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HomeMy WebLinkAbout2012-3289.Grievor.15-02-25 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#2012-3289, 2013-2639 UNION#2012-0430-0010, 2013-0430-0006 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Christopher J. Albertyn Vice-Chair FOR THE UNION Peggy Smith Peggy E. Smith Law Offices Barristers and Solicitors Counsel FOR THE EMPLOYER Jennifer Richards Treasury Board Secretariat Legal Services Branch Counsel HEARING February 24, 2015 - 2 - Decision [1] There are several grievances filed by the Grievor. All have to do with her disability, the manner in which she feels she has been treated at work, and her accommodation. This decision is made pursuant to Article 22.16 of the collective agreement. The decision is made on the parties’ submissions and on the evidence relevant to the Grievor’s accommodation at work and fair resolution of her grievances. [2] The grievances resolved by this decision are the following: a. October 2, 2012 alleging a violation of the Human Rights Code and the Occupational Health and Safety Act; b. October 19, 2012 (GSB #2012-3289) alleging a violation of the Human Rights Code and the Accessibility for Ontarians with Disabilities Act; c. September 20, 2013 (GSB #2013-2639) alleging a violation of the Human Rights Code, Article 3 and 71; d. January 28, 2014 alleging a violation of the Human Rights Code, the Accessibility for Ontarians with Disabilities Act and the Occupational Health and Safety Act; e. December 3, 2014 alleging that she was denied sick leave (not yet filed with the GSB); f. December 12, 2014 alleging she was subjected to discriminatory meetings (not yet filed with the GSB). g. December 12, 2104 alleging that the Employer failed to accommodate her (not yet filed with the GSB); - 3 - h. And all other grievances filed to date. [3] All of the Grievor’s human rights claims and alleged Human Rights Code and other statutory violations, and her collective agreement entitlements, are resolved by this decision. The Employer does not admit any liability for its treatment of the Grievor hitherto, but it wishes to facilitate the Grievor’s accommodation and successful return to work. To this end it has indicated its willingness to abide by the terms of this decision. [4] The Grievor is employed as an Infrastructure Technology Support Officer classified at the System Officer 3 (SO3) level with Infrastructure Technology Services, Treasury Board Secretariat. [5] A medico-legal report by Dr. Brad Booth of the Royal Ottawa Health Care Group of February 3, 2015 (“the report”) has been accepted by all concerned as a comprehensive report on the Grievor’s medical and psychiatric circumstances. The report makes clear that the Grievor suffers from a recurrent major depressive disorder; panic disorder; agoraphobia; generalized anxiety disorder; mild obsessive compulsive disorder; and possible obstructive sleep apnea hypopnea. [6] The report makes clear that the Grievor needs a period of adjustment to new medication recommended to her by Dr. Booth. She also needs to undergo certain blood tests (and receive treatment depending on their results) and a sleep study to establish exactly the nature of her apnea. The tests and the adjustments will require a period of - 4 - recovery, during which the Grievor is placed on sick leave for chronic ailments. The period of her sick leave will be determined by her treating physician, save that, the Ministry may require a re-assessment by Dr. Booth to determine fitness to return to work. [7] The Grievor will ensure that her physician gives reasonable notice to the Employer of her anticipated return to work. [8] When the Grievor is fit to return to work she will be given the following accommodation: a. She will be assessed by the Employer to determine her skill level for resuming her position as a Tier 2 SO3; b. The Grievor will be given such reasonable coaching, familiarization and refresher formal or informal training as may be reasonably necessary to restore her to the level expected of an SO3; c. She will be expected, on the days she is required to work, described herein, to regularly attend at work at her assigned headquarters, currently at 1055 Princess Street, Kingston, Ontario; d. When at work, as described herein, she will be expected to meet the work requirements and perform the full duties of her SO3 position; e. The Grievor may initially have a graduated return to work, as directed by her doctor, but after such initial return she will be expected to work full workdays for three days every week, - 5 - Tuesday, Wednesday and Thursday; f. Mondays and Fridays will be treated as days of recuperation and recovery by the Grievor, to which end she will be entitled to receive (to the extent of her overall sick leave entitlement, after which depletion these days will be unpaid) sick leave on these days at the chronic illness level, as applicable; g. Once the Grievor is back at work on a regular basis of three days a week, beyond her initial orientation and familiarization, on a monthly basis for a period of 3 months (3 sessions), the Grievor and her manager will meet with a facilitator for no more than 90 minutes to address issues pertinent to their interaction and to the Grievor’s work. The Employer will select an external facilitator from the government’s vendor of record; h. Also, once the Grievor is back at work on a regular basis, beyond her initial orientation and familiarization, to enable her to understand the measure of her performance, the Employer will provide regular feedback to her. The purpose of such assessment and feedback is to assist the Grievor to re-accomplish her performance standard so that she is able to meet the reasonable requirements of her position. At the meetings for this purpose, the Grievor may have with her a support person or a Union representative, in which event she will make the arrangement for their attendance; i. The above accommodation will be reviewed by the parties at a - 6 - time approximately 6 months after she returns to work to consider what modifications are necessary or appropriate. [9] To assist in the process of recovery by the Grievor, the Employer will pay to the Grievor the sum of $2,000 as general damages. [10] I remain seized of the implementation of this decision. Dated at Toronto, Ontario this 25th day of February 2015. Christopher J. Albertyn, Vice-Chair