International Brotherhood Of Electrical Workers, Local 2067 v Saskatchewan Power Corporation

The Saskatchewan Employment Act

In the Matter of an Arbitration Pursuant to a Collective Agreement

Between:

The International Brotherhood of Electrical Workers, Local 2067

(AB, Grievor),

Union

- and –

Saskatchewan Power Corporation,

Employer

Before:

Anne M. Wallace, Q.C.

Sole Arbitrator

Representing the Union:

Heather Robertson and Sam Schonhoffer

Representing the Employer: Susan Barber, Q.C.

Heard at Regina, Saskatchewan

May 8, 9 and 10, July 31, and August 1 and 2, 2017

Concluded August 28, 2017 by Additional Written Submissions

Award

I. Introduction

1. On February 22, 2016, the International Brotherhood of Electrical Workers, Local

2067 (“IBEW” or the “Union”) filed a Grievance (the “Grievance”) on behalf of a

former employee (“AB” or the “Grievor”) against Saskatchewan Power Corporation

(“SaskPower” or the “Employer”) with respect to the February 19, 2016 termination of

AB’s employment.

2. The Union filed the Grievance pursuant to a Collective Bargaining Agreement

between the Employer and IBEW in force from January 1, 2016 to December 31,

2016 (the “CBA”). The parties agree this is the relevant CBA. The parties also agree

AB’s seniority date with SaskPower was January 24, 1994.

3. The Union alleges termination was too severe a penalty in all the circumstances. The

Employer claims just cause for the termination. The parties were unable to resolve

the Grievance and the Union referred the Grievance to arbitration. The parties

appointed me as single Arbitrator to hear the case.

1

4. At the outset, the parties acknowledged I have been properly constituted as sole

Arbitrator and I have jurisdiction to hear and determine the Grievances. The parties

also agreed to the usual order for exclusion of witnesses.

5. Heather Robertson and Sam Schonhoffer represented the Union. Susan Barber,

Q.C. represented the Employer.

6. Employer witnesses included:

a. Mark Caswell

b. Chris Burgess

c. Jillian Orr

d. Kathy Potts

7. The Union’s witnesses included:

a. AB

b. AB’s psychiatrist, Dr. O

c. Curtis Lizee

d. Doug Hesch

e. John Perfect

f. Brandon Lang

8. In addition to the oral testimony, the parties entered some documents in evidence

by agreement and each party entered some documents through their witnesses.

9. The parties agreed that in the first instance I should decide the question of liability

and whether reinstatement is appropriate, and that if I should find in favour of the

Union, I should reserve on the question of damages to allow the parties an

opportunity to work out the damages. Then, failing agreement on damages, I would

hear evidence and argument on damages.

II.

The Termination Letter

10. The letter of termination dated February 19, 2016 (the “Termination Letter”), signed

by Mark Caswell and delivered to AB that day, says:

The investigation with respect to the Corporation’s concerns regarding your conduct of

February 17, 2016 has been completed. The results of this investigation have been

completed. It has been determined that you failed to adhere to the expectations detailed

in your Decision Making Leave letter, issued October 22, 2014 by demonstrating

aggressive, and belligerent behaviour.

SaskPower is committed to ensure employees are provided a safe, healthy and

respectful workplace, free from destructive behaviour such as employee discord,

harassment and workplace violence.

Your actions are deemed culpable and unacceptable and cannot be condoned.

Due to the egregious nature of this incident, effective immediately you are dismissed with

cause.

2

With the exception of public areas, you are directed not to come onto SaskPower

property without prior management approval.

III.

The Grievance

11. The Grievance claims violation of Article 9 of the CBA (Suspension and Dismissal)

and any other applicable Letters of Agreement, policies or laws. The Details of the

Grievance are:

On February 19, 2016, AB was terminated for behavior on February 17, 2016 that was

deemed to be aggressive and belligerent. While the Union does not condone this

behavior, it is the belief that there were extenuating circumstances which led to this

behavior. The grievor returned to the workplace on February 17, 2016 after being away

on an approved medical leave for approximately three (3) months. Prior to his leave, the

grievor had expressed to his supervisor, Mark Caswell, that working indoors was very

uncomfortable for him. When the grievor returned from his leave, Mr. Caswell

immediately assigned the grievor to work indoors. Even though this assignment upset the

grievor as he had previously expressed his concern about working indoors, he said he

would accept the assignment but needed space to calm down. The grievor has stated

that Mr. Caswell continued to follow him which resulted in the unacceptable behaviour.

The Union feels that due to the nature of the grievor’s leave from which he was returning,

that there could have been a softer approach to the grievor’s work assignment upon his

return.

IV.

Summary of Evidence

12. This summary of evidence includes a summary of the evidence of the witnesses

along with reference to relevant portions of the documents entered in evidence at

the hearing.

13. I will deal with the credibility, reliability and relevance of the evidence in the Analysis

section of this Award. There are also some issues with respect to admissibility of

some of this evidence in relation to particular issues. I will deal with those in the

Analysis section of the Award as well.

General Information

Mark

Caswell

Caswell has worked at SaskPower since August 2014. He is the Manager of Materials

South in the Logistics Business Unit of SaskPower. His office is in Central Stores in

Regina Service Centre Building Three in the warehouse district. His area includes a

line from Davidson south and includes warehouses in Carlyle, Weyburn, Yorkton and

Swift Current, and a secondary warehouse in Regina.

Central Stores handles materials required to build and maintain the power line network.

Caswell oversees the operation. Caswell is responsible to make sure employees

ensure there is material available for those who need it. He is responsible to make sure

employees are trained and workloads are scheduled. He works with stakeholder

groups to manage intake and outflow of material. He is responsible to make sure

workers are productive and respectful, and to remove obstacles in the way of workers

doing a good job. Caswell is responsible to go to his boss when he needs more

resources to keep up with demand.

3

Central Stores’ customers are mostly SaskPower employees, but some are

contractors. At the time of the hearing there were 17 employees at Central Stores and

another ten at other locations. All employees are in scope of the Union.

In Central Stores, AB was in the position of Storekeeper. In the work of the

Storekeeper, there are three core areas – shipping, receiving and salvage.

There are five or six employees in shipping depending on the workload. They receive

orders from stakeholders and assemble that material into a package for a truck to

come haul it away. Orders generally come through the computer system. Greg

Simpson is the senior in scope supervisor. Simpson looks after delegating orders to

members of the team as the orders come in. The employees working in the warehouse

work with materials every day, both by hand and using smaller forklifts inside the

warehouse.

There are shippers both inside and outside the warehouse. All employees are capable

of doing all roles and all are trained on the forklift. The employees are used where

needed based on operational need.

There are usually three or four employees in receiving or even up to five depending on

the volume of material received at any point. As materials are received, the employees

verify that correct quantities are received and that the quality is at a given standard

based on visual inspection using a checklist. Receivers put the stuff away. There are

receivers both outside and inside. At the time of the hearing, Jordan Matt was in scope

supervisor in receiving. John Perfect was in scope supervisor at the time of AB’s

termination. Perfect later retired after more than 30 years of service. The in scope

supervisor in salvage is Darren Kivisto. Three employees typically work in salvage.

Sometimes a lot of others are assigned to help for a period of time.

If there is a heavy workload in one area, it is common to borrow some of the team from

another area to come and help. All the employees can move among all three functions

in the warehouse. All three areas involve use of equipment, including forklifts on a daily

basis. Salvage has other equipment as well.

The storekeeper job is safety sensitive. It is high risk work and consequences could be

quite severe. SaskPower provides ongoing safety training, including four large entire

team meetings each year focused on safety. These meetings include topics such as

changes to policies and present an opportunity for refresher for details of a safety topic

such as ergonomics and how to lift, how to fill out a hazard and risk assessment form in

the morning, how to properly walk about the forklift before starting to use it for the day

and so forth.

Employees receive training when they start and the training is ongoing. SaskPower has

on line learning, the LMS Learning Management System. Everyone also gets training

from a qualified trainer on how to safely operate a forklift. The technical details of each

job are different, but all have to have some safety equipment and personal protective

equipment. All have to have the same training on the forklift. All are trained and

certified.

Within SaskPower’s Logistics Group, there are two other managers in the building. One

is Chris Burgess, Manager of Logistics Dispatch. The other, Kim Closson is Manager of

4

Inventory Control. Closson lives in Saskatoon and spends two days a week in Central

Stores. There are other out of scope employees in the building as well.

Blair Debruyne hired Caswell to replace Joel Flory. Flory hadn’t been there a long time,

maybe a year and a bit. Debruyne wanted a productive efficient workplace. He made

Caswell aware that there were some corporate cultural problems in terms of low

employee morale and some behaviour issues in Caswell’s area in particular. Debruyne

did not provide names because he wanted Caswell to discover those for himself.

Storekeepers report through their supervisors but they are all direct reports to Caswell

in the organizational chart. There are three in scope supervisors in Regina. Supervisors

are responsible for the day to day in the moment supervision of the team in the

warehouse and in the yard and to delegate tasks to their teams to make sure their

teams are working safety and to address concerns if they see them. They follow up to

ensure work assignments are completed to acceptable standards, to make sure their

team is staying on top of their workload, and to raise concerns to Caswell if there are

things they don’t feel comfortable dealing with.

Caswell meets with the supervisors for discussions several times every day and has a

formal meeting once a week. Day to day, Caswell makes sure the supervisors have

resources to do their job. He helps them to make some delegated decisions if they are

unsure how to achieve everything on their plate. He suggests ways to meet

expectations for workloads. Caswell doesn’t like to tell them what to do. They look for

affirmation they are on the right track.

Caswell is out in shipping and receiving and on the warehouse floor on a daily basis.

He lets the supervisors assign the tasks unless there is something with a particularly

large project or tight deadline. When he is away, he empowers the supervisors to make

decisions. When he is there, he still gives them a tremendous amount of power to

make decisions. He sees his role as helping to move any obstacles out of their way.

All the employees are trained to the same level and have the same ability. It largely

falls to who is available as to who they assign. For some tasks they look for a more

senior employee to get something done more quickly or to a higher standard based on

experience and skill. There is a lot of pressure to get material out quickly.

When Flory was there, he rotated storekeepers into different roles on an arbitrary

basis. There was a rotation every six months or something. When Caswell took charge,

he did not have a rotation. He wanted to observe and understand and see where the

skills were and where the bottlenecks were and make decisions from there based on

operational need rather than arbitrary rotation.

In 2016, there were three shifts. Some employees started at 7:00 a.m. Perfect started

at 7:30 and rest started at 8:00. That had been in place for a time. As of January 1,

2017, everyone starts at 7:30, and the end time is 4 o’clock. AB was working at Central

Stores when Caswell started working there. Caswell did not know AB before Caswell

came to SaskPower. AB worked 7:00 a.m. to 3:30 p.m..

There was no bidding process within the workgroup. Opportunities to supervise on

temporary basis were informal. There was no bidding for where the person worked in

5

the three areas.

Right from when Caswell started until February 2016 when SaskPower terminated AB,

every day there would be some back and forth to accommodate workloads, but there

had been no wholesale rotations. It was as business needs dictated.

Some storekeepers express a preference as to where they liked to work. That would be

taken into consideration but that can’t be the only requirement. The work is what it is

and depending on what is happening, there may be a need for more resources in

different areas.

AB worked in the receiving area as Storekeeper in Central Stores, putting material

away upon receiving it and inspecting it. AB spent a lot of his time in the yard. Caswell

can only assume AB had the training because all employees get the same training and

AB was current with his training.

AB can be a challenging guy to deal with. He doesn’t always take direction very well. He can be

extremely volatile in his response and is unpredictable.

Most of the time I got along with him well. We were able to have conversations that seemed to

be two way conversations and there seemed to be the ability to communicate effectively.

AB has got a big personality. He is loud. His body language is often very big. He uses

big gestures and fills a lot of space in a room particularly as he starts to get agitated.

His voice starts to rise. The language is profane and pointed. It’s not swearing. It’s the

kind of workplace where swearing is common. There is a difference between swearing

in conversation and being sworn at. With AB, he was swearing at you. It felt like you

were on the receiving end.

Chris

Burgess

Burgess has been with SaskPower about ten years. At the time of the hearing, he was

Manager of Planning and Field Support within Logistics. He began work with

SaskPower as a student and was an analyst before taking an opportunity as the

Manager for Materials South which became Central Stores. Then he went to a

Materials Process Improvement Project for a year before taking on his current role.

Logistics is an umbrella group that encompasses all materials, planning and field

support, and inventory control, as well as fleet services. Central Stores is part of

Logistics. The areas don’t overlap with but they do interact. Burgess was Manager in

Central Stores from about April//June of 2012 to April of 2013. AB reported to Burgess.

The supervisors directed the day to activities of each area. Burgess was responsible

for scheduling. They had a rotating schedule where employees would flip between

locations quarterly. If someone was in shipping one quarter, the next quarter they

would rotate to receiving and so forth. Shipping and receiving both involved work

outdoors and indoors. The pole yards were also part of the rotation, but Burgess had to

make sure people who worked in the pole yards had the proper training and were

comfortable working with the large equipment.

AB rotated through the various work locations. AB never told Burgess he couldn’t work

inside. If AB had asked for an accommodation, there is a standard response through

the Return to Work Office (“RTW”) and the RTW office eventually advises of any

restrictions. All employees expressed preferences. AB’s preference was to work

Central Stores as opposed to Regina region or pole yards.

6

Burgess produced an email dated May 10, 2012 which he sent to all Storekeepers. At

the time Burgess was trying to boost employee engagement and get a feel for where

the people were most comfortable working. He needed to address the needs of the

pole yards and find out where everybody would like to be. He sent an email asking for

work area preferences.

AB responded that he preferred to work in Central Stores, second choice was the wood

yard and third was the steel yard, and he did not want to work in the Regina region. AB

agreed he would like to sub as in scope supervisor, but AB made it clear if subbing, the

person should have to sub in all three locations. There was another staff who only

wanted to sub in receiving and AB said he didn’t believe anybody should be able to

pick. He felt if you were subbing you should sub in all locations.

Burgess recalls AB and Darren Kivisto raising a concern with an employee who had a

lot of issues with driving forklift. They felt a Storekeeper should be able to do all the

duties and they didn’t think it was fair for this employee to work just on the inside and

not on the outside on the forklifts. Burgess agreed with them and put into practice a

schooling session for the employee and gave the employee a buddy he could go to for

help and guidance.

On October 23, 2012, Burgess sent an email to his supervisors. They were just about

to go into the next quarter rotation. Burgess was looking at three things -- employee

engagement, performance check and behaviours. He wanted to make sure people

rotated fairly through the schedule and there was going to be some upset people about

it. Burgess followed through with the schedule he made at the time and AB worked

inside salvage on this rotation.

Burgess also had to deal with work performance concerns. There were a lot of tempers

at the time. Crew members from the construction side would come into Central Stores

and there was havoc within the workload. Tempers would fly with people swearing. AB

and Darren Kivisto were the two hottest heads. There were also performance issues

because some employees worked harder than others, and Burgess was trying to get

some equalization on that.

During the time Burgess was in Central Stores, Burgess put a letter on one employee’s

file for time theft. Another employee was reverted to a previous position because he

didn’t pass probation. AB was away often and he was required to provide mandatory

doctor’s notes to tell RTW why he was away from work.

Towards the end of April 2013, Burgess moved over to the Materials Management

Process Improvement Program and relocated to head office downtown for a year.

Jillian

Orb

Jillian Orb is a senior Human Resources Business Partner (“HRBP”) with SaskPower

and has been with SaskPower since November 2013. She has one HRBP reporting to

her. Each HRPB has portfolios assigned. Orb and her partner have Transmission,

Finance, and Procurement and Supply Chain Management. This has included Central

Stores except for a seven month period in 2016 when a different HRBP was assigned

to Central Stores.

The role of the HRPB is to provide advice and support to the managers, to coach

managers through performance management, anything employee or labour relations

7

related, strategic planning, employee engagement, corrective discipline, compensation

and benefits and so forth.

Human Resources (“HR”) focuses on coaching, performance management, corrective

discipline, and how to enhance effectiveness of the work team including using the best

tools to run the business. In cases of discipline, HR is there to support and advise and

coach on how to apply policy from written reprimand to termination. They help to gather

facts which sometimes needs IT or Enterprise Security and sometimes Payroll. HRBP’s

consider who they need to talk to and are involved in interviewing and assessing

information. They work with the Labour Relations Department to make sure they are

following the CBA. As a team, they pull in someone from LR when necessary, ninety

per cent of time Todd Boldt who is the manager.

They check the CBAs to make sure they apply policy consistently. They talk on a

regular basis and weigh the mitigating and aggravating factors of each situation. They

discuss the factors and play out what happened and talk and vet to make sure what is

recommended in one area is consistent with what is recommended in another. HRBPs

also engage their HR Business Services Director with respect to any termination.

Orb knew AB because of Orb’s role as an HRBP for Central Stores. Orb met Caswell at

the end of August 2014 after Caswell joined SaskPower. Orb provided HR support to

Caswell.

Caswell and the HR Director reached out to Orb to help Caswell become familiar with

what SaskPower does in terms of performance management, what things are

available, how SaskPower sets expectations, and what things the CBA has in it going

forward. She explained how the business unit could support Caswell.

Kathy

Potts

Kathy Potts has worked for SaskPower for twelve years. She is a specialist for health

and wellness and looks after health and wellness for the whole company. One other

specialist and two admin staff work with her. Catherine Yates is the other specialist.

SaskPower has between 3,400 and 3,500 employees.

Potts has a degree in social work and is a registered social worker, a registered rehab

professional, a Canadian certified rehab consultant and a certified vocational

professional. She has extensive experience.

An average person away from work for up to five days will likely not hear from Potts.

For absences of more than 5 days, the employee is required to provide Pott’s office

with medical supporting the absence.

If an absence is pretty straightforward and the return to work date is within 30 days,

then the supervisor manages the absence. If the absence is more than 30 days, Potts’

office manages it because there are processes for people to access long term disability

and those sorts of things. Potts’ office manages all WCB claims right from day of

incident.

Each employee is entitled to 1.25 days per month sick time, and it accumulates over

time. They can carry it forward. When sick leave is exhausted, they apply for Plan B

which is 75 % of gross monthly salary until return to work or for 119 days if they are off

work completely or 85 non-consecutive work days if they are at work sporadically. It’s a

8

bridge to long term disability (“LTD”). Then they have to apply for LTD.

Curtis

Lizee

Curtis Lizee has been the Assistant Business Manager for IBEW Local 2067 since

March of 2014. His permanent position with SaskPower is as an electrical inspector in

Regina. Lizee deals with the Union membership and their problems. Lizee was Local

2067 President for three years. He is currently on Union leave. He has 16 years

seniority.

Lizee works to resolve issues without having to go to management or to resolve issues

with management when necessary. Lizee files grievances and sometimes investigates

before filing. He attends meetings with management with respect to grievances he files

and tries to see the grievances to the end including arbitration when necessary.

AB

AB worked with SaskPower as a material handler, sometimes called Storekeeper at

SaskPower’s Central Stores location in Regina. He had a seniority date of January 24,

1994. He was born April 5, 1967.

I was on the receiving side. There’s three departments in Central stores – receiving, shipping

and salvage. I was outside forklift in receiving. Every third Friday I would substitute as the

coordinator for John Perfect when he was on banked time off. If he had extended holidays, I

would cover that position for him.

AB looked after incoming semis to unload them with the forklift, put materials in stock

and count materials to make sure the order was correct. He made sure the material

was put in the proper location. If it didn’t have a location, he determined what would be

a good location. AB operated a bigger forklift for moving heavier objects and then

inside the warehouse they had a stand-up lift they used to put product away in the

racking, to put the pallets up in racks. There were four levels of racks, like a shelving

system.

AB’s wife works as a secretary for a plumbing company. When AB worked at

SaskPower he made almost double the money his wife earned. AB has a GED Twelve

education.

In February 2016 AB’s immediate in-scope supervisor was John Perfect who was

coordinator for receiving. The other in-scope supervisors were Greg Simpson in

shipping and Ken Fink in salvage. Fink passed away suddenly.

Mark Caswell was the “big boss”. He was Simpson, Perfect and Fink’s boss. Caswell

was the manager and AB would report to Caswell also if there was a special project

Caswell wanted AB to do. AB understood Caswell was the manager.

I called him El Hefe. We would chuckle about that.

Debruyne was Caswell’s boss.

Bright Lights is SaskPower’s individual recognition program. If you were doing a good

job or going above and beyond, they would give some points and once you collected

enough points you could get an award like a $250 MasterCard card or other stuff.

There was a place on line where you could look to see what you could purchase.

Blair Debruyne gave Bright Lights points to AB on two occasions – August 14, 2014

and September 18, 2015. In 2014 the points were for AB’s work on a new racking

system. AB received 3500 points on each occasion. AB is not aware if everyone gets

9

points. He took “heat from the boys” because nobody else got points. It was just a little

bit if ribbing from fellow materials handlers, more in good fun.

At the time AB never gave the points much thought:

…but when your bosses’ boss recognizes the time and work I put into the outside racking, of

course it felt good. I got a pat on the back. Who doesn’t appreciate a pat on the back for good

work?

AB began working with SaskPower in 1994 as a caretaker (on the 12^thfloor downtown

which was the President’s floor) empting garbage, cleaning the bathroom, and cleaning

the law department offices. He did that for a year and then got a permanent bid in the

mailroom. Eventually AB got the bid he wanted from day one which was a meter reader

job in Regina.

I was getting older. Winters were getting harder ploughing through four feet of snow. …It was

just getting tougher on me with my age. I am a little overweight. It was time to change when the

opportunity came at Central Stores.

AB worked at Central Stores for nine years. The job was the icing on the cake for AB.

He had always been a heavy equipment operator before SaskPower. This was his

dream job, working outside with some responsibility in the yard. It was good. It was

busy. There was no watching the clock.

When you pick inside, it is kind of like shopping. You have a cart and a handheld computer and

you pick orders and it is just so monotonous. I don’t like shopping to start with – any kind of

shopping. Being outside I just wanted to do a good job, stay there and show my work.

Outside work is constant. Decisions need to be made on a regular basis on which truck

is next or what to do with material. There are so many things going on and it kept AB’s

mind totally busy. Inside you look at the device and go to an aisle, grab a cart and put it

on the cart and push the cart to the next place. Then once you are finished picking fifty

lines, then you put it on a pallet, wrap it with plastic to keep it all right, band it and then

that is it. The outside guy takes it and puts it where it needs to be.

The outside work is busy. Loaded trucks need to be unloaded. Semis come into the

yard empty and need to be loaded. Smaller couriers drop off material at receiving.

There are couriers picking up parts. Contractors come in usually first thing in the

morning which is busiest.

AB worked at Central Stores both inside and outside. AB was the main outside forklift

guy who loads material on semis and who also picks outside material for jobs. You

need a forklift for outside stuff because it is heavier. Three, four or five employees pick

inside using the handheld.

Up to 2016, going back five years, I was receiving for almost three years at the outside forklift.

Prior to moving to receiving, I was the outside forklift guy at shipping for two and before that I

was at salvage doing outside forklift stuff there.

When people come to Central Sores, they usually start picking inside so they can learn

the material and it is a bit of a slower pace. AB personally found that work to be

monotonous.

I am not a shopper. It is not what I prefer. I like to be outside making decisions, directing traffic. I

looked at receiving outside as my own little project since we did the new racking. A lot of my

ideas were used on my locations for this stuff to be put in accordance to what is easier for

10

shipping to pick and put in their pile.

I policed the yard – Kevin and I – Kevin is the outside shipping forklift operator. Sometimes

truckers can be in their own world or following their own guidelines. It was basically up to Kevin

and I to make sure they are complying, have their hard hats on, high vis jacket, safety boots. …

When I pick inside, it gives me way too much time to think about other problems in my life. It’s --

here pick these 50 lines and that is your job for the day. I like to be motivated and take pride in

what I do. Picking an order and wrapping it was a downer for me. My whole mood would change

inside compared to outside -- more subdued – spent more time alone -- would take my breaks

alone. When picking outside you have no time to reflect on what happened last night or the week

before or personal things – no time to reflect.

When asked if he ever told his supervisor that working outside was his preference, AB

said:

Absolutely, everyone was aware of my preference to being outside. I believe that is why Kenny

when I worked at salvage let me work outside at salvage. Greg left me picking outside for close

to two years and John knew I liked to pick outside for three years and I even told Mark Caswell I

liked to pick outside. I told Chris Burgess I liked it and did a better job.

When Caswell had been with SaskPower for three or four months, there was in incident

where Caswell got upset with a junior employee who had improperly used a floor

cleaning machine and a wheel came off. The junior employee came to AB and AB went

to talk to Caswell.

Dude you gotta pick your battles now that you’re new here and you have openly admitted this job

is new for him. The materials and stuff – and he was gonna have an investigation of this and it

was just a simple accident. I told Mark it was all good. He didn’t mean to do it. Cut him some

slack. Mark laid off of that.

At that point I told Mark if I ever piss you off, please don’t make me pick inside. That is my

kryptonite. It sucks the life out of you working inside with no purpose. At that time he chuckled

and said that is not the way he operates and that I really do a good job outside and not to worry.

We chuckled and that was the end of it.

Kryptonite kills Superman. It’s like stuffing envelopes for me. I am good at what I am doing, so

why am I picking inside. Everyone accommodated me somewhat not that I didn’t do a good job

when I was inside.

Picking inside causes AB “extreme stress”.

AB would see John Perfect first thing in the morning. They would have a chit chat and

they had two way radios where they could keep in touch or AB would just go inside the

office and talk. Perfect could see AB unloading a truck from his office. If AB was close-

by Perfect would sometimes come into the forklift if he had instructions for AB. AB

started work at 7:00 a.m. and John Perfect started at 7:30. There was also one more

employee in receiving, Don Valley, and he started work at 8:00 a.m. Valley was inside

helping Perfect with smaller material and AB put bigger material away outside.

In cross-examination:

 AB agreed he was trained to perform all duties of the Storekeeper. AB subbed for

John Perfect as in scope supervisor every third Friday for about the last year and a

half before his termination. That assignment came from Caswell.

 AB agreed that the fact SaskPower awarded AB with Bright Lights points shows

SaskPower was prepared to reward him for helping out and doing a good job. AB

11

agreed being rewarded for good behaviour is positive. He also agreed that

SaskPower would also be justified in discouraging bad behaviour and bad

performance and that an employee who behaves badly might deserve some

discipline.

 AB acknowledged that when Burgess was manager, the storekeepers were on a

rotation. He said under Harnish and Burgess, the storekeepers switched rotation

every four months. Burgess allowed some of the employees to trade their

assignments. AB acknowledged that with Burgess as manager, AB did work inside

in shipping. AB claimed not to recall Burgess’ instructions that the employees would

be rotating and there would be no trading.

 AB acknowledged that under Burgess and Flory before Caswell, AB rotated through

all the areas including inside shipping.

 When counsel suggested it was AB’s preference to work outside on the forklift, AB

said, “That’s where I was most comfortable was working outside.”

 AB said no matter where he worked, he reported to an in scope supervisor, whether

Perfect, Simpson or Fink.

 AB said he was working outside in receiving when Caswell came on as manager.

AB said he didn’t feel he was entitled to that position and didn’t have a right to that

job, but

…you get the best work out of employees if they are happy with doing it. Some preferred inside.

Some preferred outside. You try to accommodate to get the best performance.

 AB agreed he wasn’t the only guy with a preference, but that ultimately the

Employer decides where you will work.

 When counsel suggested to AB that lots of people had preferences for where they

wanted to work and expressed that, AB said:

For some of us. Some of us are pretty quiet and do what we are told. I would voice that I

preferred to work outside.

 AB agreed that the employee Lam expressed a preference to work inside and that

AB complained to Burgess about that and insisted Lam should rotate, AB said:

I heard Chris Burgess say a lot of things that weren’t true. I’m not sure how you want me to

answer that. …it would be a set up to fail for Lam and possibly kill somebody.

 When counsel suggested to AB that at no time did he tell the employer he couldn’t

work inside and ask for accommodation based on a medical restriction, AB said:

I didn’t know that was an option. If I had known it was an option, I would have gotten any report

they needed.

 AB acknowledged he never at any time brought a doctor’s note to say he could not

work inside.

 AB confirmed his earlier testimony about his conversation with Caswell around the

time Caswell was upset with the employee about the floor cleaning machine:

We were having a normal discussion. I seen the pressure he was putting on Justin. After we

12

discussed how I thought maybe just go easy on him. I said -- If I ever piss you off Mark, please

don’t make me pick inside. That’s my Kryptonite. …He chuckled. That is not the way he operates

and you do a good job out there and not to worry.

 AB said he thinks this discussion with Caswell happened a few months before

February of 2016. Caswell wasn’t brand new into his role but he had been there a

few months. AB acknowledged that he wasn’t involved in the investigation with

respect to the floor cleaner so he doesn’t actually know what the outcome was.

 When asked if it was his position that his job duties couldn’t be changed, AB said:

My job duties can change. We can be told to go wherever we’re to go. I had no right to be

outside all the time. It was something in the past my supervisors have helped me with that.

 When counsel suggested AB told Caswell about the anniversary of his father’s

death, but did not tell Caswell he suffered from anxiety and depression at any time,

AB said he believes he did tell Caswell about the anxiety and depression the day

when Caswell said he has a bottle for when he has a really bad day.

 When counsel put Caswell’s evidence that he had no idea AB suffered from anxiety

and depression until this proceeding, AB said:

Mark knew I suffered from depression and anxiety – whether that day or a previous day. We had

talks about it. I don’t have days and times for you – can’t tell you every time Mark and I went for

a walk. It was at least every second or third day.

 When asked if he remembers those conversations, AB said:

No, I don’t remember those conversations. I don’t tell people I don’t trust.

 When asked what he told Caswell, AB said:

I explained all my health problems – diabetes, high blood pressure, cholesterol – anxiety. I

believe I told him how many meds I take to start my day. I can’t tell you the dates and times.

 AB said he told Caswell about these things more than once and he has no idea why

Caswell is not being truthful.

 When asked if he told Chris Burgess about his depression and anxiety, AB said:

Chris and I had many discussions, actually, because Chris was going through some tough times

himself and I would go into his office and check on him and offer my help and advice.

Doug

Hesch is a material handler running SaskPower’s steel yard. He has been in that

Hesch

position for about seven years. Before that Hesch worked in Central Stores.

Hesch reports to Central Stores every day. He picks up his coveralls and workload and

his half ton and then drives out to the steel yard. He is usually not at Central Stores for

more than half an hour. In 2016, Hesch’s supervisor was Ken Fink who reported to

Mark Caswell.

Hesch thinks Caswell came to SaskPower in 2014. Hesch found Caswell’s

management style to be “heavy handed at first”. Hesch was directly involved in one

incident and one he heard about through the warehouse. Until Caswell came Hesch

had accumulated holidays. He had a lot of holidays stored up. One day Caswell called

Hesch and told Hesch he had to use all the holidays by the end of March. Hesch told

Caswell he would have to quit immediately and still would not have them used by the

13

end of March. This was in November of 2014. Hesch got the Union involved. They had

a meeting with Caswell and Caswell agreed to let Hesch use the holidays over the

period of one year.

In cross-examination:

 Hesch agreed that Caswell’s request that he take his holidays didn’t “come out of

the blue”, that they had discussions about it. Hesch acknowledged that Caswell told

him the requirement the employees use their vacation came from the company.

John

Perfect

John Perfect is retired and lives in Regina. He worked at SaskPower for 35 years. He

retired in April 2016.

Perfect was an in scope supervisor at Central Stores for the Receiving Department for

somewhere around 25 or 28 years. Perfect was in scope of the Union, previously CEP

and then IBEW.

It was a little bit of a game the unions and management were playing. We were forced to that

union.

In performing his duties, Perfect was in the office maybe 60 percent of the time. Forty

percent of the time he was out working with the guys on the forklifts or by hand or

whatever. The work involved constantly lifting, climbing up and down stairs and in and

out of forklifts. The office work involved keeping track on the computer, comparing

material to purchase orders and making sure they had proper documents from

suppliers to match to the purchase order. Perfect had to make sure he knew where

stuff was stored in the warehouse.

My basic manpower was two on my side – maybe ten men among the three of us for the area

and we sort of supervised all of them when needed. If I saw someone doing something they

shouldn’t I would talk to them or they would come and talk to me. There were mainly two guys

assigned to me.

Perfect worked with the other supervisors.

Yah there was times when we would help each other out – where Ken wouldn’t know what

certain material was or his guys would bring it over to me. Same with shipping. If people didn’t

know what they were dealing with – switches where they didn’t know what was what -- and they

would come and talk to me. There was cooperation amongst all three of us.

…I usually split my men up, one mainly doing yard work and one mainly in the warehouse. This

varied depending on the workload. If one person finished outside he would come in and if the

man outside was swamped I sent the inside man outside to help with a load of materials.

Sometimes I had to steal guys from Ken and Greg as well. They would sometimes send over

help.

The equipment in the yard was all propane forklifts – sit down lifts with cabs that

handled different ranges of weights. In the warehouse it was stand up lifts and pallet

jacks and occasionally a power pallet jack.

The volume of work in 2015 – 2016 was the busiest Perfect has ever seen. They were

working at a capacity beyond what they were staffed for.

From the time AB began working in Central Stores, Perfect worked with AB on and off

depending on the rotation. Perfect supervised AB and observed AB’s work.

We are supposed to do those [work observations] quarterly and we take an employee and we

14

consider their work habits and we ask them certain questions and also we instruct them on how

they are doing anything wrong or remind them of safety things and also give positive feedback

after the whole thing was done. Don’t walk away leaving an employee upset. …

When he [AB] first started I wasn’t impressed with his work. He was rough on things. As time

went by he slowly started to improve. For the last few years he was on the outside forklift and put

with Greg at first. He started to improve. If I remember correctly, he started on the shipping side.

Then he was assigned to me. I can’t remember how long he was with me – must have been

more than two years. He really started to take ownership of his job and become engaged and

got skills on the forklift. He became a pretty good operator – handled difficult jobs. We would

have a meeting and he would go after it. …

Over a long period of time, you know, he went through spells when he wasn’t doing well and

then sometimes did a little bit better. He really took off when he came to my side. I give them

instructions and give them leeway to use common sense. He took to that and really seemed to

think it was important. He took ownership – saw it as his job.

He started caring about the condition of yard. He would rearrange it to make things easier to find

and to make more space for incoming loads and things like that. I thought he was improving

quite a bit in his job.

He would come in and ask me, you know -- What do you think of me doing this? What about

this? -- help us out and stuff like that. I noticed the yard was getting a little neater when he was

trying to change things up.

Over time Perfect had to give AB less and less direction and didn’t have to worry about

him as much in the yard as previously. When Perfect last saw AB on the forklift he was

doing well. AB was attacking some of the more difficult loads that came through the

gate.

One time he told me what was keeping him sane was that he could come to work and be on his

forklift.

In terms of frequency of contact with AB, Perfect said:

Daily. Basically tailboard meetings in the morning and he would be in the yard and we would

discuss loads throughout the day -- where we were going to store stuff, methods of taking off,

whether or not he needed assistance. After he did a load he would bring paperwork in and talk

about the count or any damage.

Perfect gave AB instructions every day and AB followed the instructions. They got on

fairly well and had the occasional small disagreement. Perfect tried to treat AB with

respect and to give him the opportunity to make decisions on his own. When Perfect

last worked with AB, AB was assigned to work with Perfect and Perfect assigned him to

work in the outside forklift. He thinks they did that for about three years.

When asked about AB’s personality, Perfect said:

Well, he can be a little angry sometimes and sometimes he was down you know. He confided in

me at one time he was having depression, and I could tell some days. He was the sole man in

the yard and a lot of material was coming in.

Perfect said AB’s voice was gruff and loud and that you certainly know he is in the

room. AB is outspoken. He spoke up in meetings and voiced his opinion on things.

Perfect never personally saw AB threaten anyone and he was not scared to work with

AB.

In February of 2016, the storekeepers reported to Perfect and Perfect reported to

15

Caswell who reported to Debruyne.

Perfect did not know AB socially. Perfect made a point not to socialize with the staff. He

wanted to avoid situations where he was thought to favor someone because of

friendship.

When asked about AB’s interactions with Caswell, Perfect said:

[AB] was outspoken. …At a lot of our bench meetings, he wasn’t afraid to put an opinion forward.

Most of times, it would turn into argument of the situation at those kinds of meetings plus there

were other incidents in the past that just happened. He was outspoken and not afraid to voice his

opinion on things.

Perfect found Caswell to be a little stern and by the book and not very flexible – follow

the rules sort of thing.

We would have bench meetings once a month or whatever when Mark would get together.

Some people voiced displeasure with things and his response was that if you don’t like it you

know where the door is. That was a statement totally against what SaskPower preaches. We try

to get people engaged.

…SaskPower was always trying to get engagement going. We had a real morale problem in the

whole corporation and they were always trying to get employees engaged in the job and bring

morale up. A lot had open door policies – safe zones for safety orientation – very open type of

thing they were trying to put into place. People were to be free to voice opinions without threat of

retaliation hanging over their head.

I was at a bench meeting one time and Mark was bringing up concerns from the field about

shipment of material that didn’t arrive in very good condition. He was more or less putting the

blame on our men for loading it poorly and packing it poorly. I spoke up in defence of our people,

and I said that material was notorious for arriving from the manufacturer in disarray. We had

problems getting it off the truck ourselves. I brought this up that it wasn’t necessarily 100 per

cent our guys’ fault. He got upset with me. I don’t know why and I got into an argument of some

sort. It ended up with him asking me to leave the meeting.

The meeting continued and after the meeting Caswell came over and apologized to

Perfect and they made their peace. Caswell did not discipline Perfect for his behavior

at that meeting and there was no further mention of it at all.

When SaskPower hired Caswell, Perfect:

…found it unusual he was brought in from outside. We had people qualified for the job. Some

were disappointed when they didn’t get it. I said it was a little strange he was from outside the

corporation. Talking with Mark, just the two of us, he said he was brought in to take care of some

problems. I don’t remember the exact words. Basically that I knew we had some problems with

staff and different things like that, but otherwise the warehouse was running extremely smoothly

considering the circumstances of workload. I assumed he was talking about personnel.

Caswell didn’t say what problems he needed to address or which people he needed to

address. Perfect felt it was unnecessary to have someone come in to take care of

problems within a department in SaskPower. It wasn’t the usual hiring practice that

Perfect saw. Most positions were filled internally.

Before Caswell came the morale was:

Not very good. It was up and down – more down than up. Nobody was really too happy working.

A lot of people were very unhappy.

16

After Caswell came:

…it hit rock bottom by the time I left. People who never mentioned it before were coming into the

office and talking about how unhappy they were and how situations were handled and different

things.

Perfect found that when morale was low, it was difficult to get cooperation from the

employees he had to supervise.

My style – I treated everyone the same – I didn’t favor anyone. I treated them with respect and

gave them responsibility and kept tabs on them -- but I gave them responsibility so they felt they

were contributing and I was willing to listen to their concerns.

…I always ended work observations with the end of work – the end of a tough day, I would tell

them they did a hell of a good job that day. I was always making sure they knew their efforts

were appreciated.

Perfect had nine different managers over the years he worked in Central Stores. The

last four were Rick Harnish, Chris Burgess, Joel Flory and Mark Caswell.

Joel and Chris were more along the lines of what SaskPower preached. They were open and

asking for opinions and that kind of thing. They sort of left the day to day operations in the

warehouse up to the three supervisors. They didn’t really interfere a heck of a lot.

Harnish was very different – at times a micromanager and other times didn’t pay any attention to

what was going on. You had to get used to his style because he said no to anything you asked

for and so you had to know how to work around that to get what you wanted and make it seem

like his idea. He was a procrastinator. He would put off problems thinking either it would go away

on its own or solve themselves.

At one time AB told Perfect that AB had been accused of using marijuana in the yard.

Perfect was upset this hadn’t been brought to his attention immediately when it

happened. If AB was smoking in the yard, Perfect should have been informed

immediately to make sure there was no impaired operator out there. AB could have

killed or hurt someone.

It was apparently reported in the morning and I wasn’t told about it until late in day by the

accused himself. If something had happened in that time, I would have been guy with his ass on

the line.

It seemed to me it should have been handled immediately. [AB] was not called in until late in the

day and I understand during that time – people had been called into a meeting with Mark and

whoever he was meeting with.

Perfect never smelled marijuana on AB. He didn’t think it was a breach of

confidentiality for AB to tell him about the accusation because the accusation was

about AB and he was saying he was falsely accused.

In cross-examination:

 Perfect confirmed that when AB was terminated, Perfect had two guys in receiving,

Valley and AB. Valley was efficient in everything in Perfect’s area. He was one of

the best forklift operators.

 Perfect agreed 2015 – 2016 was a busy time. They were working overtime on

Saturdays in shipping.

 Perfect said he got along fairly well with AB. When asked if he recalled telling

17

Burgess that sometimes it was easier to work around AB, Perfect said:

I don’t recall telling him that. I know in the earlier days, it was easier. Everybody was the same

way. It was easier to work around him, but not towards the end. I only had two guys, so I had to

work with him in 2015/2016. I was not avoiding him at all. I didn’t avoid him. He worked in other

areas other times. You had to handle things with kid gloves. He would get angry and upset. …It

was mostly just argumentative. Nothing really – I don’t know how to put it. A little bit challenging.

He respected me and I respected him. I don’t know how to put it. There was nothing that was

interfering with getting the job done.

 Perfect confirmed that Valley began working in outside receiving soon after AB went

on leave and that Perfect was aware Valley is still working in outside receiving

today. Valley moved into the position and carried out his duties without complaint.

 Counsel asked Perfect when the meeting took place when Caswell said, “If you

don’t like it, you know where the door is”, Perfect said:

I don’t know. It could have been anytime in the last couple years. It wasn’t just one time. When I

talked about morale being in the toilet, he said -- these guys know where the door is -- and it was

a response several times.

 Perfect said an “us versus them” mentality existed and it got worse when Caswell

arrived. The general thing in the whole corporation was to get employees engaged

in the workplace, and Perfect thought they were going in the opposite direction.

 Counsel suggested to Perfect that at the meeting where Caswell asked Perfect to

leave, they were discussing a shipment to Swift Current that fell off a truck. Perfect

said:

I don’t recall where the shipment was going. I don’t recall it fell off truck. The statement was

made it was not properly loaded and in disarray when it got there.

 Perfect confirmed that when Caswell came, he started to manage performance and

hold people accountable. Perfect didn’t think Caswell handled things properly.

 Counsel showed Perfect Chris Burgess’ October 23, 2012 email in which Burgess

said next on his list was to start managing bad behaviour and work performance

better. Perfect said:

I don’t recall this at all. No, I can’t remember that.

 Perfect acknowledged he has no personal knowledge about the issue around

marijuana. He only knows what AB communicated to him.

August 22, 2014

Mark

Caswell

Caswell encountered his first issue with AB on August 22 2014. About 10:30 a.m.,

another manager reported that they thought they had smelled marijuana smoke from

where AB was working. This was the first time Caswell had addressed a challenge like

that. AB was possibly under the influence of marijuana in a safety sensitive

environment.

Caswell contacted Human Resources to figure out how to proceed, either to verify it

was true or not. Caswell met with Blair Debruyne, Curtis Lizee from the Union and

Sherry Francis from Human Resources. It was an investigation to determine the validity

of the concern. Caswell did not accuse AB of smoking marijuana. They were trying to

18

determine if he had. AB said he had not. He was very adamant he had not. AB was

never disciplined in connection with that incident.

At the meeting AB was loud. AB kept saying, “I can’t believe you guys are doing this to

me. Nobody has had these concerns before. You are picking on me and harassing me.

What the hell is this for?” AB was extremely angry and agitated.

AB was volatile and unpredictable. He would go from calm to a rage in the space of a

second. In connection with the marijuana inquiry, he was angry. His voice was raised

and he was shaking.

After this incident, Caswell never raised that issue with AB again. AB himself raised it

to Caswell in future events. He brought up that incident repeatedly to claim SaskPower

was out to get him. He referred to that in subsequent incidents. He didn’t keep it

confidential.

In cross-examination:

 Caswell confirmed that because, after investigation, there were insufficient grounds

to discipline AB for marijuana use, he did not discipline AB on that occasion.

Because of confidentiality, he did not mention the incident to the supervisor, John

Perfect.

Later in September, 2014

Mark

Caswell

There was an investigation with respect to some wildly inappropriate graffiti. It was a

swim suit calendar in one of the other employee’s lockers. There was a little cartoon

bubble in felt marker that said, “So I smell weed?” and there was a drawing of a penis

in the model’s mouth. A little bit of shredded paper or cardboard had been taped to the

pubic area of the model and it had the effect of looking like public hair. The model had

more than a passing resemblance to the person who had initially raised the concern

about smelling pot.

Caswell interviewed the entire work group including every Storekeeper at Central

Stores. AB displayed his volatility. He was angry, belligerent, profane and disrespectful.

He felt he was being accused of putting up the calendar. He said it was unfair that he

would be accused. He hadn’t been accused. The Employer was trying to determine

what happened and who was responsible. AB was not disciplined in connection with

the incident.

Darren Kivisto came forward and admitted he had written on the calendar. The

Employer gave Kivisto a five day Decision Making Leave (“DML”). [Later the witness

confirmed that records show it was a one day DML], essentially a suspension, to give

him time to consider whether he wanted to return to Sask Power under conditions

which were to adhere to respectful workplace conduct and to conduct himself in a

professional manner.

There were some coaching conversations with some of the other staff. Don Valley had

confessed to having taped the public hair on the calendar. He was remorseful and

apologetic and received a formal coaching conversation.

Barry Loveday also received formal coaching. The calendar was in his locker and it

19

was his calendar and he allowed it to continue to be displayed after it was altered.

Caswell also had discussions with the entire group in early October where he laid out

expectations of what is a respectful workplace.

In cross-examination:

 Caswell confirmed that he did not discipline AB for his behaviour during the

investigation of the calendar incident. He had an informal coaching discussion with

AB about respectful communication. It was a coaching conversation about AB’s

conduct and his temper. Coaching sessions are not disciplinary and do not need a

Union rep present.

Jillian

Orb

Shortly after Caswell came to SaskPower, there was an incident involving a calendar

picture of woman in a bikini with a penis drawn pointing into the mouth and cardboard

taped to the groin area. There was a word bubble with the words “Do I smell weed?” in

it.

Caswell brought this issue to Orb’s attention. It was her first experience with AB. Orb

interviewed a total of about 16 people including employees from Unifor, IBEW and

management.

During the interview with AB, he was argumentative. He was confrontational in his body

language, raising his voice. He was not happy they were even asking him about this.

He claimed management was out to get him and asked why they can’t just leave him

alone. He denied he knew who did it or what it was about.

AB was not disciplined in this instance. Others were responsible for the graffiti. Each

received some discipline. One of them received a coaching session. This is an informal

coaching conversation without a shop steward or HR person and only if they do it again

are they disciplined. The coaching session is intended to correct behaviour prior to

escalation.

Since then, Caswell and Orb have done several investigations together.

In cross-examination:

 When counsel suggested AB was the first person, or at least the first in-scope

person, of 16 people interviewed in the investigation of the calendar incident, Orb

said she did not recall the order of the interviews.

 When counsel suggested to Orb that SaskPower threatened that criminal charges

could result, Orb said, “We wouldn’t threaten anyone, ever.” She does not

remember everything that was said at the meeting, but she does not recall anything

about criminal charges and she doesn’t remember anything like that from her notes.

 Orb agreed she remembered that AB showed her a video on his phone and said he

was being harassed because of the words, “I smoke weed” written on the calendar.

AB didn’t deny knowledge of the calendar.

September 18, 2014

Curtis

Lizee

Lizee attended interviews with Union members about an incident involving doodles

defacing a Sports Illustrated calendar. The calendar was on somebody’s locker and

20

people in Central Stores were prone to write on the calendar and make doodles on it.

Lizee acted as shop steward when members were interviewed. He took notes. He

believes management interviewed the entire work group.

There was a meeting with a Union member, Sieng Lam, that began, according to

Lizee’s notes, at 12:11 p.m.. Those in attendance included Lizee, Lam, Debruyne,

Caswell and Orb. During that meeting, Debruyne said the calendar incident was a

Code of Conduct and Respectful Workplace Policy violation. Debruyne said it was

sexual harassment and a Criminal Code violation. He said if they didn’t get closure

through their own investigation, they could go to a third party investigation that could

involve the RCMP.

Debruyne said Lam’s locker was close to the calendar locker and alleged that Lam

likely had seen something and that Lam owns part of the responsibility for the calendar

if he failed to report to management or take some action to have the harassing

calendar dealt with. Management didn’t directly accuse Lam of drawing on the calendar

but they suggested he was involved because he could have done something about the

calendar and he didn’t take any action. Debruyne stressed this was a respectful

workplace issue in the context that everybody was responsible for making a safe

workplace.

As far as Lizee was concerned, management interviewed Lam just like everybody else

who was possibly part of the calendar issue. Lizee does not recall Lam saying he felt

bullied or harassed by AB. There is nothing in Lizee’s notes of the meeting to suggest

Lam said anything about being bullied. If Lam had said something, Lizee would have

written it down because there would have been an onus on the company to investigate

because of their workplace policy. The Union is obligated to make sure the company

looks into allegations of respectful workplace violation. Lizee is not aware of

SaskPower investigating any allegations by Lam. The notes say the meeting with Lam

concluded at 12:24 pm.

The first person management interviewed on September 18 was AB. Lizee’s notes say

the meeting started at 9:09 am. The meeting started out “normal” and then the tone of

management was “like talking to an eight year old”, talking down to AB.

It felt like Law and Order. They thought they knew who had done it and they thought AB had

information. They didn’t take into account that AB felt he was harassed by the calendar. At no

point did they seem to entertain the idea that this was directed at AB. He was always viewed as

a perpetrator and not a possible victim. AB said he has no idea why he is here.

AB had a video on his phone which he had made to show his wife some of the ribbing

he gets in the workplace. He took out the video to show those present at the meeting

what he has to put up with at work. Management “rebuked” what AB said and tried to

ascertain if AB had done it or if he knew who had done the writing on the calendar.

Lizee felt quite a few of the overall interviews were conversational in tone and more

pleasant. Certain interviews were more aggressive, more accusatory, alleging that the

person knew some information about the calendar. Management was less aggressive,

more conversational and made less of an accusation in the Lam interview than in AB’s

interview. Lam’s interview was like a conversation you would have in the hallway. With

AB, management demonstrated a level of hostility and maybe distrust.

21

The volume of AB’s voice was higher than regular conversation. At first, it was fairly

calm, but once it escalated everybody had increased volume.

AB admitted he knew about the calendar. One of the first things out of AB’s mouth was

his claim that he was being harassed by what was written on the calendar.

Lizee’s notes of the meeting say that at one point Orb said, “This can go to criminal

charges.” Lizee remembers Orb saying this. The tone of the statement was like dealing

with eight year old that:

If you don’t give the information I need, this is the possible outcome. It was almost like bartering

or a threatened barter. If you tell me what you know about the calendar this will be solved here

and if you don’t we might take this to the RCMP.

AB categorically denied writing the bubble on the calendar. Lizee’s notes say the

meeting ended at 9:45 am.

Lizee described AB in the meeting as being agitated.

It turned out Darrin Kivisto was responsible for the calendar incident. Kivisto received a

one day Decision Making Leave. The Employer did not discipline AB for anything to do

with the calendar incident or with respect to AB’s conduct at the interview.

In cross-examination:

 Lizee confirmed that he is familiar with the Employer’s Respectful Workplace Policy,

and that he has an obligation to report incidents if he feels someone is being

harassed. In the September 18 meeting with management, Lizee did not raise any

issue with management to suggest management was harassing AB.

 Lizee acknowledged that during the meeting AB was agitated and loud and that AB

used an accusing tone and was confrontational within the first five minutes. Lizee

acknowledged that AB expressed his indignation several times during the meeting

and that he made a gesture across the table at Orb.

 Lizee confirmed that when Orb said the situation could involve criminal charges, AB

said he thought this meeting was pretty funny. He acknowledged that management

brought up the notion of criminal charges in meetings with others.

 Lizee acknowledged that management did not do any actual bartering with AB.

 When asked if he recalled an interview with another employee, Ken Fink, where

Fink said other employees are scared of AB, Lizee said he did not recall that off the

top of his head.

 Lizee acknowledged that at the time the Decision Making Leave was the last step in

SaskPower’s discipline process.

October 17, 2014

Mark

Caswell

Shortly after the calendar incident, someone reported to Debruyne that there was a

picture inside AB’s locker that was “a kind of racial thing “ that was targeted at another

member of the work group and that it was inappropriate.

Caswell, Debruyne, Lizee and Jillian Orb from Human Resources met with AB and he

confessed and admitted to the picture in his locker. AB claimed the Employer was out

22

to get him. “This was being done to him.” He didn’t accept responsibility even though

he admitted the picture had been there. He minimized and failed to understand how

serious it was. AB didn’t understand the importance of what was done or recognize the

impact on co-workers.

At the meeting, AB was loud and belligerent. He claimed everyone was out to get him.

In deciding discipline, Caswell relies heavily on Human Resources to provide advice

and he follows their advice. Caswell imposed a one day DML with respect to this

incident.

October 17, 2014

Jillian

Orb

About a month after the calendar incident, maybe less, sometime in October, an

employee confidentially took a picture of a picture that was in AB’s locker and

submitted it to Blair Debruyne who felt the picture was inappropriate and racist and so

he escalated it. Debruyne and Caswell reached out to Orb to investigate.

Orb began with interviewing AB. She didn’t need to interview anyone else because AB

acknowledged he did have the picture in his locker. In the interview, AB was

argumentative and confrontational and used a lot of profanity. He used the “F” word

continuously, saying things like, “I’m a fucking grown man.” “Why are you even talking

to me about this? What’s the big deal?”

The picture is a picture of an oriental man and there is a word bubble and it says

something like, “Me don’t know” or “Me don’t do. Me know nothing.” In the background

there was something blown up and on fire, a building remnant and then there was an

arrow to a building. It said, “Greg’s office” as if it was depicting Greg Simpson’s office

and an Asian employee. During the calendar investigation, an Asian employee had

said he felt intimated, harassed and bullied by AB. That employee was aware the

picture was in the locker.

At that time SaskPower issued AB a Decision Making Leave (“DML”) which was the

final step in SaskPower’s discipline policy at that time. The decision was made by Orb’s

superior, Sherry Francis, along with Caswell, Debruyne and others. Orb advised the

Director about the decision. Any other employee in the same circumstances would

receive the same discipline.

On October 17, 2015, Caswell advised AB he was receiving a DML. The DML was one

day with pay. At the meeting they outlined the key things to which AB needed to

commit to change his behaviour. The expected performance communicated makes it

very clear what is expected. Orb and Caswell met with AB along with Curtis Lizee and

Blair Debruyne. Caswell reviewed the desired performance with AB. He read through

the items and made sure AB had no questions.

They gave AB the form entitled Employee Information for Decision Making Leave. In

the form given to AB, the Basic Issue/Overall Concern is stated to be:

[AB] betrayed his employer’s trust, violating company policy, and acting in a disrespectful

manner which is unacceptable.

Under the heading Actual Performance it says:

[AB] posted a disrespectful and inappropriate picture in his locker directed at an individual. [AB]

23

acknowledged that he committed this act when questioned about it.

The Desired Performance is listed in the memo and it largely mirrors what appears in

an October 22, 2015 letter Caswell delivered to AB when AB came back from the DML.

The form goes on to include:

Impact:

a. Trust, professionalism and respect in the workplace or compromise when an employee

chooses to violate SaskPower policies and procedures.

Consequences:

b. Failure to correct or unacceptable conduct and failure to meet the expectations discussed in

this meeting may lead to your dismissal. [emphasis in original]

The availability of EFAP has been discussed.

You are required to meet with me on Wednesday, October 22, 2014 at 7 am at Central Stores.

At this meeting you will advise whether you are either:



Resigning (as you have decided that SaskPower is not the place you want to work),

or;



Immediately correcting the problem outlined to you in making a total commitment to

good performance in every aspect of the job including but not limited to adhering to

company acts, policies, procedures and standards (See Desired Performance

Section).

We are providing you with a paid day off to consider your decision. We hope that you decide to

stay with the corporation with the understanding that a subsequent problem in any of the three

(3) categories that require disciplinary action (i.e. Conduct, Attendance and Performance) will

result in the termination of your employment. [emphasis in original]

The Decision Making Leave remains active for two (2) years following the date on the related

letter.

When an employee receives a DML, the employee decides if they can commit to

displaying what is set out in the desired performance section. If they choose not to,

then effectively they are choosing to leave SaskPower. The desired performance was

communicated to AB at the time.

AB was very negative, argumentative, and belligerent, using the “F” word a lot. AB was

angry. He was tapping on the table, his face was red face, and he raised his voice. His

behavior was intimidating. He was displaying all those same behaviors to his union rep.

AB accused the Union rep of not doing anything, of not doing his job. AB said, “You

suck,” and he told Lizee he was an embarrassment. The meeting took about 20

minutes.

October 22, 2014

Mark

Caswell

Human Resources prepared a letter to AB. Caswell accepted it and signed it. The

same group of people met and Caswell presented the letter. The letter reads:

This memo confirms our discussion of October 17, 2014 regarding your unacceptable conduct

that led to the decision to direct you to take a one (1) day Decision Making Leave from

SaskPower on October 21, 2014.

It is the responsibility and accountability of management to ensure their reporting employees are

safely, competently and respectfully performing their duties. Where employees are not

24

performing safely, competently and respectfully, management is required to take corrective

action.

Your unacceptable conduct put into serious question the trust relationship that is required

between an employee and employer to maintain employment. Your conduct is unacceptable.

You must show an immediate and lasting correction to your conduct.

The situation that you have created is of such a serious nature that you are placed on a one (1)

day Decision Making Leave. The Decision Making Leave is the final step in SaskPower’s

discipline procedure.

In choosing to continue your employment with SaskPower we expect you to make the following

improvements to your performance immediately:

1. Competently perform all duties and responsibilities of the Storekeeper, Material Handler,

2. Conduct yourself in a respectful manner when interacting with any SaskPower employee,

customers and other parties in the conduct of your duties, modelling positive behaviour at all

times and;

3. Review the attached Code of Conduct Policy and the Respectful Workplace Policy in detail

and raise any questions with me.

4. Successfully complete the Respectful Workplace training module on or before November 15,

2014.

5. Successfully complete the Code of Conduct training module on or before November 15,

2014.

6. Adhere to SaskPower’s Policies and Standards of Conduct at all times while on SaskPower

property and while performing work on behalf of SaskPower.

7. Refrain from engaging in negative and disrespectful behaviours.

8. Perform all assigned work in a safe and efficient manner at the direction of your supervisor.

9. If you have any questions regarding your job or acts, policies, standards, procedures,

processes etc., you are to ask me.

You advised us upon return from your Decision Making Leave that you wish to remain an

employee of SaskPower. As a result you indicated to us that you agree to comply with the

expectations noted in this memo, including following all of Sask Power’s policies, rules and

procedures and perform every aspect of your job in a professional and acceptable manner.

We have reminded you of SaskPower’s Employee Family Assistance Plan (EFAP) in our

previous discussion (and provided you with contact information) and again encourage you to

access this program if you believe it will assist you in complying with the all the expectations

outlined in this letter.

I’m counting on you to solve this problem and perform effectively in every area of your job.

Failure to meet the expectations discussed with you at our meeting of today, will lead to

dismissal.

In the discussion on October 22, Caswell tried to reinforce with AB what respectful

workplace meant and the impact those activities have on other members. Caswell then

explained to AB that the consequences of not following direction would be severe up to

termination if he failed to follow through with what was in the letter. Caswell reviewed

the conditions with AB. AB needed refresher training. Caswell walked through the letter

step by step with AB.

AB didn’t make any inquiries after the meeting. The Union filed a grievance with

respect to this discipline, but it was withdrawn on November 18, 2015.

25

Jillian

Orb

On October 22, the same people met with AB. At that time Caswell presented AB with

the letter confirming the DML. AB indicated his desire to remain at SaskPower. Caswell

reviewed the letter with AB.

The Union grieved the DML, but it withdrew the grievance at Step 3. The DML

remained active on AB’s file for 24 months and was active at the time of his

termination.

In cross-examination:

 Orb confirmed that during the calendar investigation the Asian worker said he felt

bullied by AB and that he was scared to say anything for fear of being ostracised.

Curtis

Lizee

In cross-examination:

 Lizee acknowledged that at the time AB received the Decision Making Leave, the

Decision Making Leave was still the last step in SaskPower’s discipline process.

 When asked if he recalled AB attacking him at the meeting when management

imposed the Decision Making Leave, Lizee said:

No, um, sure, yes, kind of.

 When asked if AB told him he didn’t want to hear from him and said “You suck”,

Lizee said:

He said I didn’t do my job very well. …I don’t recall those exact words.

Mark

When Debruyne told Caswell there were concerns with employees, Debruyne didn’t

Caswell

say who or how many, just that there were concerns.

As time went on, Caswell identified performance concerns or behavioural concerns

with a number of individuals. AB, Darren Kivisto, Dave Gaitens and Barry Loveday

were among them, plus there were some minor performance concerns with others.

Caswell tried to create consistency in the workplace. He tried to create clear

expectations with respect to the company’s standard in workplace and to communicate

it and model the standards and reinforce them when someone was not measuring up.

Caswell disciplined other employees for performance, behavior and attitude issues

including insubordination and disrespectful communications.

Caswell set expectations with his work group that they needed to comply with the

SaskPower Code of Conduct and communicated what the culture in SaskPower

dictated for a respectful workplace. It was obvious in the work group in general that

there had not been consistency in the past and they hadn’t been held accountable.

Employees perceived Caswell’s approach as a change.

The majority of the work group honoured the confidentiality of the discipline process.

They didn’t talk about it with others. They maintained respectful communications when

disciplinary discussions happened. Nobody lost their temper during conversations. AB

was different than others. There was a clear difference in AB’s behaviour.

Kivisto had a bit of a temper, was prone to negativity and stirred up negativity. Through

the calendar investigation, Caswell noted that Kivisto and AB fed off each other.

However, Caswell observed that while Kivisto was agitated to start with, he was not

26

nearly as aggressive as AB. Kivisto wasn’t impressed with idea of authority and being

told he had to behave in a particular way. Since his DML, however, Kivisto is a

changed individual. He is a model employee. The change was immediate and has

been sustained. Kivisto is respectful in his communications. If something concerns

Kivisto, he seeks help or feedback rather than fly off the handle. He approaches

Caswell with problems. There has been a complete180 degree turn, and he hasn’t lost

his temper once.

Caswell worked at elevating the supervisors to a truly supervisory role. When Caswell

first started, very little supervision was taking place. Caswell did some computer work

in the work group in terms of tracking material movements. He dealt with lots of phone

things. The supervisors weren’t monitoring to ensure tasks were complete and didn’t

always know where employees were or what task they were on. Supervisors weren’t

making sure people wore their hard hats.

Caswell set out to improve that basic level of supervision. Initially there was resistance

to it. Perfect was not necessarily interested in changing his approach. Things have

come a long way and Caswell has a lot of confidence in his supervisor team. They are

light years from where they started.

Caswell had conversations with AB in the yard and with AB on the forklift. He doesn’t

remember everything they stopped to talk about. Caswell remembers telling AB he was

the next generation of supervisor and leader in the company and it was important AB’s

behavior reflect that because he was influencing the other employees and his attitude

had impact on others.

Caswell remembers telling AB his behavior was not going to end well and it would

reflect badly on him, and the only person who controls what you do is you. They had a

good conversation and at the time Caswell felt AB understood it and in that moment

that AB accepted what Caswell said. Caswell remembers AB saying, “Ya, I know boss,

I know, but it’s just hard. I get carried away with these things.” The conversation was

respectful.

Caswell remembers another conversation on the shipping dock. Caswell approached

AB, and tried to explain that changes that were being made were for the benefit

everyone. Caswell said, “I’m not trying to be an asshole. These are changes that are

required for everybody.”

Anytime anything was the least bit contentious, AB didn’t take it well. He was always

defensive displaying extreme anger and using profanity. “Why are you fucking doing

this to me? This is fucking harassment.” Caswell heard statements like that come out of

AB’s mouth numerous times. That needed to change and Caswell told AB it needed to

change. Caswell does not recall the dates of these conversations but they occurred

after the DML. Caswell had three or four conversations like that with AB.

On one occasion, AB got into an argument with a truck driver. Caswell didn’t see the

incident but the supervisor reported it to him. Tempers had flared. Caswell stepped in

to address it with AB and told the specialist in the logistics dispatch team to address it

with the contractor. Caswell spoke to AB of the need to be professional and tolerant.

Caswell said this is not behaviour conducive to respectful workplace and for the next

27

leaders of company it isn’t appropriate and AB needed to change. At the time AB

expressed that he understood it.

In cross-examination:

 Caswell acknowledged that the Union withdrew the Grievance with respect to the

DML on a “without prejudice and non-precedent setting basis”, and that the

discipline stands.

 Caswell acknowledged that on occasion employees in Central Stores use swear

words, including Caswell himself who agreed he has used the word “asshole” on

occasion. When asked to agree there is a difference between being sworn at and

someone swearing to express frustration or anger, Caswell said, “Not necessarily.”

It would depend on the scenario and the context. Caswell agreed someone could

swear in your presence without swearing at you.

 Caswell agreed his relationship with AB wasn’t all bad, that at times AB could even

be charming. AB didn’t always use profanity and go into a rage.

 Caswell agreed that he sometimes becomes angry. He acknowledged an incident

where he ordered John Perfect to leave a meeting. Perfect was trying to disrupt the

meeting and Caswell needed him to leave. Caswell was angry but he didn’t “lose

his cool” or raise his voice. After the incident he apologized to Perfect to try to re-

engage him and get a professional level of communication. Caswell did not

discipline Perfect for his behaviour at that meeting.

In re-examination:

 Caswell confirmed that the incident involving Perfect occurred at a meeting around

the time of the calendar incident when the workers were unsettled and they were

discussing go-forward strategies to get the work group back on track.

Uncharacteristically, Perfect became quite heated, raised his voice and wouldn’t let

the meeting proceed. Perfect kept interjecting and because of this Caswell asked

Perfect to leave the meeting. Caswell had a coaching session with Perfect after that

and Caswell never saw that behaviour from Perfect again.

February 3, 2015

Chris

Burgess

After Mark Caswell came to Central Stores, Burgess started to sub in for Caswell if he

was away on holidays or something like that. On February 3, 2015, while Burgess was

subbing for Caswell, he sent an email to all employees telling them he had noticed

lunch breaks and coffee breaks were extending beyond the allotted time. Coffee breaks

were going to sometimes 30 to 40 minutes and the issue needed to be addressed.

There were also some truancy issues where people would show up a little bit late or

they would go for coffee early and leave a bit late.

As manager, Burgess went around to the in scope supervisors to discuss the issue and

let them know he was about to address it. They agreed it was time because breaks

were extending too far. Burgess said if someone was truant, he would discuss it with

them.

Burgess went to each individual to let them know the coffee breaks were extending

28

beyond an acceptable time. Everybody responded positively. AB wasn’t there at that

time.

February 5, 2015

Chris

Cindy Knudsen, Manager at Inventory Control at the time, sent Burgess an email:

Burgess

Something has to be seriously done about [AB’s] behaviour. He just walked up the stairs talking

very loudly and “oh we better not go to coffee too early or we will get policed back down. This is

pathetic. Oh no Sieng came two minutes early. We’re going to get in trouble. Where is the code

of conduct book; everyone should be held to the code of conduct not just us” When Lois walks in

to the lunch room he says “good, You are here now we won’t get in trouble”. I am on the phone

right now so cannot stop what I am doing, and quite frankly I still don’t feel comfortable

approaching [AB] and all as he usually purveys very confrontational body language and given his

size vs. mine I feel very threatened.

Knudsen followed with a second email within a couple minutes:

By the way, it is very obvious he is saying this like he is to ensure I hear.

Burgess was in Building 2 and went over to Building 3. AB was making a ruckus

outside Knudsen’s office. As soon a Burgess saw AB, he could see that AB was very

agitated. AB was shaking and his face was red and he was very aggressive in his

demeanor.

Burgess asked AB to go to the conference room so they could discuss the issues. AB

was very volatile and was swearing. He said things like – fuck this – what is this bullshit

– you’re here for a week and you’re sending out fucking emails like this. AB was very

aggressive, shaking and red. He made a forward aggressive stance at the table.

Burgess found this to be very uncomfortable and very intimidating.

This was not the first time Burgess had had an interaction with AB like this. Burgess

had learned that a way that he could bring AB into a little bit of a calmer state was to

remind AB that it was not good for his blood pressure to be this upset.

AB was angry because Burgess had sent the email regarding the coffee breaks. He

was angry because Burgess had copied Caswell on the email. He was worried and

angry because he thought Caswell was going to start “micromanaging” the coffee

breaks.

AB is very smart. He had a lot of knowledge for being able to drive equipment and he

had a lot of potential to be a leader at Central Stores if he could control his temper.

Burgess tried to convey that to AB. AB got upset when Burgess said this and said he

didn’t believe Burgess, that Trevor Blaine is the only one who gets opportunities. AB

stormed out.

When Caswell came back to work, Burgess briefed him on what had happened. The

situation regarding breaks improved.

When Burgess talked to Perfect about the coffee break issue, Perfect said sometimes it

was easier to leave things alone or do the work yourself rather than deal with AB

because he gets upset.

In cross-examination:

 Burgess confirmed that he was not a witness to the ruckus Knudsen reported to him

29

in the email.

 Burgess confirmed that in 2015 he and Knudsen were in a personal, romantic

relationship.

 Burgess confirmed that the encounter with AB on February 5, 2015 was as he

described it in his email and that when AB left that meeting AB was calm and that

AB was not disciplined for his behaviour on this occasion.

October 19, 2015

Chris

Burgess had no interactions with AB between February and October 2015.

Burgess

On October 19, Burgess arrived to work. AB followed Burgess into the yard. It was 7:08

a.m. on Burgess’s phone. Burgess texted Caswell to say AB was late.

AB was arriving eight minutes late. This was more of the same problem between coffee

breaks and being late, something Caswell was dealing with on an ongoing basis.

Burgess didn’t see anyone else coming in late. If they had come in late, Burgess would

have reported it.

Burgess did not speak to AB at the time. Caswell was there and it was Caswell’s

responsibility to deal with the issue.

Around ten o’clock that morning, Burgess was in a meeting with Cindy Knudsen.

Suddenly AB was outside Knudsen’s door speaking very loudly, passive aggressively,

using his tone to convey a meaning that the words themselves didn’t convey. AB was

displaying anger about the coffee breaks, using a facetious tone:

Come on you guys - you have to come right now – don’t want to be late.

Burgess thought AB was making a point to Burgess and Knudsen by letting them know

Caswell had talked to AB about being late. Burgess found out later that Caswell hadn’t

even talked to AB yet at this point. This was actually a separate incident. It was just

part of AB’s ongoing behaviour.

Burgess thought the comments were directed at him for calling AB out for being late. It

felt intimidating and like bullying. Burgess felt it was to give a message of discontent to

a manager for being held accountable. Burgess felt if someone is directly doing bad

performance or attacking someone you can directly address that but when it is passive

aggressive it is more difficult.

Burgess set up a meeting with HR to ask for advice on how to deal with situations like

AB where the employee is passive aggressive. Burgess wanted to get some help with

how Burgess as a manager could address that. The meeting took place within a month

or two. Those present included Louise Mallett, Jillian Orb, Cindy Knudsen and Burgess.

They went over tactics to address that type of behaviour, including strategies using

open ended questions, just calling out the behaviour and asking -- Why are you using

that tone? Do you find that acceptable? Why are you using that kind of language?

These questions are intended to make the person justify what it is what they are doing.

That kind of conduct is workplace bullying and it is a form of inappropriate behavior.

Central Stores had just gone through so much work to address bad behavior and this

was another piece that needed to be dealt with. Darren Kivisto also had a bad temper.

30

Burgess didn’t treat AB any differently than he treated Kivisto.

Burgess observed Caswell with employees in Central Stores including AB. Caswell

attempted for a very long time to engage AB to be one of the leaders in the warehouse

to the point Burgess had conversations with Caswell to say Caswell was giving AB too

much leash and needed to deal with some of these behaviors. Caswell was always

very fair with AB and did everything he could to engage him.

In cross-examination:

 Burgess confirmed that he wasn’t sure of the exact date of the meeting with Mallett

and the others, but he called the meeting to discuss how to deal with passive

aggressive behaviour. Burgess wanted to understand how to take the first step to

deal with someone like this to have a conversation.

Jillian

Orb

At one point Chris Burgess and Cindy Knudsen reached out to Orb and asked her to

give them some tools and support on how to confront AB’s unwanted behaviour.

Specifically, there had been an incident where AB was outside Knudsen’s office loudly

being facetious and passive aggressive. He said something about -- better not come in

a minute late or you’ll get fired. Burgess contacted Orb for help.

Orb met with Burgess and Knudsen and gave them some tools to help tell them the

behavior is not wanted. She took them through different paths and emphasized that it is

very important to bring these things up to feel safe in the workplace. She spoke to them

about supporting employees with performance management.

October 2015

Mark

AB had a back injury and was off on workers’ compensation for about three weeks. AB

Caswell

returned to the workplace somewhere around October 20 [actual date was October 19].

Caswell got an email that morning from Chris Burgess advising that Burgess had

observed AB report to work late that morning. Caswell didn’t do anything immediately

but felt the duty to follow up because the report came from another manager. Burgess’

email says:

Tried to catch you but you were on a call when I came in. I just wanted to let you know

something I experienced this morning with regards to [AB]. First, as you know he showed up late

this morning and I let you know as soon as I could. I’m assuming you brought it up with him as

my next encounter with him came at break time.

I plan on talking to Jillian as soon as I can get back to get a perspective as to how I can properly

deal with Respectful Workplace and Workplace bullying as well as what is within my ability to

discipline/Coach other managers [sic] employees. These are all things that are fairly vague

areas to me and I feel as though I missed an opportunity this morning because I wasn’t prepared

for how to properly deal with it.

Basically, after coffee [AB] made a big deal going outside Cindy’s door and yelled back at the

coffee room that they have to get back to work ‘right now’ He called a few of the guys and said

‘c’mon you have to come right now, you can’t be late!’ There was a sarcastic angry tone to his

voice.

Mark, the implications were clear that [AB] was angry for being reported showing up late and his

intent was to show disdain, disrespect and even to yell outside Cindy’s office in an attempt to

intimidate either her or me. When I asked her if she ever had that happen before she said ‘he

31

does it all the time now’

Once I am better prepared with where boundaries are drawn when it comes to respectful

workplace and bullying then I will welcome [AB] to challenge me like that again. In the meantime,

I wanted you to know what I had encountered this morning.

It really bothers me that the DML he received last year didn’t seem to teach him anything. He

continues to show bullying behaviour whenever he is held accountable and there must be

something that can be done about that.

Would you like to be part of the meeting I have with Jillian when I set it up?

Caswell responded:

So, I haven’t had the chance to address his tardiness with him yet. I actually wanted to talk to

you about before I did, because if I bring it up with him, you will be ‘outted’. I wanted to make

sure that was ok with you first.

His behaviour this morning could stem from the fact that I’ve been cracking the whip on coffee

breaks in general lately. He was likely just brought up to speed on this today because he’s been

away on WCB for the last 3 weeks. He certainly tends to be more reactionary than thoughtful

when something irritates him, and this is compounded by his general lack of respect for

authority.

In any case, yes, I would like to be part of your meeting with Jillian.

Burgess responded that he was fine with being “outted” and that he would set up the

meeting.

At coffee that same day Cindy Knudsen, manager of Inventory Control at the time, had

made note of AB coming up stairs to the coffee room and while he was on his way up

the stairs she noted he was making comments about being late.

Coffee breaks had started to take a lot longer than the scheduled 15 minutes,

sometimes 35 and 40 minutes. Caswell was trying to stop that and have the employees

observe coffee breaks. He addressed it a few times and Chris Burgess addressed it by

email when Caswell was away on vacation.

Caswell and AB happened to walk out together at lunch. They were alone, so Caswell

took the opportunity to say it had been reported that AB showed up late that morning.

AB lost his temper immediately. AB said:

Tell Chris Burgess to mind his own business and spy on his own fucking guys. I wasn’t even

fucking late. I was here at 7:01. We’re grown fucking men here.

Caswell agreed they were grown men and said that grown men arrive on time for shift.

AB said, “You guys are out to fucking get me and the company is harassing me,” and

he stormed away, got in his truck and spun his tires out of the parking lot. AB was

angry and volatile. He was in a rage and shaking. His face was red and he was unable

to contain his anger. He was yelling at Caswell.

AB did not show up for work the next morning. Caswell tried to contact AB by texting

and calling, but got no response to either.

When Caswell came back from lunch, the admin staff at the front said AB had called in

and said he would be off sick for the rest of the week, that he said, “I am out of here.”

They also reported AB was angry and belligerent and rude. Caswell contacted Kathy

Potts at the Return to Work office. He tried to find AB to direct him to report to work the

32

next morning which AB didn’t want to do. After this, AB was off work until February 17,

2016.

Kathy

Potts

SaskPower has a “P-148” form which is their standard medical form that includes date

last seen, date of next appointment, nature of illness, when can the employee come

back fulltime regular or when can they come back on modified duties including, then, a

list of restrictions.

Anyone away for more than five days has to provide this P-148, but if they have sick

leave they can provide a doctor’s note as long as the doctor’s note has an end date

and lists any restrictions.

Potts’ office handles all the accommodations for SaskPower. Requests usually come

from medical practitioners saying somebody has a restriction. The request may come

from the employee, but SaskPower sends the employee back to the care provider to

get information on restrictions. Accommodation is driven by medical information.

SaskPower usually requires clearly described restrictions. They won’t accept “light

duties”. They ask what does “light duties” mean. If someone said they had to be off

phones, Potts would say what does “off phones” mean and for how long. SaskPower

has temporary accommodations and permanent accommodations and they involve two

very different processes.

For temporary accommodations, Potts’ office goes to the business unit and tells them

what the restrictions are and they find suitable alternate work and then they have to

have an end date when the case is either reviewed again or there is updated medical.

For permanent accommodation, the relevant union is usually involved because

SaskPower has to look at long term solutions where they might have to remove

someone from their job and put them into a different job. The unions are involved when

SaskPower has to change the work.

Potts came to know AB in September 2015 when AB was off on WCB for a back issue.

AB came back from WCB in October and he went off again the next day because of

mental health issues.

The back injury was around September 27 or 28 and AB was cleared to return to work

on October 19 fulltime with no restrictions.

AB reported for work on October 19. AB left work that day and SaskPower requested

medical because they needed to determine whether this was a new claim or part of

WCB. Potts sent AB an email on October 19:

I have been advised you left work this afternoon for medical reasons. Can you please have the

attached form completed in full and return to the RTW Office today to provide medical to support

your absence. We will need to determine if the absence is related to your WCB claim or your file

needs to be adjudicated for a new Plan B request.

Potts attached the benefits application. If the back injury relapsed then they had to go

back to WCB and say they had a relapse of the previous claim. If it was not related to

the WCB claim, AB had to apply for Plan B because he had no available sick leave.

AB did not return to work on October 20. Potts received medical from Dr. O that day

33

taking AB off work at the time.

After that Dr. O sent Potts’ office a series of medical documents, each extending AB’s

sick leave for further periods of time. Potts normally has to request medical, but the

psychiatrist was sending information on a monthly basis so she didn’t have to request

information. Potts never spoke to the doctor.

When Potts got the medical letter on October 20, she called AB to find out what was

going on and asked if he would be willing to consider counselling. AB was really upset

about stuff that happened at work and he was really angry. Potts talked to AB about

trying to find a different way for him to manage his anger so he didn’t get so worked up

about stuff happening at work.

On October 19, AB had been late and there was some question as to how late he was.

AB communicated that there was a difference in view on the time. AB felt he had only

been a minute late. There was some discrepancy that it had been a greater period of

time. Potts suggested to AB that it didn’t matter how late he was, that he needed to find

a different way to respond when someone brought something up to him, that his first

response shouldn’t be anger, that it would be better to have those discussions without

getting angry.

On the phone AB is loud. When he is upset, he talks loud and can come across as

being very angry. He was mad. He resented being challenged and when he is

challenged he gets mad.

When Potts talked to AB in October, AB was unsure he wanted to go the formal

counselling route. Potts gave him some time to think about it and called him in

November after he had seen Dr. O again. Dr. O also recommended counselling, so

Potts made the counselling available to AB at that time.

Homewood Health is SaskPower’s EFAP provider. Potts sent a formal referral to ask

them to work with AB on anger management and to help him better control himself at

work and so not get into trouble. As a formal referral, AB goes for as long as everybody

thinks he needs to go. Under the regular EFAP program, a person can call and the

employer may never know they did because there are no reports. Usually the person

gets only four to six sessions. Potts is not usually involved in that.

The formal process involves mandatory counselling and monitoring of attendance and

compliance. The employee has to attend and has to be making progress in treatment.

Counselling will continue for as long as the parties agree it has to continue. There

could be lots of sessions until everybody agrees counselling can conclude. It is

essentially unlimited EFAP. Potts’ office gets reports on dates of appointment, whether

the person attended and if they are making progress.

In cross-examination:

 Potts confirmed that she does not run the EFAP program. She makes formal

referrals to EFAP, but those are outside the actual program. Otherwise, she refers

people to the website where they can sign up for an account and access the EFAP.

 Potts confirmed that to her knowledge AB voluntarily went to counselling in

November. She used the mandatory process to allow AB to get counselling for as

34

long as he went. If AB had said no, that would not have happened.

 Potts confirmed that if AB’s behaviour continued it could lead to termination. She

offered him the counselling to help him. If he chose not to participate and there

were problems, the consequences would be his.

 Potts confirmed that she got reports of AB’s attendance at counselling. He went

twice in November, three times in December, and three times in January. There

was then one cancelled and then a no-show in January or February. Potts receives

nothing on the results of the counselling, just information on attendance and if the

person is non-compliant with treatment.

 Potts confirmed that for some reason AB didn’t get an email she sent him with the

800 number to call to access the counselling, so she had to have the information re-

sent.

The

The Formal Referral form shows the date referred to be November 13, 2015. The

referral is for [AB]. It says the situation has been discussed with the employee and that

the date of the last discussion was November 12, 2015. The form contains information

about the Storekeeper position and indicates that it is a safety sensitive position and a

Union position. In response to the question, “Is the employee currently off work on any

form of disability?”, the box for “Yes” is marked with the notation, “Anxiety and

Depression – history of mental health problems”. The areas checked for “Work related

concerns”, include:

Formal

Referral

Form

Mental/Emotional Concerns

Outbursts of anger

Unpredictable behaviour

Work Relationships

Overreaction to real or imagined criticism

Abrasiveness with superiors or co-workers

The form also reflects that:

o [AB] has a history of bad behaviour in the workplace, although he does not

take ownership of his role or behaviour.

o [AB] is in the final steps of the discipline policy. He was placed on a decision

making leave a number of months ago and if he has one more incident

where his behaviour is deemed culpable his employment will be terminated.

o He has poor anger management skills and tends to react poorly in situations

where he perceives he is being challenged or confronted.

o The Employer expects better anger management skills and the ability to

react to situations in a professional manner.

o [AB] is aware he is to attend counselling sessions and if he chooses not to

attend and as a result if his inappropriate responses/behaviour continues it

could result in termination of employment.

35

October 2015 to January 2016

AB

AB was off work in 2015.

At that time, AB communicated with Kathy Potts at the Return to Work Office by email.

Kathy Potts’ email on October 19 says:

I have been advised you left work this afternoon for medical reasons. Can you please have the

attached form completed in full and return to the RTW Office today to provide medical to support

your absence. We will need to determine if the absence is related to your WCB claim or your file

needs to be adjudicated for a new Plan B request.

AB replied on October 20:

You should have received a P-148 from [Dr. O] first thing this morning.

This has nothing to do with WCB.

Do I need this form you have also sent me, also filled out?

That afternoon at 15:36, Potts responded:

Just checked and I don’t have anything yet. Can you please call their office and ask them to re-

send it [fax number included].

AB then wrote:

Just called and she said she would sent it right away.

Please keep me informed if you need anything from me please Kathy.

Potts responded:

I will let you know when it arrives.

AB’s psychiatrist provided SaskPower’s Return to Work Office with a P-148 form on

October 20, 2015, saying AB was examined on October 19 and that he would be off

work starting October 20. Inexplicably, the form says the date of the last examination

for this absence is November 6, 2015. The form is dated October 19. The nature of the

illness is stated to be “anxiety disorder and depression disorder”. The accompanying

letter from Dr. O says:

This is to inform you that the above-named client of mine is presently unwell for the past few

weeks. I have advised that he takes about 2 weeks sick leave. Please do contact me if you need

further information about his care but be aware that the information can only be released with his

consent.

On October 30, AB saw Dr. O and Dr. O completed another P-148 form showing the

nature of illness to be “Anxiety/Depression Disorder”. The accompanying letter from Dr.

O says:

This is to inform you that the above-named client of mine is presently unwell for the past few

weeks. I have extended his sick leave to another four weeks. Please do contact me if you need

further information about his care but be aware that the information can only be released with his

consent.

AB continued to stay off work.

AB saw Dr. O again on November 30, 2015. The P-148 again reflects

“Anxiety/Depression Disorder”.

36

The letter accompanying the November 30 P-148 from Dr. O says:

This is to inform you that the above-named client of mine saw me at the clinic today. He has

continued to struggle and he started his psychotherapy today. I do believe that he needs more

time to help with the therapy and medication as I [sic] result, I have extended his sick leave to 5

more weeks.

AB continued off work and went to see Dr. O on January 6, 2016. Dr. O sent

SaskPower a letter that day to say:

This is to state that the above-named client of mine is currently attending my clinic. He has

remained unstable. I would like to extend his sick leave by another four weeks. I will review him

again at my clinic in one month.

AB identified the EFAP brochure from Homewood Health. SaskPower did not require

AB to go to counselling, but AB agreed to go to counselling. AB needed some

counselling and he wanted to start as soon as possible. He discussed that with Dr. O,

who felt it was a very good idea. AB thought when you go to the psychiatrist you lie

down on the couch and tell your problems but it is not like that at all. He wanted to seek

counselling to get steps in place to control depression, anxiety, and his anger. Then he

approached Kathy Potts about this.

Potts said it would be no problem but AB needed to come in and sign a form at head

office, so AB went and signed it. AB denies checking any of the boxes or filling out any

of the comments in the Formal Referral form. He claims Potts did not let him review the

Formal Referral form before it went to Homewood. AB acknowledges he signed the

Formal Referral form for the counselling request on November 12, 2015.

The Formal Referral says under Employer Expectations:

Better anger management skills and the ability to react to situations in a professional and

appropriate manner.

He is aware he is to attend counselling sessions, if he chooses not to attend and as a result his

inappropriate responses/behavior continue it could result in termination of his employment.

AB says:

I wasn’t informed until my very first counselling session when the counselor informed me that if I

miss any days I could be terminated, and then she showed me and then I said I didn’t agree to

that and she showed me my signature on the first page.

In the first session she told me I would be disciplined or terminated if I didn’t show up. I told her

that wasn’t the case, that I was actively seeking counselling on my own. She said you signed

that form and that was the end of that because that was my signature.

When AB had not heard further by November 23, he emailed Potts to ask how long the

process was to see someone because he hadn’t heard. Potts asked if AB had called

the number she gave him to call. AB said he hadn’t received a number, so Potts had

her colleague send the number to AB again. It turned out they may have been sending

the information to AB’s work email. AB finally received the number to call on November

25 and AB then called the number. Things were still not set up. There was more

confusion and eventually AB began his counselling sessions around November 30.

In cross-examination:

 AB agreed he was way from work from September 28 to October 19, 2015 on WCB

37

and that when he returned to work on October 19, he had a run-in with Carswell

and was then off work until February 17.

 AB denied having a conversation around October 20 in which Potts spoke to him

about being angry and suggested counselling. He said, “That is absolutely wrong.”

He does not believe the suggestion came from Potts. He and his psychiatrist had

that discussion.

 When counsel pointed out Dr. O’s record of October 30, 2015, which says “I

suggested to him that he should accept the offer to see a counselor through work,”

AB then said:

I don’t remember Kathy Potts phoning me and saying I should take counselling. …I know I talked

to the psychiatrist on my own about counselling.

 When counsel read him the following sentence which says, “He wasn’t initially

happy with the offer, but I had clarified to him that he will need a behavioral

management as well to deal with his anger and mood dysregulation,” AB still

vehemently disagreed that the suggestion for counseling came from Kathy Potts.

 AB insisted Potts never reviewed the Formal Referral form with him on the phone

as Potts had testified.

 AB agreed there is no information on page 1 of the Formal Referral form that is

inaccurate.

 When asked what the referral was for, AB said it was that he needed to seek

counselling and Potts could help him with that. The counselling was to be able to

cope with his life at that time. AB insisted that the counselling wasn’t to do with

anger even though the items checked on the Formal Referral form are Outbursts of

anger and Unpredictable behaviour. AB says the boxes that should have been

checked are: Fearful, anxious, suspicious; Difficulty in recalling instructions; Mood

swings; Difficulty adjusting to changes; Outbursts of crying. AB said:

Outbursts of anger and Unpredictable behaviour – those are two I would not have checked.

 When he was questioned further, AB agreed he might have checked “anger”, but

not “unpredictable behaviour”, because “I am a pretty predictable guy.”

 AB said that under Work Relationships, he would not agree that Overreaction to

imagined criticism should be checked but he thinks Avoidance of supervisors and

coworkers should have been. When asked if he would have checked Abrasiveness

with supervisors or co-workers, AB said:

Not Abrasive with supervisors. …or co-workers. I don’t like the word abrasive, so I wouldn’t have

checked that.

 AB denies that he had a history of bad behaviour and didn’t take ownership of it. He

agrees he was at the final stage of the discipline policy with the Decision Making

Leave and that he could be terminated if there was one more incident.

 AB does not agree that he displayed poor anger management skills and acted

poorly when he was challenged or confronted.

38

 AB denied Potts discussed any of these matters with him including bad behaviour in

the workplace and said:

It was simple a procedure. She said I had to come to head office and sign a paper. She doesn’t

remember me coming there, but I was there. …It was short and sweet.

 AB denies Potts telling him that the reason SaskPower was making the sessions

mandatory was so that AB would not be limited in the number of sessions. He was

under the assumption it was voluntary.

 AB said he was surprised when the counselor told him that if he didn’t attend the

sessions he could possibly be terminated.

I am a level 2 – one strike from being fired. Why would I go into something I could be fired for?

 Counsel pointed out the form says if AB didn’t attend and his behavior continued,

he would be terminated. Counsel asked if that was reasonable for the Employer to

say. AB said:

I would agree with that statement if I was forced to take counselling, but I needed to take the

counselling on my own. This meant if I don’t make an appointment or cancel an appointment I

could be fired.

 AB agreed that he did miss appointments and he wasn’t fired for that.

February, 2016

Mark

Caswell

In AB’s absence Caswell needed someone to fill AB’s role. Another employee, Don

Valley, took over the duties AB had been performing. Valley primarily worked in the

warehouse on the receiving side before that, but it was not out of the ordinary for him to

spend time outside on the forklift. Valley was trained and capable. There was also

another employee on medical leave and Caswell had to backfill that position with other

new staff. There were four or five new employees on site by the time AB returned.

Things were different when AB wasn’t there. The yard was in better shape, better

stacked and better organized. The quality of work was excellent. It was what Caswell

wanted to see. Valley said he was happy with the work and felt good about the job he

was doing. He was a polite and engaged employee.

Caswell was not aware of why AB was away, only that AB was on medical leave.

Details of medical leave are between the employees and the Return to Work (“RTW”)

office. If an employee brings something to Caswell, he passes it to RTW. Caswell did

not receive anything in connection with AB’s absence and received no communication

from AB while AB was away. Kathy Potts in RTW kept Caswell informed. If there were

to be any special conditions or restrictions on AB’s RTW, then Potts would make

Caswell aware of that.

In cross-examination:

 Caswell confirmed that before AB went on sick leave, AB had worked

predominantly outside in the yard on the forklift and that before AB came back,

no change in work assignment had been communicated to him.

 Caswell confirmed that he was not privy to AB’s medical information. He was

39

only told AB would be returning to work with no restrictions.

 Caswell confirmed that before AB’s return to work, he did not invite the Union to

discuss gradual return to work for AB.

Jillian

Orb

If an employee is absent and the RTW office gets medical that says they can only work

four hours a day or something, Orb works with the manager to see how the return will

be handled. They may need to divide workload among other people or bid another

position. They need to know if there is anything they need to do to accommodate any

restrictions. Orb was aware AB had been off work, but there was no role for her on his

return because RTW was advised there were no restrictions on AB’s return to work.

In cross-examination:

 Orb confirmed she did not contact the Union before AB’s return to work.

Kathy

Potts

As of February 15, 2016, AB was going to exhaust his Plan B benefits so he had to

apply for LTD. To this point, based on the medical from Dr. O, SaskPower’s corporate

physician had been approving AB for Plan B benefits.

As of February 2, Dr. O said AB was able to return to work fulltime with no restrictions

on February 15. Dr. O had been following AB for the last three months giving updates

on AB’s mental health and providing recommendations on his work. Potts took Dr. O’s

letter at face value that AB was able to return to work.

Whenever AB was off work before, when AB came back from being off, Potts never

received any requests for accommodations with respect to AB’s mental health. AB had

been off before for brief periods of time and always came back to work with no

restrictions and no request for accommodation from him, the Union or his doctor.

Potts talked to AB. There were some emails back and forth about AB being on track to

come back to work. Potts was getting ready to go out of town. AB said he was ready

and he was coming back fulltime and they were good to go.

AB

On February 2, 2016, Dr. O sent a letter to SaskPower:

[AB] is a patient under my care. He has been off work for about three months due to his ongoing

mental-health problems.

His is currently undergoing treatments and should be able to return to full-time work on the 15^th

of February 2016.

AB acknowledges he knew Dr. O was sending this letter to SaskPower. Before he

returned to work, he had a text message exchange with Meghan Jerkewitz who was

the secretary at work. AB’s return to work day was changed to February 17 because

February 15 was a holiday and February 16 was his scheduled day off. AB sent a text

on February 16 to ask if he started at 7 on the 17^th. Jerkewitz said that was correct as

far as she knew. Then on the 16^thAB received an email from Kathy Potts telling him to

report to Mark Caswell at 8:00 a.m. on February 16, 2016.

There were no plans about reintegrating AB into the workplace. Dr. O recommended

gradual return to work. They had a lengthy discussion about that in one of their

sessions. Dr. O recommended AB go back “to a gradual workforce”, a couple of hours

40

a week or a couple of hours a day, some sort of system to get AB back to work.

AB decided to go back fulltime.

I had been off for three and a half months. I had learned some techniques to do in certain

situations. I had never been on this kind of leave before -- any kind of leave for mental health or

couldn’t do my job. I’d never been on any kind of stress leave or whatever you want to call it. I

felt it was time. Three and one half months had passed. I had adjusted to medication and

learned some techniques and I didn’t want to go on LTD -- something else I have never been on.

…

Financially it was very hard on us. I had the pressure of when we had bought our house two

years earlier. My father-in-law co-signed for me – the mortgage – he was retired – he didn’t have

to do that – and I didn’t want to do anything to [crying] to wreck his credit because he was retired

now – so I had that pressure. …

I liked to go to work. I liked to do my job. I liked the fact that I wasn’t a compensation case for 22

years. I wasn’t a stress leave type of guy. I am a proud German and my dad taught me. …I was

taught values. I was taught what it means to work hard because when my father was 17 he

jumped on a boat from Germany with no English, a suitcase and he came to Canada with

nothing [crying].

If you have a German father, they teach you values – old country – to be respectful and if I am

healthy there is no reason why I can’t do a job. I don’t believe in unemployment unless you are

sick, so I believe I learned from him well because I have had two jobs in my life – and it means

that much more because I lost my father – he died at 52. I was 21.

He was sitting there one day and that night he was gone and unfortunately in my family, we

dwell on that. It was 1989 and we dwell on that. We celebrate my dad’s anniversary every year. I

take her there every year. She never remarried.

Work is a very important value. I haven’t really accomplished much in life, but I had 22 years with

SaskPower – almost half my life. That was one of my major accomplishments in life other than

my son. I wasn’t good in school, but I was good at my job.

Kathy Potts informed me that on 15^thof February I would have to go on LTD. I know it was told

to me. I’m not sure how. …

The finances were not good. I was collecting 70 per cent of my wage. My wife – she was a

secretary and she worked 8 to five – at five she would transfer her phone to a company to

answer the phone and dispatch her plumbers. She informed her boss of our situation – that I

was unemployed and we weren’t making the money we did before. He asked if instead of

transferring phones at five, she would do it for half the cost and keep the phone 24/7. My wife

has worked 24/7 since this happened. And I am supposed to be looking after her – because

that’s my job. When I married her I promised I would give her everything and look after her and

not her take care of me. My mom never worked a day in her life. Dad did everything. He was my

mentor. …

…Everything was falling behind. I was the breadwinner to nothing. I had no income. …and I

believe LTD is even less – 65 maybe. I’m guessing.

AB says his depression and anxiety were common knowledge at work. He is an open

book and wears his emotions on his sleeve. If he has something on his mind, he does

not hide it well.

I told Mark about the anniversary of my father, but this year my dog died – and I know that

sounds childish but when you have a depression or whatever your case, you would be surprised

what an animal could do for you and I had that animal for ten years. He could calm me down

quicker than drugs. He died on the 12^thof August, my dad’s anniversary was the 17^th. It was a

41

real rough time.

…I was telling him that story. He said when I am down, I have a special bottle at home. I have

had it for a very long time -- sometimes one drink for the year. And I informed him that I have a

bottle there to like that from my dad that is almost 65 years old that has never been opened, but I

don’t drink so I will just go home. He was concerned about me. I was having a shitty day.

February 17, 2016

Mark

Caswell

Kathy Potts informed Caswell that AB would be returning to work on February 17. The

other person on sick leave most commonly picked orders on the shipping side. There

were other new employees in shipping with little experience, so Caswell was faced with

a fairly inexperienced workforce at the busiest time ever. Another employee who had

primarily worked in shipping had retired. That employee would also occasionally work

in receiving or move where he was needed.

February 2016 was an extraordinarily busy period of time in the warehouse. The end of

winter was approaching and a lot of work in environmentally sensitive areas takes

place when the ground is frozen. The winter had been mild and there was a lot of work

to be done now that the ground was frozen. That lined up with rural municipalities’

weight restrictions on roads. SaskPower was desperate to get things done before the

thaw and they needed material shipped before the road bans. There was also a lot of

work in general. It was the busiest time they have seen.

Caswell’s plan on AB’s return to work was to have AB help in shipping to help to

manage that workload. AB was experienced and could do all aspects of the job. This

would increase output in shipping. Kathy Potts informed Caswell there were no

restrictions on AB’s return to work so that meant AB was capable of doing the full

duties of Storekeeper.

The changes Caswell intended were not intended to be permanent. They had a

problem in the warehouse where the demands were greater than the capacity and

Caswell was working with the supervisor to deal with it. Caswell was looking forward to

AB coming back because he thought they would have someone experienced to help

them out.

Caswell normally meets with an employee on their return to work after an absence.

Other than Kathy Potts’ advice that AB was returning with no restrictions, Caswell had

no communications from anyone about AB’s return to work. Neither AB nor the Union

had contacted him.

On the morning of February 17, Caswell met AB at the receiving bench (a desk where

they do paperwork) on the east side of the warehouse. This is in Building 3.The admin

area and offices are in front and the warehouse, shipping and receiving, are part of the

building. Salvage is in a different building. The warehouse building is about 100 feet by

about 270 feet.

When Caswell came into the warehouse toward receiving bench he saw Don Valley

and Lawney Donaldson. They were getting ready for shift. Caswell approached AB,

welcomed him back and asked him to come with Caswell to discuss what his return to

work would look like and what his duties would be. AB followed Caswell.

Caswell was going to take AB to the conference room behind Caswell’s desk. As they

42

started walking, they were alone so Caswell started the discussion before they reached

Caswell’s office. Caswell asked how AB had been doing, nothing heavy, just small talk.

Caswell told AB he wanted AB to work on the shipping side with Greg Simpson.

Caswell said, “I need to you help him because we are so busy.”

I think that was the last thing AB heard because he interrupted. AB lost his temper immediately.

He said, “I can’t fucking believe you guys would do this to me.”

[At this point in the hearing, AB left the hearing room and appeared to be quite angry. I

called for a break and when AB returned after the break, he said he was sorry.]

Caswell continued his testimony about February 17:

He [AB] erupted. I made a couple of attempts to explain the reason for my decision. He wasn’t

stopping with his outbursts for long enough to listen. “You guys are fucking harassing me and I

can’t believe you would fucking do this.”

AB made a comment about -- You’re out to get me and why would you put me in the

warehouse and you know I can’t work in the warehouse.

AB was clearly wound up and Caswell didn’t know what AB was going to do next.

Caswell tried to explain that while AB was gone they had to make adjustments to cover

his work and that was going well.

We were slammed in shipping, Greg needed his help. I really don’t think he was listening. He

didn’t stop with the outburst long enough for me to explain. “This place is a fucking joke. I can’t

believe you are fucking doing this. This is fucking harassment.”

AB was anything but calm. At this point AB turned and started to walk back into the

warehouse towards the shipping area. It was constantly the same diatribe.

It was an endless loop at a volume of ten and constant profanity. I was kind of beside him and

behind him when this initially starting happening. I started following him. I didn’t know what he

was going to do and I wasn’t prepared to have him go back into the warehouse unsupervised at

that point. I wasn’t speaking to him. He was speaking constantly. I told him to calm down and

this wasn’t going to work well for him, but it was mostly him with the string of yelled profanity.

At some point I walked away from him. I remember Doug Hesch, another employee …he was

probably changing into boots and coveralls for the day. …he said he thought he could get AB

calmed down. I thought that was a good idea and was willing to let him do that.

AB and Caswell had already talked about having a Union rep and Caswell had said AB

didn’t need a Union rep because they were just talking about return to work. AB said, “If

we are going to continue this conversation, I need my fucking Union rep.” Initially

Caswell didn’t think a Union rep was required. This was not discipline. It was work

assignment. When AB continued to yell, Caswell said “Yes, you need to get a Union

rep.”

Caswell said he would contact Curtis Lizee and Hesch said to let AB make the contact.

Caswell agreed to this.

When Caswell followed AB in the warehouse, he was very concerned about what AB

was going to do. AB was unpredictable and had reached fever pitch and Caswell was

concerned AB wasn’t in control of himself.

After Hesch said he would step in, Caswell left the warehouse for a few minutes to

43

allow Hesch to talk with AB. Caswell went to his office for a few minutes. He started

making notes about what happened. He was there for maybe 15 minutes, long enough,

he thought, to hopefully allow things to diffuse and cooler heads to prevail.

Caswell went back to the warehouse to discuss the situation with AB. Caswell needed

to know if AB was going to have a Union rep present for the conversation. He wanted

to know what time they would meet so he could re-arrange his schedule to

accommodate that.

AB was not there when Caswell went into the back. One of the fellows told Caswell that

AB had gone over to the salvage building, so Caswell went over there. There was no

operational reason for AB to be in the salvage building at that time. When Caswell got

there, AB was there talking to Darren Kivisto, Doug Hesch and Ken Fink. Fink was the

supervisor in salvage at that time. Fink has since passed away.

Caswell approached AB and asked if AB he had information for when a Union rep

would be available. AB didn’t have anything at that point but he said he would settle

down and accept the assignment he had been given. At that point Caswell thanked AB

and told AB if he needed a few minutes that was fine. No one else said anything.

Caswell did not observe AB to be crying but he was extremely emotionally agitated. AB

was red faced and shaking.

Caswell went back to the warehouse to talk to Greg Simpson to come up with a plan to

bring AB back into the work group and get things started.

AB had never previously expressed concern to Caswell about working indoors. AB said

something about that earlier that morning.

Caswell and Simpson went into the conference room behind Caswell’s desk. Five to

ten minutes had passed since Caswell left salvage.

We started talking about pairing him with someone to get him back to work – Don Dressler. We

settled on Don because he was a little more mature and would have been able to handle AB’s

bigger personality better than a more junior guy.

He’d been away for almost five months. Lots had changed. There were a number of new people

at this point. It seemed like that would be the appropriate thing to do. I would do that for anyone

after that period of time.

While Caswell and Simpson were talking, AB burst into the room and interrupted the

conversation. It was like he had gotten angry all over again at this point. Simpson left

and allowed AB and Caswell to have a conversation. Caswell invited AB to sit down so

they could talk.

I had to remind him to keep it respectful. He was saying things like --- this is completely fucking

ridiculous – why don’t you put me back on the forklift – you know that’s where I belong. His voice

was – he was shouting at me – I was pretty rattled at this point – I thought I had seen AB’s anger

but he had reached new heights – he was in a fit of rage. I stayed calm – if I had responded in

any anger, I don’t know where it would have gone. I tried to use a calm voice to try to get him to

calm down. I was mapping out the room trying to figure out how I was going to get out of there if

he attacked me. I was afraid I was going to be attacked.

The discussion was not long. It probably happened faster than it seemed at the time. He was so

angry. I was quite rattled. I have no clear sense of how long. I was afraid.

He was saying horrible things – if I fucking died, I don’t want any of you fuckers at my funeral –

44

this is fucking ridiculous – the company is a fucking joke. He said something about the rules of

the CBA and he said what does this company know about following the fucking rules.

AB said he wanted to take a week of vacation. This happened somewhere about the

middle of the discussion. Caswell said he didn’t know whether AB had a week

available. Caswell suggested AB take the day and come back the next day and that is

where it was left. Caswell approves vacation requests for his work crew. He bases the

decision on whether vacation is available and whether there would be hardship for the

rest of the work group.

When AB left, Caswell saw him speed out of the parking lot. When reviewing it all in his

mind, Caswell did not have a sense that AB had any idea he had to report for work the

next day. Caswell texted AB to say he still expected AB to return to work the next day.

AB did not respond to the text. Caswell also sent AB an email because AB had been

gone for five months and Caswell didn’t know whether the phone number he had was a

current number anymore. They had texted in the past and AB had always responded

before and had sent texts before. AB didn’t reply to the email. Without a response

Caswell had no idea if that was a current email address.

Caswell worked with the RTW office to prepare a letter to send to AB by courier. They

didn’t know whether AB had received the text or the email and at that point they were

“going down a formal route” and it needed to be a letter. The letter reads:

Further to my e-mail and text message sent to you on Wednesday February 17, 2016, I have

approved vacation for Wednesday February 17, 2016 only. You are hereby directed to report to

work at 7:00 am on Thursday February 18, 2016 as per your regular work schedule.

You were medically cleared to return to work with no restrictions as of February 17, 2016 and

SaskPower’s expectation is you will perform the duties of your job as per my work direction.

Failure to report to work as outlined in this letter will result in discipline up to and including

dismissal.

Burgess signed the letter because Caswell was in Swift Current at that point dealing

with other scheduled things.

Several other people in Building 3 had heard AB’s outburst that morning. Caswell

observed peoples’ behaviour. There was nervousness and short quiet conversation.

People were not sure what to expect next. There was laughing to try to make light of

the incident, but it was nervousness. Nobody was thinking it was funny.

At that point, Caswell had not decided to terminate AB. He made arrangements with

Jillian Orb to discuss and investigate the following day. Orb was Caswell’s Human

Resources Business Partner at the time.

On the morning of February 17, 2016, Caswell made notes of his encounters with [AB]:

7:00 I approached [AB] @ Receiving bench. Welcomed him back and asked him to come

with me to discuss his return & his duties. Made some small talk as we walked. I

explained that I needed [AB] to work with Greg in receiving. He immediately became

angry, accusing me of being a bully and being “out to get” him. I attempted to explain

that these were changes already done & in progress and he was needed in shipping. I

attempted to explain that others were affected by changes as well. I don’t believe he

heard any of this. He said we would need to have this conversation with his union rep

present. I told him that this wasn’t disciplinary, so union representation wasn’t a

requirement; he continued to get angries [sic], again accused me of bullying him,

45

picking on him, swearing frequently. I remind him to be respectful and then agreed that

we would need a union rep to continue the conversation. I left the warehouse.

7:10 Doug Hesch approached, said he thought he could calm [AB] down a bit and help him

to make arrangements for a union rep. I told Doug I could call Curtis Lizee, but Doug

said to let [AB] do it. I agreed and thanked Doug.

7:30 I went back into the warehouse to see if [AB] had spoken to Curtis and find what time

the meeting would be held. [AB] was not in the warehouse. I was told he had left the

warehouse (where he was assigned to work) and went to Salvage. I walked over to

Salvage and [AB] was sitting there. Also present were Darren, Doug H and Ken F. I

asked [AB] if he had spoken to the IBEW yet, as I needed to know timing of any

meetings to be able to rearrange my schedule. He indicated he would be on the floor

and doing what had been requested of him soon. He still appeared very agitated. I

thanked him and returned to the warehouse to speak to Greg about getting [AB] to

work.

7:45 Speaking to Greg in his office, but constant phone & staff interruptions made a

conversation difficult. After attempting for a few minutes to get things sorted out, I

asked Greg to give the phone to Jaret and come up to the office, so we can talk without

interruption. As we were leaving Greg’s office I observed [AB] at the very back of the

warehouse on the phone with his back to us.

8:00 Greg and I were talking in the conference room about pairing [AB] with someone to get

him re-oriented after his absence. This was a subject of some depth because Greg

recognizes the difficulty in dealing with [AB]. We settled on Don Dressler because Don

is a little older, more mature, and would be able to handle [AB’s] personality.

8:15 [AB] interrupted Greg and I in the conference room. Greg left to go back to warehouse

and I invited [AB] to have a seat. It was at this point that [AB] became extremely

agitated and verbally abusive. He made comments such as I was “stabbing him in the

back”, and asking “why the fuck would you put me on the inside of the warehouse?” He

also said something like “Everyone is out to get me – you, the union, no one will stand

up for me.” He further accused me of being a bully and asked “why the fuck would you

do this to me?”

I very calmly explained that he was pushing his luck (or something to that effect) and to

keep his tone and his language respectful. I tried again to explain that there were lots of

changes since he had gone on leave and tell him what the changes were, but he kept

interrupting me with comments like “this is a fucking joke” and “you need to put me

back on the fucking forklift.”

I said again that there was a lot to be done in shipping and that is where I needed his

help.

He said “I can’t fucking be here right now, I need to use a week of vacation.” I told him

that I didn’t know if he even had any vacation and that leaving wasn’t going to resolve

anything. He said something about “losing my fucking mind” and “need to get the fuck

away”. I told him to take the day and revisit this tomorrow. He left angry and I observed

him speeding out of the parking lot, spinning his tires a couple of moments later.

Other comments I recall him making but can’t exactly recall where the course of the

discussion he said them:

-

I said something about the rules as per the CBA and he said “Like this fucking

company knows how to follow the rules”

-

“Why the fuck are you guys doing this to me?”

Anger & intimidating body language on display throughout the entire episode.

46

In cross-examination:

 Caswell confirmed that he came to work early on February 17 so he would be there

to meet with AB when AB returned to work.

 Caswell confirmed he told AB that he needed AB in shipping, and that he needed to

cross-train employees so he could send them to work where they were needed.

Caswell attempted to explain the changes, but AB kept interrupting with his

outbursts. Caswell said he does remember AB saying something about Kryptonite,

but he had never heard AB say anything like that in the past.

 Caswell agreed that he may have asked AB to listen to him.

 Caswell does not recall AB saying anything about a counselor telling him to walk

away from situations and collect himself. Caswell was not aware AB was seeing a

counsellor. Caswell does not recall AB asking Caswell to please leave him alone.

 Caswell does not recall AB asking Hesch to make Caswell leave him alone. Hesch

approached and said he thought he could calm AB down. AB was in the building at

that point, but he and Caswell were not side by side.

 Caswell confirmed he did not observe AB crying at any point during the first

encounter that morning.

 Caswell confirmed he felt AB was swearing at him during this encounter.

When someone is [points aggressively] pointing at you and saying -- why are you fucking doing

this to me, it’s pretty hard to take it any other way. ...This was a direct challenge of authority. He

was saying – you have no right to do this to me. …I was being sworn at. He was angry and

angry with me, and he let it be known very clearly that he was angry with me.

 Caswell confirmed that during the meeting in the conference room AB was agitated

and angry. He agreed that when he tried to explain the changes, AB said he was

the only change. AB never did allow Caswell to explain the changes. Caswell

agreed that AB may have teared up later in this meeting. Caswell doesn’t think AB

was sad. AB had so much rage in him he couldn’t contain it.

 Caswell agreed AB sat down when Caswell asked him to sit down. AB stood up at

times during the meeting and leaned across the table. Caswell agreed AB didn’t

leave until Caswell told him he could leave.

 Caswell said he experienced intense anger from AB and that he felt pretty

threatened during that meeting. He agreed he did not call in a third party to assist.

When AB made the comment about if AB died tomorrow, Caswell was quite scared

for his wellbeing and was trying to figure out how to get out of there if AB came after

him.

 Caswell said he was rattled, but he was not angry. Caswell confirmed AB didn’t

make any verbal threats to anyone else in the building.

Chris

Burgess

On the morning of February 17, 2016 around 8 am, Burgess was at his desk right

beside the conference room. The conference room door was closed, but the

conference room is not soundproof. Right by Burgess’ cubicle there is a hole that goes

into the conference room. Burgess could hear pretty well especially when the situation

47

escalated.

Burgess could hear AB and Caswell talking. He didn’t pay attention at first, but he

started paying attention when he started hearing AB screaming. AB made comments

like those Burgess listed in an email to Jillian Orb which he sent to her that afternoon.

AB made many other comments, but the ones lists are the ones Burgess highlighted at

the time.

Caswell was calm through the whole thing. Caswell kept trying to bring AB down to a

calm state. AB was very loud. When he is angry he has a very loud and booming voice.

I was scared, actually, terrified for Mark. I turned my chair at one point thinking him and I were

going to have to wrestle AB. I was scared because of the aggressive angry behavior and

because of comments he was making that he was going to take a gun and blow his fuckin brains

out, how everyone was out to get him, and how he hated Central Stores.

AB’s comments were directed at hating people and with the comment about the gun,

Burgess was scared.

Burgess didn’t see AB leave. He didn’t talk to Caswell immediately. Because of his

concerns about the blow-up, Burgess went out and locked the gate to make sure AB

couldn’t come back in. Burgess had gone around and talked to the five staff in the

office. They were upset from AB being so loud. AB’s voice had carried through the

entire office and employees could very much hear what was going on.

Burgess also asked the others to pass on their concerns to Jillian Orb. They were

concerned and upset and he told them to send Orb an email of what they heard and

what they felt. They kept the gate locked for a few weeks after this incident.

Staff had raised concerns about AB. He had been escalating for a long time. There had

been this growing tension between AB and the warehouse for a long time. There was

genuine concern that it created a toxic environment within warehouse. It was unstable

and people did not feel comfortable.

Later that day Burgess signed a letter for Caswell ordering AB back to work. Given

AB’s volatility and instability, Burgess was scared when he signed the letter.

Burgess sent an email to Orb with a copy to Caswell at 3:45 that afternoon;

I was witness to some disturbing behaviour this morning at Central Stores caused by [AB].

At around 8:15 or so, I suddenly heard shouting coming from our conference room. I quickly

realized that [AB] was yelling at Mark and swearing at Mark repeatedly. Things like I heard from

[AB] were:

“Why the fuck would you put me inside working – you know I fucking hate working inside”

“Jesus Christ this is fucking ridiculous I want to be working in the forklift”

“This is a fucking joke – everyone is against me, you – the Union, nobody is on my fucking side”

“I get accused of smoking pot on the job, I get accused of drawing fucking pictures, I get told I’m

late – Mark, it was fucking 7:01 when I drove into the yard not fucking 7:08”

“I can’t stand this place – I need to fucking go, I’m out of here”

To Mark’s credit he was able to stay very calm. He stated to [AB] that the guys in receiving have

been working well and that he didn’t want to interfere with that. He told [AB] that his decision to

put [AB] on the floor was because we are so backlogged in shipping and Greg needs the extra

48

set of hands there.

Jillian, I must say. Once [AB] started screaming I turned my chair to face the conference room as

I was afraid things were going to escalate further. I actually started thinking that I was going to

have to interfere for Mark safety because [AB] was displaying such anger. Much to Mark’s credit

he let [AB] leave to keep things calm in the workplace and I believe that was a very smart

decision as I was worried, my back was up, and I was getting ready for anything. The minute

someone is yelling so angrily at someone else it can quickly escalate to physical violence and I

was worried for Mark.

I understand that people can get upset at work but there is no excuse for an employee to be

speaking to another employee in the manner that [AB] was speaking to Mark. Further, [AB]

shouting profanities also upset the rest of the office as everyone else could hear that [AB] was

yelling at Mark.

Thanks for your attention to this matter.

In cross-examination:

 Burgess confirmed the gap between his cubicle and the conference room is almost

large enough to stick your arm through. He did not see what Caswell or AB looked

like during their exchange, but he heard it. He could not see if AB was crying. AB

used lots of profanity, including the “F” word.

 Burgess agreed he did not record that AB called Caswell names and he can’t recall

whether AB called Caswell names.

 Burgess confirmed that he was ready to intervene, but he didn’t have to because

AB left.

 Burgess agreed that if he thought threats of violence were serious enough, he

would call his boss and if it was serious enough, he would call the police. He did not

call the police about the February 17 incident. He does not know if anyone else did.

He believes he spoke to Jillian Orb earlier in the day and sent her the email at 3:45

p.m.. Orb did not ask for the report. Burgess initiated it. Orb is the person Burgess

goes to when he has concerns.

 Burgess agreed that if AB’s behaviour was particularly dangerous and violent, the

Employer might have asked him to stay home pending investigation instead of

sending him a letter to tell him to come to work.

Jillian

Orb

Caswell contacted Orb because there was an altercation when he was talking to AB

about the changes in Central Stores. Chris Burgess also contacted Orb because he

overheard the confrontation. Orb told Burgess to get more information. Burgess found

out numerous people overheard the confrontation and they were concerned. Orb asked

Burgess to go back and get statements. They needed to investigate the facts and find

out what happened and try to correct the behavior, issue appropriate discipline and

hold people accountable.

Caswell contacted Orb initially because AB had left and said -- I can’t take this

anymore -- I’m out of here -- and left the building and requested vacation for the rest of

week. Orb advised Caswell not to approve the week of vacation because they needed

to address AB’s behavior. She suggested Caswell approve the rest of day off for

vacation and arrange for AB to come in the next day and have a discussion involving

49

Orb, Caswell, AB and a Shop Steward.

The intent was to talk to AB and get him to understand why the changes in Central

Stores had occurred and go forward to address the fact AB had a heated argument

with Caswell in the workplace and he was engaging in insubordinate behavior. At that

point, they had not made any decision about the outcome.

In cross-examination:

 Orb confirmed that when she asked Burgess to get statements, she told him emails

would be fine. She told Burgess to get statements from everyone who heard the

confrontation. Some people sent emails to Orb. Orb did not interview these people.

After speaking with Caswell and Burgess and reading the emails, Orb was satisfied

there was enough information to warrant a conversation with AB.

 When asked if she had a statement from Perfect, Orb said she was not sure. When

asked if she had a statement from Hesch, Orb said she did not talk to him or get a

statement. Caswell spoke to both Hesch and Perfect. Orb did not do any in-person

interviews.

 Orb said she was not sure whether she called Burgess or emailed him first when

she got his email on February 17. She knows she followed up with Burgess.

 Orb agreed that there was nothing in Burgess’ email to suggest AB was verbally

threatening Caswell or any other staff.

Kathy

Potts

Caswell called Potts during the late morning or early afternoon of the day AB returned

to work. Caswell said AB had had an outburst and had gone home. Caswell said AB

had asked for a week off and Caswell had only given him the day. Potts told Caswell

he needed to make sure AB understood he had to be at work the next day.

The normal practice where an employee is medically cleared to return to work is that if

they don’t show or don’t stay at work, SaskPower sends the employee a letter directing

them to report to work.

Caswell had sent a text and an email to AB and got no response. Potts recommended

Caswell send a letter to get some indication AB was receiving the information that he

had to be at work the next day.

Potts would do this same thing with any other employee. SaskPower wants to be sure

the employee has every opportunity to understand they need to return to work and

SaskPower takes all steps to make sure they get that information. If SaskPower sent

the letter and AB didn’t sign for it, the next step would be a process server. SaskPower

does all they can to make sure the employee gets the letter.

In cross-examination:

 When counsel suggested to Potts that there had been prior accommodations for

AB, Potts said AB had prior absences, not accommodations. No one had ever

asked for any accommodations for AB. SaskPower had never been advised of any

work restrictions for AB.

 Potts confirmed she called AB in January to let him know his Plan B benefits were

50

going to run out and to tell him he needed to get his LTD application in.

 Potts confirmed that she sent AB an email on February 3, 2016 to confirm he was to

report to Caswell at 8:00 a.m. on February 16. The date was later changed to

February 17 because Monday that week was Family day and with AB’s BDO, his

start date was moved to the 17^th.

 Potts confirmed there were no meetings about AB gradually returning to work. Potts

said SaskPower does not meet with people who are returning to work to fulltime

regular duties. Her office would not have had any reason to contact the Union.

AB

AB arrived at work just before 7:00 a.m.. He put his coveralls on and walked over to the

receiving bench. There were three others there -- Lawnie Donaldson, Ken Fink and

Don Bell. Bell was really happy that AB was back because Bell had been filling in for

AB.

Caswell showed up about 7:15 a.m.. Caswell asked if he could speak with AB.

I said sure. We started to head towards the main door to his offices. We got to the door and he

stopped. He said -- I think we can chat here. There’s nobody around. He proceeded to tell me he

needed me to pick inside – work for Greg and pick inside. I asked him why. I wasn’t angry. I

asked why that was. He said things were going great over at receiving and basically he didn’t

want to disrupt that.

I was a little frustrated with that answer cause I was just talking to the boys and everything

wasn’t great in receiving. He proceeded to tell me there was changes since I have been gone

and that I was needed in shipping to pick. I asked why. We had talked earlier before about me

picking inside would be my Kryptonite. I asked him what were the changes. He said it didn’t

matter that I was going to pick inside. That’s where I was needed. I wasn’t happy. I wasn’t

yelling. I was more nervous because I could feel myself getting frustrated.

I told Mark, You’re the boss. I’ll pick inside -- and I started to walk away. He just continued to tell

me I was needed there. I reminded him of what he told me that he would not do that -- that he is

not that type of guy. I was walking away. He asked me to stop and listen to him. I told him I need

to step away and get out of this situation. My counsellor and psychiatrist told me I need to get

myself out of that situation for a couple minutes to compose – five minutes whatever – and all I

can hear is his voice. I said -- please stop, next time could you be with a shop steward? He said

didn’t need shop steward. We were just having a conversation.

I started to tear up cause when I am frustrated I am a bit of a baby. I told him the conversation

was way past a conversation and I needed a shop steward and to leave me alone.

We got to the shipping bench. He continues on why I should be picking inside. My co-worker

Doug Hesch was there. I was tearing up pretty good. I asked Doug if he would get Mark to stop –

Please Doug make him stop. Doug came in between Mark and I. I turned to walk away and go to

the back of warehouse. Him and Doug went another direction. I’m not sure.

Doug came to the back of warehouse a couple of minutes later. He asked if I wanted him to get

the Union number for me. I said no I could do that. I went to the shipping bench to log into the

computer to get Curtis’ number and unfortunately I had been gone for three and a half months

and I needed to re-set my password. This was still pretty early like 730 or so. The Help Desk

was not there.

I walked over to salvage cause I knew Darren had had Curtis’ number, so I walked over there.

Darren was at his locker. I explained what happened, but all of a sudden Mark walked into

salvage. I just said to Mark -- I am getting the number from Darren for the Union. I can’t get into

the computer. Mark said that is fine and he left.

AB got the Union number from Darren, walked back to shipping and called the Union

51

office from the back of the shipping area. The woman who answered the phone

transferred the call to a man. AB is not sure who that was. AB was pretty emotional on

the phone, crying.

His response to me was does my mom still cook me breakfast in the morning. … suck it up and

go do your job.

That comment stung. AB felt helpless.

My boss was poking me. My union just told me to suck it up. I felt myself starting to lose control

emotionally and now this is closer to eight so there is a lot more employees there. So a lot of

embarrassment, a lot of shame started to sink in. Guys could see that I was visibly upset. I

wasn’t yelling or running around. I had been crying. I gathered my composure and walked to the

office at the front. Meghan said Mark was in a meeting with Greg. I could probably just knock. I

walked to back. Mark’s office was empty.

AB does not remember talking with John Perfect that morning.

AB went back and knocked on the door and opened it. Simpson and Caswell were

sitting. AB, standing at the door asked Caswell if he could have a week’s holidays.

Caswell said he wasn’t sure of AB’s holiday status. AB said as of January he got a full

holiday, so he had five weeks holidays coming.

At that point Greg got up and left. Mark told me to come in and shut door. I come in and shut the

door. He proceeds to tell me about the changes that are going on and that he needs me to be in

shipping. I was frustrated with his answers because first it was everything is great. Then there

was changes and then I asked -- What are the changes, Mark? He informs me of the new staff

we got – three or maybe four – some new employees – so I mentioned the seven fellow

employees that were not changing. Nobody was changing their duties. Everybody doing

everything the same as when I left except three new staff at salvage and picking inside – so that

was frustrating to me.

I lose my composure. It wasn’t anger. I was – I needed to – why I wanted a week’s holiday – I

needed to just leave. I didn’t want confrontation. I wanted to get out of the situation is why I

wanted to get the days off. I broke down – shaking, crying, sweating, panic setting in.

Mark informs me that -- well let’s just do one day holiday and come back tomorrow and we’ll try

again. All I said was -- Great Mark, thanks and I left. And I went home.

AB said he asked to speak to the Union that morning because he wanted to see if there

was anything they could do. AB felt Caswell was harassing him. He felt as though in

the meeting in the warehouse in front of everyone Caswell was trying to get a reaction

out of him.

AB says he asked for space because he needed to get out of the situation. From his

counsellor he has learned that it is a fight or flight situation. AB is not a fighter, so he

needed to get out of there. He needed to run and get out of the situation.

I am a guy with a letter too on my file. The last thing I need to do is be disrespectful to him.

AB agreed he did use swear words that day.

At no point did I swear at Mark – like F you or F off. At no point did I call him a name like an A-

hole or P. My vulgarity was in a sentence -- Fuck, Mark, I told you that in confidence man, why

would you do that to me?

It wasn’t like his ears would be falling off with the language. I have heard Mark use the same

language. The door was closed. I didn’t even think of the office staff – just a lot of F words but

not directed at him towards him at any time.

52

During the first exchange in the warehouse, AB’s mood was frustration. It was his first

day back and he was hoping to slide back in and do his job.

I never said I would not pick inside. At one point I said -- Mark I will pick inside. You’re the boss. I

said I would do the job and that is when he continued to follow me and informed me that I didn’t

need a shop steward because we were just having a conversation.

When asked about the volume of his voice in the second meeting, AB said:

I don’t know what to say about that. Picture a 260 pound man crying his eyes out – bawling his

face off –having a meltdown – shameful – I was embarrassed – my union embarrassed me – I

embarrassed myself.

When asked if he was loud, AB said:

I am a loud person. ..Yes.

AB says he was sweating profusely, shaking, and trembling. If he had looked at a

garbage can, he probably would have vomited.

This all happens to me, not when I am angry, but when I am having a panic attack – anxiety

attack. When I am angry, I am just loud. There is no sweating and crying.

When asked if he said he was going to get a gun and blow his brains out, AB said:

That one hurts, Heather, I will tell you that. I never said that. I would never say that. I would

never say anything like that. At some point Chris and I had a relationship and so that is hurtful.

He is the only one that said it. I never said that Heather.

At the end of the second meeting with Caswell, Caswell agreed AB should take one

day and they would start over the next day. Caswell also sent AB a text message at

10:44 a.m. on February 17. It says:

[AB], your vacation is approved for today only. You are directed to report to work tomorrow

morning at 7:00 a.m.

AB did not respond to Caswell’s text.

AB denies verbally threatening Caswell or other SaskPower staff on February 17. He

was not physically violent towards anyone. There was no pushing or shoving. AB

agrees that he was loud and used profanity. He did not call anyone any names.

When AB left work on February 17, he went home to his three dogs. His wife was not

home. AB wasn’t feeling very good. He took a Clonazepam sedative to calm himself

down and tried to get some sleep. He was exhausted.

AB did not receive any email from Caswell that day. AB thinks Caswell may have sent

the email to AB’s work email address, and AB didn’t have access to his work email. AB

had just fallen asleep when the doorbell rang. A courier came to AB’s residence just

before lunch and AB had to sign for a letter from SaskPower. When AB saw the letter,

he actually thought he was being fired.

AB’s emotions just started again. When he realized he wasn’t fired, he just couldn’t

understand why this letter was couriered to him. He had been on holidays before and

he had never received text messages and emails and couriered letters to make sure he

came back to work the next day.

You just nicely get yourself get calmed back down and this was just like another poke. I didn’t

53

get it. I didn’t understand it. We verbally agreed I would be back to work tomorrow at 7 am.

AB prepared notes of what occurred on February 17:

700 - At work sitting at Receiving bench with Lawney Donnie Ken.

7:15 - Mark comes to the receiving bench asks me if he could talk with me. We started for the

office. He stopped at the warehouse door and said “we can talk here I think.” Which I replied OK.

Mark informs me that he would like me to work on shipping picking orders inside. I calmly reply

why. He responds with things are “going great” over at receiving and he doesn’t want to change

that. I feel agetated [sic] with the remark considering my co workers were happy I was back and

able to continue my work outside forklift work. Donnie was happy I was back.

When I told Mark that didn’t even make sense considering what I was just told by my fellow

worker who was doing my job, he then replied with “Things are changing [AB]”. When I asked

him what that meant he replied with I need guys to be able to do other jobs. I replied with what’s

changing. His response it doesn’t matter and I need to pick inside on shipping because that’s

where I’m needed. I felt my frustration level rising. I told Mark that fine I will go do my job but I

can’t believe you would do this to me. I told you that in confidence that if I ever pissed you off to

please don’t make me pick inside because that’s my kryptonite. … Which at the time you replied

with a chuckle that you would never be like that and do to [sic] good a job outside, but fine I’ll do

what u tell me.

I started to walk away. Now you start explaining why you need me inside, I reply with fine Mark

whatever you say your [sic] the boss. My voice is raised and I can feel my frustration growing all

this while walking to the shipping bench. Mark tells me to stop and listen. I tell Mark that my

councellor [sic] told me to walk away from a situation and collect myself. Now all I hear is his

voice continuing to follow me to the bench. I told Mark he needs to leave me alone. Please Mark

please leave me alone, my frustration is starting to make me actually start to cry. I tell Mark the

[illegible] we talk I need my shop steward. His response was I don’t need a shop steward to have

a conversation. I reply that this has gone way past a conversation. Now we are at the bench.

Mark continues to talk at this point I ask Doug Hesch please make him stop and leave me alone.

Now I start walking to the back of the warehouse.

Doug comes to the back of the warehouse to tell me Mark has backed off and he should call the

union. I tell him I will call. I try to get into the computer at the bench but I’ve been way and I need

help logging in. I walk over to the Salvage to see Darren and get Curtis # from the union. Darren

Ken and mysel [sic] are talking at Salvage when Mark walks in. I calmly tell him why I was at

Salvage and I’ll be back at Shipping. I think he said that’s fine or something like that.

I go back to the Shipping warehouse and call the Union. I believe the lady on the phone could

tell I was upset and put me on hold while she got someone to talk with me. I talked to [illegible]? I

explained to him what’s going on. At one point he asks me if my mom still makes me breakfast in

the morning and to man up and go do your job. Now I feel completely off the rails and have no

idea what to do. I gather myself and to go ask Mark for a week’s holidays. I interrupt a meeting

he is having in the conference room with Greg. I ask him I could have a week’s holidays. He

replies with he’s not sure what my holiday status is. I inform him I have 5 weeks holidays. He

replies with how about I take the rest of the day off and come back tomorrow.

Greg leaves Mark tells me to sit down I close the door. Mark tells me there are changes going on

back in the warehouse and Shipping is where I needed. I’m frustrated excited and animated. I

tell him the only changes going on is that I’m picking inside. He tells me about the new

employees that started as change. I name off Donnie, Jarrot, [illegible], Darren, Doug, Lawney,

Kevin as not changing their position and at that point I lose my composure and start to ask him

why he’s doing this to me.

I did use profanity and I did raise my voice but it was pure frustration. In the moment trying to be

heard. The meeting ended with Mark telling me I have the day off and come back tomorrow. I

replied with “Thanks Mark and left.

54

In cross-examination:

 When asked why he only gave his notes about the February 17, 2016 meeting to

his counsel on May 2, 2017, AB said he had some notes he thought his lawyer

should have, so he gave them to her. AB insisted he made the notes at the time

and not later.

 AB agreed that he wanted to return to work February 17 with no restrictions. AB

was not looking for a softer approach.

 When counsel suggested that AB was belligerent within two hours of returning to

work, AB said:

No, that’s not correct. Can you tell me what belligerent means?

 When counsel pointed out that AB himself used the word belligerent when he was

describing his own behaviour of February 17 to his psychiatrist, AB said:

I was probably using the words that I was fired for being belligerent and threatening. I honestly

don’t know what belligerent means. I probably picked up the word from being fired.

 AB acknowledged that whatever it was that happened, it happened within two hours

of when he returned to work on February 17.

 Counsel suggested Caswell did not say said he’d like AB to work on picking orders,

but rather said he wanted AB to work inside in shipping and didn’t use the word

picking. AB said:

Yes, but I don’t know what other word you would use other than picking when you are inside.

 Counsel suggested to AB that he did not reply calmly but rather got angry right way.

AB said:

Not at all.

 AB agreed that at no time on February 17 did Caswell suggest the assignment to

work in shipping was permanent.

 AB agreed he used the “F” word more than once that morning and that he used it

both when he met Caswell first thing in the morning and when they met in the

conference room.

 AB acknowledged that in the conference room he said something like, “I can’t

fucking believe this.” He denies making a similar comment in the warehouse. He

said in the warehouse he asked Caswell why Caswell was making him pick inside

when AB had told Caswell in confidence that he didn’t do well inside.

 When asked if everyone knew he suffered from anxiety and depression, why AB

would have had to tell Caswell that in confidence, AB said:

I am basically handing my boss to get me off the rails. I am telling him that’s my Kryptonite.

Please don’t do that to me. It wasn’t in confidence -- don’t tell anybody. Who tells their boss -- if

you want to make me miserable, don’t do that to me? That was what I told him in confidence –

that I am handing him a letter -- this is what you can do to make me go crazy. But I trusted Mark

and I was agitated and I felt that he was angry at me cause I was on compensation and he put

me inside to punish me.

55

 AB said he does not recall saying, “This is fucking ridiculous,” or “This is a fucking

joke.” He says it is possible he said those things.

 When counsel suggested AB’s voice was raised, he said, “What do you mean?”

 When counsel suggested AB was loud in the warehouse, AB said:

No, I was trying to remain calm. I just came back from three and one half months of trying to

learn how to not do that. I believe I raised my voice when I asked him to please leave me alone. I

asked him that three or four times. He said it was just a conversation. I knew it wasn’t a

conversation. I told him it had gone past a conversation. I needed my shop steward because I

was on a letter too and didn’t want to lose my job.

 AB agreed that Caswell told him things were going great in receiving and that he

needed AB in shipping and tried to explain why.

 When counsel suggested AB wasn’t listening to Caswell, AB said:

He had given me multiple reasons why now there – everything was going great over there and

he didn’t want to change that which was contrary to what I had just been told by the person who

had my job. Then it was there was changes with new employees. At that point it was that I would

pick inside -- I am good -- and he continued to follow me and tell me why I needed to pick inside.

I never said -- no I won’t pick inside. I said -- I get it -- I get it – just leave me alone.

 When counsel suggested to AB that he never agreed to pick inside until after he

went to the salvage area, AB said he never talked to Caswell in the salvage area.

 AB agreed he never kept in touch with work while he was away and didn’t know

anything about the changes in operations since he was gone. He knew Lam was

away and that Lam had primarily worked inside. He knew Barry Loveday had retired

and Loveday had worked primarily in shipping.

 AB denied that Caswell told him it was really busy in shipping and denied that

Caswell tried to communicate the changes to him when they talked in the

warehouse. AB claims all Caswell told him was that he was needed in shipping.

 AB agreed it was fair to assume there might be changes after four and one half

months away.

 Counsel put it to AB that Caswell said when he came to meet with AB at 7:00 and

told AB he needed him to work in shipping, AB acted badly, used profanity and said

“I need a fucking shop steward”; and when Caswell said the conversation was not

disciplinary, AB said “This has gone way beyond a conversation,” and walked off.

AB said:

His evidence was wrong.

…I was calm at the beginning. I had learned some techniques. I wasn’t happy about having to

pick inside, but I was on a letter too so one more mistake and I’m fired. For me to come back

after four months and be insubordinate to Mark would be signing my own death. From 7:15 to

8:30 was the start of an emotional breakdown.

 When asked about his use of profanity in the warehouse, AB said:

I would throw an “F” word, like “fuck Mark – why would you fucking do that to me?” At no point

did I direct it at him as calling him a name or threating him or getting into his face. I wanted to

keep distance and get away. Was my voice raised? I am loud person. It was the beginning of an

56

emotional breakdown after coming back from three and one half months of a very hard time.

 Counsel suggested AB’s voice wasn’t just loud, it was booming. AB said:

You can suggest that but you weren’t there. My voice was not booming in the warehouse from

7:00 to 7:30. …longer, I guess, maybe 8:30 because I eventually collected enough composure to

go through the front and ask if I could go home.

 Counsel asked AB what Caswell was saying. AB said:

To be honest with you, I don’t know. I was frustrated, flustered, agitated. The only thing I could

concentrate on was to get out of the situation. I needed to get out. I could hear him talking, not

what he was saying.

 Counsel suggested Caswell agreed a shop steward would have to be involved

because AB was rude and swearing. AB said:

Absolutely not. Mark informed me there was no need for a shop steward. …I informed him it had

gone further than conversation and I needed to see a shop steward.

 Counsel asked how it had gone past conversation. AB said:

There were “F” words. I was using “F” words. He continued to follow me. I asked him to leave me

alone. I informed him my counselor told me the number one thing is to remove from the situation.

I was starting to cry when I said -- leave me alone. I can’t yell and be angry when crying. It was a

bad time for me. It was embarrassing and there was people in the warehouse.

 AB agreed he went with Doug Hesch to the shipping bench to log in, but his

password needed changing and the help desk wasn’t open. When counsel

suggested the help desk is open 24 hours, AB said:

I assumed at 7:15 things at SaskPower was not in full motion yet. That was my own assumption.

I knew Darren had Curtis’ phone number.

 AB said he didn’t consider looking in the phone book for the Union number. He felt

the walk over to salvage would help him to calm down.

 Counsel asked what happened when Caswell came over to salvage. AB said:

Darrin was at his locker opening his locker. I was speaking to Ken and Darrin. I informed Mark I

was just getting the Union number from Darrin and I would be back over at shipping. He said that

is fine.

 Counsel suggested Caswell came over to salvage because AB said he needed a

Union rep and Caswell came to find out when is the meeting. AB said:

Actually no. When I told Mark the next time we talk should be with a shop steward, I again told

him to just leave me alone. That is when Doug Hesch – I asked Doug to please ask him to leave

me alone. He put his hand up and said -- just give him a second. When Doug took that control, I

walked to the back of warehouse. About five to ten minutes later Doug came back and asked if

he would like me to contact the Union. I said I could contact the Union myself.

 Counsel asked if AB had agreed he was going to do this job, why would Caswell

come to salvage to seek AB out. AB said:

Because Doug had told me Mark was okay with me getting Union representation.

 Counsel asked why AB needed a Union rep:

Because I felt what just happened was -- for a guy on a letter too -- I felt it was important that we

get to the bottom of it. It was not a pretty scene. Maybe I took it a little personal. The comment I

57

made to him and the first opportunity he acted on it. I didn’t know he was seeking me out at

salvage. I was over there five minutes. It’s literally a two minute walk.

 AB said when he spoke to the Union rep, he explained the situation.

…that I had been off work 3 ½ months and came back and was put in a position I wasn’t

expected to be put in. I felt Mark was bullying me that morning and what could we do about that?

 Counsel asked if AB’s complaint was that he had been asked to work inside. AB

said:

My complaint was the whole ordeal of following me down the warehouse and Mark following me.

 Counsel pointed out to AB that on March 10, 2016, AB told Dr. O that his manager

had broken trust when he assigned him to work inside because the manager had

told AB he would never make him work inside. Counsel suggested AB’s complaint

was that Caswell should not be putting him inside. AB said:

That was not my complaint.

 Counsel asked if that meant Dr. O has it wrong. AB said:

I wouldn’t say he’s got it wrong. …That is not a true statement – nobody said I could not work

inside.

 Counsel suggested to AB that Caswell says AB’s request to take vacation didn’t

occur until towards the end of the meeting in the conference room when AB said, “I

can’t fuckin be here right now. I need to use a week of vacation.” AB said:

I said that? I asked for holidays while still standing at the door with Greg Simpson there. It was

my intention to ask Mark for holidays.

 Counsel suggested to AB that when Caswell asked AB to come in and sit down so

they could discuss the changes, AB erupted. AB said:

I didn’t erupt. I was very emotional because Mark kept giving me different answers on why I was

picking inside - from everything going great over there to staffing changes and again he threw

the changes at me. There was no changes amongst the core seven or eight of us. The only

changes were the new employees that had come. That was a change. But the original eight of

us still held their positions.

 AB agreed Caswell’s comments in the conference room were similar to those earlier

in the warehouse.

 Counsel suggested AB was loud. AB said:

I was emotional.

 Counsel suggested again that AB was loud. AB agreed. AB denied shouting.

 Counsel suggested AB was swearing. AB said:

No, again, not at Mark. I didn’t call him any names. It was just the “F”

word here and there.

 Counsel suggested at this point AB suggested the assignment was “fucking

ridiculous” and “a fucking joke”. AB said:

I don’t remember that. It is possible. I was emotional. …I might have said that.

 Counsel asked AB if he might have said “Why the fuck are you doing this to me?

58

AB said:

Yes

 Counsel asked AB if he recalls getting up and leaning on the table at any time

during the conversation in the conference room. AB said he doesn’t recall. Counsel

asked if it is possible AB did that. AB said:

No, I never infringed on his space.

 AB acknowledged that when Caswell spoke to him in the warehouse that morning,

the other three employees were in the same room but you couldn’t see them. Doug

Hesch was at his locker at the shipping desk. When they walked towards Caswell’s

office, Hesch wasn’t nearby.

 Counsel suggested that Burgess reported he heard AB shouting from the

conference room. Counsel asked AB if he was yelling and swearing repeatedly as

Burgess reports. AB said:

I was having an emotional breakdown. Not repeatedly, I was having an emotional breakdown.

 AB denies yelling at Caswell.

 AB denies most of the things Burgess says AB said:

o AB denies saying, “Why the fuck would you put me inside working – you

know I fucking hate working inside.”

o When asked if he said, “Jesus Christ, this is ridiculous. I want to be working

in the forklift,” AB said:

I don’t use Jesus Christ as a swear word at any time. I have a strong Catholic mother

and don’t use that word.

o When asked if he said, “This is a fucking joke. Everyone is against me – you,

the Union. Nobody is on my fucking side,” AB said he was frustrated the

company was shutting him out and felt the Union was shutting him out. AB

imagines the word “fucking” was in what he said, but word for word he is not

sure he said these words. He felt he was deserted.

o Counsel asked AB if he said, “I get accused of smoking pot on the job. I get

accused of drawing fucking pictures, I get told I’m late. Mark, it was fucking

7:01 when I drove into the yard, not 7:08”. In response, AB said:

Yah, I said that. It was just very emotional and frustrating.

o Counsel asked AB if he said, “I can’t stand this place. I need to fucking go.

I’m out of here.” AB said:

I didn’t say that. I told Mark earlier that I needed time out. That I can’t stand this place? I

love my job.

 Counsel asked AB if he made the comment, “If I died I wouldn’t want you fuckers at

my funeral.” AB became angry and said:

I don’t know why I would say that. …I am not sure if I said that or not. I am not sure if I said it or

not.

59

 Counsel asked AB if he recalled saying in his testimony that he did not say anything

about getting a gun. AB said he did recall. Counsel asked AB if he said something

to that effect to his counsellor. AB said he was not sure. Counsel asked AB if he

told his counselor on February 22, 2016 that that he was “thinking of putting a bullet

in his head to show SaskPower they can’t treat people that way”. AB said he

doesn’t recall saying that. AB is not sure either way whether he said something like

that.

 Counsel asked AB if he recalled talking to his second counselor on July 11, 2016

about anger and feelings of revenge and what forgiveness might look like. AB

acknowledged he recalled that and said it was part of the steps needed to get

better.

 Counsel asked AB if he recalled talking to Dr. O about wanting revenge. AB said

not that he could recall. Counsel pointed AB to Dr. O’s records which show that on

December 16, 2016, Dr. O reports that some days AB wants revenge. AB agreed

he said that to Dr. O.

 AB agreed that he went straight home from work on February 17. He acknowledged

receiving the text from Caswell and said he didn’t answer it because he was just

trying to stay out of that whole situation. He was sick at home. Counsel asked if AB

couldn’t have just responded “okay” or anything like that. AB said, “No, I was sick.”

AB said he fell asleep. He thought he was being fired.

 Counsel asked AB what in his conduct made him think he was being fired. AB said:

I am not sure. It was just an assumption. It was just a quick – it was not that I dwelled on it -- it

said SaskPower – oh my God, am I getting fired. I signed it, opened it and obviously it wasn’t a

termination.

 AB said nothing crossed his mind that happened that day that would have led to

termination.

I asked for the day off. I asked for the week off and we would start tomorrow. I didn’t understand

the need for a letter. I had taken medication and I had just finally fell asleep and was woken by

the door and the courier.

Doug

Hesch

In February 2016, Hesch’s shift started at 7:00 a.m. Hesch knows AB because he

worked with AB in Central Stores before Hesch went to the steel yard. They sometimes

worked together. They were both material handlers. They picked orders for Central

Stores so they would be working in the same vicinity and they went for coffee and

things like that. Outside work Hesch fixed AB’s vehicles three or four times but they did

not socialize outside of work.

Hesch doesn’t remember the date of the incident involving AB and Caswell. He thinks it

happened the day AB came back from leave. Hesch witnessed things that happened

on the receiving side of the warehouse in Central Stores. Hesch was never interviewed

by anyone at SaskPower about the incident, nor did he make any notes about it.

At about 7:15 that morning, Hesch was on the shipping side of the warehouse. The two

sides of the area are about forty feet apart. Caswell and AB were on the receiving side.

Hesch started walking over to receiving to talk to John Perfect. On his way, he could

60

see and hear Caswell and AB.

Hesch heard AB tell Caswell he wanted to talk to the Union. AB was quite distraught,

quite upset and emotional. When asked how loud AB was, Hesch said:

I don’t know how you describe it – quite a bit louder than you and me are talking now. He was

just walking away from Mark with his hand up saying -- I just want to talk to my union, leave me

alone. I heard what was going on. [AB] seen me coming and when he saw me he said -- Dougie

can you get this guy off me? …

[AB] was walking down the aisle and I walked to Mark and I asked -- Do you mind if I talk to [AB]

and see if I can get him calmed down? --and -- Do you mind if he talks to the union?

Mark said -- I don’t have any problem with that. -- I left Mark and went down to talk to [AB].

AB was quite upset and distraught and fairly emotional. Hesch thinks Caswell went to

the receiving office. Hesch went to talk to AB and tried to calm him down. They talked

for a couple of minutes and then Hesch went to go to the steel yard. That was the end

of Hesch’s involvement.

AB just asked Hesch for some help, so Hesch intervened hoping he could get AB

calmed down and get the situation better.

Hesch said AB was not aggressive towards him and that Hesch was not at all

frightened or threatened by AB. The whole incident including Hesch’s talk with AB took

less than ten minutes. Hesch never heard AB use any swear words. He did not see AB

make any threatening gestures or do anything that made Hesch think AB was going to

be violent. AB was just walking away from Caswell.

Hesch is not scared of AB. He has no concerns about AB with respect to anger,

aggression or violence and would have no objection to AB being reinstated to his old

job in Central Stores nor would he have any issues working with AB.

When Hesch saw AB that morning, AB had his hands up in the air just walking away.

[In the hearing, Hesch motioned to show that AB had both his hands raised as he was

walking away from Caswell.]

In cross-examination:

 Hesch agreed that when AB asked Hesch to “get this guy off me”, there was no

suggestion Caswell was actually touching AB in any way. Hesch said Caswell was

about twelve feet behind AB at the time. Hesch just remembers asking Caswell if he

minded if AB called the Union and Caswell saying it was okay.

John

Perfect

AB had been away on medical leave. Perfect is not sure why, but Perfect “naturally

assumed it was his mental state of mind, his depression and stuff” because:

Just the fact of the way he was before that. It was just something. You know people for a long

time. You just know.

When AB was first off work, Perfect didn’t have anyone specifically assigned to replace

AB. Perfect was down to one man for a time and was stealing people from other areas

of the warehouse. Perfects thinks he was given somebody a little later on when he was

desperate.

Perfect recalls having some discussions with Caswell about where they would assign

61

AB when he returned to work, but Perfect doesn’t remember any details of the

discussion. Don Valley was working the outside forklift at the time. Valley wasn’t happy

about having to work in the yard. He told Perfect he preferred to work inside receiving

with Perfect.

When AB returned to work:

I didn’t see him at all at first. A little later in the morning I heard loud voices and I recognized it

being [AB] and Mark and this went on for a little while and then after the noise died down – it was

too far away for me to hear – I couldn’t hear what was said. The next thing I know [AB] is in my

office.

…[AB] came in to talk to me. He told me he was not going to be getting his old position back in

the yard and he was going to be assigned to another location. I can’t recall if he said what

location.

…[AB] was extremely distraught – physically shaking, on the verge of tears, just an emotional

mess. I had never seen him like that before. I never seen a man like that before. He was really

really upset. He was breathing heavy – short breaths. He’s talking to me and he was wound up

and he was shaking and on verge of tears and breathing heavy and quick and trembling. He was

not in good shape.

…[AB] was extremely upset, worried, maybe concerned about his position there. I am not too

sure how to say it. He was upset. I don’t know how to put it really.

Perfect had never seen AB like this before:

I was trying to get him calmed down and I was trying to calm him down and he was wanting to

go back up and talk to Mark again and I said -- You are in no condition to do that and stay in my

office and maybe we can try to figure something out to get you back to my area -- to get him to

calm down and see things in a proper light. At the time this was going on, I thought to myself --

This guy should not be back at work. He was not ready to be in the workforce.

Perfect felt AB should not be back at work:

Because of his demeanor. It was abnormal for him to be in that condition. My assumptions might

have been correct but if he was off for mental illness, he was still not showing signs of being

back to a normal healthy mental state. The reaction was kind of extreme, I guess.

No one at SaskPower interviewed Perfect with respect to his meeting with AB, nor did

they ask Perfect for a statement.

AB took off out of Perfect’s office. Perfect told AB to come back, but he didn’t listen.

Perfect doesn’t know what happened after that.

The next thing I know I was informed by someone that [AB] had been terminated and wouldn’t

be returning to work. I don’t remember whether Mark told me or the rumor mill and someone else

told me.

In cross-examination:

 Perfect said he thought it was around 8:00 a.m. when he heard the voices on the

shipping side. He could tell it was AB and Caswell, but couldn’t make out the words.

AB was definitely the loudest voice. AB came to Perfect’s office later. Caswell was

not around at this time and was not part of the conversation.

 Perfect confirmed AB said he was not getting his old position back. AB did not say

anything about talking with the Union. AB was in Perfect’s office for maybe ten

minutes. When AB left Perfect’s office, he said he was going to see Caswell and

62

Perfect told AB he didn’t think it was a good idea, but AB wasn’t in a state of mind to

listen to what Perfect was saying. AB didn’t say why he was going to see Caswell.

AB was just upset. He was shaking and breathing heavily and generally upset.

 Perfect said he didn’t tell Caswell that AB had been to see him. He didn’t see any

reason to tell Caswell.

 Perfect said he didn’t talk to Hesch directly about what happened. He heard about

Hesch’s involvement second hand.

 Counsel said she understood Perfect was aware AB was coming back and would

be working in shipping. Perfect said:

I don’t recall that. We discussed that he would return. I didn’t know what date. They said they

might take him away and put him inside in picking. Nothing was said for sure. …I might have

said he likes working on my team.

February 18, 2016

Chris

After he signed the letter on February 17, Burgess had no further involvement with AB

Burgess

and was not involved in the decision to terminate AB’s employment.

Burgess did send Jillian Orb another email on February 18:

I just wanted to add to my comments from yesterday.

I’ve heard a few people say that they are worried that with the growing tension with [AB] and the

way that [AB] can’t seem to control his anger, that one of these days he’s going to come into the

warehouse office with ‘guns a blazing’. I had a conversation this morning with Joe Dyck and he

voiced the concern. Trevor Blaine and Cindy Knudsen have mentioned it to me before and I

have to admit – the thought has crossed my mind as well. Lord knows how many other people

have thought the same thing…

The idea is likely paranoia due to the instability of [AB]’s outbursts cause within the office and I

need to put in the caveat on this concern that other than his yelling and swearing I have had no

reason to believe he would do such a thing….but I wanted to let you know that it has crossed a

few people’s minds at Central Stores.

…even before Joe and I spoke this morning I made a mental note of all of the escape exits that

are near my workstation. Why? Because I signed a letter that was couriered to [AB] yesterday

ordering him back to work.

Again, I believe the idea comes from [AB]’s apparent lack of control of his anger. I want to

emphasize that I have not heard him say such a thing and have had no reason to believe he

would.

The larger point I’m trying to get across here is not that [AB] likely is to do something so drastic,

but that there is a negative effect on the workforce when there is such an unstable element

present – people do worry about what is coming next and it does affect their job.

Thanks for hearing me out.

In cross-examination:

 Burgess agreed he never heard AB say he was going to shoot up the place or

anything like that. That is why he said people were concerned, not that it was a fact.

There was genuine concern that with AB’s anger and his giant outburst in Central

Stores those things could escalate.

 When counsel suggested that the concerns about potential violence were simply

63

office gossip, Burgess said there was an entire context around this incident that

gave credibility to the concerns including AB yelling and screaming.

 Burgess said that AB said something about grabbing a gun and blowing his brains

out. Burgess doesn’t recall what AB said word for word. Counsel suggested that

because that statement is not included in Burgess’ February 17 email, that AB did

not in fact make that statement. Burgess said, “I am going to suggest you are

incorrect.” Burgess said many of the things AB said during that meeting didn’t make

it into the email. The list in the email included examples of what AB had said.

 When asked why he didn’t call the police or a crisis line if he thought the situation

was so bad, Burgess said he assumed the matter was being dealt with.

 Burgess confirmed he did talk to Caswell at some point after the meeting, but he

doesn’t recall the conversations specifically. It was very emotional at the time.

Burgess confirmed he had not talked to Caswell recently about the incident.

 Burgess confirmed that he didn’t believe AB would “come in with guns blazing”

because AB had never threatened to do such a thing. It was the general feeling of

instability that caused employee concerns. AB had not said he would do it, but

Burgess and others feared he might.

 When counsel suggested Burgess was not afraid, Burgess said, “I made a mental

note of escape exits. That indicates fear.” Signing the letter to AB on the 17^thalso

escalated Burgess’s anxiety.

 Burgess confirmed AB was a smart employee and was skilled with machinery and

that his relationship with AB wasn’t all negative including a time where AB initiated

the staff to give Burgess a gift of a football helmet.

In re-examination, Burgess confirmed he gathered the information he included in his

email from debriefing the employees after he had gone to lock the gate. The email is an

accurate reflection of how people were feeling. By sending the email, Burgess intended

to convey to HR the general concerns from him and his staff.

Mark

Caswell

AB reported to work the next day. It was fairly uneventful and he went to work. Caswell

set the meeting with the Union rep for later that morning. He and Jillian Orb met with

Building 1 with AB and Union rep Allison Kobelka. The Union rep attended by video

conference. It wasn’t a long meeting. Orb lead off the meeting and Caswell went from

there. They filled in the Union rep on why they called the meeting. Then the meeting

proceeded.

At the meeting, AB lost his temper again. He was extremely emotional. AB did cry in

this meeting. It felt particularly threatening. AB said, “Are you a God-fearing man? Do

you fear the Lord and how do you even look at your fucking kids?” When he made

those comments AB was pointing angrily at Caswell.

It was hard to get discussion flowing because AB wasn’t following along. Caswell

doesn’t think AB was paying attention. AB was angry and burst out in his comments

through the meeting. Caswell wanted to address AB’s behaviour from the day before

and try to explain why that was unacceptable and figure out what they were going to do

from there. The goal of the meeting was to try to have AB accept responsibility for his

64

own actions.

AB said things like, “They give me a gun and I load the fucking gun for them every

time. I know I do. I can’t help it. It’s just who I am.

When AB was off on one of his outbursts, the Union rep shook her head and said, “[AB]

you’re not helping yourself right now.”

His position was that we were doing this to him. We’re harassing him. “I’m a grown fucking man.”

AB did not feel any responsibility or accountability for his actions and felt that it was our fault he

behaved the way he did. …In this meeting, working outside probably did come up. That

appeared to be the catalyst for this sequence of events.

Caswell tried to explain that working in the warehouse was a necessary part of the

Storekeeper job. He talked about the need to have team members trained in several

aspects to be the most flexible to deal with the work thrown at them. Caswell needed to

be able to mobilize guys to where the work was.

Caswell didn’t feel very good about the interaction. The whole situation was really

upsetting for Caswell personally. “I had a pit in my stomach. This was not fun.” It was

upsetting because AB yelled at Caswell, insulted him, berated him and threatened him.

It didn’t feel very good.

Caswell suspended AB with pay pending further discussion with HR.

Caswell made notes during the meeting and then summarized the notes in an email to

Orb that afternoon because this was a pretty serious incident. The email to Orb says:

Here’s a summary of my notes and observations from this morning’s discussions.

Present – [AB], Allison (?), Jillian Orb and me

Jillian started the meeting off explaining to [AB] that we were here to discuss his disrespectful

behaviour and swearing that had been overheard by others at Central Stores yesterday morning.

She brought up a few quotes of things that were heard. [AB] kept shaking his head while

listening to the comments. Jillian stated that these comments were not reported by me, but by

others who were in earshot at the time.

[AB] began to get agitated as he explained he suffered from anxiety, was diabetic and had had

a heart attack.

[AB] then began to question why it was necessary to send a text message, followed by an email

and then have a courier deliver a letter to his house requiring him to report to work today. He

claimed that with each communication, his stress level was increased. Jillian and I attempted to

explain the rationale for this, but [AB] kept interrupting. Jillian did manage to say that this was the

process that the company uses. [AB] made a comment about this not being the process in the

past and that there was no need for it.

[AB] did the majority of the talking, his agitation continually escalating throughout. He continued

to talk about his anger issues with statements like “Little things over time become a big ball and I

can’t deal with that” and “where does this stop”.

He talked about his feeling that changes that Central Stores only affected him and that he was

being singled out. “I know the company is harassing me”. He said that previous supervisors have

handled him differently, because they knew that he was hot-tempered. Jillian mentioned that the

just because you have been handled differently in the past didn’t make it the right way, not [sic]

did it mean that the approach could never change.

He became more verbally abusive as he got more wound up, starting to swear frequently. “I’m a

grown fucking man, Jillian!” was repeated a couple of times. He was constantly pounding his

65

fists on the table as he was speaking throughout the discussion.

He spoke for a while about a conversation that he had with the IBEW rep yesterday. He claimed

that upon explaining the situation to the rep, the rep asked him “if his mom still makes his

breakfast for him”. He began to talk about how he was constantly bullied and harassed and even

his union wasn’t defending him. He was getting more and more agitated, became louder and

more profane as he went on.

Jillian encouraged him to take a few minutes to collect himself, which he did. He was continuing

to make comments about how he was being bullied and no one was standing up for him as he

left the room. I recall that Allison said to him that he wasn’t helping himself right now.

He came back into the room on his own time, but he was not gone very long – I would say less

than two minutes. He did not appear to have calmed down much. He made comments directed

at me about “Are you a god-fearing man, Mark? Do you believe in the Lord?” I stated that we

weren’t here to discuss my religion. He asked me, “how do you even look at your kids?” This felt

threatening to me.

One of his final comments before the meeting ended was his admission that he knows he

crosses the line with his anger. He also insinuated that this was being used against him with his

statement that “They give me a gun and I load the fucking gun for them every fucking time. I

know I do. I can’t help it. That’s just who I am.”

In cross-examination:

 When asked if he considered options other than termination, Caswell said he had

those discussions with Human Resources and ultimately he decided termination

was the proper course.

Jillian

Orb

Orb met with AB, Caswell and Allison Kobelka (Weyburn Shop Steward of IBEW).

Curtis Lizee wasn’t available and the Union agreed Kobelka would sit in by video for

the meeting.

The meeting was in the safety building in the same compound as Central Stores, in

Building 1. Orb took the lead. AB displayed the same aggressive confrontational

belligerent manner as day before. Orb concentrated on the meeting and Caswell took

notes which he summarized in an email following the meeting. Caswell’s email

accurately reflects what occurred at the meeting.

The meeting went out of control quite quickly. AB constantly interrupted Orb. He

banged his fist on table. He was shouting. A couple of times Orb asked AB to calm

down. She talked about these behaviors and at one point asked if he needed a break.

AB stepped out for a few minutes and came back in with no change in behavior.

Orb remembers the shop steward advising AB to calm down and saying that he was

not helping himself by acting this way. The Union rep told AB to step out and give her a

phone call so she could talk to him privately. He chose not to do so, so that never

happened.

AB was aggressive towards Caswell as described in the notes. There was one point

where AB asked Caswell if he was a God-fearing man and how does he look at his kids

at night. It felt threatening and it appeared harassing and it was bullying behavior.

Caswell suspended AB with pay pending further investigation. Orb escorted AB to his

vehicle which in hindsight was probably not a good idea. Orb advised another manager

of safety that she was escorting AB to his vehicle. In hindsight, it was a risk for Orb to

66

do that. She asked the manager to watch for her and make sure she came back. She

escorted AB to his vehicle and he left. Afterward Orb received informal coaching

because of the risk she had taken by doing that.

After AB left, Orb returned to the conference room with Caswell and with Kobelka by

video. They spent a few minutes of debrief with Kobelka. After Kobelka signed off, Orb

and Caswell called Sherry Francis and Todd Boldt to discuss what had happened.

They decided AB’s behaviours violated his Decision Making Leave and that they were

going to terminate AB’s employment. Orb prepared the termination letter advising AB

he was being terminated for cause.

In cross-examination:

 Orb agreed that if someone had said they were going to come into the workplace

with guns blazing, she would expect those who heard it to report that.

 Orb confirmed that at the meeting in the safety office she told AB it would take three

to five days for the investigation. Orb said she had to speak to her supervisor and

Labour Relations. She always tells people it will take more time than she hopes it

actually will so people are aware it might take some time.

 Orb agreed that in deciding to terminate AB’s employment, the management team,

supported by HR, made the decision. They reviewed AB’s employment record. She

is not sure whether they considered that AB had received Bright Lights points. Orb

agreed that in addition to the DML letter, there were no other documents about

performance concerns. AB was a long-term employee. In addition to his anger, AB

was also emotional and crying at the February 18 meeting. He had been away for

three and a half months. Orb was not aware that the reason for AB’s sick leave was

anxiety and depression and she didn’t know whether AB was using EFAP. She

didn’t know whether AB had asked for additional support. Orb agreed that the actual

discipline for which the DML was issued was the picture in AB’s locker, not his

behaviour. Orb agreed SaskPower did not rely on AB’s behaviour around the

calendar incident as part of grounds for termination. The DML was a significant

factor in the termination because it is the last step before termination and AB failed

to meet the expectations he agreed to in the DML. The conduct for which AB was

terminated was his behaviour on February 17.

In re-examination, Orb confirmed that in the face of a return to work by an employee

without restrictions, the RTW office does not play any role in discipline or in the

decision to discipline.

Kathy

Potts

On February 18, 2016, AB had met with Caswell and LR. Jason Tibbs from the Union

called Potts and said he wanted her to do a wellness check with AB because AB was

very upset following that meeting. Potts called AB and spoke to him.

AB was very upset. He had met with HR and LR and Caswell and felt he was going to

be fired. He was really distraught. Potts talked to AB about the whether he felt he was

fit to be at work. AB needed to go back to Dr. O and get medical that said he was not fit

to be at work because the medical SaskPower had said AB was fit.

AB had not been terminated at that point. The question was whether he was fit to be at

67

work. If there were restrictions and if he couldn’t work he had to apply for LTD because

he didn’t have any other benefits. He had exhausted everything through SaskPower.

Potts’ office is the gatekeeper for LTD to make sure everything is complete when

someone has to go over to LTD.

AB felt he could be at work if everyone left him alone and didn’t push his buttons. He

was upset because he came back after four months and work had changed and he

was going to be doing a different job. Potts talked to him about the fact that leaving him

alone wasn’t going to be a solution. They needed something other than that. AB said

he could be indoors and outdoors. He was going to be working in the warehouse and

he wanted to be outside. Potts told him there would have to be a medical restriction on

why he had to work outside, that as long as work duties fall within any stated

restrictions and are within a person’s job duties, SaskPower can assign them wherever.

Potts told AB he needed to get medical right away. If he was fit to work, what did that

look like? If he was not fit, he had to apply for LTD. The insurer takes up to a month to

process, so she needed AB to get the medical right away. AB said he had an

appointment on Monday and was going to try to get the medical on Monday.

In cross-examination:

 Potts confirmed that SaskPower has a practice with respect to wellness checks.

Tibbs was asking Potts to contact AB to see if he was okay and if he had resources.

If she was unable to reach AB, and if there was an indication that someone was at

risk of harm, then she would contact police and ask them to do a wellness check. If

someone said they were going to blow their brains out, Potts would get people

involved who have the expertise to deal with something like that. She has been

trained to take the first steps to assist until help can get there. In this case, Potts

was able to reach AB on the phone. AB was upset and very emotional. At one point

he couldn’t talk anymore and his wife came on the phone and said he needed time.

 Potts confirmed she did not tell AB he would not lose his job. When he expressed

fear about losing his job, she advised him to go to the doctor. Potts confirmed she

told Tibbs she would ask LR to hold off until Monday on proceeding with what they

were going to do next. Potts spoke to someone in LR, she thinks Todd Boldt or

Fabio Flandry. They never said they would hold off until Monday. Potts asked them

to hold off until Monday to wait and see what the medical said. She did this because

AB had just been off due to mental health issues.

 When counsel suggested it would have made sense for SaskPower to hold off until

Monday, Potts said AB was medically cleared for fulltime regular duties with no

restrictions, so she would have asked him to go back to his care provider to give

medical on whether he was fit to work and what that would look like. If there was

medical, SaskPower would have to look at it. She asked them to hold off because

she had asked for medical, but that didn’t need to hold up the process.

AB

AB reported to work at 7 on February 18. He got dressed, walked over to the shipping

office and grabbed his scanner gun. He loaded his work and proceeded to start picking

inside like he was told to do.

Caswell came shortly after eight and said they were having a meeting. AB asked if he

68

needed a shop steward and Caswell said one was provided.

That meeting was not good. The meeting included AB, Caswell, Orb and some lady on

the wall on a screen as AB’s Union representation.

When asked if he made comments about the Lord, AB said:

I remember Mark making a statement that wasn’t true and I know Mark goes to church

with his six children and his wife, so I just -- Mark are you a God fearing man? Why are

you not telling the truth?

…God fearing is you believe in the Lord and you practice the religion, so if you are

honest, you are honest. How do you go to church every Sunday and then lie on

something so important. It was just so frustrating.

When asked if the comments about the Lord were a threat, AB said:

How is the Lord a threat? I knew the answer to the question. I wanted him to look me in the eye

and say it.

When asked again if his words were a threat, AB said:

No. I don’t know how I could make that a threat. All I know is he goes to church and it was so

easy for him not to tell the truth that day.

AB spoke to the receptionist in Dr. O’s office to see if he could get in to see Dr. O.

I wasn’t very good. I needed to see the doctor as soon as possible. I think she was aware of that.

The receptionist told AB to go to the emergency room if he needed help until he got to

see Dr. O., but AB did not go to the emergency room.

AB called the doctor because:

Our plan for me to return to work didn’t go as planned and I really didn’t know what to do. I have

never lost a job before.

Emotionally, AB was a mess. He hadn’t lost his job yet, but he knew it was coming.

AB couldn’t get in to see Dr. O until Monday February 22.

In cross-examination:

 AB said he reported for work the next day and was picking inside for an hour before

he saw Caswell.

 Counsel suggested AB must have expected there would be some follow-up from

what occurred on the 17^th. AB said:

No – I – I – no -- it was -- it was -- I was woke from sleep, seen the courier from SaskPower. For

a flash second I thought I had been fired – not that I dwelled on it for a whole day.

 AB said he was “taken off guard” when Caswell asked to meet with him the next

day. The meeting was in a trailer or close to some kind of trailer. It was in a building

AB had never been in. AB believes it was a trailer.

 AB denied asking Caswell if he believed in the Lord.

I said that he was God fearing and that he should be telling the truth.

 Counsel reminded AB that he had said at the time Caswell was making a statement

69

that wasn’t true. Counsel asked AB what statement wasn’t true. AB said:

I don’t recall. I don’t know the order of the statements. I remember one that agitated me was

that this was common practice that it was a courier letter for holidays.

 Counsel asked AB if he had any reason to question SaskPower’s standard practice

in reaching out to employees. AB said:

In 22 years I never had a courier tell me to come back to work. It was a little odd to me.

 Counsel asked again whether AB had no recollection of what statement Caswell

made that prompted AB to say Caswell was a God fearing man. AB said he thought

it was the statement that sending a letter was standard policy.

I thought that was the statement.

 AB agreed he shook his finger at Caswell and said, “Shame on you, Mark.” He

agreed he asked Caswell how he even looks at his kids.

I know he had went to church and he is a family man and he thinks highly of his family.

 Counsel suggested Caswell has five kids and doesn’t go to church. AB said:

I thought it was six because I would make a Brady bunch statement to him once in a while. I

thought he had three from a previous and three of his own. It was a big family.

 Counsel suggested Caswell is an atheist. AB said:

I guess that explains a lot then. …If you are an atheist how can you put a hand on a bible?

 Counsel asked AB what prompted him to ask Caswell how he even looks at his

kids. AB said:

Because he wasn’t being truthful.

 Counsel asked what that had to do with children. AB said:

Because he’s a family man and – I just know he’s a family man and I equate that with beliefs and

doing good and doing right and doing the right thing.

 AB agreed that at the meeting on the 18^thhis voice was raised and he was agitated.

Counsel asked if he was pounding his hands on the table from time to time. AB,

raising his hands in the air, said:

I really don’t recall the play by play of it. I felt as though I was all alone in a room and being

attacked by Jillian Orb and Mark Caswell. So I felt as if I was backed into a corner -- so.

 Counsel suggested it would be reasonable for someone across the table from a 260

pound man being asked by that man if he was God fearing man and how does he

look at his children, to be afraid. AB said:

I never stood or pointed my finger – at that point – I don’t remember that.

 Counsel asked AB if he pointed his finger and said “Shame on you”. AB said:

Across the table, yes.

 AB agreed that in those circumstances a person might feel threatened, but said his

weight doesn’t have anything to do with it.

 AB said he can’t remember whether he told Caswell that previous supervisors

70

handled him differently because they knew AB was hot tempered.

 Counsel asked AB if he made the statement that “They give me a gun and I load

the fucking gun every time.” AB said:

Yah, I think I did. Yah.

 AB acknowledged that he had agreed to abide by the nine points in the Decision

Making Leave letter.

 AB acknowledged that he called Dr. O’s office on February 18 after his meeting with

Orb and Caswell. He told the staff person he had been informed that he was going

to be losing his job when that actually hadn’t happened.

 Counsel asked AB who had informed him he was going to lose his job. AB said:

It was my feeling that I had in my stomach.

February 19

Jillian

Orb

Orb worked with Enterprise Security to arrange an off-site location for a meeting. They

arranged for the meeting at the Travelodge.

Orb and Caswell met with AB and Union rep Brandon Lang. The whole meeting took

maybe ten to thirteen minutes.

Darrin Sabourin who is manager in Enterprise Security along with two other Enterprise

Security staff were in the hotel lobby. One of them came up when AB arrived in case

anything escalated or the situation got violent. Orb didn’t know what to expect, so she

made that preparation. They always assess risk when they have meetings like this. The

precautions on this occasion were due to AB’s behaviour thus far.

There was no incident at the meeting. Caswell read the termination letter. He provided

AB and the shop steward each with a copy. AB actually shook Caswell’s hand and left

without any incident. Orb was not further involved with anything to do with AB after this.

In cross-examination:

 Orb confirmed that on February 20, 2016, she sent an email to Todd Boldt and

Wanda Knisley summarizing the dismissal meeting. In that email Orb summarized

the meeting as follows:

o

Mark thanked [AB] for coming in, read the dismissal letter.

[AB] apologized to Mark, shook his hand and then apologized to myself for his behaviour.

[AB] did not demonstrate any hostility or threaten to harm himself while Mark and I were

present.

o

Mark and I adjourned.

[AB] spent approximately 10 minutes alone with Brandon Lang, then left with no incident.

 Orb confirmed that she provided Brandon Lang with the EFAP brochure before the

termination meeting and told him any medical information should be sent to Kathy

Potts in the RTW office. Orb said this was because AB had just been off on medical

leave and SaskPower offers EFAP to employees being terminated. That is

managed through the RTW office.

71

 Orb confirmed that at the February 19 meeting AB apologized, there was no

hostility and the meeting ended without incident.

 Orb confirmed that she remembers AB saying he just tried to provide a full day’s

work.

 Orb said she does not believe she contacted the RTW office before AB’s

termination. She would have had no reason to contact them because AB had been

cleared to return to work with no restrictions.

 When asked if the fact AB got into trouble on his first day back to work should have

raised issues, Orb said AB’s return to work from medical leave had nothing to do

with his having violated his DML by acting in a hostile manner. This was because

AB had been cleared to return to work with no restrictions.

 Orb was not aware whether AB was attending counselling.

 Orb said she has no recollection of Potts or Boltz contacting her and asking that

they hold off terminating AB. She has no notes to suggest that happened.

Mark

Caswell

Caswell sat down with the HR team. They felt there were sufficient grounds to

terminate AB because of his behavior. HR prepared the paperwork for the termination

including the termination letter and Caswell signed the letter.

They arranged to meet with AB at the Travelodge on South Albert and Caswell

presented AB with the letter and read it to him aloud. Jillian Orb was there along with

Brandon Lang for the Union. The meeting lasted less than ten minutes. Caswell hadn’t

seen AB since until the start of this hearing.

SaskPower never received any requests from AB or the Union for accommodations.

There was never had any indication AB was not able to perform the duties of

Storekeeper. There was no indication that when AB came back on February 17 there

was any problem. RTW told Caswell that AB was returning to work with no conditions.

In cross-examination:

 Caswell acknowledged that on two occasions SaskPower had awarded AB Bright

Lights points to recognize positive work performance.

 Caswell confirmed that AB was terminated because of his behaviour on February

17, 2016.

 Caswell confirmed that when he delivered the termination letter to AB, AB

apologized. He said he just tried to do a full day’s work and shook Caswell’s hand.

AB was polite to both Orb and Caswell and didn’t threaten or demonstrate hostility.

AB behaved professionally and respectfully. The meeting ended with no tempers

flaring.

 Caswell agreed that AB had mentioned stress to him previously, telling Caswell he

had suffered a heart attack earlier in his life. AB did not tell Caswell he suffered

from anxiety. Caswell acknowledged telling AB during one of their coaching

conversations that when he was stressed he had a special bottle of whiskey at

home.

72

 Caswell agreed that AB followed his supervisor’s directions, but that Perfect

expressed to Caswell on a couple of occasions that it was easier to do something

than ask AB because AB could be difficult. Overall he thinks AB had a good

relationship with Perfect.

AB

On February 19, at 1:45 p.m., Caswell sent AB a text message asking that AB give

Caswell a call. They spoke on the phone and arranged to meet. AB then sent Caswell

a text message at 1:56 pm to confirm they were to meet at the Travelodge on South

Albert.

At the meeting at the Travelodge on the afternoon of February 19, Caswell gave AB the

termination letter. Those present included AB, Caswell, Orb and a Union rep whose

name AB could not remember.

Mark read this letter to me and that was basically it pretty short and sweet –not too sweet, but it

was short.

AB stood up and shook Orb’s hand and apologised for his behavior. He shook

Caswell’s hand and said at the end of the day he was just trying to give them a good

day’s work. Caswell said -- I know [AB] -- and he shook AB’s hand.

AB apologized because at the February 18th meeting he was angry and used some

language that his parents wouldn’t be proud of in front of a lady. AB shook Caswell’s

hand because Caswell was AB’s boss and they had a good relationship. The meeting

then ended. AB doesn’t even remember who left first.

AB believes the Decision Making Leave referred to in the termination letter is the DML

he was given for having a “Time Magazine picture in my locker.” That was the only

Decision Making Leave he had, so he thinks it has to be that one. It wasn’t for yelling or

acting out.

Brandon

Lang

Brandon Lang has worked at SaskPower in Regina since 2005. He has been a

supervisor of system test for about three years and before that worked on system test

for about eight years.

Lang is currently a Vice President on the Executive Board of the Union. He has been a

shop steward since at least 2013 and was the shop steward who attended the meeting

where AB was terminated.

Lang took notes of the meeting which he made immediately after the meeting.

Lang does not recall whether anyone told him what the meeting was about. The

meeting included AB, Orb, Caswell and Lang. It lasted maybe ten minutes. It took place

in a conference room at the Travelodge.

I didn’t note it, but I probably imagine there were introductions quickly and then just cut to the

chase. Mark Caswell delivered the letter to [AB] and that is how it started.

AB was calm, collected, kind of thing. He was pretty quiet. Caswell delivered the letter

and explained it. He read the letter out loud. While Caswell read the letter, AB was

listening and taking it in. AB had no real expression and didn’t say anything. He was

calm and quiet.

After Caswell read the letter, AB stood up and reached out to Caswell and shook

73

Caswell’s hand. AB said, “At the end of the day I just tried to provide a full day’s work.”

AB turned to Orb and apologized for his previous behavior and she kind of

acknowledged AB and that was it. AB appeared to be calm and collected and sincere.

After Orb and Caswell left the room, Lang offered AB the EFAP information and they

called Jason Tibbs for debrief. After this, they left the hotel.

On their way out there were two guys at the top of the stairs, watching down the stairs.

One of them gave a head nod. Lang wondered what that was about and later

mentioned it to Tibbs.

February 22, 2016

AB

AB went to see Dr. O and Dr. O completed an assessment that day. The assessment

included filling out questionnaires about symptoms and how AB was feeling. The

bottom third is the suicide boxes.

I had been seeing [Dr. O] since 2013 and I used to think you gotta be in a bad spot to fill out this

section. How would you do it? Do you know how you would do it? It’s zero to ten or zero to five.

For two years I zipped by that. That was the first time I actually…

[At this point, AB stopped talking and began taking breaths. He said, “This is not a

proud moment for me,” and began crying. Then he said, “Oh shit. M’am, can I be

excused?” AB the left the room. After a break, AB returned and apologized.]

AB said that as of February 22, he wasn’t doing well with depression and was on

increased medications at the time. When AB went to see Dr. O, he told Dr. O he had

lost his job. AB continued to see Dr. O for anxiety and depression and saw Dr. O more

often during this time. Usually it was every three months because he would get his

month’s medications. Dr. O reduced AB’s medications in February of 2017.

When asked about Dr. O’s notes about a buzzing, AB said:

It’s hard to explain. You get this zap in your head. It just keeps zapping and it wasn’t going away

so we reduced the meds then.

AB says he was always truthful with Dr. O. After the termination, AB wasn’t good.

January 2017 was rock bottom for AB. Things started to turn around in March and April

2017 and AB and started to feel better and started to want to feel better. He knew this

hearing was coming in May. He wanted to be at his best to return to work. It was

something to look forward to. AB is still taking the medications Dr. O prescribed.

February 22, 2015

Dr. O Dr. O completed a Long Term Disability claim form directed to the insurer. Under

diagnosis using DSM-4 criteria, Dr. O diagnosed:

Axis I – Generalized Anxiety Disorder with Comorbid depression

Axis II – Deferred

Axis III – Multiple medical problems

Axis IV – Nil

Axis V – Current GAF Score

Highest GAF Score in Past Year – 60

74

Lowest GAF Score in Past Year – 50

The form says that the symptoms started August 28, 2013 and first prevented AB from

working on October 19, 2015. The date of the first visit is August 28, 2013. The form

says AB has always had depression and anxiety. Dr. O answered “Yes” to the question

“Were work problems a factor in the development of your patient’s disorder?” In answer

to the question, If yes, please specify, Dr. O wrote, “Had a poor relationship with a

particular supervisor”. The form reflects that AB did not file a WCB claim and that the

date of the last visit to Dr. O was February 22, 2016. Visits to Dr. O are monthly and

there is no drug or alcohol abuse.

Dr. O notes that precipitating and complicating factors include Workplace issues and

Coping skills. He notes that the therapy method is counselling and the therapy goal is:

Develop coping skills and anger management

Changes to treatment plan underway include:

Regular visit, review, meditation and psychotherapy

With respect to return to work plans, Dr. O says the prognosis for recovery is

“favourable”. The next follow-up date is March 16, 2016.

Chris

In cross-examination:

Burgess

 Chris Burgess confirmed that SaskPower awards Bright Lights points for

exceptional conduct and for improvement to existing conduct. It could also involve

behaviour. There are different categories.

 Burgess agreed that SaskPower has a Respectful Workplace Policy.

February 24 and following

Kathy

Potts

Potts received, signed and submitted AB’s application for LTD on February 24, 2016.

AB completes the notice of claim form and Potts fills out other parts. Dr. O provides the

physician statement.

In the form, Dr. O says the “work problem” is said to be “poor relationship with a

particular supervisor”.

AB says his condition is Mental Health Depression Panic Attacks Anxiety. AB

answered yes to the question of whether he has had this condition before and wrote

Depression, Anxiety, Panic Attacks.

Once an application for LTD goes forward, SaskPower has no control. Potts doesn’t

know how Great West Life adjudicates claims. Potts tries to send over as much

information as possible so they don’t ask for more medical. It is hit or miss what they

will do. Potts received a letter in March that LTD benefits were denied.

In the fall in September 2016, the Union asked if Potts would help AB complete an

appeal for disability benefits. Potts went to the Union office. Curtis Lizee and the

receptionist and AB came in after Potts got there. When AB walked in and saw Potts

there he asked – “What the fuck is she doing here? She is the enemy.” Lizee said Potts

was there to help with AB’s appeal. Lizee stayed while Potts helped AB with the

appeal.

75

AB wasn’t sure why Potts was there. AB and Lizee kept having some side bars. AB

commented again that he didn’t like it that Potts was the enemy. AB wasn’t thrilled that

Potts was there, but she was there to help. She spent most of the morning with AB.

She doesn’t usually provide that assistance but she helped out because the Union

asked if she would help AB appeal his claim.

Potts doesn’t know the outcome of the appeal for certain, but she assumes it was

denied because if it had been allowed the insurer would have notified her because

SaskPower would have had to reinstate AB’s benefits.

After the meeting where she assisted with the appeal, Potts had no further involvement

with AB.

In cross-examination:

 Potts said she gave AB an additional six sessions with the counsellor in February.

She was not aware of any later discussions about extending sessions further.

 Potts confirmed she sent AB an email on March 16, 2016 to say Great West Life

would be looking at his claim that week.

Since February 2016

Mark

Caswell

SaskPower hired an employee to replace AB. The work atmosphere is much better and

communication is respectful. Work is done to a high degree. The supervisors are

engaged and morale is high. Team members have expressed their thanks to Caswell

for dealing with the situation.

Caswell would be nervous about having AB back because of the unpredictability and

volatility. Caswell is afraid the anger would be there and it would emerge again. He is

afraid for the morale of rest of the team. He worried that a lot of the gains they have

made in terms of culture in warehouse would be lost. Caswell would worry about how

to hold AB accountable because of how AB has behaved and questions how anyone

could possibly allow AB to assume the duties of his job again. Caswell doesn’t know

how he would be able to hold others accountable if AB’s behaviour is tacitly approved

by allowing him to come back to work.

Chris

Burgess

Central Stores is a lot more stable workplace now. People feel safe and the warehouse

workers in the back all seem generally happy. You go back and see smiling faces. It

was a lot darker when AB was there. When you never know if someone is going to

explode, it creates a tension.

In March of 2016, Burgess engaged one of SaskPower’s safety people. Shane Slater,

and asked him what kinds of things they could do to make the work environment more

safe. There was new training called Active Shooter Training (which had been created in

June of 2015) that spoke to the tensions and concerns Burgess and his staff had. The

program was done for Burgess and his staff in March of 2016 at a quarterly staff

meeting. Afterward they talked about other safety and staff issues.

[The Union objected to the evidence of this training as prejudicial. I allowed the

evidence subject to argument on relevance and any weight to be given to it.]

Given the escalation of AB’s behaviour and the way he left, Burgess would not want to

76

see AB back at SaskPower. There was so much anger and tension and the warehouse

is just so much better now.

In cross-examination:

 Burgess confirmed the Active Shooter Training is a SaskPower policy, just like

policies on how to deal with things like bomb threats. The policy was created long

before AB’s outburst. Burgess didn’t become aware of it until after the outburst

when he asked about training. The delivery of the training was because of anxiety

about what happened with AB.

 Burgess confirmed he had no contact with AB after AB was terminated, that AB did

not send him any texts or emails of concern, nor did Burgess receive any

threatening or concerning correspondence. The way everyone was feeling after

AB’s explosion, Burgess felt the training would make everyone, including himself,

feel better. The training was presented by a SaskPower employee and involved all

the office/admin staff. The presenter went through different scenarios. He told them

about different options such as get out, hide or fight. Burgess is not sure whether

Caswell provided training for his staff.

AB

At the time he was terminated, AB had been attending counselling sessions through

Homewood Health since November 30, 2015. He had attended six sessions from

November 30, 2015 to January 21, 2016 before the termination. After termination he

saw the same counselor two more times before she went on maternity leave –

February 22 and March 4, 2016. Then from May 3, 2016 to November 29, 2016, he

saw another counsellor six times through Homewood Health.

When SaskPower didn’t pay anymore, the Union arranged with the counselor for AB to

continue seeing her. With the counselors, AB has worked on anger management,

anxiety, panic attacks, and depression.

With respect to anxiety, there are different exercises -- breathing exercises, relaxation,

trying to deflate anger. They look at what is the root cause of anger? AB learned that

anxiety in men can be portrayed in anger according to the counselor. The counselors

provided AB with a lot of reading material.

When asked what happened to him physically that related to his anxiety, AB said:

Me personally, I suffer from – in 2013 I was told that I have pre-mature ventricular contractions. I

am not a doctor. You skip a beat, missing a beat in your chest, and sweat comes and chills

come and in some cases, like sick, actually literally throwing up. There’s chills, vomiting if severe

enough. It happened lots of times. It’s about twenty minutes. You have to hang on til it runs out.

If I use some techniques I was taught, I could shorten it down. It’s not like you can turn it off or

turn it on sort of thing.

When asked about tools for anger, AB said:

In my sessions, we kind of group them all together. There’s reading material on anger and on

how to deflate the situation. You excuse yourself from the situation. It’s a tool that I use with

anything nowadays, actually.

AB said that gives him the opportunity to:

Keep myself calm – not get too emotional. You can’t fight a panic attack or anxiety attack. You

just have to let it happen. With some of these techniques you can catch it before turns into a full

77

blown attack.

I have learned that I am not going to die from these PVCs. That was when I seen Dr. O was to

deal with these contractions I would get and the panic that would set in. Most of my life - my dad

dies at 52 – heart attack- uncles in Germany all died before 60 of heart attacks.

My sister died at 47 from Lupus. When dad died -- here today and gone tomorrow. I was angry

about that -- that I didn’t get to see him. Then I see my sister go from 160 pounds and bubbly to

see her last breath. I have a hard time with those dates. The older I get, the more emotional I get

about it.

Fight or flight. The main one [the counselor] always tells me is excuse yourself from that situation

so you can collect yourself. Deflate anger if in an angry situation – deep breathing– deep

breathing.

When asked if they ever talked about anxiety and isolation, AB said:

2015 was tough for me. I wouldn’t have coffee with the men. I sit in the forklift and have a coffee

alone and have lunch alone. I was struggling. My personality is a big personality. I like to be the

funny guy in the room – tell the jokes – make sure everyone is having a good time. I haven’t lost

all desire for that kind of stuff.

AB was off work when he started the counselling. He was concerned he might lose his

job.

This whole calendar situation – after that was all done and over with – I wasn’t involved in that –

I had too much respect for Cindy to do something like that – I was perturbed by that - she was a

friend of mine.

AB said he went to counselling because he had a hard time controlling his emotions

like crying or flipping the bird when he gets cut off by another driver.

I am 50. I just want to go out into the sunset and I have never been in trouble with the law or

been accused of anything and never assaulted anyone. All this talk of anger is frustrating – a lot

of it isn’t anger – it is how it, how I – how I deal with things. I am not an angry person. …

I’ve got a big personality. I had a big personality. I laugh just as loud as I am when I am angry. I

will be the first one on the dance floor if no one is dancing – the first one to tell a joke if nobody is

talking. When I speak loud, I am emotional. I wear my emotions on my sleeve. I’ve been like that

all my life.

When asked if it was hard for him to seek help, AB said:

Nobody wants to admit that they need help, but I knew I needed to get some help. I wasn’t a

healthy person. I was 47 years old. 2015 was a rough one for me.

I was having a hard time. You just try to stay ahead of the depression. It’s always there. Return

to work with no restrictions? It’s not like a common cold. You’re over it so go to work on Monday.

You try to stay ahead of it. It can knock you down and it can keep you down for a while.

AB confirmed he has seen the second counselor privately on nine occasions from

February 7 to July 11, 2017.

The counselor confirmed these sessions in a letter [dated July 11, 2017] where she

wrote the following:

BACKGROUND:

[AB] initially began counselling with this writer under his EFAP with Homewood Health in May of

2016. Though he was unemployed at the time, his previous employer, SaskPower had agreed to

pay for his counselling while his termination was being investigated. In November 2016, I was

informed by Homewood Health that [AB’s] counselling was no longer covered by SaskPower. I

78

agreed to see [AB] in my private practice for continuing care.

PRESENTING CONCERNS;

[AB] sought individual counselling strategies and support as he copes with the loss of his

employment and the ongoing uncertainty of possible reinstatement. He reports feelings of loss

and anger, low mood, and low motivation. He describes a lack of desire to interact socially and

engage in personal relationships.

GOALS:

To develop strategies for coping with loss, anger, and uncertainty.

To discover and practice positive expressions of these emotions.

To develop greater understanding of how employment affects identity.

To prepare for return to employment.

OUTCOMES:

[AB] attended all scheduled appointments:

[dates listed]

He has engaged in the counselling process, by openly expressing his concerns, engaging in self

reflections, practicing strategies. [AB] reported a significant improvement in his mood and

motivation, describing “a fog has been lifted” and “feeling more alive” from March 14 to the week

prior to his initial hearing. At that time, [AB’s] symptoms of anxiety increased as he was nervous

about the arbitration proceedings. We specifically worked on feeling calm and identifying ways to

express himself. [AB] identified that though he recognizes there will be difficulties in returning to

work (SaskPower or otherwise), he feels ready to participate in employment and life in general.

He also reported going out socially and improved close relationships. Sessions since the hearing

was delayed have focused on maintaining a positive outlook regarding employment and coping

with the ongoing stress of uncertainty.

This writer will continue to see [AB] for support as needed and determined by him.

AB agrees that his presenting concerns as outlined by the counselor are accurate. He

says that as of late he has been doing much better, that the turning point was March of

2017. He is working on his nervousness about returning to work and is working on

being able to identify some of the things that may help him control his emotions better.

He goes to see the counselor every three weeks or once a month if things are going

well. If things are not going well, he goes to sessions sooner.

AB is glad he went to counselling. Psychiatrists are more about prescriptions. He did

talk with the psychiatrist, but with the counselor it is just easy to talk to her and she

makes so much sense. AB is up for any help he can get.

When asked if he has seen any benefits from counselling, AB said:

Yes, I have – learning to control panic attacks to an extent. I am able to take my wife out for

supper – able to have the children over. During this ordeal I went seven months without seeing

my two kids, and they live in Regina. [The counselor] helped me get that back on track.

Hopefully I can use some of these ideas to continue to be able to work. It’s hard to get

completely better until this situation [the arbitration] is not over my head.

So, ya, it has helped.

AB continues to see Dr. O. Anxiety and depression are ongoing concerns for AB and

Dr. O is treating him for those.

79

When AB was off work from 2015 to 2016, he continued to take three different

medications that Dr. O prescribed for his conditions. AB continues to take those today.

I wanted to see a counsellor. The psychiatrist didn’t talk. I thought I’d be laying on a couch.

When that didn’t happen, I wanted to see a counselor. He agreed it would be a good idea.

AB follows Dr. O’s treatment plan with respect to the medication.

AB applied for long term disability after his employment was terminated. SaskPower

continued to pay for AB’s counselling for a time. Great West Life looked at AB’s LTD

claim and denied the claim. AB appealed the decision, but the appeal was denied as

well. AB has never received LTD.

In cross-examination:

 AB acknowledged that he has been taking his medications pretty much since he

started seeing Dr. O in 2013.

 Counsel pointed out Dr. O’s file which says that if AB had known he was going back

to a hostile work environment, he would have went with the gradual return to work.

Counsel asked AB what was hostile about the environment. AB said:

Because I had told him that my position that I had been doing for the last so many years and that

picking inside was not good for my health. If he knew they were going to make me do that, we

would have went with a gradual return to work.

John

Perfect

When people have been off work every return to work situation was handled differently.

Sometimes when someone was off work, Perfect would be informed they were coming

back and would be instructed to handle the person with empathy and treat them like

anyone else. A lot of times people were brought in slowly. They were eased in, coming

back half a day or three days a week and slowly building up until they were ready to

take full responsibilities.

With respect to AB:

…Going with the assumption of what his leave was for – mental disability – I thought before

being put back there should have been some discussion about where he was going to be going

or whether the same duties or coming in slowly or ease back in. I just thought it wasn’t handled

how I would have handled it. The way SaskPower handles the situation usually didn’t seem to

happen in this situation that I witnessed or knew about.

Perfect came to the hearing to testify because:

I just felt things weren’t handled properly and thought it could have been handled differently

maybe a suspension or something. To me it didn’t seem these steps were followed. There

should have been a cooling off period. Termination -- I just thought it wasn’t the right decision.

Perfect recalls one time when he told Caswell that AB was really coming along and

taking ownership. Caswell agreed with Perfect.

I was a little upset when [AB] was terminated. He had been making progress and I thought the

proper way to terminate an employee wasn’t used. I was upset he lost his job – a man who

needs work and lost his job. Maybe a suspension would have been plenty to handle the

situation.

Perfect would have worked with AB again.

80

In cross-examination:

 Perfect said when someone was off work, usually the supervisor came to talk to him

about the person returning to work, but he never knew anything about the person’s

circumstances or what was being accommodated, only what the accommodations

were. Perfect agreed he has no knowledge of the circumstances of AB’s case.

 Perfect agreed he has no knowledge of AB’s discipline record or about what

happened between AB and Caswell on February 17.

AB

When asked by his counsel whether he thought his behaviour on February 17, 2016

was 100 per cent acceptable for the workplace, AB said no. When asked if his

language was acceptable, AB said no.

When asked if he planned to have that meeting with Caswell on February 17 in

conference room, AB said:

No, but I knew I needed his permission to leave. I couldn’t just leave. I wanted to leave, but I

knew I needed his permission first.

When asked if he was planning to have the first meeting with Caswell that day, AB

said:

I thought I was just to report to work at 7 and start my job. I didn’t know things had changed or

my position was changed. I thought I was going back to receiving outside forklift.

Dr. O talked to AB about possible return to work. When asked if going back fulltime

was a good call, AB said:

In hindsight, no. Dr. O said if we knew we were going back to a hostile workplace we should

have gone back gradually.

AB acknowledged he didn’t follow Dr. O’s advice that he should go back gradually.

I wish I had gone back gradually. I wish it all never happened. I wish I had just said – okay Mark I

will pick inside like he wanted.

AB

Apart from the events of February 17, 2016, AB thought he had a pretty good

relationship with Caswell. When Caswell first started, the whole calendar thing started.

Once it was over, they talked and AB hoped it wouldn’t affect their ability to work

together. It was a really bad first impression.

As we worked forward, Mark on numerous times asked for my help in the yard because he was

still learning the job. I was willing to go out of way to make his job easier. I got a second hand

new boat and asked if I could have the rest of afternoon off to go fishing. To go fishing -- no

problem at all -- and I asked if he could sneak away and he couldn’t that day but he said maybe

sometime down the road. I took a lot of interest in Mark’s activities outside of work.

When asked if he thinks he can return to work with Caswell, AB said “Absolutely.”

When asked if he cares about his reputation at SaskPower. AB said:

Yah, I do, very much so. But unfortunately I think that has been damaged. …I am the guy that is

going to get a gun and blow off my co-worker’s head.

[When AB said this, he began crying.]

When asked about the impact of the termination, AB said he has suffered a lot of loss

in his life. He lost his dad and his sister. His mother had 14 siblings and there are only

81

two left. He lost his dog. He has never been as low as he was the past holiday season

[end of 2016].

I have never been that low. It’s my job. It’s my structure. It’s everything. Do you understand that,

Heather?

I spent half my life there working for SaskPower– and doing a good job. It’s horrible. I wouldn’t

wish it on my worst enemy.

When asked about the impact on his family and marriage, AB said:

My wife is amazing. She is just a rock – a little younger than I am but she sure takes care of me.

It hurts me to see her work as much as she does to cover my mistakes. That’s tough to swallow.

When asked why he wants to continue to work at SaskPower, AB said:

I would like to finish my career at SaskPower. I have a lot of friends who are still there. I feel I

could do a good job for Mark. I was never disrespectful to Mark. I just want to do eight hours a

day. Who is going to hire a 50 year old guy who got fired from a government job? I did try to

drive a cab while I have been off.

When asked about his friends at SaskPower, AB said:

Yah, you make a lot of relations over 22 years. A caretaker is like a bartender. The mail room the

same thing. I met a lot of people – 22 years is a long time.

When asked what SaskPower can expect from his behaviour, AB said:

A less intense individual. I know the respectful workplace policy and the program. I have learned

how to deal with certain situations and I’m still learning how to deal. They can expect to give me

more Bright Lights points.

AB says he will follow management’s direction and when asked why he thinks he

should be given a chance to get his job back, he said:

Because I was broken for a while and I took some time off to get better. It wasn’t work related –

time off to get better and I thought I did. I didn’t hit anybody. I didn’t try to hit anybody. I didn’t

disrespect by saying take a hike or fuck off. I was just emotional and angry. …

I truly am sorry that it came to this. I have been humbled and I just – I just want my job back so I

can get my life back.

In cross-examination:

 AB acknowledged that when he arrived at the meeting where Kathy Potts came to

assist AB with his LTD appeal, AB said, “Why is she here? She’s the fucking

enemy.” AB does not think that comment was disrespectful:

I arrived later than her – she was already there.

 AB agreed he did tell Dr. O that he was in his counselling to develop skills to cope

with excitement and aggression at work and that he was afraid he was going to lose

job.

 Counsel asked AB if on December 18, 2015, he did tell Dr. O that he was working

with the counsellor to deal with his explosive personality. AB said:

I don’t know if those are his words or mine. …I don’t recall saying I had an explosive personality.

 Counsel suggested to AB that his position and Caswell’s position about what

happened on February 17 are different and that AB is suggesting Caswell is not

82

truthful in relation to Feb 17 meeting. AB said:

His determination and my determination of what happened those days is different. I am telling

the truth so I guess he forgot some facts in the situation.

 When counsel asked AB if Chris Burgess was not being truthful in his report of what

AB said that day, AB said the statement Burgess claims AB made about the gun is

not true.

He’s not being truthful about statement that I was going to get a gun.

We went through these. These are his quotes. I don’t use Jesus Christ in my language. Some of

these statements. I remember saying some stuff.

 AB said Burgess is not being truthful when he said AB made the comment about

getting a gun to blow his head off.

 AB maintained that Kathy Potts is either wrong or isn’t being truthful when she said

she initiated the counselling.

Psychiatrist’s Evidence

Dr. O

AB’s psychiatrist is Dr. O. He is a general psychiatrist and addictions psychiatrist in

practice since 2006. He worked as a consultant in Ireland and the UK before coming to

Regina in February of 2012.

AB was referred to Dr. O by AB’s family physician sometime in 2013 and has been Dr.

O’s patient ever since. Dr. O reviewed AB’s file at his clinic before he testified. His clinic

uses an electronic medical system.

Dr. O first saw AB in August of 2013 because AB was struggling with anxiety and

depression. AB was still under treatment for those conditions when Dr. O testified.

To qualify as depression, a patient must have a pervasive sense or feeling of sadness

or hopelessness that the patient experiences nearly every day for at least a minimum

of two weeks. Patients with depression usually have changes in mood, sense of

enjoyment, changes in aptitude and concentration, and difficulty to think and make

decisions. Patients have problems with energy, with everything seeming to be slow in

them. They can eat or not eat. They feel life is no longer worth living and sometimes

have recurring thoughts that they are better off if dead.

For a diagnosis of depression, you need five of nine symptoms lasting more than two

weeks and the symptoms must affect level of functioning. This could be social,

academic or work function. Depression can be mild or can be serious, depending on

the number of symptoms and how serious and how it affects their level of functioning.

Depression is recognized in the DSM (Diagnostic and Statistical Manual of Mental

Disorders). .

Anxiety on its own is a sense of worry, and anxiety which has been there for some

significant period of time, usually about six months. A patient with anxiety usually

presents with various symptoms which can be autonomic including palpitation and

sweating, including a sense of dread that something is happening to them. Anxiety can

affect cognition and the patient finds it very difficult to control their worry. This makes

them restless and irritable and they have this overwhelming feeling something awful is

83

going to happen to them. This makes life very difficult for them.

Anxiety can be chronic, ongoing for some time or it can just happen from nowhere.

Patients can have acute anxiety, for example at social functions where they cannot

talk. There are various kinds of anxiety including generalized where you don’t know

how it is going to go or where it came from. There is also social anxiety where the

person is okay except at a gathering.

For a diagnosis of anxiety disorder, the condition has to affect the person’s ability to

function. In both depression and anxiety, functioning is always impaired. This includes

cognition, concentration, memory and doing things you are supposed to do like making

decisions. It includes impaired ability to listen and retain information and code the

information. That becomes a problem in terms of dealing with work situations. You can

tell someone to do something but because they are anxious they may not retain that

information. They go away and come back again and the work is not done.

Anxiety makes jobs dangerous when the person is dealing with things that are dynamic

or in jobs where the facility is risky because the person is prone to make mistake when

anxious. Anxiety makes it difficult to code, retain and work with information.

Depression is different because the problem lingers on longer even after treatment,

even when somebody has done well. “We struggle with that sometimes with a patient

with depression.” With depression the patient shuts down in terms of cognition.

Someone who is depressed can be anxious and vice versa. Cognitive problems are the

last thing to go with depression. The cognitive function involves concentration, making

decisions, and making choices. Someone with depression can feel good but still

struggle with those things. It takes a longer time to turn around. Depression can cause

fuzzy thinking or slower thinking and memory problems. Doing things can become

slow.

There is also fight or flight. Usually someone with an anxiety disorder is prone to having

occasional panic attacks where they have intense dread where things come on to you

suddenly – that life is coming to end – feeling choked – going to die – don’t understand

what going on – heart rate up – sweating. This can start gradually and last a couple of

minutes – 10 to 15 minutes. Someone would feel like getting up and running or pacing

and he settles down after some period of time. This can happen in normal individuals.

For someone with anxiety, it will be more frequent. When it happens almost every day

for almost six months, then this is called panic disorder. Intensive fight or flight mode is

another way of looking at anxiety disorder.

Symptoms of anxiety include worry, inability to control worry, restlessness, and

agitation. The person paces up and down, feels life is coming to an end. They are

tense all the time, feeling something awful is about to happen. They are sweating and

their colour changes because of increased blood flow. They can’t reason or think. Any

sense of clarity can be difficult at that time. Because of irritability they want to isolate

themselves. They want to be left alone. This can come out as anger at the time.

Panic attacks can happen once in a lifetime or they can happen every day. The length

of attack can vary, some for ten minutes and some for 30. When someone has attacks

a lot of the time, there tends to be a problem with anticipation. They know they had a

84

dreadful time and they are afraid it will happen again. Anticipation results in changes in

behavior. They don’t like that feeling and they don’t want to go there. That leads to

wanting to be isolated. They just want to leave. This can be awful for the patient. It is

not something they enjoy. They sometimes feel shame. Something happens in front of

friends and family and they don’t want that to happen again.

AB came to Dr. O distressed on October 19, 2015. Dr. O asked AB to go on sick leave.

Dr. O’s records reflect that Dr. O performed an assessment on AB that day for both

anxiety and depression. Both subjective and objective assessments showed severe

anxiety and depression.

“He cannot function and I don’t think it reasonable for me to allow him to just leave.” Dr.

O increased one of AB’s medications and in a circumstance like this, he usually gives

the patient time off work, but not long because work can be therapeutic sometimes. Dr.

O completed a medical form on October 19^thshowing the nature of the illness to be

anxiety and depression. He indicates on the form that AB is compliant with the

treatment plan. At that point Dr. O took AB off work for two weeks.

On October 30, 2015, Dr. O saw AB again and extended the leave for another four

weeks. AB was compliant with treatment. On November 30, 2015, Dr. O saw AB again

and extended the leave another five weeks. AB was compliant with treatment. Dr. O did

an assessment of AB again at that time again. AB had been off work for some time

about six weeks at that time. Dr. O strongly suggested AB get a psychotherapist and

was glad AB got one at that time. Dr. O decided to give AB enough time to attend the

psychotherapist. That is why he extended the leave for five more weeks.

Dr. O doesn’t usually take patients off work for that long, but he takes them off based

on their issue and tries to get them the care they need. Sometimes they need intensive

care and medication. Sometimes therapists see the patient once a week for about six

sessions. That can extend to about twelve sessions.

Dr. O times the next review according to what the patient is doing. He doesn’t want the

patient at home doing nothing. He wants them to do something to help improve.

On January 6, 2016, Dr. O saw AB again and extended the leave another four weeks.

AB was compliant with treatment. AB had remained unstable and Dr. O felt he needed

more time.

Dr. O’s February 2, 2016 records show AB has ongoing mental health problems, is

undergoing treatment and should be able to return to work on February 16. Dr. O saw

AB in person on February 2. The testing that day shows some improvement at that

time. The scores were down. AB was doing better subjectively even though there was

some element of depression and anxiety. AB was significantly better.

They agreed it would be best for AB to begin to try to gradually go back to work and

that is what they talked about. The anxiety was moderate at that point. AB had been

going to counselling at that time. The record says they discussed work and AB agreed

to gradual return to work. However, when it came time for AB to return to work, AB

didn’t want to return gradually.

AB went back to work and it didn’t go well, so he called Dr. O’s office. Dr. O’s records

85

say AB said he wasn’t doing well. His first day back did not go well and he was

informed he was losing his job. Dr. O wasn’t around and his secretary suggested AB go

to the ER if things got out of hand.

The next time Dr. O saw AB was February 22. AB was out of work and he was very

anxious and agitated. He was overwhelmed, depressed, and felt life was not worth

living, but had no active suicidal plan. AB was pacing up and down and a bit loud. Dr. O

felt the best thing to do was go to see the therapist. It was a struggle. If he is out of

work how does he get a therapist? He doesn’t have money for the therapist, so it was

very difficult at that time.

On testing, AB was severely anxious and agitated and depressed – suffering from

moderate depression.

AB wasn’t very happy with the way things happened and the way he was terminated.

He felt it was unfair and that he has paid his dues working in a facility for such a long

time. He felt there has to be a bit of understanding from the authorities. AB told Dr. O

how he felt about his situation and was glad the Union had agreed to help him and

support him.

Dr. O continued to see AB in March and April, 2016.

AB was coming back. He was out of work. Dr. O wasn’t sure of how things were going

to pan out. Dr. O knows AB loves his job very well and he is having anxiety and

depression. Dr. O felt the need to see AB regularly to make sure he was well

supported. Once there was an understanding there was going to be a hearing, AB

started to feel better. He felt people were going to hear him and maybe put him back to

work.

Dr. O said he was surprised AB was sitting in the hearing room looking so cool and

calm.

Dr. O keeps seeing AB once a month. In October 2016, AB was anxious and

depressed. In December, AB was very severely anxious and depressed.

On March 10, 2017, AB told Dr. O about what happened at SaskPower in February of

2016. The return to work was against Dr. O’s advice. With time to reflect and look back,

as a therapist Dr. O felt that maybe if AB had gone back to work gradually like Dr. O

suggested, things might have been different.

Dr. O feels if a patient is out of work for a long period of time, it is always necessary to

return to work gradually. With politics at work and interpersonal dynamics, the patient

has to fit in gradually, to flow gradually to deal with depression and anxiety and

gradually get into the rhythm of things at work. He needs to have colleagues who

understand he was not well. If he goes to work three or four hours three times a week,

people will understand this guy wasn’t well. If he jumps into work you lose all those

cushioning affects. If he is only there for four hours, you know there is a reason for that.

He is not well. He is coming back gradually. After a long time away, you don’t know the

politics at work and if you jump into work, colleagues may think you were on holidays

and they just say get to it and nobody has any idea the person was sick. “There should

be understanding between you, your staff and the clinician as to how it will go.

86

AB wanted to go back to work. He felt he wasn’t doing anything and wasn’t contributing

to his family and he wanted to prove he was a man again. If AB had done what Dr. O

told him, the issues may not have happened.

We usually negotiate about what will happen with the return to work. In hindsight maybe if he

had followed what I told him, he could have gradually returned to work.

On April 19, 2016, Union counsel wrote Dr. O a letter asking for any medical reports,

medical notes and medical documents pertaining to AB’s ability to attend work or

perform employment duties including any medical restrictions he had or currently has

on his ability to attend work. Counsel outlined AB’s version of what occurred on

February 17, 2016:

… Mr. [AB] has advised that February 17, 2016 was the first day of his return to work after an

absence from work due to medical reasons. Mr. [AB] advised his absence from work was due to

depression and anxiety. Mr. [AB] described that on the morning of February 17, 2016, the first

morning he returned to work at SaskPower, his manager advised him that his work assignment

was to work inside the warehouse instead of outside, Mr. [AB] advised that he had regularly

been working outside in the yard, for a period of approximately two years. Mr. [AB] described

that although he did not refuse the work, that he was questioning the actions of his manager with

words to the effect of “why are you doing this to me”. He described that working inside was his

“kryptonite” and that he had previously told this to his manager. Mr. [AB] advised that he

accepted the assignment but asked the manager to leave him alone, communicated that his

counsellor told him to get out of the situation before it escalates and was walking away from his

manager. His description of events suggests he was agitated. He further had some interaction

with his manager and Mr. [AB] described that he became very emotional, was crying and there

were some swear words used by him. The manager advised that changes were being made in

the workplace, and Mr. [AB] questioned the changes being made saying he was the only

change. Mr. [AB] advised that he ended up going home the same morning to take medication.

I was advised that February 17, 2016 was his last day of work and then shortly thereafter

SaskPower terminated his employment arising out of his behaviour on that date. Mr. [AB]

advised that he thought he was returning to work in his usual duties which involved outside work.

From Mr. [AB’s] description, he appeared to have difficulty coping/accepting the change in work

assignment. Mr. [AB] could provide further details to you, if required.

Counsel then asked Dr. O to answer a series of questions.

On May 4, 2016, Dr. O responded to the April 19 letter:

1. What date was Mr. [AB] medically cleared to return to work at SaskPower?

I reviewed him on the 2^ndof February 2016 after being off work for about three months. He

went through a lot of treatments which included the use of medication and psychotherapy.

He had requested to be allowed to return to work believing that he was doing very well which

I agreed with him. I also noted that staying home without work was becoming less

therapeutic to him and we agreed that should he want to return to work, it should be done on

a graded fashion that would allow for a more elaborate accommodation and healing. He tried

to talk to HR to work out his return program. He chose Monday, the 15th of February 2016

as his preferred return date.

2. Was [AB] medically cleared to return to work at SaskPower for February 17, 2016?

See the above answer.

3. Was the conduct/behaviour of Mr. [AB] related to his ongoing medical condition(s)? If so,

please provide a brief explanation.

In addition to having Major Depressive Disorder with Comorbid anxiety, he also had anger-

87

management problems.

Yes, he is significantly more irritable and angry than someone without his type of mental

health issues.

4. Could the conduct/behaviour of Mr. [AB] on February 17, 2016 be related to his ongoing

medical condition(s)? if so explain.

Yes, see the above explanation.

5. Is Mr. [A] currently medically able to return to work or is any medical accommodation

required?

He is struggling with his mental health difficulties but his inability to work compounds his

problems. He is able to work in a more accommodating and conducive environment with

gradual return to work schedule that will help him get back to his usual rhythm and help his

mental state.

How things are handled on return to work depends on the company. When Dr. O says

a patient is ready to return to work, he usually sends a letter to Human Resources.

They talk to the patient and they know what the patient does and the work schedule.

They will know what the patient can do. They have all those things. They sit down and

look at return to work. They have to work around the company and shifts. They send a

letter back to Dr. O and suggest what they will do. Sometimes the company gives Dr. O

information so he can work with that. Sometimes they have an occupational therapist.

Dr. O does not know how SaskPower does this.

I expected to hear further. It was up to them to decide how to deal with that.

On March 8, 2017, Union counsel wrote Dr. O another letter, repeating AB’s version of

February 17, 2016 and asking Dr. O for more information:

As you indicated, yes to question 4, can you clarify whether Mr. [AB’s] behaviour of February 17,

2016 was a feature of his diagnosis of comorbid anxiety and Major Depressive Disorder?

We are asking the above question to ensure consideration is being given to whether the

behaviour exhibited by Mr. [AB] could be related to his anxiety and major depressive disorder

and not exclusively anger management issues. Mr. [AB] expressed that during the events in

question on February 17, 2016 he was emotional and crying and indicated he was concerned

that he was going to get terminated.

On March 22, 2017, Dr. O responded to the March 8 letter:

You had wanted me to clarify some of the information on the document you had already had on

the above-named patient of mine, and also to follow up on or [sic] phone conversation on 1

February 2017.

With regards to question 3 in your schedule and subsequently question 4, my answer was to the

best of my knowledge based on the information sourced from a thorough review of his chart in

my office and on the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-

5).

Mr. [AB] was referred to me by Dr Rajni Patel on the 3^rdof July 2013 for assessment of anxiety,

stress, poor sleep and anger problems. During the course of the assessment it was noted that

he met the criteria for the diagnosis of Anxiety and Depression and that he has been on

treatment for a long history of anxiety disorder. He smoked about two joints a day which he said

helped to control his anger management problem. Anger was not a predominant issue on his

first presentation because it was overshadowed by both the symptoms of anxiety and

depression.

He was started on Sertraline which was gradually increased to 100 mg daily and was also

88

placed on as required Clonazepam.

His mental status improved, and he became stable as at his review on 10 December 2013. On

11 December of 2014 he reported that he was under a lot of stress at work and that he has not

been on his medication for about a month prior to the review as he had ran out of the

prescription. He spoke about his temper and anger problems and the escalation of his use of

Cannabis which he believed helped to control his anger. He does not see any relationship

between his use of Cannabis and behaviour and mental state. He understood that Cannabis use

can cause behavioural change, suspiciousness, nervousness, abnormal thoughts, paranoia and

episodes of anxiety that resemble panic attack, according to Health Canada.

During his visit on 12 March 2015, he complained about his frustrations, recurrent trouble at

work, anger problems and road rage. He said he was encouraged to see his EFAB [sic] for

psychotherapy by the management at work. He admitted that he had seen a psychologist and

other therapist in the past for his mood and anger problems. He began to miss work and in April

2015, he complains about management style at work. He said he was struggling to conform to

their new management style. On 26 August of 2015, he said that on the month of the

anniversary of his father’s death, his dog died. He said that his mother who had dementia was

awaiting placement for a nursing home, and that he was being called every time to help make

decisions. He was feeling overwhelmed not just about his family problems but also work-related

issues. On 19 October 2015, he presented very depressed and anxious, which promoted me to

give him sick leave. He remained unstable as of November 30, 2015 and had to be sent to

psychotherapy even though he had declined to attend therapy in the past due to his previous

experiences.

On February 2 of 2016, we felt that he was recovering and needed to go back to work in a

graded fashion, but he chose to return to full-time work on 15 February of 2016. It was his

decision to return full-time work. From experience, having been out of work for such a long time,

it would be a struggle for anyone to get into the new politics, style and structure of work that he

or she could have been alien to, without being gradually introduced to it.

I am not privy to what happened to him at work on 17 February 2016 or his relationship with his

supervisor’s [sic] or colleagues.

To answer your question, being aggressive and belligerent is not a future [sic] of anxiety disorder

or major depressive disorder or combination of both, but it is important to note that many

individuals with depression that is comorbid with anxiety reports or exhibits irritability, e.g.,

persistent anger, a tendency to respond to events with angry outbursts or blaming others, an

exaggerated sense of frustration over minor matters.

It would be difficult to determine if the said behaviour which he exhibited prior to his dismissal

was due to his anxiety, major depressive disorder, Cannabis use or exclusively anger

management issues, knowing that, he has had these issues for many years and has been on

treatment both with the use of medication and psychotherapy and at the same time was able to

maintain his job for the same company for the past number of years, in excess of 20 years.

Should he return to work, I suggest that he takes his medication regularly, attends counselling

and stops the use of Cannabis at least during the day. He would require a gradual return to

work, which will help him get used to work and relationship at work.

AB’s general practitioner referred AB to Dr. O because he was struggling with anxiety

and anger problems. AB has been on mediation as well. One medication reduces

anxiety and agitation in case he has anxiety. It helps to decrease anxiety and is taken

as needed. Another medication is taken every day for anxiety and depression.

What Dr. O has been told about the February 17, 2016 incident is hearsay. Dr. O

doesn’t remember if SaskPower contacted him about the return to work and he doesn’t

have anything in his records.

89

Dr. O believes he would want anybody who has been off work for some time to have

gradual return to work. There needs to be time to be reintroduced back to work. There

are always things that go on while you are gone. The job could be given to someone

else. Work could have changed. It is important to gradually get back into work. With all

illness, return should be gradual. This is not specific to anxiety.

Dr. O said his statement that being aggressive and belligerent is not a feature of

anxiety disorder or major depressive disorder or a combination of both, is evidenced in

the DSM. It is a general statement from the DSM.

I don’t know what ground zero was. What happened that day was different from what happened

the last twenty years. We know he had this problem and he was doing his job. What happened

at that time for ground zero? Why this issue that lead to termination happened?

Dr. O saw AB on April 5, 2017. On testing, AB scored mild on both anxiety and

depression, showing a lot of improvement in his symptoms. AB was happy about

having his say to talk about what happened and looking forward to the arbitration. He

had high expectations and he was doing well. If he gets his job back, he should

gradually return to work. He would do well. The arbitration is a big event to him, a big

experience and he will learn from this. It is going to make him a better person and he

should be allowed to go back. The arbitration is therapeutic, allowing him to have his

say. This is going to be a lot more therapeutic to AB and he will be a much better

person than he was.

AB remains on the one medication and hasn’t taken the other as needed medication for

a long time. There is no reason to doubt AB’s compliance with medication.

Dr. O did not know how AB was doing as of the day of the hearing. Counselling is

something that will be ongoing, depending on how intense and severe the problem is.

Progress in counselling allows patients to practice and learn from counselling and to

correct things. Dr. O would have to see AB again to see what stage he is at. Dr. O

intends to continue to see AB as a voluntary patient as long as AB wishes to see him.

In cross-examination:

 Dr. O said he types his notes into the system as he talks to his patient. The section

on Interview with Patient is information the patient provides. On December 11,

2014, that portion says:

He said he was stressed out at work. He said he ran out of his medication last month and has

been having trouble at work. He said he has a temper problem. He said he was irritable. He said

he was disciplined at work. He said he has been having panic attacks and PVCs. …He believes

the marijuana has helped his anger. He said he smoked 5 joints of marijuana everyday. …

 Dr. O confirmed that on December 18, 2015, the Interview with Patient section

says:

… He said is more irritable and angry. He reports his anger, and agitation is more when he is

involved in some form of relationship with other either at work or home. He said he is working

with his counselor to help his explosive personality.

 Dr. O confirmed that the section on Mental State Examination is Dr. O’s

observations and conclusions based on his interview with AB.

 Dr. O said that when AB first came to see Dr. O, Dr. O noted that AB has an anger

90

management problem. This is not a clinical disorder. It is a problem.

 In 2013, Dr. O diagnosed AB with generalized anxiety disorder with co-morbid

depression. It is very difficult to say which one came first. Sometimes people may

have depression and then depression will suddenly remit and at some point there is

anxiety. It is based on what you see at the time. The clinical state is at the time you

see the patient. It doesn’t mean anxiety was first or depression was first. In AB, the

anxiety was more predominant at that time. It was very difficult to determine if AB

had personality disorders because he didn’t fit into any of the categories, so Dr. O

deferred diagnosis on that.

 When Dr. O had his “negotiation” with AB about return to work on February 2, 2016.

Dr. O didn’t know a lot about AB’s job.

I think he told me in passing but usually I don’t try to know the job duties of a patient except

when the other party wrote to me about what the job is. Sometimes people work at different

places.

 Dr. O understood the work might change from day to day. Dr. O determined AB was

fit to return to work based on his “negotiation”. Dr. O didn’t put any restriction on the

patient and said AB could return to fulltime duties. Dr. O said he didn’t know

whether it was reasonable based on this for the employer to understand there were

no limitations or restrictions on AB’s return to work.

 When asked if it was his after-the-fact assessment with that AB should have

gradually returned to work, Dr. O said:

I don’t think the physical aspect of the job was ever in question. It is not really an issue. The

issue is the mental capacity of the patient to go back to work and function effectively. …I talk

what is gonna affect his mental state which is what is important to me.

 Dr. O did not remember ever seeing the job description for the Storekeeper. After

reviewing the job description, Dr. O said AB didn’t have any cognitive problem in

terms of being able to function at that time. Dr. O confirmed that at no time did AB

suggest to Dr. O that he could not work indoors. There was no suggestion of

claustrophobia or anything of that sort in Dr. O’s assessment. It can be just a

symptom of anxiety so it all depends on the degree. If AB had complained about

claustrophobia, Dr. O would have made note of that.

 When asked if someone expressed concern that he thought gave rise to some

medically supported restriction, he would communicate to the employer, Dr. O said:

I don’t know why it would be communicated to employer. …Like I said. It depends on the

understanding between my patient and myself and the people he works with. If he has people

who are understanding of him, then I don’t need to write a letter. Writing about accommodation,

it depends on an individual – it depends on arrangements.

 Dr. O agreed anxiety might make a job more dangerous where there is risk, like

with operating a crane. He said:

For somebody to have anxiety, it depends on the degree. If you have significant, then you would

not let them on. If he becomes very severe, then it becomes difficult to manage.

 Dr. O said depending on the degree of the anxiety, the concern might extend to

91

operating any equipment in the workplace.

 Dr. O confirmed that as of December 18, 2015, his records say:

[AB] is struggling with symptoms that suggest a moderate episode of Anxiety and Depression

perpetuated by his personality and work related stressors.

 When asked what he meant by “personality”, Dr. O said:

It is not as if – we all have personality – who he is – his anger.

 Dr. O confirmed that in his May 4, 2016 letter to Union counsel he said that he felt

AB’s return to work should be done “on a graded fashion that would allow for a

more elaborate accommodation and healing.” When asked if a more elaborate

accommodation was the two to three hours work at a time that he suggested in his

earlier testimony, Dr. O said:

Two things. I usually like to refer patients back to HR to talk to them to define what is suitable for

the patient and the company. When they are finished they write back to me and say what they

want. The company may want six hours or four hours, maybe six hours two days a week. We

have to work it out that way. I allow HR to work it out. I tell them to go to OHS to assess what the

patient does and come back to me. Sometimes when a patent comes, they tell me what they

want, we work it out in the office – and then draft a letter – I don’t like doing it alone because we

don’t know all the things.

 Dr. O said whether or not he recommends reduced hours for a period of time

depends on arrangements between the patient and HR.

 Dr. O confirmed that in addition to a Major Depressive Disorder with Comorbid

Anxiety, AB also has anger management problems. Dr. O assessed the Major

Depressive Disorder after AB’s termination. At the time he wrote the letter dated

May 4, 2016, he made that diagnosis. He can’t remember whether the anxiety was

a lot better at that time, but he recalls that AB got better at some point.

 When asked what he meant by saying AB could work in a more accommodating

and conducive environment with a gradual return to work schedule, Dr. O said

gradual return to work is best. He would like to see the patient back to work and HR

might write back to him about how they could do that.

 Dr. O confirmed that as of April 16, 2014, one of his recommendations was that AB

develop good coping skills. He also confirmed that as of October 30, 2015 he

recommended that AB should accept the offer to see a counselor through work

because he will need behavioural management as well as anger and mood

dysregulation. An anger management program helps the patient to develop skills to

deal with anger management, to deal with change and to deal with the way they

deal with things. Someone with anxiety and depression and anger management can

be given skills. Behavioural management tools might include counselling or taking

time or breathing or a number of other skills.

 Dr. O confirmed his opinion that aggressive and belligerent behaviour is not a

feature of anxiety disorder or major depressive disorder or the combination of both,

but many individuals with depression that is comorbid with anxiety report or exhibit

increased irritability, e.g. persistent anger, a tendency to respond to events with

angry outbursts or blaming others, an exaggerated sense of frustration over minor

92

matters. He confirmed that anger issues can exist exclusive of the depression and

anxiety. Anger can exist by itself.

 Dr. O confirmed it is possible that despite AB’s anxiety or pot use or depression, AB

could just be someone who has an angry personality and a poor relationship with

his boss. It is not clear to Dr. O which it is in this case.

 Dr. O confirmed that he only knows about events involving AB as they have been

reported to him by AB. He isn’t aware of AB’s history at work or whether AB has

been subject to any discipline.

 Dr. O said from being AB’s physician and looking at the progress AB has made, he

feels the best benefit for this patient is to get his job back.

 When counsel suggested to Dr. O that he doesn’t know how AB might react at work

and has no idea on how AB might respond, Dr. O said:

If out of work for such a long time, anybody who goes back to work will definitely have a

problem. It may be from the patient or from the staff. They may banter. They may ignore him.

They may say things. It is not only him. It happens to most of the patients who go back after

many months.

 When counsel again suggested that Dr. O doesn’t know how AB will react, Dr. O

said:

I can’t say. On the safe side, it is good to have a gradual return to work.

 Dr. O agreed he wants AB to get his job back.

In re-examination, Dr. O said that advocating for his patient does not influence his

professional judgment. He said:

There has to be a foundation to that. I can’t say a patient can go back to work when he is not

well. He has to be someone that is envisioning to see progress that a patient is making to

forward the patient to make more progress. That is how I advocate for the patient. If the patient

not making progress, I cannot advocate. …

Usually when you talk to a patient and you lay out what the patient wants, the patient says I think

I can work fully the way it is – if off for some time then just mention it is good for the patient. At

the end of the day it depends on the patient what he thinks and depends on the line of work. If

people at work are more accommodating then there won’t be much need for that. If he feels can

go and do job and people at work are more accommodating then there will be no need for that

[return to work].

Dr. O confirmed he testified as the physician for his patient and not as an independent

expert.

V. Parties’ Positions

Employer’s Position

14. The Employer submits:

a. In light of the terms of the October 2014 DML (and even absent the DML),

AB’s conduct on the morning of February 17 2016, which continued on the

morning February 18, 2016, amounted to just cause for discipline.

93

b. The Union is unable to prove that AB’s medical issues caused this

misconduct.

c. In the alternative, SaskPower did not have a duty to accommodate AB and

even if it did, SaskPower did not breach any duty to accommodate because:

i. Such a duty was not supported by the medical evidence that was

provided to SaskPower; and

ii. Even if such a duty existed, it did not require SaskPower to accede to

all of AB’s task preferences. To the extent that such a duty to

accommodate could have existed, Sask Power complied with that duty.

d. In light of AB’s previous disciplinary record, Sask Power’s decision to

terminate AB’s employment was justified in all the circumstances and

reinstatement would not be appropriate.

Union’s Position

15. The Union submits:

a. The Employer is not entitled to rely on post-discharge evidence on the issue

of just cause.

b. The Employer should be held to the grounds set out in the Termination Letter

and should not be permitted to rely on instances not referred to in the

Termination Letter.

c. The Arbitrator should not consider any instances for which SaskPower did not

impose discipline on AB.

d. While SaskPower may have had some cause to discipline AB, taking into

account all the mitigating circumstances, termination was an excessive

response.

e. SaskPower terminated AB for conduct related to a disability and SaskPower

was under a duty to explore accommodation with AB before it had any right to

terminate him.

VI.

Issues

16.

The main issues are:

a. Has AB given SaskPower just and reasonable cause for some form of

discipline?

b. Did AB suffer from a disability requiring accommodation and if so did

SaskPower meets its duty to accommodate the disability to the point of undue

hardship?

c. If there was cause for some form of discipline, was SaskPower’s decision to

dismiss AB an excessive response in all the circumstances?

94

d. If dismissal was not justified, what other penalty would be just and reasonable

in the circumstances?

17. In dealing with the main issues in the case, I must deal with evidentiary issues that

arose during the hearing:

a. Is SaskPower entitled to rely on evidence of AB’s past conduct before his

dismissal for which SaskPower did not discipline AB and if so for what

purpose or purposes?

b. Is either party entitled to rely on evidence of post-discharge events and if so

for what purpose or purposes?

VII. Analysis

Onus

18. The parties agree that SaskPower bears the onus to establish, on a balance of

probabilities, that AB committed the acts alleged and that these acts justified

SaskPower’s decision to terminate AB’s employment. The Union bears the onus to

establish that AB suffered a disability requiring accommodation. If there is a duty to

accommodate, then SaskPower bears the onus to establish that it accommodated

the disability to the point of undue hardship.

Credibility and Reliability of Evidence

19. In determining what occurred on a balance of probabilities, I must consider the

credibility and reliability of the evidence including the evidence of the various

witnesses. I will make some general comments about credibility and reliability here

and will address those matters where necessary as I discuss the various issues.

20. Mark Caswell was forthright and credible and spoke frankly and candidly about the

events. He did not exaggerate or embellish. His testimony was reasonably

consistent with documents prepared at the time of the key events and with the

evidence of witnesses other than AB. I did not find Caswell to bear any ill will or

animosity towards AB. He was candid in his opinion that AB was a good worker and

could have been a leader in Central Stores. It was also obvious, however, that

Caswell found AB’s behaviour on February 17 and 18, 2016 to be disturbing and

that AB’s behaviour, including AB’s words and actions, had scared Caswell then,

and still bothered Caswell when he testified.

21. Chris Burgess also spoke in a forthright and credible manner and his evidence was

reasonably consistent with the documentary record and with the evidence of

witnesses other than AB. He did not exaggerate or embellish. However, his

frustration with AB was apparent in his tone and in the way he testified. As with

Caswell, Burgess genuinely found AB’s behavior on February 17 to be disturbing

and I am satisfied Burgess was indeed afraid of what AB might do next. I will deal

with the conflicting evidence about one of the comments Burgess attributes to AB

later in this Analysis section.

95

22. Jillian Orb, Kathy Potts, Curtis Lizee, Doug Hesch and Brandon Lang were all

forthright and credible witnesses to the extent they witnessed any of the events, and

I have no concerns with the credibility or reliability of their evidence.

23. Dr. O was forthright in his testimony. It was obvious, however, that he was relating

much of what he said about AB’s treatment from his review of his clinic file on AB

and not from independent personal recollection. It was clear, however, that Dr. O is

a meticulous record-keeper, and I am satisfied that his records reasonably

accurately reflect the course of AB’s treatment, including reasonably accurate

recording of what AB said to Dr. O at various times. It was clear, as well, that Dr. O

was not aware of the entire circumstances of AB’s workplace and that Dr. O relied

virtually exclusively on AB for his information. It was also clear that Dr. O, properly

so, sees himself as an advocate for AB, his patient.

24. While the Union suggests John Perfect was a truly independent witness, it was

obvious throughout Perfect’s evidence in his attitude and tone that he would pass

up no opportunity to be critical of SaskPower and of Caswell in particular. Having

said that, I accept that Perfect was telling the “truth” as he sees it. Perfect also

made assumptions about things about which he had no knowledge. Perfect’s

evidence about actual events he witnessed, however, was reasonably clear.

25. I have several concerns with AB’s evidence, which impact the credibility and

reliability of his evidence. Some examples will suffice here:

a. AB claims he has no animosity towards Caswell or SaskPower, and yet his

attitude right from the start of his evidence, suggested otherwise. When he

first spoke of Caswell, he referred to Caswell in a disrespectful tone as the

“big boss”. AB claims he respects Caswell and can work with him, yet he

made highly disrespectful and insubordinate comments to Caswell.

b. AB claims he had no idea Caswell was going to meet with him on the morning

he returned to work and yet AB had a text message from Kathy Potts on

February 16 telling him to meet with Caswell on the morning of February 17^th.

c. AB insisted he was the person who suggested counselling in

October/November 2016. He claims he approached Kathy Potts about

counselling. All the evidence suggests otherwise. Potts’ evidence, Dr. O’s

evidence and Dr. O’s records are clear that AB was initially resistant to

counselling, and only eventually agreed. When counsel put it to AB that it was

Kathy Potts who suggested counselling, initially AB said he didn’t remember

that. He then said, “I’m going to go with – it didn’t happen.” When faced with

all the evidence that points to his resistance to the suggestion of counselling,

AB still insisted the counselling was his idea.

d. AB’s evidence about his anger issues was inconsistent with his own

testimony and inconsistent with the documentary records. At one point AB

said he wanted counselling so he could put steps in place to control his

depression, anxiety and anger. At another point during cross-examination, AB

was vehement that the counselling was to help him cope with his life at the

time and that it had nothing to do with anger. AB insisted that on the Formal

96

Referral form for counselling he would not have checked the boxes for

Outbursts of Anger and Unpredictable behaviour. At yet and another point, he

agreed he might have checked Anger. At yet another point, AB denied he had

poor anger management skills and that he acted poorly when he was

challenged or confronted. At one point, AB said, “I am not an angry person.”

e. AB said he didn’t get the February 17, 2016 email from Caswell and yet

during the meeting on February 18, AB complained to Caswell and Orb about

the fact they sent him a text, an email and a letter.

f. AB claims he made the comment about “kryptonite” to Caswell just a few

months before February of 2016 and yet from late September 2015 when he

went on WCB to February of 2017 when he returned to work, AB was only at

work for a few hours. If he did make such a comment to Caswell, he made it

more than just a few months before February of 2017.

g. AB claims to have no recollection of what, according to John Perfect, was a

ten minute meeting in Perfect’s office on the morning of February 17, 2016.

26. I will speak to other specific concerns or comments about AB’s evidence and any

concerns about the evidence of the other witnesses where necessary in this

Analysis. Suffice it to say here that the preponderance of evidence with respect to

the key events does not favour AB’s version. I will now turn to what happened on

the key dates of February 17 and 18, 2016. Because there are conflicts in the

evidence, I must assess the evidence to determine what, on a balance of

probabilities, happened.

February 17, 2016

27. AB’s version of what happened when he returned to work on February 17, 2016 is

different in some material respects from the evidence of other witnesses, in

particular Caswell, Orb and Burgess. For reasons which follow, I find the

preponderance of evidence favors Caswell’s version of what occurred.

28. Caswell testified about what happened during the first part of the morning of

February 17. With knowledge that AB was returning to work fulltime with no

restrictions, Caswell arranged for AB to be notified they would meet on the morning

of AB’s return to work. Caswell intended to meet with AB that morning to explain the

current state of affairs in Central Stores. Contrary to AB’s claim that he wasn’t

aware Caswell was going to meet with him that morning, AB actually had a text

message confirming he was to meet with Caswell.

29. Caswell wanted to meet with AB to explain to AB why Caswell had decided for the

time being to assign AB to inside shipping in the warehouse. Caswell needed

someone with AB’s experience to help in the warehouse because there was a lot of

material to ship at that time and they were behind because of new inexperienced

people. Perfect corroborated the fact this was the busiest time they had ever seen.

Outside receiving was working well, so Caswell needed AB’s experience in the

warehouse. There was nothing unreasonable or inappropriate about Caswell’s

decision in that regard. Caswell was not asking AB to do something that was not in

the Storekeeper job description or that AB was not capable of doing.

97

30. On the morning of February 17, Caswell approached AB at the receiving bench and

welcomed AB back to work. Caswell then asked AB to come with him to discuss

AB’s duties on return to work. Caswell first asked AB how he had been doing and

they engaged in some small talk. This occurred while they were walking towards

and standing near the office area at the front of the warehouse. Caswell did nothing

wrong or provocative during this conversation. Caswell then told AB he wanted AB

to work on the shipping side because they were so busy.

31. Caswell says AB’s immediate reaction to being asked to work in shipping was to

lose his temper and begin using foul language – “I can’t believe you guys are doing

this to me.” Caswell attempted to explain the rationale for his decision, but AB

continued with outbursts and did not stop long enough to listen to what Caswell was

saying. AB claimed harassment and continued to use foul language. “I can’t believe

you would fucking do this.” “This place is a fucking joke”. “This is fucking

harassment.” Caswell described AB as “wound up”. Caswell described AB’s

behaviour as “an endless loop at a volume of ten and constant profanity.” AB said

he wanted a Union rep. Caswell initially said AB didn’t need one but when AB

continued to yell, Caswell agreed that AB should get a Union rep.

32. AB began walking away from the office area towards the back of the warehouse.

Caswell began following AB because he didn’t want AB to go back into the

warehouse at this point. Caswell was concerned that AB wasn’t in control of himself.

Caswell didn’t speak for a time, but he eventually asked AB to calm down. AB

continued to rant with “a string of yelled profanity”. Caswell eventually walked away.

Around this point, Doug Hesch came and suggested he might be able to get AB to

calm down.

33. In his testimony, AB said when Caswell told him he needed AB to pick inside, AB

was calm and just asked Caswell why. AB claims he wasn’t angry, he was just a

little frustrated. AB says he didn’t yell. He says that when he started to get

frustrated, he asked Caswell to leave him alone. He says he teared up and he

asked Hesch to make Caswell leave him alone. AB says he needed to get out of the

situation and that his counsellor had told him he needed to leave upsetting

situations. AB insisted his mood during this encounter was frustration, not anger.

After some questioning in cross-examination, AB admitted he was loud. He claimed

he was not angry, he was having a panic attack and that when he is angry, he is

just loud, he doesn’t sweat or cry.

34. In his own notes of what happened on February 17, AB says he was agitated when

Caswell told him he needed him to work inside. In cross-examination, AB denied

being belligerent with Caswell. He insisted he was not angry. He insisted he only

raised his voice when he asked Caswell to leave him alone. He insisted he was

calm at the beginning and that later he had an emotional breakdown. He denied his

voice was booming. AB said he didn’t know what Caswell was saying to him

because he was frustrated, flustered and agitated and he just needed to get out.

35. Perfect testified that earlier in the morning he could hear loud voices in the

warehouse and he knew it was AB and Caswell. AB was definitely the loudest

voice. Hesch’s evidence was that he first heard AB’s and Caswell’s voices. The first

98

words he heard were when he heard AB tell Caswell he wanted to talk to the Union.

AB was distraught, quite upset and emotional. AB was walking away from Caswell

with his arms in the air and said he wanted to talk to the Union. Caswell was about

twelve feet behind AB at the time. AB asked Caswell to leave him alone. When AB

saw Hesch coming, he asked Hesch “can you get this guy off me?” AB was loud.

Hesch asked Caswell if Hesch could see if he could get AB to calm down. Hesch

asked Caswell if he minded if AB talked to the Union and Caswell said he had no

problem with that. Caswell left and Hesch tried to calm AB down. AB was not

aggressive with Hesch. Hesch never heard AB swear and never saw AB make any

threatening gestures.

36. On all the evidence, I am satisfied AB lost his temper as soon as Caswell told him

he would be working in the warehouse. AB was angry and loud and yelling and AB

said the things Caswell has reported he said. I have no doubt the point came when

AB just wanted to get away from Caswell, but that was not before AB had already

displayed an immediate angry reaction to Caswell giving him the work assignment

and not before AB displayed the inappropriate aggressive belligerent behaviour

Caswell described.

37. Caswell says when he came back to the warehouse about 15 minutes later, he

discovered AB had gone over to the salvage building. AB says he had a discussion

with Hesch and then went to get the Union phone number. He couldn’t get into the

computer, so he went over to salvage to get the number from Kivisto.

38. The evidence from AB and Caswell about their exchange in the salvage area is

reasonably consistent. Caswell asked AB if he had any information yet on when a

Union rep would be available and AB didn’t have any information about that yet. AB

told Caswell he would accept the assignment. Caswell told AB if he needed a few

minutes that would be fine. In the salvage area, Caswell observed AB to be still

agitated at this point. This was around 7:30 a.m.

39. Caswell then returned to the warehouse and called Greg Simpson to discuss a plan

to bring AB back into the work group.

40. Caswell observed AB at the back of the warehouse on the phone around 7:45. AB

says he got the Union number from Kivisto, went back to the warehouse and called

the Union from the back of the warehouse. It is likely that when Caswell saw AB, it

was when AB was on the phone with the Union. AB says he wanted to talk to the

Union because he wanted to see if there was something they could do about the

work assignment. He felt Caswell was harassing him.

41. AB did not have a good conversation with the Union rep. The rep asked AB if his

mother still cooked breakfast for him and told AB to suck it up and do his job. At this

point as far as AB was concerned, his boss was “poking me” and now the Union

told him to “suck it up”. AB says at this point he felt himself “starting to lose control

emotionally” and that he was embarrassed and ashamed because he had been

crying. He says he then went to see Caswell. He doesn’t remember talking with

John Perfect that morning.

99

42. Perfect testified that AB came to Perfect’s office sometime after Perfect heard AB

and Caswell in the warehouse. The first thing AB told Perfect was that AB wasn’t

going to get his job back in the yard. AB was extremely distraught, physically

shaking and on the verge of tears. He was really upset, breathing heavily and

trembling. AB was worried about his position. Perfect tried to calm AB down. AB

said he was going to go to talk to Caswell and Perfect told AB he was in no

condition to do that. Perfect said he would see what he could do to get AB back into

the yard. Perfect felt AB should not have been back at work. Perfect felt AB’s

reaction was extreme. AB “took off” out of Perfect’s office. Perfect asked AB to

come back, but AB didn’t listen. In cross-examination, Perfect confirmed that AB’s

issue was that he wasn’t getting his old job back. AB did not say anything about the

Union. AB didn’t say why he was going to see Caswell. AB was just upset.

43. Caswell says that while he and Simpson were talking in the conference room, AB

burst into the room and interrupted them. It was like AB had gotten angry all over

again at this point. Simpson left the room and Caswell asked AB to sit down.

Caswell described AB’s anger as a “fit of rage” and as having reached “new

heights”. This outburst was so bad Caswell was afraid for his safety and was

mapping out the room to figure out how he would get out if AB attacked him. AB

yelled and used profanity. He said things like: “If I died, I don’t want any of you

fuckers at my funeral.” “This is fucking ridiculous.” “The company is a fucking joke.”

“What does the company know about the fucking rules?”

44. Caswell says AB requested a week of vacation at a point in the middle of this

encounter. Caswell needed to look into whether AB had vacation available and

suggested AB take the rest of the day off and come back the next day.

45. AB says he asked Caswell for a week of holidays while he was still standing at the

door to the conference room and before Greg Simpson left the office. AB says

during the conversation he lost his composure but it wasn’t anger. He just wanted to

leave. He says he broke down shaking, crying, and sweating with panic setting in.

AB agrees that Caswell told him to take the rest of the day and come back the next

day.

46. I accept Caswell’s evidence that AB entered the conference room in an agitated

state. This evidence is consistent with Perfect’s evidence that when AB left Perfect’s

office to go to see Caswell, AB was quite agitated.

47. AB admits that he was loud and did use profanity with Caswell on February 17, but

says he did not swear at Caswell or call Caswell any names. AB just used a lot of

“F” words but they weren’t directed towards Caswell. AB denies shouting. He says

he was emotional. AB admitted he might have said the assignment was “fucking

ridiculous” and a “fucking joke”. AB agreed he might have said, “Why are you

fucking doing this to me?” AB says he doesn’t remember standing and leaning

across the table at Caswell. AB denies that he was yelling and swearing repeatedly

in the conference room. He says he was having an emotional breakdown.

48. It was clear in cross-examination, that AB isn’t really sure what he said to Caswell in

the conference room. He admits he said things, including using profanity, because

he was frustrated because the company was shutting him out and the Union was

100

shutting him out. AB admitted to the statement “I get accused of smoking pot on the

job. I get accused of drawing fucking pictures, I get told I’m late. Mark, it was fucking

7:01 when I drove into the yard, not 7:08”. AB wasn’t sure whether he made the

statement about not wanting people at his funeral.

49. Caswell watched AB leave and saw AB speed out of the parking lot, spinning his

tires. This suggests AB was still angry as he left the premises.

50. Burgess said he and others in the office heard what occurred in the conference

room. Burgess’ evidence is reasonably consistent with Caswell’s evidence about

the incident. Burgess was sufficiently concerned about AB’s behaviour that he went

out and locked the gate after AB left. Burgess also spoke with the other staff

because they were understandably concerned because they had also heard AB’s

outbursts. Burgess said that AB made a comment to the effect that he was going to

get a gun and blow his brains out. AB denies making any such comment, but there

is actually a record of AB making a similar comment to his counsellor on February

22, 2016. I am satisfied on balance that even if AB doesn’t remember making the

comment, he did make that comment. Burgess locked the gate after AB left.

51. Overall I am satisfied that as soon as Caswell started to talk to AB about his work

assignment and told him about working in the warehouse, AB lost his temper. I am

satisfied AB said the things Caswell and Burgess say that he said.

52. I find that AB was not forthcoming or candid about his behaviour in the warehouse

first thing on February 17. At one point he claimed the only time he used vulgarity

was later in the conference room. When pressed, he finally admitted to using vulgar

language, but insisted his vulgarity was not directed at Caswell.

53. I do not accept AB’s claim that he told Caswell right away on the morning of the

17th that he would accept his assignment and go to work in shipping. If that had

been AB’s reaction to the instruction, there would have been no reason for Caswell

to follow AB through the warehouse. I am satisfied AB never said he would accept

the assignment until later when he spoke to Caswell in the salvage area. I accept

Caswell’s evidence that AB was angry and loud, raising his voice. This evidence is

corroborated by the evidence of both Hesch and Perfect who heard AB’s loud voice

at the relevant time that morning. I also accept Caswell’s evidence that he was

following behind AB because AB appeared to be out of control. Furthermore, if AB

had agreed to go to shipping, why would he have claimed to need a Union rep and

why would Caswell have had to go looking for AB later in salvage? Caswell went to

find AB in salvage because AB had not agreed to work in shipping and AB had

asked for a meeting with a Union rep.

54. AB appears to have cooled down somewhat when he was in salvage, although

Caswell noted that AB was still somewhat agitated when Caswell was there.

Caswell and AB had a short conversation during which AB agreed to work in

shipping. AB was going to talk to the Union rep.

55. It didn’t take long for AB to “lose it” again, within 15 to 30 minutes after the

discussion in salvage. Once AB was back in the warehouse and spoke to the Union

rep and didn’t get the Union’s support to resist the work assignment, AB became

101

angry again. This is reflected in his behaviour in Perfect’s office and then in the

conference room. Indeed, it appears AB was either so angry at this point that he

doesn’t remember going into Perfect’s office or he was being less than truthful when

he said he doesn’t remember going to Perfect’s office that morning.

56. AB’s claim that he got upset about Caswell following him and not about the work

assignment is not credible. In Perfect’s office AB did not complain about Caswell

following him in the warehouse. He complained about the work assignment. Dr. O’s

clinic notes of February 22, 2017, reflect that AB told Dr. O that he was told there

were changes going on at work and they needed AB to get along with them. AB

said he became agitated and unhappy. There is nothing in Dr. O’s notes about AB

being agitated because Caswell followed him in the warehouse. There are several

references in other records to AB’s story about what happened on February 17; and

in each case, AB’s complaint about what happened on the 17^thwas that Caswell

assigned him to work in the warehouse. AB’s behaviour on February 18 (see below)

also confirms his issue was with being assigned to work in the warehouse.

57. I am satisfied AB’s anger on February 17 was triggered by Caswell’s direction to AB

that AB was to work in the warehouse in shipping. AB reacted because he did not

like working in the warehouse. This reaction was because of AB’s anger

management problem.

58. Caswell was concerned, because of AB’s state, that AB didn’t understand he

needed to come back to work the next day. Caswell texted AB, but got no response.

AB did receive that text. Caswell also sent an email to AB and got no response.

Concerned that AB needed to know what Caswell expected of him, Caswell worked

with the RTW Office to prepare a letter to deliver to AB. When the letter was ready,

in Caswell’s absence, Burgess signed the letter which was then sent by courier to

AB’s home. AB’s outburst had been sufficiently disturbing that Burgess was scared

when he signed the letter to AB.

What happened on February 18?

59. Caswell and Orb both testified that at the meeting with AB and Union rep Allison

Kobelka on the morning of February 18, AB lost his temper again. Caswell

described AB as “extremely emotional”, and said AB cried at this meeting. Caswell

tried to explain why AB’s behaviour from the day before was unacceptable. AB

continued to take the position that the company was “doing this to him” and that

they were harassing him. AB didn’t take any responsibility for his actions. His

position was that it was the company’s fault he behaved the way he did. AB yelled

at Caswell, berated him, insulted him and threatened him.

60. Caswell says AB’s behaviour on February 18 was similar to his behaviour the day

before but escalated. AB didn’t listen and constantly interrupted. He continued to

claim harassment because he was being asked to work in the warehouse. He said

things like, “The company is harassing me.” He said, “I’m a grown fucking man.” He

was upset and ranting about his discussion the previous day with the Union rep. He

said he was constantly being bullied and harassed and even the Union wouldn’t

defend him. AB actually admitted during that meeting that he has a hot temper. He

was verbally abusive and pounded his fists on the table. He became louder and

102

more profane as the meeting continued. Even after taking a break to collect himself,

AB did not calm down. When he came back after the break, AB made comments

like, “Are you a God-fearing man?” and “Do you fear the Lord and how do you even

look at your fuckin’ kids?” AB angrily pointed at Caswell. Caswell felt threatened by

these comments and gestures. AB made comments like, “They give me a fucking

gun and I load the fucking gun for them every time.”

61. Caswell finally suspended AB with pay pending further investigation and sent AB

home. Orb escorted AB to his vehicle.

62. AB suggested he was “caught off guard” when Caswell asked to meet with him on

the morning of the 18^th,implying this should excuse his behaviour. AB

acknowledged asking Caswell if he was a God-fearing man. AB says he said this

because Caswell had made a statement that wasn’t true. He claimed he knew

Caswell went to church with his six kids and made the comment because it seemed

so easy for Caswell not to tell the truth. AB initially could not remember the specific

statement Caswell said, but he did remember that one statement that agitated him

was when Caswell said sending a courier letter was common practice. Later AB

said this statement was the one that agitated him. AB agreed he shook his finger at

Caswell and said “Shame on you, Mark.” He agreed he asked Caswell how he even

looks at his kids. AB acknowledged that at this meeting his voice was raised and he

was agitated. AB didn’t admit to pounding his fists on the table, but he didn’t deny it

either. AB acknowledged making the statement, “They give me a gun and I load the

fucking gun every time.”

63. By the morning of February 18, AB had 24 hours to calm down since Caswell told

him of his work assignment, but AB was still angry about it. That day, even with an

opportunity to take a break to cool down, AB did not do so. It is quite clear that on

February 18, as it had been on February 17, AB was angry because Caswell had

assigned him to work in the warehouse. AB not only brought the work assignment

up again in the meeting with Caswell and Orb, but also with Kathy Potts when Potts

called him that day to do a wellness check.

64. As with other instances, where AB’s evidence differs from others, I prefer the

evidence of others. I note that the Union rep, Alison Kobelka did not testify and from

that I may draw the inference that her version of events would not support AB’s

version. AB’s belief and claim that Caswell lied about SaskPower’s common

practice of sending letters to employees shows AB was unwilling or unable to

accept at face value even the smallest management decision. On February 18, AB’s

anger was quite out of control. AB acted irrationally, wouldn’t listen, and was

disrespectful and belligerent. While AB made no direct threat, a reasonable person

would have found AB’s behaviour to be threatening.

65. Before I turn to the main questions, I will now address the evidentiary issues.

Is SaskPower entitled to rely on evidence of AB’s past conduct before his dismissal for

which SaskPower did not discipline AB and if so for what purpose or purposes?

66. During the hearing, SaskPower sought to introduce evidence about incidents of

AB’s behaviour for which SaskPower did not discipline AB. After hearing counsel for

103

the parties, I decided to hear the evidence on the basis that SaskPower claimed it

would demonstrate this evidence to be relevant to issues in the case other than the

issue of just cause. I advised the parties I would hear the evidence and in the award

I would ultimately deal with the relevance of the evidence to specific issues. First, I

will deal with the question of what evidence SaskPower can rely on to establish just

cause for some form of discipline.

67. With respect to the issue of just cause, the Union submits:

a. SaskPower should be held strictly to the grounds listed in the Termination

Letter and should not be allowed to alter or enlarge their grounds from those

in the Termination Letter. The termination letter specifically refers to “your

conduct on February 17, 2016” as the specific incident for which AB was

terminated. At the February 19, 2016 meeting at which Caswell delivered the

Termination Letter to AB, the grounds set out in the Termination Letter were

the sole grounds communicated to AB and the Union. SaskPower did not

communicate any other grounds for discharge; and fairness dictates that the

only grounds that may properly be considered are those expressly identified

in the Termination Letter.

a. Arbitrators require employers to justify the sanctions they impose on the same

grounds they refer to when they actually discipline an employee. Altering

grounds raises questions about the employer’s bona fides and fairness in the

disciplinary procedure. While there is an exception to the general principle for

situations where the misconduct had not been discovered at the time of

termination, that circumstance does not exist in this case.

b. SaskPower is not entitled to rely on past incidents for which SaskPower did

not discipline AB.

68. In support of the Union’s position, the Union cites, among others:

a. Brown and Beatty, Canadian Labour Arbitration, supra, 7:2200;

b. N.S.G.E.U. v. Nova Scotia Department of Justice, 2003 CarswellNS 593;

c. Mosaic Colonsay v. USW Local 7656, 2014 CaraswellSask 287.

69. In argument with respect to just cause, SaskPower restricted its arguments to the

events of February 17 and 18, 2016, recognizing that SaskPower cannot rely, on

the question of just cause, on incidents of past behaviour for which AB was not

disciplined. Indeed, the parties appear to be on common ground that SaskPower

could not consider those past incidents for that purpose, and in examining the

question of just cause, I will not consider anything other than what SaskPower relied

upon at the time of termination. I now turn to that question.

70. The authorities cited by the Union all cite the well-known case of U.S.W.A. v.

Aerocide Dispensers Ltd. (Walker Grievance) [1965] O.L.L.A. No. 1 in which Laskin

(later CJC), found that employers should be held fairly strictly to the grounds for

discipline or termination on which they have chosen to act. Brown and Beatty,

supra, point out that:

104

… Altering the grounds on which disciplinary action is defended is widely seen as raising

questions about the employer’s bona fides and the fairness of the disciplinary procedure.

Following Laskin’s lead, arbitrators have refused to permit employers to introduce

evidence of events that are not closely related to those initially communicated to the

employee, or to turn the incident that precipitated the case into a different offense.

71. N.S.G.E.U., supra, points out that the rationale for this principle is that the employee

is entitled to know the case against him and that arbitrators are skeptical as to the

bona fides of an employer’s conduct when it seeks to change the grounds upon

which it initially relied in disciplining the grievor. Mosaic, supra, adopts this approach

in a Saskatchewan case and also speaks to circumstances where there might be an

exception to the principle, such as where information that was not known to the

employer comes to light after the termination. Mosaic, supra, also makes it clear

that the employer will not normally be allowed to rely on grounds arising from facts

known at the time of termination if the employer chose not rely on those grounds at

the time of termination.

72. Each case must be examined in light of its own facts including the provisions of the

relevant collective agreement. Before discipline, which I take to include termination,

Articles 9.01(i) and (ii) of the CBA here require:

i. In the event the Company is considering the discipline of an Employee the

Supervisor shall, prior to making a decision, discuss the situation with the Employee

in the presence of the Shop Steward or Union Representative to give the Employee

the opportunity to be heard.

ii. The Supervisor shall then further investigate the situation, if appropriate, after the

Employee has been heard and render a decision, in writing, to the Employee, the

Union’s Steward, the Union Office and Human Resources.

73. Article 9.01(iv) of the CBA says:

Should the Company consider that an Employee’s actions warrant dismissal for just

cause, such Employee shall be dismissed. Any such action, with reasons, will be

recorded, in writing, to the Employee, with copies to the Union Steward, Union Office and

Human Resources.

74. After the events of February 17, 2016, SaskPower set up a meeting with AB to

discuss what had occurred on the 17^th. They contacted the Union and the Union

made arrangements to have a Union representative present with AB for the meeting

on February 18. This meeting was to discuss the situation that occurred on

February 17 and give AB an opportunity to respond. Caswell and Orb followed the

process required by the CBA in this regard. AB’s behaviour at the February 18

meeting was an integral part of the investigation of what occurred on February 17

including SaskPower’s obligation to give AB an opportunity to be heard. After the

February 18 meeting, SaskPower decided to terminate AB’s employment and

issued the Termination Letter on February 19.

75. The Termination Letter refers to the February 17, 2016 incident, to the investigation

of that incident and to the DML of October 22, 2014. The February 18 meeting was

not just an event closely related to the February 17 incidents, it was an integral part

of the investigation of what occurred. Furthermore, there is no question that in

deciding on whether just cause exists for misconduct, both the employer and the

union are entitled to rely on the employee’s response to the employer’s concerns.

105

For example, if AB had been contrite on February 18, had acknowledged his

inappropriate behaviour and/or had apologized, I have no doubt the Union would be

before me (and properly so) arguing the relevance of that evidence to SaskPower’s

decision to terminate.

76. In conclusion on this point, then, to meet its onus to establish just cause for some

form of discipline, SaskPower is not entitled to rely on past incidents for which it did

not discipline AB. SaskPower is entitled to rely on AB’s conduct on February 17 and

18, 2016 and the DML of October 22, 2014, although I note that the DML is most

properly relevant to the question of whether termination was an appropriate

response. I will deal with that issue later in this award.

77. The next question, then, is whether SaskPower can rely on evidence of AB’s past

conduct with respect to any other issue in the case. During the hearing, when

SaskPower sought to introduce evidence with respect to past incidents of AB’s

conduct, the Union objected to the evidence on the basis that AB was not

disciplined for this conduct and therefore evidence about these events is not

relevant and it would be prejudicial to AB to consider such evidence. SaskPower

took the position that the evidence of AB’s overall conducted is relevant to whether

AB should be reinstated and said the fact Caswell had to deal with AB’s emotional

outbursts is relevant and germane. Both counsel said there was case law

supporting their positions, but they did not have the case law at hand at the time. I

allowed the evidence subject to my determination on weight and admissibility after

hearing full argument including the case law.

78. During final arguments, the Union took the position that SaskPower was attempting

to use some of the events of AB’s past behaviour to suggest that since AB had

done it before, the arbitrator should infer that he did it again on February 17. The

Union argued that to consider the evidence of past behaviour would have a

prejudicial effect on AB’s case. Union counsel asked for leave to file a brief on this

issue. SaskPower took the position that the purpose of the evidence was not to

establish cause for discipline, but to show that AB has an anger management

problem and that he has displayed anger and belligerence in the past and has a

tendency to overreact and become belligerent and angry about ordinary workplace

interactions where AB might be approached or challenged. SaskPower says the

evidence is also relevant to AB’s credibility and to mitigating factors because the

Union claims this was a spur of the moment, momentary thing and the evidence

shows AB had an explosive temper which he appeared to be unable to control.

79. After hearing counsel, I gave them leave to file additional written arguments on this

point. I will now consider those arguments. I wish to make it clear at the outset,

however, that, in deciding whether SaskPower had just cause to discipline AB, I will

not and have not considered any of the evidence with respect to past conduct for

which SaskPower did not discipline AB. I have and will assess the evidence about

what happened on February 17 and 18 without considering any evidence of AB’s

past behaviour. The question here is whether evidence of past events is relevant to

any other issue before me, in particular any of the relevant mitigating factors.

106

80. In their supplementary briefs, counsel spent considerable time on the case law in

relation to similar fact evidence. Courts have long been mindful of the danger of

permitting similar fact evidence in criminal cases. Similar fact evidence is not barred

because it is irrelevant, but because its prejudicial effect outweighs its probative

value. The concern is that a trier of fact might convict, not because they are

satisfied on the evidence that the accused committed the offense, but because the

accused is a bad person who had done bad things in the past. The original rule was

that if the evidence is relevant in some other way (besides showing that the person

was the sort to commit the offence) and its probative value outweighs its prejudicial

effect, the evidence will be admitted: see Evidence and Procedure in Canadian

Labour Arbitration (Gorsky, Usprich and Brandt) (Carswell 1994). The evidence has

to have some relevance for some purpose other than that it tends to show that the

individual was the type of person likely to have engaged in the alleged conduct.

Then the trier of fact must be satisfied the probative value outweighs the prejudicial

effect: Re Ontario (Ministry of Labour) and O.P.S.E.U. (Deprophetis) (Re), 2010

CarswellOnt 11630.

81. Lord Denning in Mood Music Publishing Co v. D.E. Wolfe Ltd. [1976] 1 All E.R. 763

said this about the test for admissibility in civil cases:

The criminal courts have been very careful not to admit [similar fact] evidence unless it’s

probative value is so strong that it should be received in the interests of justice: and it’s

admission will not operate unfairly to the accused. In civil cases the courts have followed

a similar line but have not been so chary of admitting it. In some cases the courts will

admit evidence of similar fact if it is logically probative, that is, if it is logically relevant in

determining the matter which is in issue; provided that it is not oppressive or unfair to the

other side; and also that the other side has fair notice of it and is able to deal with it.

82. Union counsel argues, and I agree, that it would be inappropriate to infer that AB

behaved badly on February 17 because he had a propensity to behave badly. I

agree with the arbitrator in Toronto District School Board v. C.U.P.E, Local 4400,

(2005), 137LAC 4^th379, that in a discipline or discharge case, evidence of past

similar conduct for which the grievor was not disciplined should not normally be

admitted on the issue of just cause.

83. I also agree with the arbitrator in H.E.U. v. Fraser Health Authority, 2004

CarswellBC 2752 that normally evidence of similar behaviour by a grievor in other

circumstances to show the grievor’s disposition will be too remote and will have little

probative value to warrant the expansion of the grievance into evidence of collateral

events.

84. These authorities make it clear that evidence of instances of AB’s past conduct

similar to what occurred on February 17, 2016, should not be considered in deciding

whether AB engaged in the conduct alleged on February 17. I will not and have not

considered evidence of past conduct on this issue. That, however, does not end the

matter. The question remains whether evidence of AB’s past conduct is relevant to

some issue other than propensity to behave the way he did on February 17, 2016.

85. SaskPower says evidence of AB’s past conduct is relevant to:

a. AB’s suggestion and the Union’s argument that AB’s conduct on February 17

and 18 was attributable to his mental health issues rather than to his anger

107

management problem. Evidence of AB’s past conduct refutes this claim

because it shows that AB’s behaviour on February 17 was not an isolated

incident that occurred as a result of the medical condition for which AB took

medical leave, since AB engaged in similar behaviour before he took medical

leave and while he was suffering from and under treatment for the same

mental health issues he now claims are the cause of his outbursts on the

days in question. The Union, through AB and through Dr. O, led evidence of

AB’s history of anxiety and depression and the treatment he has undertaken

for those mental health conditions since 2013 with a view to mitigating or

excusing as non-culpable AB’s conduct on February 17 and 18, 2016.

b. AB has put his emotional state directly in issue both in his defence of his

conduct on February 17 and 18 and by his assertions that he is not an angry

person and that he has never been disrespectful to Mark Caswell. SaskPower

ought to be permitted to rebut this by relying on evidence that shows AB has

a hot temper and that his reaction in the workplace to management direction

is guided by his temper and anger management problem rather than by

anything else.

86. In Mirolin Industries v. United Steel Workers of America, Local 1357, 2007

33749 (ON LA), the grievor was discharged for threatening a co-worker with a knife.

The grievor did not deny waving the knife but suggested there was provocation,

mitigating circumstances and that discharge was too severe a penalty. The

employer sought to tender evidence of similar experiences other workers had with

the grievor. The arbitration board accepted the evidence, “…not to amplify or create

a disciplinary record, but to enable the Employer to rebut the Union’s contention that

this was an isolated and uncharacteristic event.” (at para 14).

87. The employer argued that credibility in the case was a critical element and that the

previous incidents, coupled with the incident that led to the grievor’s termination,

were indicative of how the grievor deals with “difficult or stressful situations”. (para.

20). Although the grievor had no disciplinary history and the evidence of other

similar incidents had not attracted discipline, the evidence was considered by the

arbitrator because of the grievor’s assertion that he had an unblemished history with

the employer. The arbitrator determined, in light of that assertion, that “he cannot

hide behind the facts that suggest otherwise”. (para. 36). Moreover, the arbitrator

determined that the previous incidents embody the attributes of similar fact

evidence insofar as they convey the grievor’s action when he becomes agitated.

Based on this past history, this was not considered an isolated or uncharacteristic

event.

88. SaskPower argues that even though the Union has not argued in this case that AB

has an unblemished history, AB’s case is similar to that in Mirolin because of AB’s

assertions that he is not an angry person and that he has never been disrespectful

to Mark Caswell.

89. In the Summary of Evidence, I have included a summary of the evidence of

witnesses who spoke to past incidents of AB displaying inappropriate behaviour in

the workplace, including displays of anger and aggression.

108

90. I am satisfied the evidence is relevant for specific purposes. In defense of

SaskPower’s assertion that AB displayed anger and aggression on February 17, AB

claims he is not an angry person. This assertion is relevant as a claimed

explanation seeking to mitigate the consequences of AB’s behaviour on February

17 and 18. Essentially the argument is “I am not an angry person, so I wasn’t angry

on February 17 and 18.” Evidence of AB’s anger problem is therefore relevant. AB

also said more than once that he was never insubordinate or disrespectful to Mark

Caswell. Evidence of AB’s past behaviour is relevant to assessing the veracity of

this claim as well.

91. In addition, throughout, the Union has consistently taken the position that AB’s

outbursts on February 17 and 18 were only because Caswell told AB that AB was

going to be working inside the warehouse in shipping and that it was AB’s anxiety

that caused AB’s reaction because working in the warehouse was his “kryptonite”.

This assertion is relevant to the human rights analysis. In that analysis, I must

consider all evidence that is relevant to the existence of the disability, the extent of

the disability and whether there is a causal connection between any existing

disability and AB’s conduct. The Union has submitted detailed evidence of past

diagnoses and medical treatment from AB and his treatment providers. AB’s

behaviours during treatment are relevant to whether there is a connection between

the mental health issues and AB’s conduct over time. That evidence is also relevant

to the question of whether and to what extent SaskPower attempted to

accommodate any disability to the point of undue hardship.

92. I also note the following comments in In Re Rolland Inc. and Canadian

Paperworkers Union, Local 310, infra:

[28]

We agree with counsel for the union that it would be improper to treat the earlier incidents

for which no discipline was imposed as some form of "similar fact evidence", or past indication of

the grievor's misconduct. Having not so characterized the grievor's actions at the time, we do not

think it is open for the company to do so now. However, these events do show that the grievor

had been warned on previous occasions that he must follow O'Brien's instructions, that he should

not engage in arguments with his supervisors, and that he should not use abusive language. He

was (or should have been) on notice that whatever friction there may have been in his

relationship with O'Brien, if he did not curb his temper he would find himself subject to discipline.

We also note, once again, that there was no reasonable provocation for his outburst, nor did he

tender any apology either at the time or later.

93. Like Rolland, there is evidence before me that on some of the occasions when AB

lost his temper in the past, Caswell tried to coach AB to help him to understand that

he could not continue to engage in outbursts.

94. In conclusion on this point, evidence of AB’s past conduct is relevant to some of the

issues in the case. I will address that evidence and the weight to be given to it in

each instance at the appropriate time in this Award.

Post Discharge Evidence

95. The Union raised the issue of post discharge evidence. I agree with the Union that

evidence of incidents that took place after an employer has dismissed its employee

is not relevant to the issue of just cause: see Cartier v. Quebec. [1995] 2 SCR 1095;

109

see also Saskatchewan Property Management Corp. v. Deptuck, [1995] 10 WWR

111.

96. I also agree with the Union that post discharge evidence may be considered in the

context of considering the arbitral remedy including the arbitrator’s power under s.

6-49(4) of The Saskatchewan Employment Act, S.S. 2013, c. S-15.1.

97. The Union submits that I should not consider Burgess’ evidence about undertaking

the Active Shooter training for his staff after AB was dismissed or the documents

Burgess submitted in evidence about the Active Shooter training. The Union says

there is no credible evidence of a verbal threat by AB to SaskPower staff. The

documents are prejudicial. It is not relevant even on a post-discharge analysis

because it is not relevant to whether AB should be reinstated since AB made no

post-discharge threats. For that reason, no weight should be given to this evidence.

98. I did not understand SaskPower to tender the evidence about the Active Shooter

training to suggest that AB would come in “guns a blazing”. Indeed Burgess’

evidence was to the effect he didn’t think AB was that kind of threat. The evidence

was tendered to show that Burgess and his staff were sufficiently concerned about

AB’s loud, vulgar, aggressive behaviour on February 17 that Burgess sought some

assistance to give himself and his staff some tools to use if they encountered similar

behaviour in future. I see nothing prejudicial about this evidence. What occurred

was a reasonable reaction to the events that occurred. To the extent the evidence

demonstrates the level of concern of those in proximity to the event, it is relevant. I

must say, however, this evidence is of minor significance in the overall evidence in

the case and would not in itself make any difference to the result in this case.

The just cause analysis

99.

The parties agree on the questions the arbitrator must ask in determining

whether termination of AB’s employment was justified. In Regina Qu'Appelle

Regional Health Authority and CUPE, Local 3967 (Lacelle), 2014 CarswellSask 257,

[2014] S.L.A.A. No. 5, 118 C.L.A.S. 259, the arbitration board accurately summarized

these basic principles:

64

Our decision ought to be made based on the arbitrarily well-accepted decision of

Arbitrator Weiler in William Scott & Co. v. C.F.A.W., Local P-162 (1976), [1977] 1 Can.

L.R.B.R. 1 (B.C. L.R.B.), which mandates that we determine the issues raised by the

grievance based on our answers to the questions: has the employee given just and

reasonable cause for some form of discipline; if so, was the employer's decision to

dismiss the employee an excessive response in all of the circumstances of the case; if

termination was not justified, what other penalty would be "just and reasonable in the

circumstances". [Section 25(3) of The Trade Union Act, R.S.S. 1978 c. T-17, as

amended; Article 11.09(c) (iii) an arrangement which the Board deems "just and

equitable"].

…

70.

We agree with Arbitrator Weiler's statement in Wm. Scott, supra, that it is in

respect of the question of whether the misconduct is serious enough to justify the heavy

penalty of discharge, that an arbitrator evaluating management's decision should be most

searching in its examination of the circumstances including:

(a) How serious was the immediate offence?

110

(b) Was the employee's conduct premeditated or repetitive; or instead, was it a

momentary and emotional aberration perhaps provoked by someone else?

(c) Does the employee have a record of long service in which he proved an able

worker, enjoyed a relatively free disciplinary history?

(d) Has the employer attempted earlier and more moderate forms of corrective

discipline which did not prove successful in solving the problem?

(e) Is the discharge of the grievor in accord with the consistent policies of the

employer or does it appear to single out this person for arbitrary and harsh

treatment?

71

Additional factors that arbitrators have found to be relevant in determining whether

a penalty is just and reasonable or ought to be mitigated are found in U.S.W.A., Local

3257 v. Steel Equipment Co. (supra). These include:

(a) Whether the penalty imposed has created a special economic hardship for

the grievor in light of his or her particular circumstances.

(b) Circumstances negativing intent.

(c) The seriousness of the offence in terms of company policy and company

obligations.

(d) Any other circumstances which the board should properly take into

consideration: eg: a failure of the grievor to apologize; failure of the company to

permit the grievor to explain or deny the alleged offence.

The noted catalogue of circumstances that the Board should take into consideration is

neither exhaustive nor conclusive; every case must be decided on its own merits and

considerations.

Did AB engage in conduct worthy of discipline?

100. The Union does not suggest SaskPower did not have just cause for some

discipline in all the circumstances. Indeed, from the beginning, in the Grievance, the

Union has said it does not condone AB’s aggressive and belligerent behaviour on

February 17, 2016, but suggests SaskPower could have taken a “softer” approach

to AB’s return to work. The softer approach appears to be the claim that SaskPower

should have recognized and accommodated a disability.

101. Under the hybrid approach to cases like this, the first question is whether AB

engaged in conduct worthy of discipline. There is no question that on February 17

and 18, 2016, AB behaved in a manner that warranted some disciplinary response

from the Employer. He was angry and belligerent. He spoke in a loud voice and

used profanity. He made threatening gestures and disturbing comments. I will

discuss the seriousness of the misconduct under that heading. Suffice it to say here

that AB did engage in culpable conduct worthy of discipline.

102. The important question, then, and the core of the parties’ arguments, relates to

whether termination was an excessive response in all the circumstances, especially

in light of the Union’s claim that AB’s behaviour is linked to a disability SaskPower

should have accommodated.

103. The cases recognize that not every factor listed in the cases will be present in

every case or will be considered equally in deciding on the appropriateness of the

disciplinary penalty. Every case has its own peculiar facts and this one is no

111

different. I will begin by dealing with the Union’s claim that SaskPower owed AB a

duty to accommodate his mental illness and that SaskPower breached that duty.

Human Rights Analysis

104. The Union submits:

a. The law prohibits the employer from discharging an employee because of a

disability because that is discrimination. The law imposes a duty to

accommodate on the employer.

b. Any element of AB’s behaviour which is found to be culpable should be

considered in the context of what was going on in his life at the time of the

incident as mitigating factors against discharge. An employee’s personal

circumstances can be a mitigating factor when considering the

appropriateness of discipline. In this case AB’s personal circumstances are

essential to understanding the incident on November 17, 2016.

c. The Union acknowledges that for the duty to accommodate to apply, there

should be a nexus between the disability and the culpable conduct. Even if

there isn’t a nexus, however, the depression can be considered as a

mitigating factor in assessing the appropriateness of discipline.

d. AB suffered from emotional issues and mental health issues for a lengthy

period of time. He was out of the workplace due to anxiety and depression

from October 19, 2015 to February 17, 2016. He is still under Dr. O’s care for

those same medical issues. Dr. O has confirmed this. These issues included

medical diagnoses of anxiety and depression and panic attacks. AB also had

problems related to anger management. In addition to being under the care of

Dr. O, a psychiatrist, AB was also seeing a counsellor through the EFAP

program at the time of the incident. In relation to the various issues, he had

been accepted as being too ill to work because of mental illness from October

2015 until his return to work on the morning of the incident. At the time of his

return to work this was an employee who was almost on long-term disability

on the basis of serious mental health issues.

e. Based on Dr. O’s notes and AB’s testimony, it was clear AB was suffering

from fears related to his job security prior to the incident. AB also testified as

to the central role of work in own sense of worth and identity and to the

finances of his family. He testified that he did not want to be the kind of

person who went on long-term disability. He also testified that the lower

income he received on short-term disability was putting a financial strain on

his family. In the context of significant mental illness, AB was under intense

personal pressure to return to work in February 2016. Partially on this basis,

AB returned to work without a graduated return, contrary to Dr. O’s advice.

f. AB’s testimony regarding the February 17 incident is suggestive that he was

experiencing something in the nature of a panic attack about his work

assignment and his job. Based on AB’s testimony, his first impulse during one

of his panic attacks is to get away from people. He testified to being highly

embarrassed about his panic attacks and being overwhelmed with the need

112

to leave the situation. This characterization accords with what various

witnesses testified to in respect of AB’s words and actions during the incident;

he was near frantic and attempting to get permission to leave the workplace.

AB’s fears about being fired were confirmed by his reaction to the stresses of

returning to work under the circumstances.

g. The analysis of the February 17 incident must include and be tempered by

sensitivity to the personal, financial, emotional and health-related

circumstances of AB and be subject to a high degree of understanding and

sympathy.

h. SaskPower never explored the potential for accommodation on AB’s return to

work. AB had been off work from October 19, 2015 to February 16, 2016 and

his absences were supported by medical forms provided to Sask Power.

i. The evidence suggests AB had discussions with Dr. O about returning to

work. Dr. O recommended that AB have a gradual return to work with the

details to be worked out. Despite that, AB, against Dr. O’s advice, believed he

was able to return to work full time. AB thought he was returning to working in

the yard. On this basis, AB returned to work full-time. His return to work did

not go well and based on behaviours exhibited on February 17, 2016, his first

morning back from his medically supported leave, Sask Power terminated his

employment. Caswell should have invited the Union to discuss a gradual

return to work for AB.

j. The Union acknowledges there were no written restrictions communicated to

SaskPower. However, upon AB’s return to work, once he exhibited strong

emotions that were not typical, SaskPower should explored whether there

was any underlying conditions contributing to his behaviour and whether any

duty to accommodate was triggered. At that point information could have

been obtained to determine the appropriate gradual return to work to be put in

place and re-explore hours and whether any modifications to AB’s work or

hours of work or environment were necessary.

k. On February 22, 2016, which was the first day after AB was discharged that

he could get in to see his psychiatrist, Dr. O assessed AB with moderate

depression and severe levels of anxiety.

l. The evidence at the hearing is suggestive that during the morning incident on

February 17, 2016, AB experienced an episode related to his mental illness.

The Union acknowledges that Dr. O declined to make a conclusive causal

nexus between AB’s specific conduct and any specific condition. However,

the Union submits it is still open to find that some or all of the conduct was

related to AB’s disability. This is based upon both the evidence from the

medical documents and the witness testimony.

m. Dr. O adopted the statements in his March 22, 2017 letter. He confirmed that

many individuals with depression that is comorbid with anxiety exhibit

increased irritability, persistent anger, a tendency to respond to events with

angry outbursts or blaming others, and an exaggerated sense of frustration

113

over minor matters. Dr. O indicated this was from the DSM. The description of

these behaviours associated with AB’s specific conditions tends to suggest

that AB was experiencing the effects of his illness on February 17, 2016. In

that same letter, Dr. O states that it would be difficult to determine which of

AB’s conditions, anxiety, major depressive disorder, cannabis use or anger

management issues would have been the cause of the behaviour.

n. In addition, throughout Dr. O’s treatment of AB, it is clearly identified that

workplace circumstances and stressors were viewed as important factors in

AB’s illness and treatment. Dr. O repeatedly characterized behaviours and

symptoms which are consistent with some of those shown on November 17,

2016.

o. The Union’s position in this regard is buttressed by the testimony of the

witnesses that observed AB on the morning of February 17, particularly that

of John Perfect. Perfect is a layperson with respect to psychological

diagnoses (and thus cannot diagnose), but his testimony was definite with

respect to his opinion that AB was not mentally well when he observed AB

that morning. Perfect was able to provide numerous indicia which supported

this conclusion. It is open to the arbitrator to conclude there is a relationship

between the events of February 17, 2016 and AB’s illness on the strength of

this evidence, despite a lack of definitive medical proof of this connection, on

the basis that because there is logical relevant evidence before the arbitrator,

the connection is reasonable.

p. On this basis, SaskPower was under a duty to explore an accommodation

with AB before it had any right to fire him. Accommodation is tri-partite,

involving the employer, union and employee. It is both procedural and

substantive. SaskPower should have known there was a need to

accommodate AB because AB had been away from work for months and

SaskPower knew the reason and had medical support. The record of mental

illness should have been a red flag for SaskPower to look into whether

accommodations were necessary.

q. AB’s conduct on February 17 was related to his disability and the only issue

then is whether SaskPower accommodated AB to the point of undue

hardship. SaskPower did not. They did not even take steps to make an

inquiry into the situation. There were things that should have been looked at

and things that should have been considered. There hadn’t been a prior

accommodation, but SaskPower knew why AB was off work. SaskPower

should have contacted the Union about AB’s return to work. SaskPower

should have considered a return to work plan. AB hadn’t requested an

accommodation, but SaskPower should have seen the signs related to the

disability and should have looked into it.

r. AB sought out and continues to receive counselling (and did so before

termination) to address his issues of anxiety, depression, personal issues and

anger. He did that voluntarily not just as a reaction to being terminated.

114

105. In support of its position, the Union cites:

a. H.S.A.S. v. Regina Qu'Appelle Health Region, 2009 CarswellSask 716, 184

L.A.C. (4th) 97, 97 C.L.A.S. 346;

b. Re Nova Scotia (Public Service Commission) and NSGEU (Hillier), (2013)

238 LAC 4^th62 (NS Arb.).

106. SaskPower submits:

a. SaskPower does not dispute that AB has been diagnosed with a mental

disorder that constitutes a “disability” as defined in The Saskatchewan Human

Rights Code, SS 1979, c S-24.1. (the “Code”). SaskPower accepts Dr. O’s

diagnosis of anxiety and depression. However, SaskPower does not accept

that AB’s anger management issue is a disability within the meaning of the

Code. Dr. O confirmed in cross-examination that an anger management

problem is not a clinical disorder. The case law also says anger management

problems are not a disability.

b. The mere fact of AB’s disability does not insulate him from the consequences

of his misconduct. Instead, the Union must prove either that AB’s capacity to

take instructions was impaired by a disability that SaskPower failed to

accommodate, or that AB’s disability diminished the culpability of his

insubordinate and abrasive conduct.

c. If an employee succeeds in proving that the employer applied a discriminatory

standard or policy, the burden shifts to the employer to prove that the

discriminatory standard or policy is a bona fide occupational requirement. If

the employer cannot prove that the impugned standard or action is a bona

fide occupational requirement, the duty to accommodate arises. The disability

need only be accommodated to the point of undue hardship on the part of the

employer.

d. The Union faces three hurdles to any successful argument that AB had a

disability that required accommodation:

i. AB’s physician certified AB to be fit to return to work without any

restrictions or limitations;

ii. AB was not entitled by virtue of any limitation caused by AB’s mental

disorder, to modified duties consisting of outside forklift operation only.

AB was not entitled to refuse the shipping assignment on this basis;

iii. To the extent AB’s disability impaired his capacity to accept any

instruction from the Employer (without acting belligerently), that

obligation is both a bona fide occupational requirement and impossible

to accommodate without undue hardship.

e. Discrimination only arises where a standard, policy, or action is applied to an

employee in a manner that discriminates against that employee on a ground

protected by the Code. Here, the protected ground is disability. SaskPower

does not dispute that AB has a disability. However, SaskPower does dispute

any allegation that it discriminated against AB on the basis of that disability:

115

i. It is not discriminatory to require an employee to perform tasks within

his or her job description when there is no physical, mental, religious,

or other objective impediment to performing those tasks. No such

impediments exist here. The Union has provided no evidence showing

that, as a result of his disability, AB was incapable of working in

shipping. In fact, AB acknowledged that he was trained to do and fit to

perform all the duties of a material handler/storekeeper in Central

Stores. It was therefore not discriminatory for Caswell to ask AB to

perform a task that he was trained for and that was within his job

description.

ii. It is also not discriminatory for a supervisor to give work instructions to

an employee who has been certified as fit to resume full duties.

Inherent in the performance of the duties of any workplace is the ability

to take instructions, follow rules, observe standard practices and

otherwise participate in concerted activities directed by an employer. If

AB was fit to perform his usual job duties, he could not have been

impeded from accepting instructions related to those job duties.

f. In the alternative, if AB’s disability impeded his capacity to accept legitimate

instructions given by the supervisor, the workplace rule requiring employees

to follow instructions is a bona fide occupational requirement. The Supreme

Court set out a three-part test for bona fide occupational requirement in

Meiorin:

[54]

Having considered the various alternatives, I propose the following three-step

test for determining whether a prima facie discriminatory standard is a BFOR. An

employer may justify the impugned standard by establishing on the balance of

probabilities:

(1) that the employer adopted the standard for a purpose rationally connected to

the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith

belief that it was necessary to the fulfilment of that legitimate work-related

purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that

legitimate work-related purpose. To show that the standard is reasonably

necessary, it must be demonstrated that it is impossible to accommodate

individual employees sharing the characteristics of the claimant without imposing

undue hardship upon the employer.

g. The “standard” here is the requirement for AB to perform tasks within his

training, capabilities and job description and to take direction from his

supervisor. The obligation to follow the directions of a supervisor is a bona

fide occupational requirement and the obligation extends to directions that the

employee may not wish to receive.

h. The obligation to follow the directions of a supervisor is rationally connected

to the performance of the job, and the warehouse would cease to function if

each employee was permitted to perform only his or her desired tasks.

SaskPower has demonstrated an honestly held good faith belief that it is

116

necessary for employees to follow the direction of their supervisors in order to

perform their jobs correctly and safely. It would be impossible to

accommodate individual employees whose capacity to accept instructions

was impaired by disability, because to accommodate each individual based

purely on their preferences would significantly impair the functioning of the

warehouse. Some tasks may be less desirable than others but they still must

be done. The obligation to follow the direction of a supervisor is a basic bona

fide occupational requirement for any employee.

i. There is no discrimination here; and in the alternative any discriminatory

action was justified as a bona fide occupational requirement. As a result, it is

not necessary to consider whether there was a duty to accommodate AB’s

disability. The duty to accommodate only arises where the Union has proved

prime facie discrimination because the duty to accommodate is not a

freestanding duty but arises only as part of a defence to a case of prima facie

discrimination.

j. The duty to accommodate is a duty to provide reasonable accommodation of

the employee’s disability. It is not a duty to accede to every preference the

employee happens to express. An employee is not entitled to refuse work

“because it did not align with his workplace preferences” on a basis that “had

no connection to his Code-related needs”. Further, the duty to accommodate

is not a one-way street. An employer cannot be expected to divine an

employee’s accommodation needs from silence. An employee has a duty to

raise his or her accommodation needs with the employer so that the employer

can make appropriate accommodations.

k. SaskPower had no obligation to avoid giving AB instruction that was

inconsistent with his preferred working conditions. An employee who both

requires and requests an accommodation is entitled to reasonable

accommodation of their disability, not a perfect solution. Moreover, AB’s

preferred working conditions were entirely within his control. If an

accommodation fails because an employee did not do everything in their

control to allow it to succeed, the resulting misconduct of the employee is

culpable even though it arose out of a disability.

l. SaskPower’s accommodation consisted of an almost four-month medical

leave following a confrontation with Caswell on October 19, 2015. Within

minutes of his return on February 17, 2016, after having received a four-

month course of therapy and medication, and after having been certified as fit

to return to full duties, AB was again hostile and aggressive with Caswell.

Then, after AB had left the building, had an opportunity to collect himself and

consult with the Union regarding the assignment, he returned to a meeting

and verbally attacked Caswell again. That verbal attack continued at a

meeting the following day after AB had left the workplace and been given a

further opportunity to collect himself.

m. In the circumstances, AB’s conduct was in no way attributable to

SaskPower’s failure to offer a further accommodation. The irresistible

117

inference is that his insubordination and hostility were not the result of his

mental disorder, but the product of his own ongoing disagreement with

Caswell’s managerial decisions. If, after being certified for full return to duty,

AB’s repeated hostility and belligerence toward Caswell are connected to his

mental disorder, then he failed to take steps within his control to manage his

reaction to ordinary workplace differences.

n. Where an employee has a disability but is disciplined for culpable misconduct,

the Union bears the onus of establishing that the disability was causally linked

to the misconduct. Where the Union is successful in doing so, the disability

may mitigate the culpability of the employee’s misconduct and lessen the

severity of the discipline that would otherwise be appropriate. However, the

employee is not free to behave however he wishes and point to an unrelated

medical condition to justify his behaviour and escape the consequences.

Instead, the Union bears the onus of proving a causal link between the

disability and the culpable misconduct. Where the Union succeeds in doing

so, the disability will either be treated as a mitigating factor lessening the

seriousness of the misconduct or it will render the misconduct non-culpable.

o. The causal link requires more than mere speculation, even where the illness

in question is anxiety or depression and even where it is difficult to ascertain

what causal role that anxiety or depression played in the griever’s behaviour.

A mere diagnosis of anxiety or depression is not enough to establish a causal

link. There must be some medical evidence to show that the culpable

misconduct was caused, in whole or in part, by the disability.

p. The Union must provide some evidence showing that AB’s inappropriate and

unacceptable outbursts on the morning of February 17, 2016 and continuing

the following day, were causally linked to his anxiety and depression. A

causal link cannot be inferred from the fact of diagnosis alone. AB’s history of

anger management problems does not establish a causal link because, in the

absence of expert evidence on this point, the mere existence of anger

problems for an individual with diagnosed anxiety or depression does not

mean that the anxiety or depression caused the anger problems. This latter

point was confirmed by Dr. O in his testimony.

q. The Union is unable to establish a causal link here. AB was diagnosed with

anxiety and depression as early as 2006. His inappropriate behaviour and

outbursts of anger did not begin to attract a response from the Employer until

approximately 2014 – when Caswell was hired as a supervisor. If any

inference is to be drawn here, it is that AB’s inappropriate behaviour was

caused by his dislike of Caswell, not by his anxiety or depression. Dislike of

one’s supervisor is not an immutable characteristic protected from

discrimination under human rights law.

r. Further, a pattern of hostile conduct in response to perceived slights in the

workplace is culpable where the dominant cause of the grievor’s conduct is

his anger.

118

s. The Grievor’s testimony that, “I am not an angry person”, is disingenuous and

unbelievable. The evidence, including that of the Grievor’s own psychiatrist,

overwhelmingly establishes that AB is, indeed, an angry person with an

explosive personality. Witnesses on behalf of SaskPower, including Caswell,

Orb, and Burgess, testified to circumstances where AB was belligerent, rude

and hot-tempered when such reaction was not warranted. These included

AB’s reaction regarding coffee breaks, his reaction to Caswell when Caswell

casually brought up Burgess’ observation that AB was late for work, AB’s

reaction to being asked whether he had smoked marijuana at work, and AB’s

reaction in the calendar investigation. While it is true that none of these

particular incidents gave rise to discipline, they demonstrate AB’s tendency to

fly off the handle and react with belligerence and contempt where that

reaction was not called for. It is also notable that AB did not offer any

evidence whatsoever to contradict the evidence of Burgess, Orb and Caswell

with respect to these matters.

t. Given AB’s employment history, which included hostile reactions to perceived

slights in the workplace, given the repeated and unprovoked nature of his

hostile conduct toward Caswell on February 17, 2016, and given his certified

fitness to return to full duties, AB’s misconduct was a voluntary response to

Caswell’s work assignment. AB’s misconduct continued at a meeting the

following day, on February 18, 2016, and was exacerbated by threats directed

toward Caswell. The misconduct was culpable and discharge was

appropriate.

u. The just cause hybrid test is predominantly concerned with the extent to

which a grievor’s disability diminishes his self-control, so as to render the

impugned misconduct involuntary. Even if the medical evidence establishes a

causal link between AB’s anxiety and depression and his initial hostile

reaction to his work assignment, his subsequent aggression toward Caswell

in the conference room and in the meeting the following day was voluntary

and culpable as it occurred after AB had regained his self-control.

v. Even if AB’s mental disorder affected his perception of workplace interactions

and made him vulnerable to loss of self-control, his abuse of Caswell in the

conference room took place after he had demonstrably regained his self-

control. After AB walked away from Caswell, in their next conversation in the

salvage area, AB said he would do what was asked in respect of his

assignment and report shortly. AB then approached Caswell in the

conference room in which his assignment was being discussed and resumed

his hostile and aggressive behaviour. AB’s abusive misconduct in the

conference room was premeditated and culpable. He had not been invited to

the conference room. AB had full knowledge of the matters relating to his

assignment under discussion. No aspect of AB’s mental disorder, including

his propensity for anger or aggression, factored into his abusive and

aggressive conduct toward Caswell in the conference room. Moreover, his

abusive, aggressive and threatening conduct was repeated the following day

after AB was given ample opportunity to collect himself.

119

107. In support of its position, SaskPower cites:

a. Windsor (City) and WPFFA (Elliott), Re, 2012 CarswellOnt 14245, 112

C.L.A.S. 315;

b. British Columbia (Public Service Employee Relations Commission) v.

B.C.G.E.U. (Meiorin), 1999 CarswellBC 1907, 1999 CarswellBC 1908;

c. McGill University Health Centre (Montreal General Hospital) v. Syndicat des

Employes de l’Hopital General de Montreal, 2007 SCC4; [2007] 2 SCR 161;

d. Ontario Human Rights Commission v. Simpson-Sears [1985] 2 SCR 536;

e. Kemess Mines Ltd. v. I.U.O.E., Local 115, 2006 BCCA 58, 264 D.L.R. (4th)

495, 368 W.A.C. 213, 54 B.C.L.R. (4th) 252;

f. Akash v. Toronto Transit Commission, 2012 HRTO 677;

g. Taucar v. University of Western Ontario, 2014 HRTO 63;

h. International Brotherhood of Electrical Workers, Local 2067 v. Saskatchewan

Power Corporation, 2011 20280 (SK LA);

i. Cypress Health Region and SEIU-West (Paczkoski), Re, 2014 CarswellSask

73, 117 C.L.A.S. 379;

j. Toronto (City of) v. Canadian Union of Public Employees, Local 79, 2014

1023 (ON LA);

k. Cam Tran Pacific Ltd. v. I.B.E.W., Local 258, 2003 CarswellBC 3779;

l. Gulick v. Ottawa Police Service, 2012 ONSC 5526;

108. The case law SaskPower has cited accurately reflects the law to be applied

where there is a claim that an employer discriminated against an employee because

of a prohibited ground of discrimination. On my view of the cases (in particular

Meiorin, SIEU-West, and Kemess Mines), the appropriate approach to cases such

as this is the well-known hybrid approach. I have already answered the first

question and found that AB engaged in culpable conduct deserving of discipline. I

will now turn to the human rights analysis which requires that I ask and answer

these questions:

a. Has the Union established a prima facie case of discrimination?

i. Was AB suffering from a disability?

ii. Was AB’s conduct causally linked to his disability?

iii. Did SaskPower refuse to employ or continue to employ AB because of

his disability?

b. If there is a prima facie case of discrimination, has SaskPower established a

standard that is a bona fide occupational requirement and met the onus on

SaskPower to demonstrate that:

i. The impugned standard was adopted for a purpose rationally

connected to the performance of the job;

120

ii. The standard was adopted in an honest and good faith belief that it

was necessary to the fulfillment of that legitimate work-related purpose;

and

iii. The standard is reasonably necessary to the accomplishment of the

purpose, and that it is impossible to accommodate individual

employees sharing the same characteristics as AB without imposing

undue hardship on SaskPower.

109. SaskPower does not dispute that AB has been diagnosed with a mental disorder

that constitutes a “disability” as defined in The Saskatchewan Human Rights Code,

SS 1979, c S-24.1. (the “Code”). SaskPower accepts Dr. O’s diagnoses of anxiety

and depression.

110. The next question is whether AB’s conduct was causally linked to his anxiety and

depression. The Union suggests that even though Dr. O can’t be unequivocal on the

point, I should consider all the evidence and conclude AB’s anxiety and depression

had something to do with his anger.

111. I will begin with a review of the medical evidence. The medical records

themselves never once suggest AB’s anger management problems are a feature of

or caused by his depression and anxiety. When the anger is described, it is always

a separate issue. Dr. O testified that an anger management problem is not a clinical

disorder. An anger management problem is not a disability. It is a problem. Dr. O

spoke about anger being part of AB’s personality. The best Dr. O could say is that

he cannot be sure whether AB’s angry outbursts are connected to his anxiety and

depression or whether AB is just someone with an angry personality with a poor

relationship with his boss. In his March 22, 2017 letter, Dr. O says:

To answer your question, being aggressive and belligerent is not a future [sic] of anxiety

disorder or major depressive disorder or combination of both, but it is important to note

that many individuals with depression that is comorbid with anxiety reports or exhibits

irritability, e.g., persistent anger, a tendency to respond to events with angry outbursts or

blaming others, an exaggerated sense of frustration over minor matters.

It would be difficult to determine if the said behaviour which he exhibited prior to his

dismissal was due to his anxiety, major depressive disorder, Cannabis use or exclusively

anger management issues, knowing that, he has had these issues for many years and

has been on treatment both with the use of medication and psychotherapy and at the

same time was able to maintain his job for the same company for the past number of

years, in excess of 20 years.

112. The medical evidence establishes that an anger management problem is not a

disability. For AB’s anger to be a consideration in the human rights analysis, then, it

must be causally linked to his actual disability. The medical evidence does not

establish on a balance of probabilities that AB’s anger is causally linked to his

depression and anxiety. I do not think it appropriate for me to second guess the

medical opinion on the basis of the evidence of lay witnesses. In the result, the

Union has not met the onus to establish the causal link. My conclusion in this regard

ends the human rights analysis. SaskPower did not discriminate against AB and the

duty to accommodate never arose in these circumstances.

121

113. I would normally end the human rights analysis here, but it is important in this

case to point out that even if there was a causal link between AB’s depression and

anxiety and his anger management problem, the human rights argument still

doesn’t succeed.

114. Assuming for the sake of discussion there was a connection between the

depression and anxiety and AB’s angry outburst on February 17 and 18, then on the

human rights analysis, there would be prima facie discrimination because

SaskPower terminated AB’s employment because of his outbursts on those days.

115. The next question then is whether there was a bona fide occupational

requirement. There are two standards at play here: (1) the requirement that

employees follow the legitimate directions of the employer and perform the tasks

within their job description, and (2) the requirement that employees conduct

themselves in a respectful manner and refrain from engaging in negative and

disrespectful behaviours.

116. While it should be obvious that each of these standards was adopted for a

purpose rationally connected to the performance of the job, I will comment briefly on

each. No workplace can function if employees are not required to follow the

direction of the employer and to perform the tasks assigned to them within their job

description. Managers and supervisors give directions and employees carry out

those directions including everything from overall work assignments to specific

tasks. The requirement that employees take direction is fundamental to the

workplace and is a fundamental right of management. In that sense the requirement

that employees do their job as assigned is adopted in an honest and good faith

belief that it is necessary to the fulfillment of the legitimate work-related purpose.

The requirement that employees follow legitimate directions of the employer and

perform the tasks within their job description is a bona fide occupational

requirement.

117. The requirement that employees conduct themselves in a respectful manner and

refrain from engaging in negative and disrespectful behaviours is found in detail in

SaskPower’s Respectful Workplace Policy and Code of Conduct. The standards

required include several purposes, including compliance with human rights and

occupational health and safety legislation to create a safe and respectful workplace.

It is important that employees comply with these standards so that everyone can

safely and effectively perform their jobs. This is obviously a legitimate work-related

purpose and not only is there an honest belief it is necessary, the law essentially

requires it. The requirement that employees conduct themselves in a respectful

manner and refrain from engaging in negative and disrespectful behaviours is a

bona fide occupational requirement.

118. The next question is whether these standards are reasonably necessary to the

accomplishment of the purpose and that it is impossible to accommodate individual

employees sharing the same characteristics of AB without imposing undue hardship

on SaskPower.

119. The Union’s argument with respect to the requirement that employees follow the

legitimate directions of the employer and perform the tasks within their job

122

description, from the Grievance and at the hearing, appears to be that SaskPower

should not have directed AB to work inside the warehouse because it was

uncomfortable for AB because of his disability. For this argument to succeed, the

Union would have to establish that AB’s anxiety and depression made it difficult or

impossible for AB to work in the warehouse. I will now examine the evidence on this

point.

120. AB first mentioned his preference for working outside on the forklift early in his

testimony at the hearing in the context of his having always been a heavy

equipment operator before he came to SaskPower. In that context, he compared

“picking inside” to shopping and made it clear he does not like any kind of shopping.

For AB, the inside work was monotonous shopping. It was clear he didn’t like it. He

found the outside work to be more challenging. AB saw the work in outside

receiving as “my own little project”. AB went on at length about his preference for

outside work, but at this point early in his testimony never said anything about

inability to work inside. The closest he came was when AB said that picking inside

gave him too much time to think about the problems in his life.

121. AB claims “everyone” knew AB preferred to work outside. Perfect said AB once

told Perfect that what was keeping AB sane was that AB could come to work and be

on the forklift. AB claims he told Caswell not to make him pick inside because that

was his kryptonite. Caswell doesn’t remember AB making that statement, but even

accepting that AB made the statement, that statement or knowing AB prefers to

work outside is not the same thing as knowing there is a disability requiring an

accommodation to work outside only. I also note that AB worked inside on rotations

over several years during which he was already suffering from anxiety and

depression. When Burgess was manager, AB never told Burgess he couldn’t work

inside and AB worked rotations through all areas just like everyone else.

122. There is nothing in Dr. O’s records to suggest AB ever told Dr. O that he couldn’t

work inside. Indeed, Dr. O confirmed in his testimony that at no time did AB suggest

to Dr. O that he could not work indoors. There is therefore nothing to suggest that

AB was medically incapable of working inside and that he needed an

accommodation in that regard. Dr. O cleared AB to return to work on February 17

with no restrictions.

123. There is no question AB was “more comfortable” and preferred to work outside. It

was his “own little project”. There is, however, no medical evidence to suggest AB

was incapable of working inside. Indeed, the fact AB did work inside demonstrates

he was capable of doing so. AB himself acknowledged the Employer had the right

to assign him to any position in Central Stores including indoors and on February

17, 2016 in the salvage area he told Caswell he would accept the assignment to

work inside. AB told Kathy Potts that he could work indoors or outdoors. At the

hearing at one point in cross-examination, AB actually said no one ever said he

couldn’t work inside. On all the evidence, I am satisfied AB did not want to work

inside because it was an area where he didn’t like to work, not because of any

reason connected to his disability. SaskPower did not have a duty to accommodate

AB into a work assignment just because he didn’t like working inside.

123

124. The Union’s argument with respect to the requirement that employees conduct

themselves in a respectful manner and refrain from engaging in negative and

disrespectful behaviours is that AB’s bad behaviour on February 17 could have

been avoided if SaskPower had undertaken a gradual return to work process for

AB. SaskPower, on the other hand, must show that it’s actions were reasonable and

that it could not accommodate AB without undue hardship.

125. While past events, including AB’s medical treatment and his anger issues are not

relevant to the just cause analysis, they are quite relevant to the human rights

analysis because I need to look at what SaskPower did in light of the knowledge

SaskPower had at any point in time about AB’s anger issues.

126. The medical records put in evidence by the Union show that AB suffered from

anxiety and depression and anger problems long before he first saw Dr. O in August

of 2013. There is no evidence before me that AB and/or the Union ever came to

SaskPower at any time to ask for any accommodation of a disability related to the

anger. Any steps SaskPower took were in response to their observations of AB’s

angry behavior.

127. It is important therefore to look at the sequence of events in relation to AB’s

behaviour and his medical treatment:

a. AB’s medical doctor referred AB to Dr. O in July 2013 and AB first saw Dr. O

in August. Dr. O diagnosed generalized anxiety disorder with comorbid

depression. Dr. O also recognized at this time that AB had an anger

management problem. Dr. O prescribed medication and psychotherapy.

b. Overall, in Caswell’s experience with AB, whenever anything was the least bit

contentious, AB was defensive, displayed extreme anger and used profanity.

AB repeatedly said things like, “Why are you fucking doing this to me?” and

“This is fucking harassment.” Caswell had three or four coaching

conversations with AB about this behaviour and counselled AB that behaving

this way was not acceptable. John Perfect said AB could be a little angry

sometimes and once told Perfect he suffered from depression. He said AB

had a gruff and loud voice and that AB is outspoken. He said it was

sometimes easier to work around AB, that you had to handle AB with “kid

gloves”, that AB would get angry and upset and that AB was argumentative.

The reasonable inference from this and other evidence is that AB has an

anger management problem and issues with people in authority.

c. August 2014 – Another manager detected the smell of marijuana coming from

the area where AB was working. When Caswell approached AB to discuss

the situation, AB became loud and angry and he was shaking. AB said things

like “I can’t believe you guys are doing this to me. Nobody has had these

concerns before. You are picking on me and harassing me. What the hell is

this for?” There was insufficient evidence on which to discipline AB for using

marijuana at work, so Caswell did not discipline AB. Caswell didn’t discipline

AB on this occasion either for his behaviour. AB brought up the marijuana

issue over and over again thereafter up to and including the hearing. AB

124

could not let this issue go and constantly claimed SaskPower was out to get

him.

d. September 2014 – Someone had altered a calendar in a highly offensive way.

SaskPower quite properly investigated and interviewed all the relevant

employees. AB was again volatile on this occasion. He was angry, belligerent,

profane and disrespectful. He felt he was being accused of putting up the

calendar. He said it was unfair that he would be accused. AB wasn’t being

accused. The Employer was trying to determine what happened and who was

responsible. AB could not then and still cannot now see the distinction. AB

was not disciplined in connection with the incident because he was not

involved. After this incident, Caswell had an informal coaching session with

AB about AB’s conduct including AB’s temper and disrespectful

communications. AB has not let this issue go.

e. October 2014 – SaskPower discovered there was an offensive racist picture

in AB’s locker. The picture showed an oriental man with the words “Me don’t

know” or “Me don’t do. Me know nothing.” In the background there was

something blown up and on fire, a building remnant and then there was an

arrow to a building. It said, “Greg’s office” as if it was depicting supervisor

Greg Simpson’s office and an Asian employee.

Caswell testified that during the investigation of this incident, AB claimed

SaskPower was out to get him and that this was being done to him. He was

loud and belligerent and claimed everyone was out to get him. Orb testified

that AB was argumentative and confrontational and used the “F” word

constantly, saying things like, “I’m a fucking grown man.” “Why are you even

talking to me about this?” and “What’s the big deal?” AB was negative,

argumentative, and belligerent. He was tapping the table. His face was red

and his voice was raised. Orb considered the behaviour to be intimidating. AB

accused his Union rep of not doing his job and said, “You suck.”

On this occasion, SaskPower disciplined AB and gave him a Decision Making

Leave. AB was encouraged to access the EFAP program. The DML letter

provided AB with direction on the behaviour expected of him, and AB was

required to complete SaskPower’s Respectful Workplace and Code of

Conduct training modules.

AB has not let this issue go and refers to it as him having been disciplined for

a Time Magazine picture in his locker. All the 2014 incidents tend to show

AB’s problems with authority and his negative reactions to anything he sees

as contentious.

f. December 11, 2014 – Dr. O saw AB. AB said he was stressed out at work

and had been having trouble at work. AB said he has a temper problem and

is irritable and that he had been disciplined at work. Dr. O kept AB on his

medication and recommended AB slow down his cannabis use.

g. February 2015 – Chris Burgess sent an email to the Central Stores

employees about the length of coffee and lunch breaks and spoke to each

125

employee individually. AB wasn’t there at the time. When AB returned, he

stood outside Knudsen’s office and loudly commented about the coffee break

issue. Burgess went to speak to AB about this. AB was aggressive, shaking

and red in the face. AB was angry and took an aggressive stance. AB was

angry about Burgess’ email. AB said things like, “Fuck this.” and “What is this

bullshit? You’re here for a week and you’re sending out fucking emails like

this.” AB was angry because Burgess had sent out the email about coffee and

lunch breaks. When Burgess talked to Perfect about this incident, Perfect said

sometimes it is just easier to leave things alone or do the work yourself rather

than deal with AB because he gets upset. AB’s angry reaction to the email

about coffee breaks was out of all proportion to the issue and again

demonstrates AB’s anger management issues and his issues with directions

from persons in authority.

h. March 12, 2015 – AB saw Dr. O and told Dr. O at that time that he continued

to experience anxiety, irritability and anger. AB said he is in trouble at work all

the time and that he speaks his mind at work. AB had been asked to seek

assistance from the EFAP program at this time for his problems. AB said he

had been through counselling in the past and does not want that anymore. He

said he needs help with his anger and road rage. Dr. O continued AB on

medication.

i. August 26, 2015 – AB saw Dr. O and told Dr. O that he still struggles with

anger and road rage. He said he is quick to temper. He said he has seen a

psychologist in the past for anger-related management problems. He doesn’t

think that he needs to be in group therapy or to go for another psychotherapy.

Dr. O continued AB on medication.

j. October 19, 2015 – Burgess saw AB arrive late for work. Even before

Burgess was able to speak to Caswell about this, Burgess heard AB outside

Knudsen’s office door loudly and angrily complaining about not being late on

coffee breaks. Burgess describes AB as loud, passive aggressive, and

facetious and using an intimidating and angry tone.

AB had just returned from three weeks off on workers’ compensation.

Burgess reported AB’s lateness to Caswell. Later that day, Caswell

approached AB about the fact he was late. AB’s immediate reaction to was to

lose his temper. AB said, “Tell Chris Burgess to mind his own business and

spy on his own fucking guys. I wasn’t even fucking late. I was here at 7:01.

We’re grown fucking men here.” “You guys are out to fucking get me.” “The

company is harassing me.” AB was angry and volatile, shaking with rage, and

red in the face. He was unable to control his anger and yelled at Caswell. AB

stormed out and spun his tires leaving the area. This is another example of

AB’s anger problem related to issues with those in authority.

SaskPower did not discipline AB for his behaviour on October 19, 2015.

Indeed, Caswell had no opportunity to address that behaviour because AB

went on medical leave as of October 20 and didn’t return until February 17,

2016. What SaskPower did do during this time is offer counselling services to

126

AB in an attempt to assist him with his anger management issues. AB told

Kathy Potts about his anger and she offered counselling through the EFAP

program. If AB’s anger issues were to be considered a disability, then

SaskPower took appropriate steps to assist AB to deal with his problem.

k. October 19, 2015 – AB went to see Dr. O. AB told Dr. O that he felt he was

not understood at work and home. Dr. O notes that AB is struggling with

symptoms that suggest a severe episode of anxiety, depression and

precipitated by workplace stress. It does not appear AB told Dr. O about the

incident with respect to being late. Dr. O took AB off work.

l. October 20, 2015 – In conversation with Kathy Potts, AB was still upset and

angry because Caswell raised the lateness issue with him on the 19^th. AB

was loud, upset, and angry. AB told Potts that he resented being challenged

and said when challenged he gets “mad”. AB has not let this issue go. Kathy

Potts offered and recommended to AB that he accept her offer of counselling

services through SaskPower’s EFAP.

m. October 30, 2015 – AB told Dr. O he had become increasingly irritable and

easily angry. He said he was doing very well until a couple of years ago when

he began to work with a new boss. AB said he is not happy going to see a

therapist. Dr. O suggested AB should accept the offer to see a counselor

through work, that AB wasn’t initially happy with the offer, but that Dr. O

clarified to AB that he will need behavioural management as well to deal with

his anger and mood dysregulation. Dr. O continued AB on his medication.

n. November 2015 – Kathy Potts again recommended and offered counselling to

AB. He finally agreed to go and Potts made arrangements for the counselling.

AB’s anger management problems were flagged as matters to be addressed

in counseling.

o. November 30, 2015 – Dr. O’s clinic notes say that AB reported he had been

referred to a counselor whom he will see once a week for the next couple of

weeks. AB said he hopes to develop a couple of skills to help cope with his

excitement and aggression at work. He said he is afraid he is going to lose his

job if he goes back to work without some mechanism to learn how to deal with

issues. AB said he is not a problem employee, but he speaks his mind and

people come to him to talk about their problem. He believes his manager

sees him as a problem. Dr. O says he believes AB will benefit from

psychotherapy which AB had started that day and that AB needs time to have

some sessions.

p. Dr. O saw AB again on December 18, 2015 and January 6, 2016. AB

continued with psychotherapy and Dr. O continued AB on medication.

q. From November 30, 2015 to January 21, 2016, AB attended six

psychotherapy sessions.

r. February 2, 2016 – Dr. O met with AB and issued a letter to SaskPower to

say AB was fit to return to work fulltime. Dr. O did not impose or suggest any

restrictions or accommodations. Dr. O had recommended a gradual return to

127

work to AB, but AB didn’t want that. D. O agreed that AB could return to work

fulltime. AB was to continue with psychotherapy and Dr. O continued AB on

medication.

s. February 17, 2016 – AB returned to work and within minutes lost his temper

in the circumstances I have outlined in detail elsewhere in this Award. AB

displayed angry outbursts several times on February 17 and 18. SaskPower

terminated AB on February 19.

128. To February 17, 2016, SaskPower had taken various steps to assist AB to deal

with his anger issues. Caswell had three or four coaching sessions to help AB

understand his anger was a problem and that he needed to behave respectfully. AB

was allowed, with no questions asked, to take medical leave. AB was offered

counselling through the EFAP several times. This he initially resisted, but eventually

agreed to undertake the therapy. It is difficult to imagine what else SaskPower could

have done at this point, given the knowledge SaskPower had. As of February 17,

2016, Dr. O had cleared AB to return to work with no restrictions. Dr. O did not

prescribe any work restrictions or suggest any accommodations. The Union and AB

did not suggest to SaskPower that any accommodations were required. The duty to

accommodate did not arise on these facts.

129. The Union suggests that when AB was returning to work, SaskPower should

have contacted the Union and arranged for a gradual return to work for AB. There is

nothing in the evidence to suggest Caswell or anyone else at SaskPower

possessed any information that would have suggested a gradual return to work was

needed. Caswell was aware AB was away on medical leave. The RTW Office

handled the details with respect to AB’s leave. Dr. O continued over several months

to provide regular reports to the RTW Office. In Dr. O’s February 2, 2017 letter, Dr.

O confirms that AB is fit to return to work with no restrictions. AB confirmed to Potts

that he was ready and he was coming back fulltime. There was no request for

gradual return to work or for accommodations of any kind.

130. In those circumstances, it would have been quite inappropriate for SaskPower to

question Dr. O’s letter. AB was coming back to work fulltime with no restrictions.

One can only imagine the reaction from AB and the Union if SaskPower had gone

to them and said that notwithstanding a psychiatrist’s letter saying AB was fit to

return to work with no restrictions, SaskPower thought otherwise and wanted to put

AB on two or three hours a day. It would have been quite inappropriate for

SaskPower to take such a step. SaskPower knew only that AB had been off work

and that now he was fit to return.

131. Furthermore, I am satisfied that in any event a gradual return to work would not

have made any difference to the situation. This is because the trigger for AB’s anger

wasn’t because he was returning fulltime and that he needed time to adjust. AB’s

anger was triggered because Caswell told AB he wanted AB to work in the

warehouse. Whether AB returned to a full day or a three hour day or two days a

week, AB would still have been angry about the work assignment because he didn’t

want to work or like to work in the warehouse. Someone in authority was telling AB

to do something he didn’t want to do.

128

132. I am also satisfied the duty to accommodate, if it did arise, did not require

SaskPower to do more than they had already done by February 19, 2016. Usually

accommodations involve an employee being unable to perform some aspect or task

of their job such that job modifications are necessary to permit the person to work.

The situation with AB is more complex because, if the anger is related to the mental

health disability, the Union is essentially suggesting that SaskPower needed to

somehow accommodate AB’s anger. If anger is a manifestation of the disability, it is

virtually impossible to accommodate. It would certainly be undue hardship to expect

an employer and its other employees to just put up with these behaviours.

133. The standard in the workplace is that employees are expected to perform the job

they are hired to do and to take direction from management. It defies logic to

suggest an employer is expected to tolerate an employee who reacts with anger to

normal workplace direction, normal workplace interactions and normal work

assignments. If every employee were allowed to behave in such a manner, the

result would be catastrophic. Likewise, the standard in the workplace expecting

respectful conduct from all employees is there to protect everyone and to meet the

requirements of human rights and occupational health and safety laws. To expect

an employer and its employees as a matter of accommodation of a disability to

tolerate angry, belligerent and threatening behaviour is simply not acceptable. To so

require would also result in undue hardship.

134. The only reasonable accommodation of a situation where anger is a

manifestation of a disability would be to provide the employee with the tools to

address the problem so that the anger can be removed. The Union suggests that

AB’s progress since his termination demonstrates that had he been given a further

opportunity to deal with his anger issue AB would have addressed the issue and

that indeed he has addressed the issue. This argument requires an assessment of

the evidence about what has happened since AB was terminated:

a. AB has continued to see Dr. O and is still on medication. It is obvious the

medication did not help AB’s anger issues because all of his angry outbursts

occurred while AB was on medication and seeing Dr. O. Dr. whose records

also reflect, among other things, that:

i. AB is angry about being fired and he blames SaskPower for this;

ii. AB is unhappy with SaskPower because he feels SaskPower treated

him poorly;

iii. For the most part, AB has continued to be irritable and easily angered;

iv. AB believes his problems at work are the source of his illness and that

these problems began when Caswell came to SaskPower in 2014;

v. AB has harbored feelings of revenge against SaskPower;

vi. AB is still angry with SaskPower about management raising the

marijuana incident, the calendar incident, and the racist picture;

b. AB has continued with psychotherapy. Between February 16, 2016 and July

11, 2017, AB attended about 19 sessions with therapists.

129

c. There is no report from a therapist that addresses progress AB may have

made in dealing with his anger management problems. Neither therapist

testified. While Dr. O recommends the best thing for AB would be to return to

work, Dr. O was not prepared to even suggest AB could return to work

without incidents of anger.

d. In September of 2016, some seven months after termination, AB reacted in

anger to Kathy Potts, questioning why she was at the meeting and calling her

the “fucking enemy”.

e. At the hearing:

i. When Caswell was testifying about AB losing his temper on the

morning of February 17, AB became angry and left the hearing room;

ii. AB said he finds “all this talk of anger” to be frustrating. He says a lot of

“it” isn’t anger, it is how he deals with things. He says, “I am not an

angry person.” This statement is contrary to AB’s behaviour and is

inconsistent with the documentary record describing AB’s behaviour

and the treatment records which often speak to his anger problem.

Consider, for example, the notation in Dr. O’s records on August 26,

2015, where Dr. O notes that AB still struggles with anger and road

rage. At that point AB acknowledged his anger issue and told Dr. O

that he had seen a psychologist in the past for anger-related problems.

At that point, AB didn’t think he needed further psychotherapy.

iii. AB also claims he has never been disrespectful;

iv. AB denies he is an angry person but sometimes acknowledges

reluctantly that one of the things he has been seeing the counselor

about is anger.

135. There is simply no reliable evidence that anything has changed since February

2017 that would suggest AB will react differently in future to workplace situations

where he is asked to do something he doesn’t want to do or when he perceived he

is being challenged about something. AB’s past behaviours occurred when he was

under a psychiatrist’s care, taking medication and under psychotherapy. Those

steps did not address the anger problem and indeed AB’s outbursts if anything were

getting worse by the time he was terminated. AB had an angry outburst on October

19, 2015, was away from work for four months and under treatment and had

another angry outburst within minutes of returning to work on February 17, 2016.

The common feature of those incidents is AB’s disagreement with management.

136. AB has continued with the same modes of treatment since termination and there

is nothing reliable in the evidence to suggest any progress in managing his anger

issues. The only thing ever suggested to deal with AB’s reactions to situations is for

AB to leave the situation. A situation where AB needs to walk away or take vacation

every time he receives a legitimate workplace direction he doesn’t like, is utterly

untenable.

137. At the end of the day, I am satisfied that in all the circumstances, even if AB’s

conduct was causally linked to his disability, the steps SaskPower took to attempt to

130

have AB deal with this anger management issues were reasonable in the

circumstances. If the duty to accommodate did arise in this case, SaskPower met

that duty. Therefore, if AB’s conduct was non-culpable, SaskPower had exhausted

all reasonable steps and was justified in terminating AB’s employment.

138. In summary:

a. AB suffers from anxiety and depression which amount to a disability.

b. The Union did not meet the onus to establish that AB’s anger management

issues are causally linked to his disability.

c. Even if the Union had established a link between AB’s anger and his disability

and established a prima facie case of discrimination:

i. SaskPower’s standards for work performance and workplace conduct

are adopted for a purpose rationally connected with the performance of

the job;

ii. The standards were adopted in an honest and good faith belief that

they are necessary to the fulfillment of the legitimate workplace

purpose;

iii. The Union has not established that it was medically necessary to

accommodate AB by only requiring him to work outdoors; and

iv. It would be impossible for SaskPower to accommodate AB’s anger

management issues without undue hardship.

Was SaskPower’s decision to dismiss AB otherwise an excessive response in all the

circumstances?

139. SaskPower submits that:

a. SaskPower’s just cause for discipline is based on AB’s insubordination and

his inappropriate conduct in connection with his insubordination. Either alone

would be sufficient to amount to just cause for discipline.

b. AB was belligerent, loud and threatening toward his supervisor almost

immediately after arriving for his shift on the morning of February 17, 2016.

He swore frequently and raised his voice. He refused to accept his work

assignment, telling Caswell that he was a bully that was out to get him and

that this work assignment was a “fucking joke”. AB was so loud and

belligerent that other employees worried for Caswell’s safety. Then, when

they met the next day, AB made comments to Caswell that Caswell

interpreted as threatening. AB continued in that meeting to display

behaviours that were belligerent, defiant and challenging to authority.

c. AB’s belligerence and aggressiveness was in reaction to an ordinary and

reasonable work assignment from his supervisor. AB had been at work for

only minutes before he lashed out at Caswell and continued to loudly berate

Caswell in a private meeting room. As a result, the meeting was not

particularly private – the office staff could hear AB and the office staff were

concerned about what AB was saying.

131

d. Belligerence, offensive language, threats and general insubordination

amount to serious misconduct that constitutes just cause for discipline. AB’s

behaviour exhibited very concerning levels of insubordination mere minutes

after AB returned to work after a lengthy absence. Therefore, SaskPower had

just cause to discipline AB for insubordination.

e. Emotional outbursts of anger may also constitute just cause for discipline,

even where they are not directly linked to insubordination. AB’s pure outburst

of anger also amounted to culpable misconduct that warranted discipline. All

persons in the workplace are expected to behave civilly towards their

coworkers and supervisors. No employee, supervisor, or manager deserves

to be the target of explosive anger, obscene language, or threats. This type

of behaviour in the workplace is culpable misconduct because it cannot be

condoned; it jeopardizes the right of everyone to be free from a hostile work

environment, and, in some cases, jeopardizes the safety of the workplace

itself. Even absent the belligerence and insubordination that AB’s conduct

demonstrates, his outbursts of anger toward Caswell amount to culpable

misconduct worthy of discipline.

f. AB’s suggestion in his examination in chief that he was never disrespectful to

Caswell ought to be rejected. Caswell felt he was being sworn at when AB

suggested that this” (presumably the work assignment) is “fucking ridiculous”

and a “fucking joke”. Caswell received AB’s presentation in the first instance

and later in the conference room as a direct challenge to him. Caswell said

he was being yelled at and sworn at and, in his words, “He was angry at me.”

Caswell said AB stood up and put his hands on the table in the conference

room at one point and Caswell found AB’s body language to be threatening.

Then, in the meeting room the next day, AB made what Caswell considered

to be threatening statements when he asked Caswell if he was a God-fearing

man and how he could even look at his kids. AB’s contemptuous statements

were not only directed at Caswell, they were disrespectful by any measure.

AB’s behaviour in this regard amounts to just cause for discipline.

g. Even without examining the terms of the DML, AB’s misconduct was so

serious that termination was appropriate in light of the doctrine of culminating

incident. The DML was formal discipline imposed by SaskPower on the clear

understanding that it was the last stage in SaskPower’s Progressive

Discipline Policy: any future culpable misconduct would, in light of this

serious discipline, result in termination. In light of its decision to withdraw its

grievance of the DML, the Union is deemed to have accepted the validity of

this DML.

h. Despite his awareness of the terms of the DML and SaskPower’s policy with

respect to his conduct, AB returned to work on his own belief that he required

no accommodation, and then he verbally berated Caswell when Caswell

gave him a reasonable work assignment. He then made comments to

Caswell in the investigation meeting that Caswell interpreted as threatening.

Viewed alone, this conduct was extremely serious and would warrant

termination. Viewed in light of the previous DML, the doctrine of culminating

132

incident increases the seriousness of this misconduct and must lead to the

conclusion that termination was the only appropriate remedy in the

circumstances. Anything less would send a message that employees are

entitled to engage in numerous acts of serious misconduct without being

faced with a possible discharge.

140. In support of its position, SaskPower cites the following authorities:

a. Parkinson v. Kemh Holdings Limited, 2013 SKQB 172;

b. Robinson Solutions (Oshawa) Inc. and TC, Local 938, Re (2014), 247 LAC 4^th

70 (Ont);

c. Quality Meat Packers Ltd. v. U.F.C.W., Locals 175/633 (2002), 108 LAC 4^th

310.

d. Canadian Union of Public Employees, Local 108 v. Halifax (Regional

Municipality), 2012 12825 (NS LA);

e. Amos v. Alberta (1995), 166 AR 146 (QB);

f. United Brotherhood of Carpenters and Joiners of America, Local Union

Number 1985 v. Aluma Systems, Inc., 2014 74977 (SK LA);

g. Bank v. Sintaluta Co-op, 2000 CarswellSask 624, 100 A.C.W.S. (3d) 812, 198

Sask. R. 71;

h. Fortier v. Kal Tire, 2006 CarswellBC 1339, 2006 BCPC 223, [2006]

B.C.W.L.D. 4021;

i. Clare v. Moore Corp. Ltd., [1989] OJ No 2071 (Dist. Ct.).

141. In the Grievance, the Union says it does not condone AB’s behaviour, but rather

there were extenuating circumstances that led to AB’s behaviour. The Grievance

suggests this is all about AB being asked to work indoors. The Union submits:

a. Termination is unduly harsh, excessive and disproportionate to the actions

committed by AB. Termination has been found to be disproportionate in other

cases involving more egregious conduct which includes cases where

employees had disciplinary measures on their files.

b. Although AB used profanity, he did not tell Caswell to “F-you” or “F-off” or

words to that effect. AB did not threaten Caswell nor did AB make physical

gestures towards Caswell in any manner. AB’s profanity with descriptive,

“Why the fuck would you do this to me?”, which is different contextually than “

Fuck you,” or “Fuck off”.

c. This case involves the Storekeeper position in a warehouse where it does not

involve high risk clients where appropriate conduct would be expected.

d. AB did not intend to physically harm anyone at SaskPower. He would have

had ample opportunity to do so during the exchange with Caswell on

February 17, 2016. There is no evidence AB came towards Caswell in any

threatening manner, nor is there evidence of AB making threats towards

Caswell or other SaskPower staff. Burgess, in the next room, did not contact

133

anyone else while the exchange was occurring nor did he intervene. If the

events in question constituted a sufficient threat, it would be reasonable that

management, Caswell or Burgess, would have taken steps during the

exchange or shortly thereafter. Although AB did demonstrate some

inappropriate conduct on February 17, 2016, by raising his voice and using

profanity, there was no verbal or physical threat demonstrated by AB and the

conduct at issue on February 17, 2016 is less severe than demonstrated in

many of the relevant cases.

e. AB did not take off from work. He asked Caswell for permission to leave.

f. Where the nature of the threat is more of a momentary flare up as opposed

to a malicious or premeditated one, termination has been found to be too

harsh. In this case AB said nothing to Caswell that was threatening.

142. The Union relies on the following authorities:

a. Smurfit-MBI and Independent Paperworkers Union of Canada, Local 949

(Wierspecker), Re, 2009 CarswellOnt 10857, 96 C.L.A.S. 367;

b. Re Homes First Society v. Ontario Public Service Employees’ Union Local

512 (Owen Grievance), [1998] OLLA No. 913;

c. Maple Leaf Sports & Entertainment Ltd. v. Teamsters, Local 847, 2010

CarswellOnt 8883, 104 C.L.A.S. 45;

d. Greater Victoria Public Library v. C.U.P.E., Local 410, 2004 CarswellBC

3866, [2004] B.C.C.A.A.A. No. 275, 135 L.A.C. (4th) 38, 79 C.L.A.S. 425;

e. I.A.B.S.O.I., Local 805 v. Canam Steel Works, 1998 CarswellAlta 1457,

[1998] A.G.A.A. No. 93, 54 C.L.A.S. 334, 76 L.A.C. (4th) 396;

f. Cardon Indalex (re), [1996] BCCAAA No. 219;

g. TransAlta Generation Partnership v. I.B.E.W., Local 254, 2011 CarswellAlta

2335, [2012] A.W.L.D. 4948, [2012] A.W.L.D. 4949, 109 C.L.A.S. 65;

h. Re Rolland Inc. and Canadian Paperworkers Union, Local 310, [1983] 12

LAC (3d) 391, 1983 CarswellOnt 247;

i. Re BWXT Canada Ltd. and BBF, Lodge 555 (Petite), 2015, LAC (4^th) 317;

j. Canada Safeway Ltd. and UFCW, Local 401 (Lummiss), Re 2015

CarswellAlta 961, [2015] A.W.L.D. 2708, [2015] A.W.L.D. 2709, [2015]

A.W.L.D. 2710, 123 C.L.A.S. 67, 257 L.A.C. (4th) 79;

k. Smurfit MBI and CEP, Local 1118 (Laprade), Re, 2002 CarswellAlta 2422,

[2002] A.G.A.A. No. 2, 67 C.L.A.S. 139.

Review of the case authorities

143. Parkinson, supra, makes it clear that wilful disobedience or insubordination can

amount to just cause for discipline. Robinson Solutions, supra, is an example of

where termination was upheld where a grievor with a lengthy disciplinary record

became angry when asked to wear her safety glasses, used profanity and yelled

obscenities at her supervisor. Quality Meats, supra, makes it clear that where

134

profanities are not mere shop talk, but rather contemptuous of management, that

amounts to insubordination worthy of discipline. The case also points out that it is

insubordination worthy of discipline where the grievor’s comments could reasonably

be viewed as a threat.

144. Brown and Beatty at 7:4424 says:

A mitigating factor closely related to the potential of an employee to reform his or her

behaviour is the employee’s intention and state of mind at the time of the alleged offence.

Premeditated and/or persistent wrongdoing is always regarded as more culpable than

momentary lapses and those that lack a malicious intent. This is particularly true where it

is alleged that an employee has acted fraudulently, or has abused or challenged the

employer’s authority. Conversely, where the grievor’s misconduct was triggered or

affected in some way by a reasonable and bona fide mistake, domestic and emotional

problems, a medical condition, the wrongful orders of a superior, alcohol or drugs, a

gambling habit, or provocation by customers or other employees, arbitrators have, for

those and analogous reasons, modified the discipline imposed.

145. In Halifax Regional Municipality, supra, the board found that loudly and

repeatedly questioning the rationality or fairness of a supervisor’s order even while

complying with it can be insubordinate. The board said:

[82]

In short, the essential characteristic of insubordination “is the notion of challenge

to authority:” [citations omitted]… An employer’s authority may be challenged in many

ways. The refusal to obey a direct order clearly constitutes such a challenge. But an

employee may also challenge an employer’s authority by challenging the abilities of

management or the rationality of its operational decisions. This is particularly true if the

challenge is done in front of other employees. This is not to say that every question or

request for an explanation from a supervisor amounts to insubordination. But questions

that are couched in such a way as to suggest that a supervisor is “stupid” or incompetent

or doesn’t know what he or she is doing will likely be found to be insubordinate: [citations

omitted].

146. It is also clear that wilful disobedience of a work order comes within the class

conduct that can be sufficiently grave even if there is only one incident of

misconduct. This is because wilful disobedience goes to the heart of the

employment contract, the right of the employer to order work and the obligation of

the employee to follow authorized orders. Refusing to follow a work order therefore

is repudiation of the employment contract (see Amos, supra, para 61; see also

Aluma, supra).

147. Sintaluta, supra, confirms the obvious requirement that employees owe a duty of

civility to their employer, supervisors and fellow employees:

[3]

I agree with the following observation of Sanderman J. In the case of Lloyd v.

Imperial Parking Ltd., [1996] A.J. No. 1087 (Alta. Q.B.) at p. 26:

"A fundamental implied term of any employment relationship is that the employer

will treat the employee with civility, decency, respect, and dignity. The standard

that has to be adhered to by the employer is dependent upon the particular work

environment. This appears to be part of the trend to establish a duty upon an

employer to treat employees "reasonably" in all aspects of the labor process.

(Employment Law in Canada 2nd Edition, Christie, England Cotter (1993) at p.

561 and 562; The Law of Dismissal in Canada, Howard Levitt, 2nd Ed. (1992) at

p. 117; O'Neil v. Hodgins (1988), 88 C.L.L.V. 14, 040 (N.B.Q.B.); Shepherd v.

135

Sobeys Inc. (1995), 127 Nfld. & P.E.I.R. 199, 396 A.P.R. 199 (Nfld. Supreme

Court Trial Division).)

While the court places such implied obligation upon the employer, I am prepared to hold

that this same duty must also be observed by any employee with respect to his employer,

supervisors or fellow employees. The obligation requires nothing more than a basic code

of conduct that is conducive to a harassment free workplace. Whether a breach occurs

must be viewed relative to "... the particular work environment...".

148. The Arbitrator in Home First Society, supra, referred to the rationale of Arbitrator

Linden in Re Dominion Glass Co. and United Glass & Ceramic Workers, Local 203

(1975), 11 L.A.C. (2d) 84 at p. 85:

There is no doubt that violence and insubordination by employees is unacceptable in an

industrial undertaking and that employers have the power, in proper circumstances, to

discharge employees on the basis of such conduct. However, it is not every case of

violence or insubordination that will justify the discharge of an employee, a sanction that

has been called "industrial capital punishment". There are many factors which may

mitigate the severity of the offence and these must be considered in each individual case.

It is clear that an employee, who repeatedly cannot or will not submit to the instruction of

his employer, need not be kept. Nor is a worker of a dangerous and violent temperament

entitled to remain as part of the work force in a plant. The employer has the right —

indeed the duty — to keep peace within its operation. Anyone who threatens the safety of

other employees may be removed permanently. It is, however, in my view incumbent

upon the company to demonstrate that the insubordinate or violent conduct of the

employee was such as to make it improbable that he would be able to function effectively

in the plant again. Discharge is a harsh penalty, and should be utilized only sparingly. It

should be used only where it is clear that no other method of discipline will be of any

avail.

149. The arbitrator in Home First Society, supra [para 57], also points out that a verbal

attack on a supervisor is often considered a more serious transgression than an

attack on another employee because it is a direct attack on the employer’s authority

to manage the workplace and the employees.

150. In Greater Victoria Public Library, supra, the grievor told the her supervisor that

the supervisor was a bad person. At para 117 BCCAAA, the arbitrator said:

… It is not appropriate for an employee to make personal derogatory comments about a

supervisor any more than it would be appropriate for the supervisor to engage in a

personal attack on a subordinate. The grievor's comment that Ms. Hutcheson was a bad

person was disrespectful and unacceptable. It constitutes insubordination and is

deserving of discipline.

151. With respect to anger and profanity in the workplace, Fortier, supra, speaks to

the difference between workplace banter and insubordinate behavior:

[16]

My view of the facts is that Marc Fortier did lose control of his temper on January

21, 2004 and that the anger, foul language and disrespectful statements directed towards

Glendon MacDonald and Kal Tire were sufficient to sever the employer/employee

relationship. He underestimates his own actions. Glendon MacDonald was certainly

stunned by the verbal attack. It is clear from the two other members of the support line

staff that were called that they knew Marc Fortier had gone too far, and he was going to

be fired. Whether he called his manager a "fucking asshole" or merely indicated that the

support line staff were being treated like "fucking assholes" does not matter much.

Although a certain amount of profane language was not unknown at the work place,

indeed swearing is not uncommon in society, it was Marc Fortier's vigorous use of the "f-

136

bomb", his tone, his red face, his physical aggressiveness, his belittling of his manager

and other management in front of other employees that gave his employer just cause for

immediate termination.

152. Rolland, supra, deals with vulgar and aggressive comments made by an

employee against his foreman and is cited for the oft-quoted comments at [24] with

respect to the use of disrespectful or vulgar language in the workplace:

24

What is apparent from a perusal of these cases is that the use of profanity in the

work place is not, in itself, grounds for discipline. A factory floor is not a Sunday school.

The reality of the work place is that vulgar language and pithy epithets are often an

ordinary part of everyday conversation. It is not the words themselves but the tone and

intention of the user which determine whether profanity should be considered abusive or

offensive. Moreover, there is a difference between a mere insult, a momentary outburst,

and a course of conduct which represents a serious challenge to the authority of the

employer and is incompatible with the continuance of a viable employment relationship.

The gravity of the situation can vary substantially and so should the disciplinary

response. Finally, an assessment of the surrounding circumstances may serve to

mitigate, if not fully exculpate, the grievor's offence. One must consider such matters as:

the relationship of the individuals concerned (i.e., superior/subordinate or two rank-and-

file employees); whether there was provocation; the presence or absence of a previous

good disciplinary record; whether the incident appears to be part of a pattern of

intemperate behaviour; the grievor's seniority; whether there was an apology; etc.: see

Re Dominion Glass Co. and United Glass & Ceramic Workers, Local 203 (1975), 11

L.A.C. (2d) 84 (Linden).

153. Rolland was decided some 34 years ago. While vulgar shop floor language is

less tolerable now than it was then, the approach in Rolland is still appropriate to

the assessment of whether vulgar or disrespectful language warrants discipline.

154. The BWXT case, supra, dealt with disruptive and threatening behaviour. The

grievor was terminated after a conflict with a co-worker. There was an initial incident

followed by a second incident that arose as part of the follow-up to the first.

Arbitrator Stevenson describes his findings on whether it was just and reasonable to

discipline the grievor beginning at [43]:

43 I am satisfied that Billy engaged in aggressive, confrontational conduct on April 15,

2008 and that such conduct gave Babcock just and reasonable cause to impose some

form of discipline.

44

Billy was involved in a very loud aggressive confrontation with Kim; the

confrontation caused a disruption in the workplace and brought a number of people,

including supervisors to the area. It is clear from Billy's evidence: (1) He responded to

Kim's words by getting up and into his face yelling "What the fuck did you say?" and

made comments about Kim not being a journeyman Boilerman but rather from the shop;

(2) He was in a state which caused Jerry Combot to tell him to calm down and go for a

walk.

45

I accept the evidence of Kim that during the incident: (1) Billy swore at him: in his

spot; don't know nothing; stupid shopee and fucking shopee; (2) When Kim started to

walk away Billy followed and continued with profanities calling him a chickenshit shopee;

when Kim turned around Billy shouldered him in the chest; while this may not have been

an intentional, it was a direct result of his pursuing Kim while in a very agitated state; (3)

Billy was extremely agitated, frothing at the mouth, spitting and hollering profanities; (4)

Kim responded with swearing and there was a verbal argument.

137

46

Although Jerry Combot did not see how the altercation started, while on floor 13 he

heard a ruckus and shouting on floor 1214. Mr. Combot went down to floor 12 1/2 where

he observed a very heated discussion; Billy and Kim were in a screaming match, their

bodies touching except for their faces. Billy was pointing his finger and saying Kim was

nothing but fucking shopee; this Mr. Combot considered to be very demeaning and

degrading as a reference to not qualified and shouldn't be there. Mr. Combot broke up

the situation by wedging his hand in between them. The circumstances caused Mr.

Combot to say "Billy, get the fuck out of here and go cool off". The confrontation was so

loud that Chris Dufault, while working on floor 10 heard screaming which caused him to

go to floor 12 1/2. While shouting matches are not unusual, this was not ordinary; Chris

had never seen guys blow up like that before.

47

It is my conclusion that Billy's conduct in the Safety Room when meeting with Chris

and Kim provided the Employer with additional reason to discipline him. The intention of

the meeting was so that Billy could apologize to Kim for the names he had called him.

Each apologized to the other. When Kim expressed his concern that he didn't want to

have to look over his shoulder for the rest of the job or find a stone through his

windshield, Billy reacted by holding up his fists and saying words to the effect that these

are what Kim has to fear. I accept that Kim reasonably perceived these words as a

personal threat which caused him concern for his well-being and for his personal

property.

155. In discussing the severity of the grievor’s conduct, the arbitrator made these

comments beginning at [50]:

50

Billy engaged in a very loud, heated and emotional confrontation with a co-worker.

There was not a physical fight, but Billy was aggressive. The physical contact involved

being in very close proximity and finger pointing by Billy together with the incidental

contact of Billy's shoulder with Kim's chest which occurred as a result Kim turning around

when Billy was pursuing him. I am satisfied that Billy did not intend to escalate the

shouting to physical blows. However, given the intensity of the confrontation, it was

verging on blows being exchanged.

51

Billy's actions were not premeditated or repetitive but were the result of a lingering

dispute and ongoing childish conduct over a welding machine and who was to work

where. The issue should not rationally have given rise to the type of dispute and

confrontation which occurred here. Billy's actions were not strictly momentary; I am

satisfied that both Pat and Billy were involved in name-calling into the boiler at Kim and

Lee. In another sense, they were momentary in that when Kim emerged from the boiler

he was upset with the ongoing dispute and name-calling. As part of the ongoing bickering

and exchange, Billy flared up and escalated the confrontation to the point that it became

a distraction and disruption in the workplace.

52

Billy's conduct in the Safety Room illustrates the nature and extent to which he was

worked-up, upset and emotional. The meeting was planned as an opportunity to

apologize, to resolve the issue and move on. However, after Kim's expression of his

concern for the safety of his person and property, Billy reacted with his fists up and words

that Kim reasonably considered to be threatening. This response cannot be considered to

be a momentary flare-up; considerable time had passed and there was no conduct which

reasonably should have provoked this type of response.

53

Billy had previously worked for Babcock with no prior disciplinary record. No earlier

moderate forms of discipline had been undertaken.

54 Babcock's Standard Orientation Process enumerates conduct for which an

employee might be terminated without prior warning. This material would normally be

covered in the orientation of new employees. Of the twelve types of conduct listed, none

would cover the allegations made by the Employer in the letter advising of the termination

138

of Billy " ...instigated a dispute between himself and a co-worker... very aggressive to Kim

during the course of the incident pushed and uttered threats to Kim...".

55

Mr. Trebick's evidence is that as part of the extensive employee orientation the

Employer's representative would have gone through the discipline section of the

orientation outline (Exhibit "I") which provides:

DISCIPLINE

• we work on a three-strike rule

• depending on the severity of the infraction it can start at any level

• verbal, written warning, and the third is termination

• acts such as harassment, violence, threats, etc will move you past the first two

levels straight to termination.

Billy acknowledges that he attended at an orientation which occupied virtually

one entire day. There is no direct evidence that during Billy's orientation this was

in fact reviewed; nor is there any evidence that in the past the Employer has

administered the discipline policy such that violence, or threats would move the

employee passed the first two levels straight to termination. It is admitted by Mr.

Trebick that harassment was not considered in connection with Billy's conduct or

the decision to discharge him.

56

Billy's discharge must be considered in light of the fact that no disciplinary action

was taken against Kim or Pat. Kim played a significant role in the very loud, heated

confrontational shouting match which disrupted the workplace. His role was lesser than

that of Billy. Reasonably, Kim's conduct ought to also have attracted some discipline.

While Pat appears to have played a role in the initiation of the dispute, I am not sure that

his conduct was worthy of discipline. When Kim emerged from the boiler Pat did not play

a role in the confrontation and disruption of the workplace. Billy exacerbated the

confrontation and followed Kim after Kim had turned to walk away. Billy was more

aggressive with his body, including finger pointing. His emotional state; evidenced by

frothing at the mouth and spitting, highlights the extent to which he had lost control. His

actions in the Safety Room in raising his fists and making comments must also be

considered to be threatening. They were perceived by Kim as a threat; such perception

was reasonable in the context of what had occurred.

156. In concluding that a seven-day suspension was adequate discipline in the

circumstances, the arbitrator in BWXT considered that:

o The grievor had provided an apology for his initial conduct and the names he

called his co-worker, but that this evaporated into a display of fists and words.

The grievor did not offer any apology for what occurred in the Safety Room.

o The Employer did not discipline the other two participants in the conflict.

o The incident did not result in physical violence. The contact with the co-

worker’s chest was incidental.

o The grievor’s outburst was contributed to by frustration he had over American

workers and workers he considered not to be qualified or entitled to receive

journeyman pay.

o The grievor was a stubborn individual who would fight for what he believed in.

o Two years previously the grievor had worked at this workplace without

incident and there was no evidence he had previously acted in an aggressive

139

or threatening manner. He had a good working relationship with his co-

workers and supervisors.

o The arbitrator wasn’t convinced the Employer’s orientation program clearly

set out a policy that conduct such as the grievor displayed would result in

termination without any prior discipline.

Seriousness of the Misconduct on February 17 and 18

157. The seriousness of the misconduct and whether it was pre-meditated or spur of

the moment are important factors in determining whether termination was the

appropriate response. The Union suggests AB’s actions were not pre-meditated but

rather spur of the moment and that AB’s comments were not directed at Caswell. The

evidence suggests otherwise.

158. AB’s immediate reaction to being given a legitimate work direction on February

17 was to lose his temper. AB’s immediate reaction was to claim, “I can’t fucking

believe you guys are doing this to me.” This is a direct challenge to Caswell’s

authority which was followed immediately by a claim that Caswell was harassing AB,

accompanied vulgar statements. “You guys are fucking harassing me.” “I can’t

believe you would fucking do this.” “This place is a fucking joke”. “This is fucking

harassment.” AB repeated these and other statements over a period of several

minutes as he walked through the warehouse waving his arms. He called Caswell a

bully and accused Caswell of being out to get him. AB’s voice was loud. He was

yelling. He claimed Caswell was out to get him and challenged the direction that he

work in the warehouse.

159. AB’s outburst first thing in the morning might be described as a flare-up or spur of

the moment reaction. One would not, however, expect such a volatile reaction. There

is no doubt AB didn’t like the work assignment, but an angry outburst because of that

was completely inappropriate and out of proportion. Furthermore, the matter did not

end there. AB continued through the warehouse, speaking loudly and using profanity.

Others heard the outbursts. Hesch managed to get AB calmed down and AB went

over to salvage to get the number for the Union rep. When in salvage, AB appears to

have calmed down somewhat. While there, AB told Caswell that he was going to

accept the work assignment. AB then had the unsatisfactory exchange with the Union

rep and once again lost his temper. AB then went to Perfect’s office where he

continued with his angry outbursts, following which he then went to Caswell’s office,

AB says to ask for a week of vacation.

160. Whether or not AB’s intention was to ask for a week of vacation, AB entered

Caswell’s office in a fit of rage, so serious that Caswell feared for his safety. Burgess

became sufficiently concerned that he focused his attention and was ready to

intervene. Burgess locked the gate after AB left. During this encounter, AB made a

series of additional comments most of which were challenging to and derogatory of

management and some of which were threatening. While making the comments, AB

appeared angry. He pointed at Caswell. He stood and leaned across the table. The

comments included:

This is completely fucking, ridiculous.

140

If I died, I don’t want any of you fuckers at my funeral.

This is fucking ridiculous.

This is a fucking joke.

You need to put me back on the fucking forklift.

The company is a fucking joke.

What does the company know about the fucking rules?

Why the fuck would you put me inside working – you know I fucking

hate working inside.

Jesus Christ this is fucking ridiculous. I want to be working in the

forklift.

This is a fucking joke – everyone is against me, you – the Union,

nobody is on my fucking side.

Caswell was stabbing him in the back.

I get accused of smoking pot on the job, I get accused of drawing

fucking pictures, I get told I’m late – Mark, it was fucking 7:01 when I

drove into the yard, not fucking 7:08.

I can’t stand this place – I need to fucking go, I’m out of here.

…losing my fucking mind. …need to get the fuck away.

161. Burgess also testified to AB saying that he hated Central Stores and to making a

comment about getting a gun and blowing his brains out. When AB left SaskPower’s

premises in his vehicle, he sped out of the parking area and spun his tires.

162. After the full afternoon and evening of February 17, AB should have had time to

calm down, but on February 18, he once again lost his temper, pounding his fists and

pointing his finger at Caswell. AB continued to claim and repeat that the company

was bullying and harassing him and the Union wasn’t defending him. He continued to

get more and more agitated and angry. Even after a break, AB did not calm down. He

made comments like:

The company is harassing me.

I’m a grown fucking man.

Shame on you Mark.

Are you a God-fearing man?

How do you even look at your fuckin’ kids?

They give me a fucking gun and I load the fucking gun for them

every time.

163. There is no question AB breached his duty of civility to others in the workplace in

what he said and did. Many of AB’s comments were insubordinate and contemptuous

of management. He accused Caswell of being a bully and harassing him. While the

141

Union claims AB did not swear at Caswell, many of AB’s statements were indeed

directed at Caswell and at SaskPower. Virtually all the comments I have quoted in

the preceding paragraphs are either challenging to or derogatory of Caswell or

SaskPower. No other interpretation is possible. AB challenged Caswell’s authority

and he questioned Caswell’s decisions. He refused to accept Caswell’s direction,

claiming harassment when Caswell had merely given him a work assignment. AB

challenged previous actions of management when he continued to bring up the

marijuana incident, the calendar and picture incident, and the incident when Caswell

spoke to AB about being late. AB’s outbursts were not directed to co-workers. They

were directed to Caswell and SaskPower management in general.

164. AB spoke aggressively and in anger. His body language was intimidating,

including, at different times finger pointing, arm waving, standing and leaning over the

table, and table pounding with his fists. AB’s statements were inflammatory, including

louder than normal voice levels and including vigorous use of profanity, especially the

“F” bomb. AB’s words were not colourful shop talk or profanity used in casual

conversation. AB’s words were spoken in anger and were directed at Caswell. AB

spoke aggressively, in anger, with a red face. His tone and intention did not suggest

someone who was engaging in normal banter.

165. AB’s outbursts were not a momentary thing. They were prolonged and repetitive.

The aggressive and profane words AB used, the tone of the words, the volume of the

words and AB’s physical gestures in and of themselves were sufficiently disturbing

that a reasonable person would have felt threatened in the circumstances. The

content of some of AB’s statements could also be interpreted as threatening,

especially when AB said he hated Central Stores and more than once made

comments about a gun even though he didn’t outright threaten to use a gun on

anyone else. AB’s comments like “Shame on you Mark” and asking Caswell whether

he was a God-fearing man and how Caswell could look at his children might also be

interpreted by a reasonable person as threatening.

166. Given the seriousness of AB’s behaviour, without some significant mitigating

factors, AB’s behaviour on February 17 and 18, 2016 was sufficiently serious that

SaskPower’s decision to terminate AB’s employment was a reasonable step in the

circumstances. The onus is on the Union to establish that a lesser penalty would be

just and reasonable in the circumstances.

Prior record and awareness of policy

167. The Union submits AB had a relatively clean record and that the DML was with

respect to a completely different issue (a picture in AB’s locker) and shouldn’t be

given much weight in the analysis.

168. SaskPower submits that:

a. Although AB’s disciplinary record was not lengthy, the DML was active and

AB was aware that the DML was the last step in SaskPower’s Progressive

Discipline Policy and that failure to comply with the terms and conditions of

continued employment as set out in the DML letter would lead to dismissal.

SaskPower’s decision to terminate AB’s employment for his culpable

142

misconduct should not be viewed in isolation. It must be addressed in light of

all the circumstances including the terms of the DML.

b. The DML made it clear AB was to make improvements in his performance

immediately. He was to conduct himself in a respectful manner when

interacting with SaskPower employees, customers and other parties,

modelling positive behaviour at all times. He was to refrain from engaging in

negative and disrespectful behaviours. He was to perform all assigned work

in a safe and efficient manner at the direction of his supervisor. He agreed to

follow all policies, rules and procedures and perform every aspect of his job in

a professional and acceptable manner. He knew that, “Failure to meet the

expectations discussed with you at our meeting today, will lead to dismissal.”

c. AB knew what was expected of him because he had agreed to the conditions

set out in the DML when he decided to continue his employment on October

22, 2014. He was therefore aware that inappropriate conduct on a go forward

basis came with consequences. Yet AB still chose to be insolent,

insubordinate, belligerent and angry with his supervisor. He failed to exercise

any control over his emotions, leading to an outburst so extreme that other

employees were worried for Caswell’s safety. This is unacceptable, culpable

misconduct in clear breach of the terms of the DML.

169. At the time of the DML in October 2014, SaskPower made it clear to AB, among

other things, that he needed to conduct himself in a respectful manner and model

positive behaviours. AB was directed to refrain from negative and disrespectful

behaviours. AB had to review SaskPower’s policies and complete the Respectful

Workplace and Code of Conduct training modules.

170. The Union initially grieved the DML but later withdrew the grievance, and the

DML was still in effect in February of 2017 when AB’s impugned conduct took place.

The withdrawal of the grievance is acceptance of the appropriateness of the

discipline in the DML, and the termination must be assessed in light of the terms of

the DML: see Hamilton Health Sciences and CUPE, Local 4800, Re, (2005), 82

CLAS 115 (Ont).

171. In the DML, SaskPower disciplined AB for totally disrespectful behaviour, albeit in

the context of the racist picture in AB’s locker. Because of this incident, AB was at

the last step of SaskPower discipline process. AB was aware of SaskPower’s

Respectful Workplace Policy and Code of Conduct. The DML required him to take

the training modules. The DML made it clear that any instances of conduct in

breach of the conditions of the DML would result in termination of his employment.

AB knew that any inappropriate behaviour could result in termination of his

employment. AB understood the consequences of breaching the DML conditions.

He repeated several times in his testimony that he knew he was “on a letter” and

that his employment was in jeopardy.

172. While I do not agree that every incident that might breach the DML would justify

termination, one must look at the seriousness of the breach. In this case the breach

was very serious. I also note here that even without the DML, AB’s explosive

behaviour in several interactions over a two day period in February 2016, in the

143

absence of some significant mitigating factors, would justify termination of

employment.

Caswell’s Management Style

173. The Union tried to paint Caswell as a heavy handed and unreasonable manager.

Hesch felt Caswell was heavy handed because the company required Hesch to take

a significant backlog of accumulated vacation. Perfect said Caswell could be a little

stern and “by the book” and not very flexible. Perfect was obviously still upset with

Caswell about the situation where Caswell asked Perfect to leave the bench meeting.

It was also obvious Perfect resented the fact SaskPower had brought in Caswell from

outside rather than promote someone from within the corporation. Perfect

acknowledged that when Caswell came to SaskPower, Caswell started to manage

performance and hold people accountable, but Perfect did not like how Caswell did

that.

174. Employees often have criticisms of things done by their managers. On all the

evidence before me, however, I find nothing to suggest that Caswell was the kind of

manager who provoked bad behaviour from those he managed. There is no evidence

Caswell was “out to get” anyone or that he engaged in bullying or harassment. Most

importantly, there is no evidence to suggest Caswell did anything at all on February

17 and 18, 2016 to provoke AB’s outbursts at that time or indeed to provoke AB’s

earlier outbursts. Caswell provided a reasonable and legitimate explanation for his

decision to assign AB to work in the warehouse. Caswell did nothing more than

communicate that reasonable decision to AB.

Long Service

175. The Union submits:

a. AB is a very long service employee who has spent most of his working life at

SaskPower. His seniority date is January 24, 1994. At the time of his

termination he had over 22 years of seniority and at the time of termination

was 48 years old.

b. AB’s long service alone should be reason enough to set aside the

termination.

176. In all the circumstances of this case, I do not accept that AB’s long service with

SaskPower is sufficient to mitigate against the seriousness of his misconduct and

his continuing inability to accept that he has a significant anger management

problem. Long service must also be weighed against the disciplinary record.

Bright Lights

177. The Union has made much of the fact SaskPower awarded Bright Lights points

to AB on two occasions, August 14, 2014 and September 18, 2015. SaskPower

awarded these points to AB for doing a good job.

178. No one ever suggested AB couldn’t do a good job. Indeed, witnesses including

Caswell and Perfect said AB could be a good worker. Caswell spoke to AB about

taking on more of a leadership role. Unfortunately, no matter how good someone is

at the technical aspects of their job, if their behaviour is incompatible with continued

144

employment, good work is not sufficient to mitigate against termination where

warranted.

Financial Hardship and Impact of Termination

179. The Union submits that:

a. The financial hardship on AB as a consequence of the termination should be

taken into account in determining whether termination is too severe. The

termination had a significant impact on AB and his family including the need

for his spouse to work significantly increased hours as a result of his job loss

because he had been the higher wage earner.

b. Termination had a severe impact on AB, as evidenced by AB’s testimony and

that of Dr. O. AB’s anxiety and depression worsened requiring increased

visits with his psychiatrist.

180. I fully recognize that AB and his family have suffered financial hardship because

AB has been unemployed.

Acknowledgement of responsibility and events since February 2016

181. The Union submits that:

a. AB apologized to Caswell and Orb on February 19, 2016 at the termination

meeting. He also shook Caswell’s hand. This demonstrates a mature and

appropriate attitude toward his employer. AB did not leave things with Caswell

on a negative note.

b. AB did not demonstrate any animosity towards SaskPower at the hearing. AB

said Caswell “always had my respect”. AB said Caswell has AB’s respect and

that he will follow management direction. AB was just emotional and angry

that day.

c. At the hearing, AB said he would follow management’s direction. AB felt badly

about being emotional and angry at work. AB said it was sorry “it had come to

this” and that he just wanted his life back.

d. AB continues to attend counselling to learn tools to address his anxiety,

depression and anger management. The employment relationship has not

been irreparably damaged.

e. AB didn’t demonstrate animosity at the hearing, even under heavy

questioning.

182. A grievor’s behaviours at the time of termination, after termination and at the

hearing of the grievance are appropriate considerations, particularly on the

questions of whether the grievor has accepted responsibility for his actions,

demonstrated understanding of his misconduct, or provided an apology.

183. Everyone agrees that at the February 19, 2016 termination meeting, AB shook

hands with Orb and Caswell. AB said he was sorry. He was polite and said he just

wanted to do a full day’s work. At the hearing, when asked what he apologized for,

AB said he apologized because at the February 18 meeting he had used some

145

language his parents wouldn’t be proud of in front of a lady. AB did not apologize for

his angry, aggressive and belligerent behaviour on February 17 and 18, 2016, and

never has apologized for that behaviour. At the hearing, AB said he just wanted to

do his job and he is sorry “it had come to this”, but that is far from an

acknowledgement of his misconduct and an apology for it.

184. When AB testified in this hearing, it had been almost 18 months since

SaskPower terminated his employment. During that time he has continued seeing

Dr. O and the therapist. Even with time and treatment, AB still has little or no insight

into his behaviours and still does not accept responsibility.

185. At the hearing, AB agreed his behaviour on February 17, 2016 wasn’t “100 per

cent acceptable”. Initially, AB claimed he had not used any profane language, but

eventually admitted his language on February 17 wasn’t acceptable. He did not

acknowledge his angry and aggressive behaviour. He claims he was just emotional.

AB insists that he wasn’t angry just after 7:00 a.m. when Caswell told him about his

work assignment. He also insists he wasn’t angry in the conference room. He insists

the volume of his voice was just because he is generally a loud person.

186. AB still maintains that he came back to work to a hostile workplace. He describes

Caswell asking him to work in the warehouse as “poking me”. The only hostility he

has identified was Caswell’s direction to him to work in shipping in the warehouse.

There was nothing hostile or harassing about this.

187. AB excuses his inappropriate behaviour by suggesting he wasn’t planning on

having a meeting with Caswell first thing in the morning on February 17, that he just

thought he was to report to work and start his job. This is inconsistent with AB’s own

testimony that Potts sent him an email on February 16 and told him to report to

Caswell at 8:00 a.m. on the 17^th. Likewise, AB tries to excuse his behavior in the

conference room by suggesting that he didn’t plan on meeting with Caswell at that

point. He just wanted to leave and he needed permission first. Even if all AB wanted

was permission to leave, that does not excuse his loud, aggressive, threatening

behaviour.

188. AB claims he would have no difficulty working with Caswell, but it was clear in his

testimony that he still claims Caswell was harassing him and that Caswell lied to

him. AB continued to maintain that in Caswell’s version of what occurred on

February 17, Caswell “forgot some of the facts in the situation”. AB insists Burgess

was lying when he said AB make the comment about getting a gun. AB still insists

Kathy Potts was not the person who initiated the counseling. AB just wants to be left

alone and then everything will be okay. He doesn’t appear to understand that

employment involves the need to work with people and interact with them

respectfully.

189. Dr. O’s records show that AB has continued to blame a poor relationship with

Mark Caswell for AB’s problems at work.

190. AB’s failure to acknowledge he has an anger management problem is

concerning. AB sat through the entire hearing. In the face of all the evidence, AB

still claims he was never disrespectful to Caswell or anyone else. AB doesn’t think

146

he was disrespectful when he asked why Kathy Potts was at the meeting about the

LTD appeal and called her the “fucking enemy”. He claims he is not an angry

person.

191. AB denied admitting to Dr. O that he had an explosive personality. The treatment

records reflect that he said this. At the hearing, AB talked about working on things to

control his emotions better. He always refers to his emotions and doesn’t

acknowledge the explosive temper or his anger. It was obvious he was on the edge

of losing his temper during the hearing. Several times during cross-examination, AB

began to raise his voice and slapped the palms of his hands down on the table.

During cross-examination, more than once AB raised his arms as he spoke.

192. AB told his counselor in July of 2016 that he was looking for revenge against

SaskPower. AB told Dr. O in December 2016 that he wanted revenge. AB didn’t

recall the July conversation, but he admits he told Dr. O he sometimes wanted

revenge.

193. AB has not been able to let go of the situations where SaskPower raised issues

with him. It was clear at the hearing that AB is still angry at Caswell and others

because of the marijuana incident, the calendar incident, and the picture incident.

AB views the DML as SaskPower disciplining him for having a Time Magazine

picture in his locker. AB fails to see the significance of his misconduct with respect

to that matter. AB is also still angry because Burgess raised the issue of coffee

breaks and because Caswell spoke to him about being late. It is also significant that

these are all issues about which AB lost his temper and was insolent and

insubordinate.

AB’s personal circumstances

194. The Union suggests that even if they are unable to establish a nexus between

AB’s conduct and his disability so as to trigger the duty to accommodate, I should

nevertheless consider the grievor’s personal circumstances, including his depression

and anxiety, in considering whether dismissal is too harsh in the circumstances. The

Union cites two cases in support.

195. In the Regina Qu’Appelle Health Region case, supra, the grievor who suffered

from depression had been fired for misrepresenting her whereabouts during periods

of unauthorized absence. Although the arbitrator found that the Union had failed to

establish a nexus with a disability requiring a nonculpable duty to accommodate

analysis for the dishonesty, he nonetheless applied the grievor’s depression as a

mitigating factor in assessing the appropriateness of the discipline. Partly on this

basis, the arbitrator reinstated this employee, even despite his view that the

misconduct was of a serious nature.

196. In NSGEU (Hillier), supra, the grievor engaged in repeated premeditated

breaches of the employer’s health records policy, for personal gain. The arbitrator

considered the grievor’s difficult personal circumstances engendered by an

acrimonious and bitter relationship breakdown as a mitigating factor.

197. The Union says AB’s misconduct was an emotional outburst. The Union is not

trying to link other misconduct to the root of a personal issue. The Union is arguing

147

here that the emotional outburst that the Employer saw as the misconduct has a

nexus with AB’s emotional state on February 17.

198. The Union has not established the necessary causal connection between AB’s

anger and his disability (clinical anxiety and depression) so as to trigger the non-

culpable human rights approach. There is no question arbitrators in cases such as

and Hillier have considered the grievor’s personal circumstances as mitigating

factors. In Regina Qu’Appelle, the most significant mitigating factor was the

grievor’s rehabilitative potential. In Hillier, the grievor’s personal circumstances were

one of several factors weighing in the grievor’s favour including the employer’s lack

of uniformity in applying its policy.

199. As to AB’s personal circumstances, there is no question AB had suffered mental

health issues for a lengthy period of time and that he had been out of the workplace

because of them. AB did not want to be on disability and felt personal pressure to

return to work. AB was also well aware he was “on a letter” as he called it and that if

he behaved badly, he could be terminated. One would expect someone in those

circumstances to be somewhat apprehensive about their return to work.

200. AB testified that he enjoyed his job. He enjoyed working outside in the yard at

Central Stores. He felt that he was good at working with the forklift. He also testified

that he felt that it helped his stress to work outside. Upon his return to work after over

three months, it was upsetting to be told that he would now have to work inside. This

was in the context of AB having previously discussed with Caswell not to put him

inside, as it was his “kryptonite”. While AB’s emotional state overall can be a factor in

considering whether the termination was too harsh, there was nothing in the evidence

to suggest that AB was particularly emotional or stressed on the morning he returned

to work.

Concerns from other employees

201. The Union submits other employees would have no problem with AB coming

back to the workplace and that the fears expressed by Caswell and Burgess are not

reasonably held fears. Perfect, now retired, said he was not scared to work with AB.

Hesch is not scared of AB, would have no objection to AB being reinstated to his old

job in Central Stores, and would not have any issues working with AB.

202. Those who first hand experienced AB’s outbursts on February 17 and 18 were

concerned about AB’s volatile behaviour. Caswell, Orb and Burgess all testified to

AB’s threatening manner. Caswell was quite afraid. Others expressed concern to

Caswell, Burgess and Orb. Caswell said he would be nervous to have AB back to

work because of AB’s unpredictability and volatility. Caswell is concerned about the

morale of the employees. He is also concerned about how he could possibly hold

others to be accountable if AB was allowed to come back to work after what AB did.

He feels that would be tacit approval of AB’s behaviour. He also feels the tension

caused to other workers by never knowing if AB is going to explode is not fair to the

remainder of the workforce. Burgess kept the gate locked for two weeks after AB

was terminated. This and Burgess asking for help for his staff indicate the level of

concern Burgess and his staff had after they witnessed AB’s behaviour on February

17, 2016.

148

203. Like the board in Smurfit, supra [page 31], I am concerned that putting too much

weight on this factor implies reinstatement may turn on popularity in the workplace.

If anything, however, this factor weighs slightly more in favour of SaskPower. The

two witnesses the Union produced to say they would have no difficulty working with

AB are a person who is now retired and a person who works in the steel yard some

distance away. Not one of the employees who are the core group in Central Stores

appeared to testify that they would have no problem working with AB. Caswell and

Burgess both witnessed AB’s volatile behaviour first hand and I give their evidence

more weight in the circumstances.

Overall circumstances

204. The Union has relied on various authorities to suggest that the penalty of

dismissal was too severe in this case. An examination of those authorities, however,

reveals significant distinguishing factors in these cases:

a. In Smurfit-MBI, supra, the arbitrator points out the significant mitigating factor

was that the grievor was in an emotional state because he had learned the

family dog had to be put down. The arbitrator found because of this, the

grievor’s actions were impulsive and not pre-meditated insubordination. The

arbitrator makes it clear that job frustration is not an excuse for

insubordination. The emotional state and the short nature of the incident

diminished the seriousness of the situation as did the fact there was nothing

to suggest the grievor was threatening or attacking the authority of his

supervisor.

Here AB did attack Caswell’s authority and was insubordinate and

disrespectful. Furthermore, this was not a case of one impulsive outburst.

AB’s angry, belligerent and sometimes threatening behaviour continued over

a period of two days even after he had opportunities to calm down.

c. In Re Homes First Society, supra, the grievor acted badly, but came to

appreciate how badly he had acted when he heard other’s evidence about the

incident. The worst of the verbal attack in this case didn’t take place within

sight or hearing of other employees. The employee was a person who had

once been a resident of the homeless shelter and had made the transition to

employee and didn’t understand much about being an employee. The grievor

was never shown and didn’t understand his responsibilities as an employee.

The grievor apologized for his behaviour. The arbitrator was satisfied the

grievor had learned from his experience and come to understand he must

conduct himself in a manner acceptable to the norms of society. The grievor

demonstrated a sincere and intense determination to be rehabilitated.

The Union suggests that because AB didn’t have responsibility to work with

high risk people or have significant responsibility and interaction with clients,

somehow he should be held to a lower standard of conduct than others. AB

may not have interacted with high risk clients, but he did work in a safety

sensitive position and he did have regular contact with co-workers, customers

and suppliers.

149

d. In Maple Leaf Sports, supra, the grievor was an 18 year employee with a

completely clear disciplinary record. The arbitrator found the grievor’s threat

to be a momentary flare-up. The grievor acknowledged her in appropriate

conduct at the hearing.

e. In Greater Victoria Public Library, supra, the grievor had a clear record and

made one derogatory comment to her supervisor, telling the supervisor that

she was a bad person.

f. Canam Steel Works, supra, involved one incident where the grievor used

insubordinate words to the supervisor. The grievor did not deny making the

comment attributed to him. The incident was a momentary flare-up in

circumstances where the new plant manager was seeking to establish

himself.

g. The Union relies on BWXT, supra, arguing it is a similar case where far less

discipline was imposed. The issue in BWXT involved the grievor and a co-

worker. AB took issue with his supervisor, with management and with his own

union representation. In BWXT, the conduct was not repetitive. Here AB’s

conduct on February 17 and 18 was repetitive and escalating. BWXT involved

an incident and one flare-up. Here there were multiple flare-ups. In BWXT,

the grievor had no previous discipline. Here AB had a DML. In BWXT, the

Employer didn’t discipline the others who were involved in the incident. In

AB’s case, no one else wrongly provoked AB’s behaviour. In BWXT, the

grievor apologized. AB has never really apologized for his behaviour. While

he apologized to Jillian Orb, by his own admission the apology was for using

language that his parents wouldn’t be proud of at the February 18 meeting.

AB did not apologize to Caswell. Indeed, it was clear throughout the hearing

that AB felt justified at being upset about the work assignment and he blames

Caswell for what happened.

h. Smurfit (Laprade), supra, is a similar case, but differs in important ways. In

Smurfit, the arbitrator said this at page 31:

We find in this conduct an ample basis for the Employer imposing some discipline. We

note two factors that are nonetheless in Mr. Laprade's favour. First, contrary to the

Employer's understanding, he had taken at least the first steps to seek counseling

through the Employee Assistance Program. Second, as noted above, Mr. Soares'

conduct in this last week was far from exemplary and no doubt heightened the bad

feelings between the two men so that flare ups were more likely than might otherwise

have been the case. This is significant because, by downplaying the role of his own

attitude in these matters, Mr. Soares left an impression with management that Mr.

Laprade's conduct was more unilateral than it in fact was.

Here AB had taken more than an initial step to seek counselling. As I have

said, AB was under psychiatric care and in counselling. In addition, there is

absolutely nothing in the evidence to suggest Caswell’s behaviour was

anything but exemplary. In this case, AB’s behaviour can truly be described

as unilateral. Another factor in Smurfit was that most of the confrontations

were with co-workers and not serious confrontations with management. Yet

another factor was that one of the persons reacted to the grievor in anger

150

and that escalated the situation and led to much of the bad behaviour.

Nothing like that happened here.

The arbitrator in Smurfit agreed to reinstate the grievor if the grievor followed

strict requirements for anger management therapy followed by a requirement

that the therapist provide a report that the grievor had reached a point where

he had developed a full understanding and ability to cope with his anger

problem to the point where he was unlikely to repeat the kind of insolent and

reckless behaviour he was noted for in the recent past. The arbitrator also

required the grievor to sign a last chance agreement wherein he

acknowledged that any further angry behaviour would result in his immediate

termination.

In AB’s case, AB was receiving psychiatric care and counselling and he still

displayed anger in spite of that. As of February 2016, AB had been under the

psychiatrist’s care for some two and a half years and had been to at least six

counselling sessions with the counselor from November 30, 2015 to February

17, 2016. The grievor was also on medication for anxiety and depression.

None of these measures had any impact on AB’s explosive temper. There is

nothing before me to suggest that anything has changed since February of

2016.

i. Canada Safeway Ltd. (Lummiss), supra, is somewhat similar to AB’s case,

but in addition to the grievor’s length of service, the significant factor for the

grievor in that case (a 20 year employee) was that the employer in that case

had mandated that the grievor take an anger management program and had

not followed up to ensure the grievor had in fact taken the program. The

arbitrator in Canada Safeway imposed similar conditions on reinstatement to

those in, Smurfit, so my comments with respect to Smurfit apply equally here.

205. In the end, one must look at the factors present in the particular case and weigh

all those factors in reaching the conclusion. The relevant factors can be summarized

thus:

a. AB’s conduct on February 17 and 18, 2016 amounted to serious misconduct.

AB’s outbursts were not a momentary thing. They were prolonged and

repetitive. The aggressive and profane words AB used, the tone of the words,

the volume of the words and AB’s physical gestures in and of themselves

were sufficiently disturbing that a reasonable person would have felt

threatened in the circumstances. AB was insolent and insubordinate to

management and challenged management’s authority.

b. AB had a prior record of discipline. He was on the last step of SaskPower’s

discipline process before termination. The conduct for which AB had been

disciplined was serious and involved a racist picture.

c. Caswell did not provoke AB’s outburst. Caswell merely gave AB a legitimate

work-related direction with which AB did not agree.

d. AB was a long service employee with SaskPower with 22 years of service in

various positions.

151

e. AB could be a good worker and was awarded Bright Lights points on two

occasions.

f. AB’s family suffered financial hardship because of AB’s unemployment.

g. AB has not truly acknowledged responsibility for his angry outburst. He

denies much of what happened, and still maintains he returned to work to a

hostile workplace. He denies he has an anger management problem and

maintains he is just emotional.

h. AB apologized because he used language his parents would not be proud of.

He has never apologised for his angry, insolent, insubordinate behaviour.

i. AB suffers from anxiety and depression and had been away from work for

almost four months.

j. One current and one former employee of SaskPower say they would have no

difficulty working with AB again. Those who witnessed AB’s outbursts

firsthand on February 17 and 18, 2016, expressed concerns about working

with AB and about the message it would send, given what AB did, if AB were

reinstated.

206. Burgess, Caswell and Perfect all spoke at different times in their evidence about

the fact that AB could be a good employee. Caswell said AB could be charming and

that overall he thought they got along well. Caswell allowed AB to be the in scope

supervisor when Perfect was away and hoped AB would over time take on more of

a leadership role. Given this evidence, which I accept, there was no reason for

Caswell to bully or harass AB or to try to provoke AB in some way. All Caswell was

doing on February 17, 2016, was talking to AB about his work assignment.

207. Overall, AB’s actions on February 17 and 18 are very serious. The episodes

were prolonged and repetitive. They involved vulgarity, insolence and

insubordination and challenge to management authority. AB’s words and actions

could reasonably be perceived as threatening to Caswell. The behaviour shows AB

has an anger management problem and issues with persons in authority. AB

appears to have little or no appreciation for the inappropriateness of his behaviour.

AB continues to bring up past events where he disagreed with management and

cannot seem to let things go. He was already on a DML for the picture incident with

respect to which he also still questions management’s concern about what he did.

208. AB’s actions were not premeditated, but they were not momentary as the Union

suggests. The evidence of past incidents shows that on virtually each occasion

when AB became angry, aggressive and belligerent, he was in some sort of

interaction with management. Each case involved either a normal workplace

direction given to AB (Burgess asking the employees to keep their coffee and lunch

breaks to the allotted times, Caswell giving AB his work assignment) or a

management inquiry into something that may have happened at work (whether AB

was using cannabis, what AB knew about the calendar incident, Caswell raising the

fact AB was late). In each instance AB reacted the same way: loud, belligerent,

challenging to authority, using repeated profanity, claiming harassment.

152

209. At the hearing, AB didn’t demonstrate a true appreciation of his anger and the

impact of his behaviour on others. AB doesn’t appear to think his anger and

inappropriate reactions are a problem because he doesn’t think he is an angry

person. His attitude suggests he thinks he is justified in his disagreements with

Caswell and he is still insistent that he should not have been asked to work in

shipping in the warehouse. AB apologized for using language his parents would not

approve of, but has never apologized for his behaviour or shown any remorse.

210. AB has been under medical treatment for his anxiety and depression and the

psychiatrist has recognised AB has an anger management problem. AB takes

medication that has had no impact on the anger problem. SaskPower made

counselling available to AB to help him with his anger problem, but at the hearing

AB continued to insist the counselling was not for anger problems. He insists he

doesn’t have poor anger management and that he doesn’t act poorly when

challenged or confronted. The counselling has had no effect.

211. Dr. O may think it would the therapeutic for AB to return to work, but Dr. O could

give no assurance about how AB would react if he did return. This is not just a

question of whether AB might physically attack someone. The issue is AB’s angry

reaction to anything he finds the slightest bit challenging. The only thing AB has

suggested to deal with his behaviour is that he excuse himself from a situation.

From AB’s point of view, he needs to leave situations that cause discomfort for him.

It would be impossible for SaskPower to supervise or manage AB or for others to

effectively work with him, if every time he is questioned on anything he is allowed to

react with anger and then leave the situation.

212. I am satisfied AB’s instability would have a significant negative impact on the

workforce. It is totally unfair to co-workers, supervisors and managers to be

subjected to angry outbursts and not know when the next outburst might occur. This

would create a hostile workplace for the others that, for them, violates SaskPower’s

Respectful Workplace Policy and the Code of Conduct.

213. All of these circumstances suggest the employment relationship is beyond repair.

Weighed against these circumstances, AB’s long service, the fact he obtained

Bright Lights points for good work in the past, the fact AB could be a good worker,

AB’s personal circumstances and any other circumstances that might weigh in his

favour, are simply not sufficient to warrant interfering with SaskPower’s decision to

terminate AB’s employment. SaskPower’s decision to dismiss AB was not an

excessive response in all the circumstances.

VIII. Summary and Conclusion

214. In summary, I have concluded:

a. SaskPower had just cause to discipline AB because of his culpable behaviour

on February 17 and 18, 2016.

b. On a human rights analysis:

i. AB suffers from anxiety and depression which amount to a disability.

153

ii. The Union did not meet the onus to establish that AB’s anger

management problems are causally linked to his disability.

iii. Even if the Union had established a link between AB’s anger and his

disability and established a prima facie case of discrimination:

1. SaskPower’s standards for work performance and workplace

conduct are adopted for a purpose rationally connected with

the performance of the job;

2. The standards were adopted in an honest and good faith belief

that they are necessary to the fulfillment of the legitimate

workplace purpose;

3. The Union has not established that it was medically necessary

to accommodate AB by only requiring him to work outdoors;

and

4. It would be impossible for SaskPower to accommodate AB’s

anger management problems without undue hardship.

c. SaskPower’s decision to terminate AB’s employment was not an excessive

response to AB’s misconduct and was just and reasonable in all the

circumstances.

215. In the result, the Grievance is denied.

216. I wish to thank counsel for their thorough presentations in this very difficult case.

Dated February 7, 2018.

_____________________________

Anne M. Wallace, Q.C.

Sole Arbitrator

154