HomeMy WebLinkAboutBowen et al 14-09-11 In the Matter of a
Mediation/Arbitration
Pursuant to Section 50 of OLRA
Between:
Chatham-Kent Children’s Services
(The “Employer”)
-And-
Ontario Public Service Employees’ Union, Local 148
(The “Union”)
Re: Grievance of Jennifer Bowen (February 4, 2014)
Grievance of Angela Elley (March 31, 2014)
Award
Arbitrator/Mediator - Brian Sheehan
Appearances:
For The Employer: Elizabeth Traynor, Counsel
For The Union: Mihad Fahmy, Counsel
Mediation/Arbitration conducted in London on August 11, 2014
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I was appointed by the parties to act as a Mediator/Arbitrator, pursuant to Section
50 of the Ontario Labour Relations Act (OLRA), with respect to the above grievances.
Factual Background
The Employer closed all of its residential group homes effective April 1, 2014.
Ms. Angela Elley held the position of Group Home Residential Worker-Lead, and
was one of the individuals affected by the closure of the group homes. The Employer
provided Ms. Elley notice of layoff advising her that she had the right, pursuant to Article
13.05(a) of the collective agreement, to displace an employee with less seniority,
provided she had the requisite skill, ability and qualifications for the position in question.
Ms. Elley sought to displace Jennifer Bowen who holds the full-time Volunteer
Coordinator position. By letter dated January 29, 2014, the Employer advised Ms. Elley
that she would be placed in the full-time Volunteer Coordinator position effective April 1,
2014.
Subsequently, an issue arose with respect to the appropriateness of allowing Ms.
Elley to displace Ms. Bowen, given that Ms. Bowen has restrictions associated with a
vision impairment disability. Specifically, the issue is whether, pursuant to the duty to
accommodate flowing from the Ontario Human Rights Code (“Code”), it would be
appropriate to allow Ms. Elley to displace Ms. Bowen from her Volunteer Coordinator
position. Pending the resolution of the issue, Ms. Elley was placed in a temporary
contract position as a Protection Support Worker.
On June 25, 2014, an Interim Award was issued with respect to certain issues
pertaining to these grievances. Amongst the issues decided in the Interim Award, it was
determined that Ms. Elley is qualified to perform the duties of the Volunteer Coordinator
position. It was also concluded that Ms. Bowen’s assertion that her seniority date should
be adjusted was not timely. Additionally, it was found that the Employer was not
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obligated to solicit individuals to accept voluntary layoffs, pursuant to Article 13.02 of the
collective agreement.
The Interim Award also directed that Ms. Bowen be assessed at the Centre for
Sight Enhancement at the University of Waterloo with respect to the impact her
disability would have on her ability to perform the work of certain identified positions.
The subsequently prepared report of Dr. Tammy Labreche of the Centre for Sight
Enhancement at the University of Waterloo, dated August 1, 2014, provided the
following response to the question as to which of the identified positions Ms. Bowen
could perform with accommodation:
-Resource Worker – Family Finder-Protection
-Service Coordinator
-Volunteer Drive Coordinator
-Volunteer Coordinator
-Screener
Dr. Labreche indicated that Ms. Bowen, even with accommodation measures, could not
perform the work of the following positions:
-Team Secretary – Supervised Access/Protection Support
-Team Secretary – Child Protection
-Court Secretary
-Team Secretary – Mental Health
-Receptionist/Team Secretary Mental Health
With respect to the follow-up question inquiring as to the level of confidence the
assessing physician had that Ms. Bowen would be medically able to perform the duties
and responsibilities of the positions listed above without risk to her own safety, or that of
the individuals the Employer provides services to, the answer of Dr. Labreche was
“uncertain”. In follow-up to that question, Dr. Labreche offered the following comments:
The descriptions provided, although extensive, do not
necessarily clearly specify all aspects and demands of
the position i.e. length of time at each task.
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Based on the information given, it is my opinion that Ms.
Bowen is medically able to perform effectively the duties
& responsibilities of:
Resource Worker – Family Finder-Protection
Service Coordinator
Volunteer Drive Coordinator
Volunteer Coordinator
Screener
And possibly:
Resource Worker
Resource Worker – Adoption Support/Disclosure
At the August 11, 2014 arbitration/mediation session, representatives of the
Employer and the Union provided their respective views on the issues in dispute.
A specific focus of the discussion was directed to the ability of Ms. Bowen to perform
the work of the identified positions and her ability to exercise her displacement rights
with respect to those positions, if she were to be bumped by Ms. Elley. The Employer
expressed serious concerns about the ability of Ms. Bowen to safely and effectively
perform the duties of any of the identified positions, even if the outlined
accommodations were implemented, save and except for her current position of
Volunteer Coordinator. Ms. Bowen and Ms. Elley were also provided an opportunity to
outline the adverse impact that they would respectively experience if the ruling was not
in their favour.
As previously noted, Ms. Elley is currently in a temporary contract position as a
Protection Support Worker. Ms. Paula Donais, who has received notice of being laid off
from her current Volunteer Drive Coordinator position, has indicated that she seeks to
bump Ms. Elley out of that Protection Support Worker position. If she is not able to
displace Ms. Bowen, Ms. Elley would have to bump into a lower-rated position. In
particular, she would likely be required to bump into the Team Secretary–Protection
position. From a compensation point of view, the Protection Support Worker position
and the Volunteer Coordinator position are both Pay Grid Level V positions; with the
Step 6 rate of pay for Pay Grid Level V positions being $29.90 per hour. The Team
Secretary-Protection position rate is a Pay Grid Level XIV position which translates into
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a Step 6 hourly rate of pay of $25.01. In terms of annual salary, the difference in those
hourly rates is $8,916.13.
Ms. Elley also indicated that she preferred the work associated with the
Volunteer Coordinator position as opposed to the Protection Support Worker position.
The relevant issue to be determined, therefore, is whether Ms. Elley should be
allowed to displace Ms. Bowen. That question will be answered against the factual
background that there exists a significant possibility that there are no other positions in
the bargaining unit that Ms. Bowen may be able to successfully bump into. It should,
however, be noted that the grievances that are subject to this Award do not directly deal
with the issue of Ms. Bowen exercising her displacement rights. That finding is not
surprising since she has not yet been bumped from her Volunteer Coordinator position.
This Award, therefore, does not necessarily provide a conclusive answer as to the
significance, if any, of Ms. Bowen’s disability, and the associated issue of the duty to
accommodate, upon the exercising of her displacement rights under the collective
agreement. However, the consideration of whether, in fact, Ms. Bowen would potentially
be able to successfully bump into another position is relevant for the purposes of
assessing whether it is appropriate to allow her to be displaced from the Volunteer
Coordinator position.
In terms of Ms. Bowen’s displacement rights, it would appear she does not
possess the required educational qualifications associated with the following positions:
(1) Resource Worker-Family Finder Protection; (2) Screener; (3) Resource Worker; and
(4) Resource W orker-Adoption Support/Disclosure. With respect to the Service
Coordinator and Volunteer Drive Coordinator positions, the incumbents in those
positions have greater seniority than Ms. Bowen. Accordingly, as suggested, there
exists the distinct possibility that she will not be able to successfully bump any
employee; and therefore, will be laid off, if she is displaced by Ms. Elley.
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Decision
It is my determination that Ms. Elley is entitled to exercise her seniority rights
under the collective agreement and displace Ms. Bowen from the Volunteer Coordinator
position.
In reaching that conclusion, the following authorities were reviewed and
considered: Canadian Labour Arbitration (Brown and Beatty), (4th ed) Canada Law
Book, para 7:6120; Policy and Guidelines on Disability and the Duty to Accommodate,
Ontario Human Rights Commission; Central Okanogan School District No. 23 v.
Renaud [1992] 2 S.C.R. 970; United Electrical Workers, Local 512 and Tung- Sol of
Canada Ltd. (1964) 15 L.A.C. 161(Reville); LOF Glass of Canada Ltd. and U.S.W.A.,
Local 252G (1999) 56 C.L.A.S. 229 (Surdykowski); Bayer Rubber Inc. and
Communications, Energy and Paperworkers Union, Local 914 (1997) 65 L.A.C. (4th)
261 (Watters); MacMillan Bloedel and Communications, Energy and Paperworkers
Union, Local 76 (1998) 75 L.A.C.(4th ) 34 (MacIntyre); Pepsi-QTG Canada and C.A.W.,
Local 1996 (2009) 189 L.A.C. (4th) 440 (Kennedy); Waterloo Catholic District School
Board and Canadian Union of Public Employees, Local 2512 (2012) 218 L.A.C. (4th)
254 (Rayner); Union Carbide Canada Ltd. and Energy & Chemical Workers Union,
Local 593 (1991) 21 L.A.C. (4th) 261 (Hinnegan); Municipality of Metropolitan Toronto
and Canadian Union of Public Employees, Local 79 (1994) 46 L.A.C. (4th) 110 (Fisher);
National Steel Car Ltd. and United Steelworkers of America, Local 7135 (2005) 146
L.A.C. (4th) 445 (Levinson); Johnson Controls LP and C.A.W.-Canada, Local 1859
(2006) 152 L.A.C. (4th) 28 (Brent); Boise Cascade Canada Ltd. and United
Paperworkers International Union, Local 1330 (1994) 41 L.A.C. (4th) 291 (Palmer);
Canada Post Corporation and Canadian Union of Postal Workers (1993) 33 L.A.C. (4th)
279 (Adell); Essex Police Services Board and Essex Police Association (2002) 105
L.A.C. (4th) 193 (Goodfellow); Mohawk Council of Akwesasne and Ahkwesahsne Police
Association (2003) 122 L.A.C. (4th) 161 (Chapman); Chatham -Kent Professional
Firefighters ‘Association and the Municipality of Chatham-Kent (2012) 221 L.A.C. (4th) 1
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(Jesin); Newfoundland and Labrador (Motor Registration Division) and N.A.P.E. (2013)
230 L.A.C. (4th) 260 (Oakley);Oliver and NAPE [2012] NLLRB 10 (CanLII).
It is a fundamental truism of labour relations that seniority, and the application of
seniority rights, is one of the most important benefits obtained by employees as a result
of unionization. As was set out, in now accepted iconic terms, in the Tung-Sol of
Canada Ltd., supra decision:
Seniority is one of the most important and far -reaching benefits
which the trade union movement has been able to secure for its
members by virtue of the collective bargaining process. An
employee's seniority under the terms of a collective agreement gives
rise to such important rights as relief from lay-off, right to recall to
employment, vacations and vacation pay, and pension rights, to
name only a few. It follows, therefore, that an employee's seniority
should only be affected by very clear language in the collective
agreement concerned and that arbitrators should construe the
collective agreement with the utmost strictness wherever it is
contended that an employee's seniority has been forfeited, truncated
or abridged under the relevant sections of the collective agreement .
At the same time, it is also a fundamental truism of modern-day labour relations
that an employee with a disability, as defined under the Code, is entitled to be
accommodated to the point of undue hardship, pursuant to section 17 of the Code.
The interplay between the application of seniority rights under a collective
agreement and the duty to accommodate the needs of a disabled employee have
unfolded in a litany of arbitral, human rights tribunal and court decisions. A prevailing
theme associated with that jurisprudence is there are no absolutes as seniority rights
under the collective agreement do not necessarily take precedence over the right of the
disabled employee to be accommodated; and correspondingly, the duty to
accommodate, notwithstanding the fact that it is accepted that human rights legislation
has near quasi-constitutional status, does not necessarily trump the rights, under the
collective agreement, of the other employees.
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A useful extrapolation of this theme was set out by Arbitrator Surdykowski in LOF
Glass of Canada Ltd., supra:
As I have already noted, a collective agreement is subject to laws of
general application, in this case specifically the Human Rights Code.
The private law of the parties which is set out in a collective
agreement must give way to the extent that it conflicts with a law of
general application like the Code. However, conflicts are to be
avoided wherever possible, and it is clear that the Code has not
created absolute rights. That is, neither a collective agreement nor
the Code operates to "trump" the other. The Code creates limited
rights and obligations beyond the collective agreement. The
collective agreement must bend to the Code, but the Code cannot
break the collective agreement. The shared accommodation
responsibility requires a balancing of relevant interests in every
individual case. The limits of the duty to accommodate are defined in
terms of undue hardship. The parties are obliged to accommodate
an employee with a disability within the undue hardship parameters
of each case. If they are unable to reach agreement in that respect, it
falls to the arbitrator to do so for them.
A second prevailing theme existing in the jurisprudence is that the result is
dependent on the particular and unique facts involved in each case. As was also noted
in the LOF Glass of Canada Ltd., supra decision:
Neither the Human Rights Code nor anything else guarantees
employment to a person with a disability. The Code guarantees only
that a person will not be discriminated against in employment
because of a disability. It is therefore clear that there are limits on the
shared duty to accommodate. What those limits are will depend on
the circumstances of the particular case. In a unionized workplace,
these include the individual circumstances of the particular
employee, the nature and circumstances of the workplace, an d the
provisions of the collective agreement.
Arbitrator Surdykowski in the LOF Glass of Canada Ltd., supra decision,
suggested that the most significant case with respect to the underlying principles
associated with the duty to accommodate in a unionized environment was the decision
of the Supreme Court of Canada in Okanagan School District No 23 v. Renaud,
(“Renaud”) supra. Arguably, some fifteen years later that statement remains true.
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The facts in Renaud involved an issue of religious accommodation. The
reasoning of the Court, however, has been accepted as being applicable to scenarios
involving the duty to accommodate the needs of a disabled employee. One important
principle set out in Renaud is that the duty to accommodate is a multi-party exercise,
with the employer, the union and the employee seeking accommodation, all having a
role to play, and all parties have certain obligations with respect to reaching a resolution
of any outstanding duty to accommodate scenario. More directly relevant to the issues
in the case at hand, the Supreme Court also recognized that, depending on the
circumstances, accommodation measures that interfere with the rights of other
employees under the collective agreement may constitute undue hardship. In the
context of discussing a union’s duty to accommodate obligations, Justice Sopinka,
speaking on behalf of the Court, noted as follows:
The duty to accommodate should not substitute discrimination against
other employees for the discrimination suffered by the complainant.
Any significant interference with the rights of others will ordinarily justify
the union in refusing to consent to a measure which would have this
effect. Although the test of undue hardship applies to a union, it will
often be met by a showing of prejudice to other employees if proposed
accommodating measures are adopted. As I stated previously, this
test is grounded on the reasonableness of the measures to remove
discrimination which are taken or proposed.
(emphasis added)
Accordingly, the relevant test in assessing whether a proposed accommodation
measure(s) constitutes undue hardship is whether the impact of such a measure(s)
results in a significant interference with the normal operation of the collective
agreement, and the rights of employees under that collective agreement. While, it is
clear that the union and other employees may have to “shoulder some of the hardship
to facilitate accommodation”; if the interference with the employees’ collective
agreement rights is significant, then the proposed accommodation measure will be
viewed as constituting undue hardship for the other employees.
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One particular area where the question of whether there is significant
interference with the collective agreement rights of other employees relates to a
decision to place a disabled employee in a vacant position rather than posting the
position pursuant to the job posting provisions of the collective agreement. Some
arbitrators have suggested that, in certain circumstances, placing the disabled
employee in that position and thereby bypassing the normal operation of the collective
agreement to post vacant positions does not represent a significant interference with the
rights of other employees under the collective agreement and therefore does not
constitute undue hardship. For example see Union Carbide Canada, supra; Waterloo
Catholic District School Board, supra; Pepsi-QTG Canada, supra. There is not,
however, unanimity amongst arbitrators with respect to this issue. For example, see a
relatively recent decision Newfoundland and Labrador (Motor Registration Division),
supra.
In the case at hand, the cost that will be incurred does not relate to a loss of an
opportunity for bargaining unit employees to potentially bid on a vacant position; but
rather, it relates to the crystallized right of Ms. Elley to exercise her bumping rights,
pursuant to the notice of layoff she has received. Moreover, and more importantly, it is
clear that if Ms. Elley is not able to displace Ms. Bowen, she will have to bump into a
lower-rated position; and as a result, she would experience a fairly significant reduction
in her pay. In my view, not allowing Ms. Elley to bump Ms. Bowen would constitute a
significant interference with Ms. Elley’s rights, under the collective agreement; and
therefore, crosses the threshold into constituting undue hardship.
There is no support in the jurisprudence for the proposition that an employee has
to directly suffer a significant reduction in pay to facilitate the accommodation needs of
another employee. Even in those cases (see Mohawk Council of Akwesasne, supra and
Essex Police Services Board, supra) where the perspective that in certain
circumstances an employee may be displaced from his/her existing position , in
furtherance of the accommodation needs of another employee has been adopted; that
viewpoint was only considered, in the context of the potentially displaced employee
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remaining in the same classification and/or pay grade. In the Newfoundland and
Labrador (Motor Registration Division), supra case, Arbitrator Oakley referenced Oliver
and Nape, supra, a decision of the Newfoundland and Labrador Labour Relations
Board. That case involved a duty of fair representation complaint associated with the
refusal of the union to proceed with a grievance filed by an employee who asserted that
she was adversely impacted financially as a result of measures adopted to facilitate the
accommodation needs of another employee. Arbitrator Oakley cited, with approval, the
following reasoning of the Labour Relations Board in that case:
In choosing not to take Ms. Oliver's grievance to arbitration, the
Union was trumping Employee A's right to be accommodated over
Ms. Oliver's rights under the Collective Agreement. While some
cases have shown that this is allowable in certain instances, this
board can find no case in which a Board or Court found that causing
one employee to suffer a financial hardship as a result of the
employer's accommodation is warranted. This choosing of one
employee over another is arbitrary and is causing a real financial
hardship directly to Ms. Oliver, also an employee and union member.
In telling Unions and Employers that they have a duty to
accommodate an employee to the point of undue hardship, the
Supreme Court of Canada did not go so far as to say that other
individual employees ought to be required to give up their livelihoods
or suffer from a decrease in earnings in order to accommodate the
Employer's accommodation of another employee. Neither the Union
nor the Employer argued this, but it appears to be their implicit
argument to Ms. Oliver.
There are cases to indicate that other employees may in fact be
displaced by the employer's accommodation of a disabled employee.
However this is not a case where Ms. Oliver has had to give up a
less physically demanding job for a more demanding one. In this
case, Ms. Oliver has essentially been demoted. She receives fewer
hours of work and is less senior on the call-in list as a result of the
Employer's accommodation of Employee "A"….Notwithstanding that,
in accommodating Employee A in the manner that has been done,
the employer and the union are placing the duty to accommodate to
the point of undue hardship squarely on another employee. It is Ms.
Oliver who is losing money as a result of this accommodation and
not the Union or the Employer. This cannot be the intent of the
legislation and it is unsupportable by the jurisprudence.
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The conclusion in this matter has been reached, notwithstanding the fact that it
is recognized there is a distinct possibility that Ms. Bowen due to, at least in part, her
disability, may not be able to displace a member of the bargaining unit with lesser
seniority. It is also appreciated that this ruling could potentially lead to serious adverse
financial consequences for Ms. Bowen and her family. As suggested, however, it would
be unfair to burden Ms. Elley with the financial costs that she would incur if she was not
allowed to exercise her seniority rights, provided for under the collective agreement, and
displace Ms. Bowen.
I remain seized to address any dispute regarding the interpretation or
implementation of the Award.
This Award is issued in Mississauga this 11th day of September, 2014.
_____________
Brian Sheehan