HomeMy WebLinkAbout2012-0877.Sheehy.13-12-09 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2012-0877
UNION#2012-0313-0010
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Sheehy) Union
- and -
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care) Employer
BEFORE Loretta Mikus Vice-Chair
FOR THE UNION John Brewin
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Counsel
FOR THE EMPLOYER Thomas Ayers
Ministry of Government Services
Legal Services Branch
Counsel
CONFERENCE CALL December 6, 2013
- 2 -
Decision
[1] The grievor, Lisa Sheehy, filed a grievance alleging the Employer has violated the
collective agreement and the Ontario Human Rights Code of Ontario by failing to
accommodate her return her to work in accordance with the restrictions dictated by her
physician.
[2] This award deals with a motion by the Employer to adjourn the hearing scheduled for
Tuesday, December 10, 2013 because there is an appointment for the IME on the same day
and it submits it would be more productive to meet after the IME report is completed. The
Union takes the position that there are outstanding matters, including issues about the
substance and form of the IME.
[3] The grievor returned to work in January of 2012 and there was a dispute at the time about
what restrictions had been imposed by her physician. In any event she did return to work
on terms that the Employer maintains were in compliance with her physician’s orders and
has continued to work on those terms to the present.
[4] In April of 2013 the grievor and the Union consented to an IME and selected a neurologist
from the approved roster of specialists used by the parties. The grievor requested that the
assessment be conducted in Woodridge which was problematic because only one physician
was prepared to travel. An appointment was scheduled for Woodridge which was later
cancelled by the grievor. She asked that the appointment be relocated from Woodridge to
Barrie and declined the Employer’s offer to drive her to and from her appointment.
Another was scheduled but was cancelled by the physician. That IME was rescheduled to
December 10, 2013, the same day that had been scheduled by the GSB for mediation.
[5] I was the position of the Employer that they would not be in a position to discuss or
mediate issues of accommodation until the parties have considered the report of the
neurologist. It also advised the Board that it would be required to pay a cancellation fee of
$900.00 and that it was possible that the neurologist would be unwilling to reschedule the
IME outside of the GTA.
[6] The Union took the position that the IME had not been properly discussed by the parties.
The Union advised the Employer that it had not had an opportunity for input into the scope
and nature of the assessment. At the time the Union agreed to the appointment it was not
aware that it could participate in the process. From what I understand the Union and the
grievor did not formally object to the appointments; the cancellations were done by the
grievor and the physician. Nevertheless there are clearly matters of dispute between the
parties that must be resolved. The question is when.
[7] From the Employer’s perspective, it will have to pay the $900.00 cancellation fee and risk
being unable to reschedule on the grievor’s terms. More significantly, the grievor will
continue to work under the 2012 restrictions until a more current medical review can assess
her present needs. On the other hand the Union has made it clear that it has issues with the
physician and the process of the IME, which could raise questions about its validity.
- 3 -
[8] The Employer’s issue respecting the timing and location of the next IME can be raised and
resolved at mediation on December 10, 2013. The content and form of the IME can be
dealt with at the same time. There is apparently an issue of lost sick pay which would be
an appropriate issue for mediation.
[9] In my view the day can be well used to prepare the setting for the major issue between the
parties, that is the future need for accommodation.
[10] For these reasons the Employer’s motion is denied and the hearing will proceed on
December 10, 2013 as scheduled.
Dated at Toronto, Ontario this 9th day of December 2013.
Loretta Mikus, Vice-Chair