HomeMy WebLinkAboutSharpe 04-01-31 IN THE MATTER OF AN ARBITRATION UNDER THE
COLLEGES COLLECTIVE BARGBAINING ACT
BETWEEN
Ontario Public Service Employees Union
and its Local 612 ("the union")
AND
Sault College. of'Applied Arts & Technology ("the college'")
And in the matter of the grievance of Terry Sharpe ("the grievor"),
who claims that he has been improperly laid off.
BEFORE: R.O. MacDowell (chair)
David Cameletti (college nominee)
Sheril Murray (union nominee)
APPEARANCES:
For the union: Allison Kabayama (counsel)
Jennifer Rennison
Terry Sharpe
For the college: Sarah Atkinson (counsel)
Janice Beatty
Rhonda Wright
A hearing in this matter was held in Sault St. Marie, Ontario, on
January 21, 2004.
INTERIM RULING
This arbitration proceeding arises from the grievance of Terry Sharpe ("the
grievor"), who contends that he has been improperly laid off. At the time of his layoff,
the grievor had been employed by the college for approximately 19 years.
The gfievor asserts that in the spring of 2003 he was faced with the prospect of
layoff; so, in accordance with the terms of the collective agreement, he identified an
alternative position in which he was interested, and to which, (he says), he was entitled
on the basis of his seniority and ability. In labour relations parlance, the grievor wanted to
"bump" into another Position - as the collective agreement allows him to do; and when a
question arose about his physical fitness to do that job, he provided the college with:
(1) confirmation from his physician that the job functions
(identified by the college and reviewed by the physician) were
within his physical capabilities; and
(2) an independent assessment (a so-called "functional capacity
evaluation"- "FCE") undertaken by a firm of consulting
physiotherapists and pertaining to his physical abilities and
restrictions.
The grievor says that both the doctor's report and the FCE, confirm that he was
physically capable of doing the job that he seeks, without modification or
accommodation. Yet the college denied him the position, demanding more medical
information, together with a medical "release", to allow the college to make further
enquiries of the grievor's physician(s). When the grievor refused to provide further
information or a "release", he was laid off.
In t he ~m'ievor's submission, t here w as n o reasonable basis for t his demand for
additional information and "release", nor for refusing him a position to which (he says)
he was entitled under the terms of the collective agreement. The gfievor maintains that
such refusal was a breach of both the terms of the collective agreement and the Ontario
Human Rights Code.
Simply put, the grievor says that he can do the job that he seeks, that the medical
evidence that he gave the college shows that he can do it, and that the college had no
right to ask for more than that - or to probe into his general medical condition. The fact
that he has a partial disability does not give the college carte blanche to enquire into his
medical history.
The grievor seeks a number of remedies, including: reinstatement to the job that
he claims he was wrongly denied; compensation for all wages and benefits lost as a result
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of the (alleged) improper layoff; the repayment of certain costs that he incurred in
connection with the medical information that he did supply; and "general damages" in
respect of the improper "stereotyping of a disabled worker" which, he says, underlies the
college's decision. Counsel points out that damages of this kind are routinely ordered in
human rights cases, where the employer's actions constitute an affront to the employee's
dignity.
The college replies that there has been no breach of the collective agreement or
the Human Rights Code.
The college points out that the grievor is an employee with a permanent partial
disability, recognized by. the Workplace,~Safety and. Insurance Board. ,:He has worked-
an accommodated position for m any years. And in the p articular circumstances o fthe
grievor's case (including what w as already "on t he record" a nd some of t he grievor's
comments about his disability), the employer was entitled to demand additional
information, before putting the grievor into a job which, the college feared, might
exacerbate his medical condition/disability.
So the issues in the dispute between the parties, include: how much information
the grievor was obliged to supply his employer in the circumstances of this case; whether
the information was supplied in a timely way; how the employer should have responded
to the medical information that was provided; and whether it could "legitimatelf' ask for
more.
A hearing in this matter began, in Sault Ste. Marie, Ontario, on January 21, 2004.
The parties were agreed that this board of arbitration has been properly appointed under
the terms of the collective agreement, and that it has a jurisdiction to hear and determine
the matters in dispute between them. 'The pm~ies also argued-a "procedural motion" with
respect to the pre-hearing production of certain documents, in the hands of a third party,
but said by the college to be necessary for the orderly and economical presentation of its
case. The union took the position that this was a "fishing expedition" - not unlike what
happened earlier in the piece, and equally illegitimate.
However, at this point, w e do not think that it i s necessary to say much more
about the parties' positions, or about the "pre-hearing production order" which the
college urges t he Board t o make. W e w ill deal with t he" production issue" 1 ater, in a
separate ruling. For present purposes it suffices to say that, in our view, the case should
not proceed further, until each party further particularizes its position, and completes the
exchange of documents upon which it intends to rely - a process that began prior to the
hearing, but was derailed while the parties (quite sensibly) pursued settlement
discussions.
However, in our view, the case would benefit from a completion of that process.
Because it is difficult for the panel to determine what material is "arguably relevant" or'
whether it should be produced in advance of the hearing, without further clarification of
the parties' positions, and a more complete understanding of what is, and is not, in
dispute.
Now it may be that, upon reflection, the parties will be able to agree on most of
these facts and documents; for as we understand it, the parties have made some progress
on an agreed statement of facts. But until they have set out their positions in a little more
detail, it is difficult for the panel to determine the dimensions of the dispute, and how
many additional hearing dates will be requiretI: ~- let -alone. what is' "arguably relevant",..
and the extent that pre-hearing production may be necessary, or desirable, to facilitate a
fair and economical hearing of the case.
The parties are therefore directed to set out in writing, in detail, and in
chronological order, the facts said to be relevant to their respective positions.
The parties are further directed to provide each other (if they have not already
done .so) with copies of all documents upon which they intend to rely, or to which they
will refer, in the course presenting their case (including any correspondence, minutes, or
notes of meetings that will be used to refresh memory or otherwise bolster a party's
position).
The parties will have 21 days from the date hereof to complete this task; or such
further time as they may agree upon.
When each party has formalized and finalized its position in the manner described
above, copies of this material should be provided to each member of the board of
axbitration.: (We note again that some of the dOCuments have already been provided).
Upon receipt of these more fulsome "pleadings", the Board will make such
determination as it considers appropriate on the basis of the representations received on
January 21, 2004, and the material then before it.
· It appears to the Board that the exercise described above will permit the parties to
crystallize the issues between them; and may provide a basis for simplifying (or perhaps
even resolving) the dispute. It will also allow counsel (and the hearing panel) to better
determine how many additional hearing days may be required - not an inconsequential
consideration in a case in which the employer may have a continuing and mounting
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liability. Finally, we observe, parenthetically, that: if appropriate assurances are made
with respect to confidentiality and disclosure of the disputed medical information, the
parties may be able to avoid some of the problems that seem to have cropped up earlier -
as well as some of the costs and uncertainties of litigation.
Be that as it may, and out of an abundance of caution, we should note the
particulars and the documents that must be exchanged in accordance with this ruling, are
being tendered, as directed by the ruling, only for the purposes of this litigation, and
cannot be used for any collateral purpose. And should we accede to the employer's
motion for pre-heating disclosure of the grievor's medical information in the hands of his
doctor(s), the same caveat would, of course, attach to that material as well.
Dated at Toronto this 31st day of January 2004.
" tlL(Y. ~~ ,, 'x
R.O. MacDowell (for the Board)
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