant entry on the Case Progress Notes Report is from Ms. McLeod, who

writes: “Dr. Wilson’s notes – January 09/2013 visit” at 4:41 p.m. on January 9, 2013 (which was

after the acknowledged receipt of Dr. Verdonk’s recent PAF). As previously advised, Dr.

Wilson is the consulting physician who comes into TELUS Health weekly to give an opinion of

whether the medical documentation supports an employee’s claim for total disability benefits.

[322] Ms. Bargen testified that she could not say what documentation was provided to Dr.

Wilson. Her evidence is that the practice is to provide only the medical notes and PAFs without

any of the Case Progress Notes Report commentary. But it is clear on the documentary evidence

that more than that was provided to Dr. Wilson in this case, where the Case Progress Notes

Page 113 of 196

Report confirms that Ms. Bargen’s record of her telephone conversation with Mr. Olsen on

December 10, 2012 characterizing the Grievor’s alleged illness as really a workplace dispute,

made it into Dr. Wilson’s file.

[323] While the precise timing of the referral to Dr. Wilson is not clear on the Case Progress

Notes Report, that record indicates that Mr. Carra prepared a letter to the Grievor, at 9:20 a.m. on

Thursday, January 10, 2013, denying the Grievor’s claim, which will be reproduced later. This

supports the finding that Dr. Wilson likely reviewed the file and submitted his opinion as to the

sufficiency of the medical information, in the late afternoon of January 9, 2013. Dr. Wilson’s

assessment is handwritten and is not dated. His signed opinion under the heading, “Tracy

Baker” provides as follows:

This is purely a workplace issue driven by performance deficiencies. She is currently being

medicated for her emotional response to a workplace that is closely monitoring her poor

performance. Her refusal to interact with the supervisory people in her workplace at this

point is clearly a strategy to avoid termination.

Uterine fibroids rarely are symptomatic. In fact most women don’t even know they have them.

Other than heavy periods there is rarely a problem and are only removed surgically if the individual

is finished having children and wants to have a hysterectomy to stop the heavy periods (she

apparently is considering a pregnancy).

Finally, this claim should not be approved for either of the stated reasons as there is no medical

support for either.

[Emphasis added]

[324] Having considered the content and timing of Dr. Wilson’s letter, I found on all of the

evidence consistent with the surrounding circumstances that, contrary to Ms. Bargen’s testimony

on point, Dr. Wilson did have at least that portion of the Case Progress Notes Report recording

Mr. Olsen’s initial report to Ms. Bargen as part of the “Claim History” on the circumstances of

the Grievor’s discipline prior to leaving the workplace on sick leave commencing November 28,

2012. This finding is supported by the first sentence of Dr. Wilson’s opinion that, “This is

purely a workplace incident driven by performance deficiencies”, and his further conclusion in

the third sentence that, “Her refusal to interact with the supervisory people in her workplace at

this point is clearly a strategy to avoid termination”, that in my opinion is what he most likely

derived from Ms. Bargen’s initial note to the Case Progress Notes Report, which was the “fruit

Page 114 of 196

of the poisonous tree” planted by Mr. Olsen and Ms. Fraser, to any independent assessment of

the medical documentation.

[325] Furthermore, given the timing of Dr. Wilson’s letter and the referral note from Mr. Carra

that was prepared prior to receiving Dr. Verdonk’s new PAF (even though it is apparent on the

documentary record that TELUS Health had it at the time), as well as the complete absence of

any reference to the results of that PAF in Dr. Wilson’s opinion letter, I concluded that Dr.

Wilson never reviewed it before rendering his opinion, or failed to give it appropriate weight

(having regard to Ms. Bargen’s testimony on point). Alternatively, as I will elaborate upon when

I consider my more detailed review of the law later in these Reasons, it is my opinion that the

Company had the obligation to give the Grievor’s medical documentation a fair and reasonable

assessment before rejecting her claim. Since neither Mr. Carra nor Dr. Wilson were called as

witnesses to clarify exactly what Dr. Wilson considered in arriving at his final opinion, I draw an

adverse inference on the matter against the Company. At the very least, the evidence before me

was insufficient to satisfy the requirement of the Company to show that it considered all of the

Grievor’s medical documentation before it decided to terminate her employment the next day,

January 11, 2013, which I concluded on the foregoing evidence before me it had failed to do.

[326] After receiving Dr. Wilson’s report, Mr. Carra records the following notification letter

addressed to the Grievor’s home that notes her telephone contact number in his entry on the Case

Progress Notes Report at 9:20 a.m. (Pacific Time) on January 10, 2013:

Dear Tracy,

Re: TELUS Short Term Disability

We have completed our assessment of your claim and appeal for Short Term Disability benefits.

In order to qualify for short term disability benefits, an individual must be totally disabled from

performing their job duties. “Totally Disabled” means “the team member has a medical impairment

which prevents him/her from performing the essential work duties.

We adjudicate cases based on Disability Best Practices and universally applied Medical

Guidelines. In addition, your case file was completed reviewed by our Medical Consultant, for his

expert opinion.

The body of the information and medical evidence provided confirms that your absence from work

stems from workplace issues. There is no history of a pre-existing medical condition and any

treatment being prescribed now is in reaction to the circumstances in the workplace. Without the

Page 115 of 196

employment issues you are experiencing, there would be no reason for your work absence from

November 28, 2012 to date.

Accordingly, we are unable to support your claim for Short Term Disability benefits. Please contact

your manager to arrange for an immediate Return to Work.

Sincerely,

Douglas Carra

Disability Team Lead

TEULS Corporate Health

[327] Perhaps not unexpectedly given its customary treatment of this file, Ms. Ginny Burton

noted the receipt of Dr. Verdonk’s new PAF at 9:58 a.m. (Pacific Time) on January 10, 2013,

and thus she sent an e-mail to Debbie Leclerc (without copying either Keith Fischer or Ronnie

Olsen) at 10:01 a.m. that day concerning the Grievor, advising Ms. Leclerc that Health Services

had received “an updated PAF for the above-noted team member on January 9, 2013”, that it

“has been referred to our Case Consultant…and will be reviewed as soon as possible”, and that,

“a decision will be made and communicated to you shortly.” It invited Ms. Leclerc to refer “any

questions respecting the status of this claim” to the case consultant directly. There is no question

that Mr. Olsen never received this e-mail notification.

[328] By that time, however, Mr. Carra had made his decision on behalf of TELUS Health, and

the Case Progress Notes Report records that he notified Mr. Olsen first of his decision in an e-

mail to Mr. Olsen at 12:55 p.m., with a copy to Ms. Fraser, reproduced below:

Health Services has completed our assessment of Ms. Baker’s appeal for Short Term Disability

benefits.

Based on the information received, we are unable to approve her Disability case from November

28, 2012 to date.

We have now advised the Team Member of our decision and have couriered a letter outlining our

position/rationale.

We have not provided the Team Member with an option to appeal and have asked her to contact

you to arrange for an immediate Return To Work.

We have now closed our file.

Page 116 of 196

[329] The Case Progress Notes then record that Mr. Carra contacted the Grievor, second, by

telephone at 12:58 p.m., (Pacific Time) on January 10, 2013 advising her that, “based on our

complete review of her case file, including a review performed by our Medical Consultant, the

reason for her absence for this period of time is the workplace situation and not a medical

condition. I advised her that I have couriered a letter to her and have not offered an appeal

within the decline letter. Advised her to contact her management immediately for a RTW.” The

Company’s formal letter denying the Grievor’s appeal for STD benefits was received by the

Grievor the next day, most likely around the same time she was fired.

(i)

The Grievor’s First Dismissal of January 11, 2013

[330] The Grievor did not report to the Scarborough call centre on January 9, 2013 as

previously demanded by Mr. Olsen, claiming that she remained unwell and unable to work. Her

testimony supports the finding that she was anxious that returning to work under Mr. Olsen’s

supervision would cause her to suffer additional mental distress given his “lack of support” and

previous treatment of her. On the advice of Dr. Verdonk, she was taking medication for

depression (that might take up to one month to have effect), receiving weekly psychological

counselling; and on her doctor’s recommendation she didn’t anticipate being in a position to

return to work until at least February 7, 2013. To the Grievor’s knowledge the information about

her medical condition, which was included in the new PAF, was forwarded to TELUS Health

immediately after her consultation with Dr. Verdonk on January 8. 2013. She also believed her

absence was explained in the January 4 medical note from Dr. Verdonk that asked her to be

excused from January 4 – 12 for medical reasons.

[331] Shortly after hearing from Mr. Carra that her appeal was denied by TELUS Health, the

Grievor’s cellphone records confirm she received a telephone call from Mr. Olsen at 4:18 p.m.,

which was about 20 minutes after Mr. Carra’s telephone call. Mr. Olsen testified he left at least

two voice-mail messages for her that afternoon and evening, telling her that because her third

and final appeal had been denied she needed to return to work the next morning, Friday, January

11, 2013. Since the Grievor’s cellphone records only indicate one telephone call from Mr. Olsen

that day, the second call from Mr. Olsen must have been from another telephone not recorded by

those records, or his memory is faulty (confirming my concerns about the utility of those

Page 117 of 196

telephone records, discussed below). Had the Grievor reported for work, Mr. Olsen testified he

would have dismissed her anyway for the events between November 13 and 27, 2012, for which

Mr. Olsen already had a termination letter in hand.

[332] But she didn’t show up for work, and thus Mr. Olsen decided to terminate the Grievor’s

employment for her “refusal or neglect to report to work”. He testified that, “based on that there

was no documentation to support her absence that was ongoing since November 28, I decided to

end her employment.”

[333] Yet on the evidence before me, I concluded TELUS Health had Dr. Verdonk’s latest PAF

by then, which Mr. Olsen did not know about. He accordingly prepared and signed the “first

dismissal” letter dated January 11, 2013, reproduced above, which was couriered to the Grievor’s

home. The records filed by the Company indicate that the letter of termination was received at

the Grievor’s house at 4:01 p.m. that afternoon. The last two paragraphs of Mr. Olsen’s letter

sets out the Company’s reasons for the termination:

The purpose of this letter is to inform you that we have terminated your employment with TELUS

based on your refusal or neglect to report to work. To date, TELUS has not received any

documentation which supports your absence from work. As well, you have not returned to

work as directed.

Yours failure to report to work or provide sufficient information to explain your absence is

totally unacceptable. Therefore, your employment is terminated immediately. Your record of

employment and final earnings will be forwarded under separate cover.

[Emphasis added]

VIII.

The Grievor’s Second Dismissal of March 11, 2013

[334] There was no new information supporting discipline that the Company didn’t know when

the Grievor was terminated on January 11, 2013 that was relied upon by the Company in issuing

its “second dismissal” letter dated March 11, 2013. As described above, that letter was signed by

Ms. Fraser of Labour Relations and delivered to the Union after the Step 3 grievance meeting

concerning the Union’s Grievance No. 2 challenging the first dismissal letter and notice of the

Grievor’s second dismissal was “deemed to have been initiated” as of March 11, 2013. In

substance it is the same letter that Mr. Olsen intended to issue on November 28, 2012, January 2,

2013 and January 7, 2013 to the Grievor directly, had she returned to work on those days. It

Page 118 of 196

claims as grounds for termination, the “inappropriate access and misuse of TELUS resources,

breach of the corporate security policy, and failure to follow a management directive” arising out

of the Grievor’s alleged misconduct between November 12 and 27, 2012.

[335] For ease of immediate reference Ms. Fraser’s March 11, 2013 letter to the Union is

reproduced in relevant part below.