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HomeMy WebLinkAboutLabrecque 15-10-06BETWEEN: IN THE MATTER OF AN ARBITRATION CHILDREN'S HOSPITAL OF EASTERN ONTARIO ("Hospital") - and — ONTARIO PUBLIC SERVICE EMPLOYEES' UNION ("Union") (D. Labrecque: Various Grievances) ARBITRATOR: Jasbir Parmar On Behalf of the Hospital: Raquel Chisholm, Counsel Erica Bennett, Articling Student Heather Rose, Director, Human Resources Tammy Degiovanni, Director, Ambulatory Care On Behalf of the Union: Peggy Smith, Counsel Denise Labrecque, Grievor Steve Nield, OPSEU Representative. This matter was heard on September 2, 2015 in Ottawa, ON, with supplementary documents provided on September 17, 2015. I. INTRODUCTION 1. In an earlier award, dated July 21, 2015, 1 upheld the Grievor's grievance alleging she was terminated without just cause. I found the Grievor had engaged in harassment of her co-workers, and that while there was just cause to discipline the Grievor, there was no just cause to discharge the Grievor. Given the specific circumstances of the case, I awarded damages in lieu of reinstatement. 2. This decision now deals with a number of other grievances filed by the Grievor. II. SICK LEAVE BENEFITS GRIEVANCE 3. The Grievor commenced sick leave on March 6, 2013. The Hospital's sick leave benefits are administered by a third party insurer, SSQ. SSQ accepted the Grievor's claim and she was paid sick leave benefits up until June 9, 2013. At that point, SSQ was of the view the medical provided by the Grievor's physician was insufficient to establish an ongoing benefits entitlement. An Independent Medical Examination (IME) was arranged, and the Grievor underwent an Independent Psychiatric Medical Evaluation on June 27, 2013. 4. On receipt of the IME, SSQ concluded the Grievor's level of impairment was not at a severe enough level to interfere with a return to work. Accordingly, the termination of sick leave benefits as of June 9, 2013 was confirmed. 5. On June 28, 2013, the Grievor filed a grievance alleging improper denial of sick leave benefits. She seeks compensation equivalent to the quantum of benefits from June 9, 2013 to September 19, 2013, when her physician provided a letter indicating she could return to work. 6. The onus in a sick leave benefits claim is on the employee, to establish entitlement on the basis of that illness/injury prevents the employee from attending work. 1 7. In the present case, Dr. Cattan, the IME assessor, was quite thorough in reviewing the the medical evidence available to him from the insurer. 8. The medical reason for the Grievor's sick leave, which commenced the day after she met with the Hospital about allegations of harassment made against her by her co-workers, was anxiety/depression. She was diagnosed by a family physician (attending as a locum in place of her regular family physician) with an adjustment disorder with anxiety. The harassment investigation was identified by the physicians as a potential cause of her symptoms. In a report dated May 27, 2013, the family physician recommended the Grievor remain off work until further reassessment. 9. The Grievor also began seeing a psychologist in April 2013, which she had previously seen eight months earlier for supportive counselling related to personal life events. Dr Cunningham, the psychologist, stated that the workplace investigation triggered a traumatic emotional response and increased anxiety to a severe and debilitating level. Dr. Cunningham provided a diagnosis of Generalized Anxiety Disorder, noting the symptoms also met the criteria for adjustment disorder with anxiety. The most recent medical report from Dr. Cunningham, dated May 17, 2013, indicated the Grievor should not return to work at the moment, and recommended ongoing psychotherapy. Dr. Cunnningham expressed a concern that returning to work would exacerbate her symptoms and damage the recovery process. 10. The Grievor underwent psychometric testing during the IME. The results indicated a moderate range of anxiety and a moderate range of depression. Dr. Cattan provided a diagnosis of acute reaction/adjustment disorder with anxious and depressed mood secondary to work issues. He noted the Grievor's subjective report of symptoms was consistent with her presentation and mental status during the assessment. He noted the therapeutic interventions (both medications and psychotherapy) were beneficial, and the 2 factors affecting the clinical course of treatment and return to work were the work issues and conflict with her manager. He concluded her current psychiatric limitations were moderate, and her level of impairment not severe enough to interfere with a return to work. 11. He opined a clinically reasonable timeframe to expect the Grievor to return to work was "in the next 4 weeks on a graduated basis and over another four weeks to full time". 12. 1 find Dr. Cattan's assessment of the Grievor to be thorough and complete. It is clear the Grievor continued to suffer from a psychological condition, but it is also clear that the main factor preventing the Grievor from returning to work was her conflict with the Hospital. Entitlement to sick leave benefits requires persuasive medical evidence of disability sufficient to render an individual incapable of working. It cannot be premised on workplace conflict. 13. That said, I observe that even on June 27, Dr. Cattan was not of the view the Grievor was capable of a full-time return to work immediately. Rather, he opined that she should return on a graduated basis for four weeks before being ready to return full-time. 14. In my view, Dr. Cattan's report is the best evidence of the Grievor's condition and should be used as the marker for determining when she was fit to return. In other words, the Grievor is entitled to full sick leave benefits until the date of his report (which does not state she was fit earlier). As for the graduated period, in the absence of a specified plan, it is a reasonable to assume the Grievor could have worked on a '/2 time basis during that period (which is a normal practice for graduated return to work plans). 15. The Hospital is ordered to pay the Grievor the following: a. For the period from June 9 to June 29, 2013 — full sick leave benefits less any E.I. payments received during this period 3 b. June 30 to July 27, 2013 — partial sick leave benefits (assuming she would have worked 50% during this graduated period) less any E.I. payments received during this period. 16. The grievance is upheld for the time periods noted above. The claim for benefits during the remaining period the Grievor remained off work is dismissed. III. HARASSMENT GRIEVANCE #1 17. On July 10, 2013, the Grievor filed a grievance alleging she had been "bullied harassed and discriminated against by Hospital including my manager Julie Milks" [sic]. The Grievor seeks $5000.00 in damages for this conduct. 18. During the Grievor's evidence -in -chief, she explained that this grievance was filed as a result of Ms. Milks' conduct in December 2012 and early 2013 in relation to the harassment complaints made against the Grievor by her coworkers. The Grievor stated she felt she was not listened to, and not supported in an "open neutral manner". 19. 1 have also noted the Grievor's statements during the formal investigation by Roger Beaudry, who was also tasked with investigating the Grievor's complaint of harassment against Ms. Milks. At that time, the Grievor suggested she was "targeted" by Ms. Milks in respect of the complaint against the Grievor, as a result of the Grievor voicing her opinion on various workplace issues. She stated she thought that Ms. Milks was pushing people to complain about the Grievor. She made a number of references to Ms. Milks not following appropriate procedures, and that fact that Ms. Milks didn't attempt to resolve the issue through a meeting between the concerned parties (which the Grievor had offered to do). 20. The issue before me is whether the Grievor was harassed by Julie Milks either on her own behalf, or on behalf of the Hospital. The test is the same which I applied in determining 4 whether the Grievor had harassed her coworkers: whether Ms. Milks' conduct was vexatious conduct that is known or ought reasonably to have been known to be unwelcome. 21. 1 find there is no evidence to support the Grievor's assertions that Ms. Milks encouraged employees to file a complaint against the Grievor. The two individuals who actually filed the complaints confirmed Ms. Milks' evidence that while they discussed their concerns with Ms. Milks prior to filing a complaint, Ms. Milks simply provided them with information about their options. The decision to file complaints was their own, after they decided they had had enough of the Grievor's treatment of them. 22. In terms of what took place after the complaints were filed, I observe that the fact that the Hospital, namely Ms. Milks, decided to conduct an investigation into those complaints rather than choosing some other process is not evidence of harassment. Hospitals have legal obligations to provide harassment -free workplaces. The fact they choose a process that the alleged harassor doesn't think is the best process is irrelevant. Conducting an investigation is a reasonable course of conduct for an employer to follow in those circumstances. 23. The next question is whether during the investigation, Ms. Milks engaged in any conduct that was vexatious and would be known or ought to reasonably be known to be unwelcome. I do not see anything in Ms. Milks' conduct that would lead to this conclusion. From the very moment the Grievor was informed there were complaints about her that the Hospital would be investigating, she was provided access to union representation. 24. While the Grievor made mention about policies not being followed, I note first that a flawed process is not enough to support a conclusion of harassment. Employers make mistakes. While they can be held accountable for those mistakes, that does not mean they are harassing the people involved. Second, I need not consider whether the Ms. Milks' investigation was properly done in accordance with the Hospital's policies, or could have 5 been done better. Any flaws in that investigation were corrected by the fact the Hospital took no action against the Grievor on the basis of that investigation, but rather commenced another investigation with an external investigator. Their decision to terminate the Grievor was not based on Ms. Milks' investigation but rather this external investigation. 25. Having considered all the evidence, I find there is no basis to conclude the Grievor was harassed by the Hospital or Ms. Milks. This grievance is dismissed. IV. HARASSMENT GRIEVANCE #2 26. On October 11, 2013, the Grievor filed a grievance alleging the Hospital had "discriminated against, harassed and bullied me in that they held a meeting at which my return to the workplace was discussed on September 23, 2013 with no union representative present". The Grievor seeks $5000.00 in damages for this conduct. 27. The meeting at issue was one which the Grievor did not attend but, I presume, heard about second hand. Ms. Rose, the Director of HR, gave evidence about this meeting. She stated that a number of social work staff had approached management when they had heard the Grievor may be returning to the workplace. This was around the time the Hospital was engaged in negotiating a return to work with the Grievor. Ms. Rose stated the employees asked for a meeting. Management arranged for the meeting, and employees were welcome to attend, but not required to do so. Ms. Milks and Ms. Rose attended the meeting on behalf of the Hospital. Ms. Rose stated the staff expressed concerns about their well-being and safety in respect of the Grievor's return. Ms. Rose stated the staff were advised of various services available to them, and encouraged to speak with their union representatives if they had additional questions. 28. This grievance is frankly a little difficult to understand. Article 9.01 does provide employees with the right to union representation when being disciplined and during the grievance process. However, that right is to the specific employee with whom the Hospital is 11 meeting. The Grievor cannot grieve that other employees should have been provided union representation. 29. It would appear that the Grievor's real concern is that the Hospital discussed the Grievor with other employees, without either the Grievor or a union representative present on behalf of the Grievor. 30. There is nothing about this meeting which could be considered as inappropriate, let alone harassment. Staff initiated a discussion with the Hospital about their own concerns about their workplace. Employees are entitled to a safe workplace, and if they have any concerns in that respect, it is not only appropriate but incumbent upon an employer to discuss those concerns with them. 31. The Grievor had no right to be involved in those discussions. 32. The grievance is dismissed. V. ACCOMMODATION GRIEVANCE 33. On October 30, 2013, the Grievor filed a grievance alleging the Hospital failed to accommodate her in respect of her return to the workplace in Fall 2013. The Grievor seeks $5000.00 in damages for this conduct. 34. 1 begin by noting that the evidence before me is that there were no medical restrictions the Hospital was aware of when they were negotiating the Grievor's return to work. Ms. Rose's evidence was clear that the Hospital was not advised by Occupational Health that there were any medical restrictions, and during the return to work discussions the Grievor did not raise any medical issues that needed to be addressed, except for a question about ergonomics which was addressed by Ms. Rose. 35. Next, I note that when asked at the hearing why no agreement on the return to work was reached, the Grievor did not suggest there was any medical issue which the Hospital 7 failed to address. Rather, as I found in my decision on the termination grievance, the reason the return to work, to a different location temporarily, was not finalized was because of the Grievor's insistence that she be able to have lunch on her old unit. 36. As I indicated in my earlier decision, it was completely reasonable for the Hospital to reject that request, given not only the complaints of harassment against the Grievor but the Grievor's own complaint that she was being harassed by the manager on that unit. As I also indicated, the Grievor's failure to agree to a return to work without having that demand met was unreasonable. 37. 1 find there was no breach of the duty to accommodate. VI. DISPOSITION 38. The grievance relating to sick pay is allowed in part, as noted above. I remain seized with respect to any issues relating to implementation. 39. The remaining four grievances are dismissed. Dated this 6th day of October, 2015. JASBIR PARMAR P.