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HomeMy WebLinkAbout1984-0578.Davis.85-11-14IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before THE GRIEVANCE SETTLEMENT BOARD ._ OPSEU (Richard N. Davis) Grievor , .-. - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: R. L. Verity, Q.C. Vice Chairman I. J. Thomson Member F. T. Collict Member For the Grievor: P&heppard Grievance Officer Ontario Public Service Employees Union For the Employer: M. M. Fleishman Counsel Crown Law Office, Civil Ministry of the Attorney General Hearing: October 23. 1985 - 2 - On September 11, 1983, Ministry Employee-Richard N. Davis, ,classified as a Motor Vehicle Operator 1, was’temporar- ily reassigned from chauffeuring duties to non-driving duties pending a Ministry review of his driving status. Subsequently .on May 25, 1984, Mr. Davis was permanently .assigned to the non- driving position of Garage Attendant at 881. Bay Street in Tor- (I onto. In a Grievance dated 3une 13, 1984, Mr. Davis alleged that he had been “unfairly and unjustly des&sd”.’ . At a Hearing on November 28, 1984, the Employer pre- sented its evide~nce. The relevant facts are not in dispute, and can be briefly summarized as follows: . 1. The griever ‘has been employed since Ap’ril 1979 as a chauffeur with the Ministry. In’ that positIon,, he is required to transport mail.and to chauffeur gov- ernment personnel and other ,dignifaries in both local and lbng distance driving assignments. The Crievor is age 31. 2. A chauffeur is required to hold a “C” licence. -.3 - 3. The Crievor encountered no’difficulties in the performance of his duties until-February of 1983. On February 3, 1983, A. L. Killian, the Ministry’s Hana- ger, Licencing Operations, filed~.a comp;ain,t against the Crievor with Nick Lorito, the Crievor’s Super- visor who is Manager, Government Garage. 4. The complaint read in part: I ” . ..I had ~occasion to ride on the Courier van southbound to Queen’s Park from Duffer- in Street today, accompanied by several other members of Ministry of Transportation and Communications staff. While southbound on Avenue Pd. I noticed“ the driver ,of the van was nodding’bff to sleep each~ time he had occasion to stop. Finally while. on the. steep incline north .of ;’ Cottingham Rd. he dozed off, while the van. was moving’, wakening up in time and swerv- ing to the left in order to avoi$rear end- ing a line of traffic in the centre lane....” r . . 5. Mr. Lorito advised .the Crievor of -this -.com- plaint. - Hr. Davis alleged that his conduct was at- . ..Y’ tributable to loss of sleep baby. Mr. Lorito was satis in adjusting to a newborn -- fled with that explana- tion. 6. Mr. Lorito received a second written complaint from then Minister of Revenue, Hon. George Ashe on - 4 - August 8, 1983. The Minister reported that he exper- ienced difficulties with the Crievor’s driving on a trip to St. Catharines. Hr.* Ashe wrote in part as followsr : _- -:. “The driver, Hr. Rick Davis, must have a medical problem that requires attention. His driving was erratic to the point where he ‘wandered’ and went off the travelled lane on numerous occasions. This occurred both going and returning from .the penin- sula. In observing more closely on our return trip I noted that Rick dozes off. I final- ly indicated, rather forcefully, that if he went off the road one more t’ime we would change places and I would drive.. .” .- _4-. . 7. In August, the Crievor was ordered to undergo a mandatory medical examination in accordance with , Article 51.9 of the Collective Agscement. 8. On September 11, the Crievor was reassigned to ~~ . . non-driving duties at the, Gove’rnment’ Cbrage,. at 881 Bdy St re.&i’. From iSeptember 11 until sometime in May, .,_.. 1985, the Crievor worked the mid~night shift. _- 9. On September 12, the Griever was examined by government physician, Dr. T. Rewa. In a brief medi- cal report to the Ministry dated September 23, 1983, Dr. Rewa made the following comments under the head- ing of Medical Status: . I . . -5- “On physical examination at the Employee Health Service Mr. Davis was found to be overweight.” -. For more detailed medical investigations, Dr. Rewa referred the Crievor to ‘Endocrinologist, Dr. Michael Stuparyk, a specialist in internal medicine, and to Dr. Harvey Holdpfsky at the Toronto Western Hospi- tal’s “Sleep Disturbance Clinic”. In the interim, Dr. Rewa recommended that the Crievor be assigned to non-driving duties. . . 10. On March 30, 1984, Dr. Stuparyk submitted a med- ical report to the Griever’s bene;‘al physician, Dr. : . . 3. Dunstall, in which the Crievor’s medical condition , was diagnosed as “suggestive of a.$,obstructive sleep apneic syndrome, which may have been caused~ by his excessive obesity”. The clinical dlagnosis was: . . 1) obesity (gro~ss); ” ” .2) ” obstructive sleep, apneic syndrome...,,,. Dr. Stuparyk reported that the Griever had been -_ placed on a weight redu.ction program whereby his weight had decreased from’278 pounds to.250 pounds over a four month period. Dr. Stuparyk also stated that if the patient “continues to lose weight” he . could return to normal chauffeuring duties. - 6 - 11. Th,ere was no evidence presented. to the Board that Dr. Holdofsky submitted a medical report. - -. . 12. On May 25, 1984, the Griever was assigned to the posit~ion of Garage Attendant on a permanent basis. .In advising the Crievor of his ,ch-anged status, Mr. Lorito wrote as follows: "At a meeting on April 26, 1984, .,you re- ferred to correspondence from Dr. M. Stuparyk lndicatfng that you were now able to drive. In a subsequent memorandum dated May 15, 1984, from Ms. M. Kelch, Executive Director, Highway Operations’ and Mainten-:. ante Division, you were advised that, until the Ministry was in receipt. of Dr...‘Stu- paryk’s recommendation, there would be no change in your assigned dutfes of ‘Garage . Attendant. To date, no documentation has been received by the Uinistry indicating a change in your medical status nor-has there been a change in Dr. T. Rena’s (Employee Health Services, Ministry of Government Services)~ initial assessment that you be assi~gned to a non-driving position.” . . .‘- 13. On June 28, 1984, the Ministry downgraded the . . .._ ( Crievor’s “F” licence to a “C” licence. -- Foe whatever the reason, the Ministry appears to have experienced difficulties in obtaining medical opinions regard- ing the statu.s of the Crievor’s health. For example, the Step . *’ I. ( - *7 - 2 r.eply .to the Grievance filed is a letter from A. .C. Kelly, Deputy Hinister’s Designee, in which the following paragraph bears- repetitfon: e -... “1 also found that the Manager was having difficulty in obtaining appropriate medical opinions so that he can make a decision of placing you into your former position. He must exercise his responsibility to ensure the safety of yourself and those chauf- feured. He had no. such evidence prior to Hay 25, 1984.” :’ . Following completion of the.Employer’s evidence on November 28, 1984, the Parties allegedly settled the matter and submitted draft wording to be included in a-consent Order. Accordingly, the Board issued the order pursuant to ,the wording submitted. The con’sent Order reads: “(1) The Crievor, Richard Davis, shall continue to perform the functions of a Garage Attendant (12:OO a.m. to 8:30 a.m.) until such time, as in the opinion of the Doard, there is a satisfactory medical certi- ficate from Dr. Michael Stuparyk,‘ or another duly !; qualified medical specialist, stating that Richard Davis is medidally fit to perform the duties of a Chauffeur (Motor Vehicle Operator If) to which duties . he will then be assigned. In the event that no such medical certificate is obtained prior to June 30,. 1985; the Crievor shall be assigned on a permanent basis to the positionof Garage Attendant. (2) From November 28, 1984, Richard Davis shall be red circled at his former payment rate of $9.63 per hour while performing the duties of a Garage Attend- ant, without ,further claim for retroactive payment. However, this provision shall become null and void in the event that Richard Davis assumes the position of Chauffeur on or before June 30, 1985. i, ,’ - 8 - (3) Counsel for the Crievor shall provide a copy of this order and a med.ical release signed by the Criev- or for the purpose of preparation of any such medical report to this Board. (4) The Board shall remain seized of all issues herein ..” Subsequently, a medical report pertaining to the Crievor was prepared by Dr. Michael Stuparyk dated May 24; 1985. Unfortunately, Dr. Stuparyk’s lette’r was sent to the Crievor’s general physician, Dr. 3. Dunstall, although alleged- ly a copy of the report was sent to .R. W. Ciach, the Ministry’s Medical Review Officer. Counsel for the Employer advised the .Board that Dr. Stuparyk’s report was not brought to the Minis- try’s attention until July 11, 1985. Dr. Stuparyks’s medical opinion of May.24, 1985, reads in part as followsr L; “This patient has been seen in the past because of obstructive sleep apneic syn- drome, and severe obesity. His weight is presently about ,!21.5 kilos-. -He has riot- had any further evidence of apneic syndrome while dr-living.. . - ._. This patient has been driving his auto- mobile privately and has had no difficulty and no evidence of any periods of apnea. I feel that he is fit to have a C ,licence and an appropriate copy of this letter has been sent to R. W. Ciach at the Ministry of Transportation and Communications. The patient has been strongly advised to lose weight as quickly as possible.. .” , : , I' f - 9 - Following ,Dr.~Stuparyk’s medical report, Dr. Dunstall wrote to the Grievance Settlement Board on 3uly 9, ,198s. Dr. Dunstall’s letter reads fin its entirety as Collowsr duties.- ,...’ convened “Mr. Davis was referred by myself to Dr., -- Stuparyk for Investigation of sleep apnea. He was felt to be fit to have a C licence. He is able to return to his former duties.” The Crievor was not reinstated ta his chauffeuring Counsel for the Union requested that the Board be re- to resolve the fmpasse. Subfequently, on October 23, ‘:. 1985, a ‘Hearing took place to enable the Parfies to make repre- ’ . ssntationi. -5 The Unioii alleged that Dr. Stupac,#‘s medical report met the requirement? of paragraph 1 of the Board’s Interim Order. Hr. Sheppard also contended that the Crievor should be compensated for 32 hours o.f lost ‘overtime oppotit-titi.ity. ,. ‘. . . ‘. The Employer argued that Dr. Stuparyk’s report was inadequate and that when compared with his 1984 medical report, the.Crievor’s medical condition was essentfally unchanged. In - ,’ - lD- 0’ f particular, the Employe; alleged that weight was still a prob- lem. Hr. Fleishman advised r’hc Board that the Crfevor’s “F” licenoe had not been reinstated. _ ,-.. In this matter, the Bo6rd’s role is restricted to a determination as to whether Dr. Stuparyk’s 1985 medical report complied with the requirements of the Boar~d’s Inte,rim Order. The Board his not called upon to determine’the merits of’the Grievance itself. The Board expressed. concern that Dr. Stuparyk’s medi- cal report was somewhat stale-dated in the sense that it was almost five months .out-of-date. However, !$e Board’s sugges- tion that a supplementary medical report be prepared was ?a- voured by neither Party. -. , Having considered the representations carefully, the Board is satisfied that Dr. Stuparyk’s medical., report complies with the requirements of paragraph 1 of the,Interia Order. The evidence establishes that the Crievor is required to possess a @‘C” licence in order to per?o,rm his responsibilities as a chauffeur. In our opinion, failure to reinstate the Crievor’s “F” licence is an irrelevant consideration which does not assist the Employer’s position. Accordingly, on the basis of Dr. Stuparyk’s medical opinion, supported by the opinion of . - . - ll- Dr. Dunstall, and in the absence of any recent medical opinion to the contrary, the Crievor shall .be forthwith reinstated to his chauffeuring responsibilities with the Ministry. The Board make% no order for compensatio,n for alleged lost overtime opportunities. We would caution the Crievor that in order to ensure continued employment as a government chauffeur, he simply must act upon repeated medical advice to lose weight. DATED at grantford, ber, A.D., 1985. Ontario; this 14th :day~ of Novem- -_ z~ /d-N a n . Ver$ty, O.C.,., - Vice-Chairman . ‘.