HomeMy WebLinkAbout2012-1875.Gaunce.15-12-23 DecisionCrown Employees
Grievance Settlement
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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#2012-1875, 2012-1876, 2012-2036, 2012-2037, 2012-2038, 2012-2039, 2012-2040,
2012-2041, 2012-2042, 2012-2043, 2012-2322
UNION#2012-0411-0013, 2012-0411-0014, 2012-0411-0017, 2012-0411-0018,
2012-0411-0019, 2012-0411-0020, 2012-0411-0021, 2012-0411-0022, 2012-0411-0023,
2012-0411-0024, 2012-0411-0028
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gaunce) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Barry Fisher Vice-Chair
FOR THE UNION Tim Hannigan
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Stewart McMahon
Treasury Board Secretariat
Labour Practice Group
Counsel
HEARING December 16, 2015
- 2 -
Decision
This is the Second Decision in this case.
[1] In the First Decision of May 28, 2013, I bifurcated the process to first determine if
there was any accommodation needs on a go forward basis. I found that the
medical reports submitted in this case to date were highly deficient and that I could
not make an intelligent decision based on those reports. The major deficiency was
that the evaluators had not asked themselves the proper question related to the
Grievors’ ability to climb a set of stairs a certain number of times per shift and
instead seemed to think the issue was whether the Grievor could climb stairs
throughout her entire shift. They found that she could not climb stairs throughout
her shift and therefore she should not work in any Pod that had stairs.
[2] As part of this process, I indicated that that the Ministry could obtain an
Independent Medical Examination on the issue of whether or not the Grievor could
climb a certain number of stairs per shift. I also suggested that the parties seek to
agree on a doctor so that it would be a truly independent examination. The parties
agreed with my suggestion.
[3] The parties agreed that a new IME would be conducted by Dr. Douglas J.D. Ritter,
a well respected orthopedic surgeon. All of the information provided to Dr. Ritter
and the questions asked of Dr. Ritter were agreed to by both parties.
[4] Dr. Ritter produced a report on June 15, 2015 which stated as follows:
Question: Does Ms Gaunce have a physical limitation or restriction
which would prevent her from ascending or descending the stairs in Pod
A on seven to ten occasions per shift with the possibility of further
unscheduled trips up and down the stairs?
Answer: Based on my physical examination (strength, gait, range of
motion) I do not believe she has a limitation which would prevent her
from ascending or descending stairs in Pod A 7-10 times.
[5] At the hearing on December 16, 2015 neither the Union nor the Ministry objected to
the findings of Dr Ritter. The Grievor was concerned that Dr Ritter had only seen
her for less than 30 minutes whereas the other evaluator had seen her for many
hours. This other evaluation she was referring to was the one that I had found
deficient.
[6] No further evidence was called by either party.
[7] I accept the report of Dr. Ritter.
- 3 -
[8] I therefore find that no accommodation is needed for the Grievor with respect to her
ability to work as a C.O. on any of the Pods on the night shifts at the Ottawa
Carleton Detention Centre.
[9] We can now proceed to Step 2 of this process, namely determining liability issues
for the allegations of past discrimination and harassment. I make the following
procedural order.
1. The Union is to provide full particulars of all allegations of
discrimination and harassment that it intends to rely upon. The Union
will be restricted to those particulars at the hearing.
2. Once the particulars have been delivered, the Ministry will have 30
days to notify the Union and me of any preliminary objections. I will
then deal with those objections either in writing or at a hearing.
3. Once the above steps have been dealt with, I will schedule sufficient
hearing dates on the liability issue.
Dated at Toronto, Ontario this 23rd day of December 2015.
Barry Fisher, Vice Chair