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HomeMy WebLinkAbout1992-1378.MacKinnon.94-10-25 r .. ( (.,." '.:r,". -- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TOPONTO. ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2'00, TORONTO (ONTARIO) M5G 1ZB FACSIMILE /TELECOPIE (416) 326-1396 1378/92. 1379/92 <- IN THE HATTER OF AN ARBITRATION Under ( f I THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (MacKinnon) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE: R verity Vice-Chairperson S Urbain Member M O'Toole Member FOR THE D. Wright UNION Counsel Ryder Whitaker Wright Barristers & Solicitors FOR THE J Crawford EMPLOYER Counsel Ministry of Health ( HEARING March 5, 1993 May 20, 1993 June 8, 1993 November 16, 1993 January 13, 1994 March 25, 1994 June 14, 1994 July 20, 1994 r . ......\...-.,~':-....-.,r- -f -" I .- (i c..,-., 2 DECISION In this matter there are two grievances before the panel, GSB #1379192 and #1378/92, filed by Duncan MacKinnon, a psychiatric nursing assistant with tne London Psychiatric Hospital. This decision relates exclusively to the first grievance, dated April 8, 1992, GSB # 1379/92, in which Mr MacKinnon alleges that the employer failed to accommodate his disability (Article A) and failed to make reasonable provisions for his ->. health and safety (Article 18.1) by assigning him in March of 1992 to perform duties on a geriatric ward, Ward Kl, at the London Psychiatric Hospital. Previously he had worked for r some 3 years without complaint on Ward L2, an intermediate Jard at the hospital. The relevant provisions of the collective agreement read as follows: ARllCLE A - NO DISCRlMINA1l0N/EMPLOYMENTEQUIlY A.l.l. There shall be no discrimination practised by reason of race, ance~,place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age marital status, family status, or handicap, as defined in section 10(1) f the Ontario Human Rights Code (OHRC). ARllCLE 18 - HEALm AND SAFE1Y_ 18.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. I . I ,'I*":"'-....,......':-:.'~.,- ( (. . \ 3 Duncan MacKinnon has worked as a PNA at the hospital since 1963, and at the time of the filing of the grievance, he was the local union president. In 1981, he suffered a heart attack at work and in 1982, he had a quadruple coronary by-pass. Mr MacKinnon was eventually awarded a 20% disability pension by the Ontario Workers' Compensation Board. In February 1982, the hospital was made aware by the grievor's cardiologist, Dr Peter A. Rechnitzer, that Mr MacKinnon should avoid duties which "involve liftini or struggling with 1 psychotic patients but he would be perfectly capable of carrying out restricted duties." Dr Rechnitzer's letter stated that it was "likely that he will eventually be able to resume full duties." On November 7, 1984, then Nursing Services Manager Charles Carrothers wrote a - memorandum to then Clinical Co-ordinator J Jumars stating that "Mr MacKinnon was not to respond to any Code 7-11's, 10-14's or any kind of situation where there is the potential for physical straining." The memorandum went on to prohibit "the potential physical stress of escorting a patient to another facility" and to avoid any "stressful physical altercation." Surprisingly, this memorandum did not come to the grievor's attention until 1989 However, there is no dispute that the hospital properly accommodated Mr MacKinnon's disability until the decision was made in March 1992 to transfer the grievor I \ from Ward U to Ward Kl. The decision to reassign Mr MacKinnon was made by the employer as a result of the grievor's request to work an eight hour shift Monday to Friday to allow him to fulfil his responsibilities as local union president. Previously, on Ward L2 . --, ~~"''''''''~''',""",' ( "- , \ ( \. ,,; 4 the grievor had worked a- 12 hour shift as was the case for PNAs on most wards. Mr MacKinnon initially made the request for an eight hour shift at an employee ) relations committee meeting on October 21, 1991. He renewed tb.e request at ~n E.R.C. meeting on February 20, 1992 at which time he made available to all in attendance a copy of the Carrothers memorandum of November 1984 Mr MacKinnon's request was granted shortly thereafter at a meefutg between Manager of Nursing Services Linda Sadlowski, Assistant Manager Bonnie Kotnik and three nursing day co-ordinators. Howev~r, without input from the grieyor, the decision was also made to tra~sfer him from Ward L2 toWard Kl. According to Mrs. Kotnik's evidence there were a number of reasons for the transfer; ~ ) namely, that the grievor's restrictions could be accommodated on Ward Kl, that Ward Kl was a more predictable work environment, that the ward staff complement was greater on Kl with the avajlability of both part-time and casual staff, and that there was not a r desi~nated eight hour shift available on either Wards L2 or Rl. In any event, Miss Sadlowski telephoned the grievor on March 5 to advise that his request was granted and that he would be transferred to Ward Kl effective March 23, 1992. According to Miss Sadlowski, she explained the rationale for the transfer and recalled that. the grievorreplied that the assignment was fair Fo~ his part, the grievor does not n~call any such comment. \ \ If indeed Miss Sadlowski's recollection is correct, Mr MacKinnon promptly lost any \ . - '"?""."-t.",:,.~."l'~ ( ( 5 - positive feeling for the new assignment. On March 12, he wrote Miss Sadlowski to the effect that he was "not able to compete with the physical demands that exist on geriatric wards. II He then initiated a meeting with Mrs. Kotnik to express his concerns on March 18, and another on March 19 with both Mrs. Kotnik and Geriatric Head Nurse Margaret Richards. The grievor maintains that at the meeting of March 19, Mrs. Richards was unaware of his disability and he told her that because of his condition he would have , problems coping on Ward Kl. According to Mr MacKinnon, Mrs. Kotnik told him not to worry about the transfer as the decision "wasn't etched in stone." It was the grievor's \ position that while he did not agree with the transfer to the geriatrIc ward, he was in no position to refuse the assignment. In any event, the grievor reported for work on Ward Kl on Monday, March 23 at which time he was given no orientation. He either volunteered or agreed to work that day on Ward G2. It is interesting to note that on March 23, Miss Sadlowski wrote to the grievor's physician, Dr C. G Edwards, enclosing a physical demands analysis form for the PNA position together with a request for up-dated information on the grievor's restricted activities lito assist us in continuing to make work accommodation for ../ h' II lID. "- On Tuesday, March 24, the grievor again reported for work on Ward Kl. According to his evidence, he was given no orientation and the charge nurse was not aware of his disability On that date, he was assigned to work alone bathing patients in the tub room, although his evidence is clear that there was no requirement to lift patients into the tub. ~ The grievor testified that in addition to taking his regular medication he also took sublingual ) . ..........l~.'. ( ( " ';;';-~.;'}" 6 medication, known as Isordil, to act as a preventative to control his angina coIidition. On March 24, Mr MacKinnon expressed his concerns about the assignment to Kl to Day Nursing Co-ordinator Frank Dyer and to Hospital Administrator J T Mercer However, j in examination-in-chief, he testified that on March 24, he experienced "no medical difficulty" ) , On March 25 and 26 the grievor was off work on union business and apparently experienced angina pain in Brockville. Unfortunately, he did not have his sublingual medication with him at the time. The grievor was next scheduled to work on Ward K1 on Monday, March 30 However, on that date he arranged for a medical appointment and subsequently advised the hospital that he was "in discomfort" and "to consider me back to my Workers' Compensation incident of 1981." At the hearing, the grievor testified that he had "anxiety and concern" about the transfer to K1 as well as concern for the episode of angina that he experienced in Brockville, and further that he was frustrated by his failure to resolve work related concerns. On April 15, the grievor's phYSIcian, Dr Edwards, wrote to Nursing Services - Manager Sadlowski advising that a cardiology consultation would be required to determine I Mr. MacKinnon's current cardiac status in relation to his work duties. On that date, Mr MacKinnon was advised by the hospital that he had been placed on a leave-of-absence '- - ,.....-._'~,,'t,:.,..,t;r~..' , ~ I' \ 7 without pay His request of April 18 for a leave-of-absence with pay on compassionate grounds was rejected by the hospital. Similarly, Mr MacKinnon's claim under Workers' Compensation was rejected, apparently on the basis of insufficient medical evidence although the board was given to understand that the matter was under appeal. .J The grievor returned to work at some point at the end of August, 1992 at which time he was assigned to an eight hour shift Monday to Friday on Ward Rl, an intermediate ward which by all accounts is similar to Ward L2. There was no dispute thatMr MacKinnon was satisfied With that assignment to Ward Rl in August of 1992. Nursing Services Manager Linda Sadlowski testified to this effect: that creating an eight hour shift on WardL2would not have been possible from a operational standpoint; that \ it was easier to accommodate an eight hour shift on Kl, that it was decided that Kl was a suitable placement for the grievor; that she asked the grievor for an updated medical certificate; that it was explained to the grievor that the employer's expectations of the l grievor's performance were no different on Kl than they were on L2; and that the grievor was not expected to do any bathing on his own. It is interestmg to note that Mrs. Kotnik testified that during her meeting with the grievor on March 18, he indicated his ability and willingness to bathe patients if another employee placed the patient in the tub. There was a great deal of evidence before us as to the type of patients assigned to Wards L2, Kl and Rl and the nature of the duties performed by PNAs on each of the r . ~.- ({ ( i 8 wards. The London Psychiatric Hospital presently accommodates patients who for the most part suffer from some form of severe mental illness. Briefly stated, Wards Rl and L2 are -~..".- similar in the sense that the majority of patients are ambulatory and able to care for themselves in the activities of daily living such as bathing, dressing and feeding. On the other hand, patients on Ward K1, being 65 of years of age and older, are generally unable to care for themselves and PNAs are thus required to provide constant physical care. Apparently, the lightest physical demands on PNAs exist on Ward Rl. On the other hand, it may be said that patients on K1 are more predictable in the sense that there is not the severity of patient agitation on K1 when compared to other wards.\ f I J The union contends that the employer violated Article A of the collective agreement both procedurally and substantively by removing the grievor from Ward L2 where his disability was being accommodated and that, in addition, the facts give rise to a breach of the health and safety provisions of Article 18.1 as the assignment was neither necessary nor reasonable. Mr Wright argues that the grievor has been adversely affected by the employer's actions and is entitled to full compensation for all loss. The remedy requested in the grievance is as follows: 1. That the employer will provide me with a healthy and safe work assignment by making a reasonable work place accommodation for my duty assignment ( 2. That I be fully compensated for lost time as a result of the employer's actions. ) ( . ............,......-.. ( f I. 9 3 That I 'be reimbprsed in full for any credits that are utilized during my periods of absence from work. -- ----- ___4>- " 4 That the Minister of Health will provide me with a written confirmation that provincial employment equity principles will start to be practised at the London Psychiatric Hospital. \. In support, the union made reference to the following authorities: Re The Crown in right of Ontario (Ministry of Government Services) and Ontario Public Service Employees Union (Kimmel/Leaf) (1991), 21 L.A.C. (4th) 129 (Kaplan), Board of School Trustees, School , District No. 23 (Central Okanagan) et al.\ v. Renaud et al., Ontario Human Rights Commission et aL, Interveners (1992), 95 D.L.R. (4th) 577 (S.C.C.); Re T.c.c. Bottling Ltd. and Retail Wholesale & Department Store Union. Local 1065 (1993); 32 L.A.C. (4th) 73 (Christie); Re York County Hospital and Ontario Nurses' Association (1992),26 L.A.C. (4th) 384 (Watters); and OPSEU (Watts/King) and Ministry of Correctional Services 1367/90, 1368/90 (Kaplan). The employer acknowledges its duty to accommodate the grievor's disability and maintains that "given the medical information available, the grievor can be accommodated in a number of settings within the hospital including the assignment to Ward Kl." Ms. Crawford argued that there was a range of duties available to the grievor on K1 apart from the physical work, that the grievor was fully aware that he was not expected to be involved in lifting patients or to perform other heavy physical duties, and that Ward Kl wast:)le most . ( ( . 10 / appropriate placement in all the circumstances. In particular, Ms. Crawford contends that there is no basis for granting the remedy requested. The employer made reference to two ._------....-- authorities. OPSEU (McKnight) and Min~try of Health 2022/90 (Kaplan), and OPSEU (Fernandez) and Ministry of the Attorney General 2644/92 (Kaplan). - There is no dispute that the Ontario Human Rights Code is expressly incorporated into the collective agreement in Article A.I.1 and that there is a duty to accommodate the grievor's disability To the hospital's credit, for some 10 years the grievor's ongoing disability has been accommodated in assignments. The issue is whether or not the grievor's assignment to Ward K1 in March 1992 represents continued accommodation of his disability The union's case focused on a comparison of the physical requirements of the PNA position on Wards Kl and L2. ( The employer's case stressed the known scope of the grievor's disability on the medical evidence that was made available to the hospital. The union does not allege bad faith on the part of the employer Weare satisfied that the employer genuinely believed that the assignment to Kl constItuted an appropriate accommodation of the grievor's disability I It must be said that the employer has the exclusive right to assign duties to an employee. However, where an employer is required to accommodate a disabled employee, as a practical matter the employee's input should be obtained prior to or at the time a . ~...-~o;~ ( ( .. 11 decision is made to reassign him to another area. Similarly, prior to any such reassignment, the employer should have a current medical assessment as to the nature of the restrictions -.- required for a disabled employee. In 'these particular circumstances, the employer took neither step. From a labour relations standpoint, it is in everyone's interest to begin the consultation process as quickly as possible. I On the evidence adduced, it would appear to us that there was a breakdown in communication with regard to the assignment to Ward Kl. The grievor did not have the benefit of an orientation when he reported for duty on Kl on either March 23 or March 24 A proper orientation may have alleviated some of his concerns. In addition, when he reported for work on March 24, the charge nurse had no knowledge that he suffered from any disability It is understandable, we think, that the grievor's apprehensions and concerns) would have accelerated. It is significant that, in re-examination, Miss Sadlowski expressed surprise to hear the grievor's evidence that on March 24 he had been assigned to the tub room bathing patients on his own. In Miss Sadlowski's words: "He would have been doing lifting, pulling, and bendipg if he were bathing a patient." The evidence established that the grievor took numerous steps to express legitimate concerns prior to and on the first day that he worked ( on Ward Kl. However, his concerns were not addressed by the hospital in a timely fashion. ) The grievor maintains that he was unaware of the employer's expectations. The ,~ \ . 'J 'V '~~\'1"r'!"~"'''''' . ( ( ~ 12 employer adopts the position that the grievor was well aware of what was expected of him because the expectations on K1 were identical to those on U. In our view, to avoid any possible misunderstanding, the employer's expectations of the grievor's performance at the time of his reassignment to Ward K1 should have been reduced to writing, pending receipt of an up-dated medical assessment of any restriction resulting from his disability It is significant that the latest medical assessment in the employer's possession was the letter of Dr Rechnitzer in 1982, some 10 years ago. ~ With regard to Article 18.1 of the collective agreement, the board's jurisprudence is properly stated by Vice-Chair Kaplan to the effect that the interests of the employer must be balanced against those of the employee. We adopt the rationale of Mr Kaplan's decision in OPSEU (Watts/King) and Ministry of Correctional Services. supra, where he states at page 26. The employer has an obligation to take reasonable precautions for the safety and health of its employees. Like other panels of this Board, we are of the view that "reasonable" does not mean "every" And we are also of the view that what is reasonable will depend greatly on the facts of each case, and must mvolve a balancing of interests of the employee and the employer (at 26). On the evidence adduced and the authoritIes submitted, we find that the employer has technically violated the provisions of both Article A and Article 18.1 of the collective agreement and we so declare. However, in our view, there is no justification for awarding any further remedial relief in the particular circumstances of this 'case. Briefly stated, there .. :,,.~~." -- . ~ ( ; 13 is no objective medical evidence before us to support the grievor's claim that his absence \ from work from May 30, 1992 to late August, 1992 was caused by his reassignment to Ward Kl. We are satisfied that the grievor's decision to leave work on March 30 was of his own volitio~ a~d that it does not appear that he was acting under the instructions of a physician. Briefly stated, there appears to be no nexus between the employer's violation of the collective agreement and the loss claimed by the grievor During the hearing, the board was advised that the grievor has now retired from active duty We would request that the Registrar of the Grievance Settlement Board contact the parties with regard to the second grievance GSB #1378/92 and that this matter, if desired, shall be scheduled for hearing. DATEl) at Brantford, Ontario, this 25tlday of October, 1994 ~ ~-:'--~~ R. L. VERITY, Q.C. - VICE-CHAIRPERSON ,~ .s..'ii.~n~ U&t.4/Y' ................................ ~ S. URBAIN - UNION MEMBER 1tt~ 61/~ M. O'TOOLE;, EMPLOYER MEMBER I . ~4"""-.