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HomeMy WebLinkAbout1992-2967.McInnis.93-10-05 ~ f' ONTARIO ~ EMPLOYES DE LA COURONNE (" ... ~: CROWN EMP _ ..:ES DEL'ONTARIO .! <"'..,1 GlRlllEVANCIE COH\lU\1U SS~ (Ql ~ [OJ IE .. ,- SETTLEMENT IREGLlEMIENl .' o;i~;~: t..., L BOA~D DES GR~EIF~ .;;~ 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 2967/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McInnis) Grievor - and - The Crown in Right of ontario (Ministry of community & social Services) Employer BEFORE: W Kaplan Vice-Chairperson P Klym Member D Barsoski Member FOR THE A Ryder UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors ,FOR THE S Mason EMPLOYER Counsel Legal Services Branch Ministry of Community & Social services HEARING July 15, 1993 -- J i' ( ( i .' 2 Introduction By a grievance dated November 10, 1993, Karen Mclnms, formerly a regular part-time Food Services Helper at the Huronia Regional Centre in Onllia, grieves a violation of Article 42 2 4 of the Collective Agreement. This a rticle provides Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perf-orm the essential duties of his normal occupation during the qualification period, and dunng the first twenty-four (24) months of the benefit period, and thereafter during the balance of the benefit period, the inability of the employee to perform the essential duties of any gainful occupation for which he is reasonably fitted by education, training or experience Initially, an employee must establish that he or she cannot perform any and every duty of his or her normal occupation After receiving benefits for twenty-four months, continued eligibility is subject to what is commonly referred to as a change of definition. To continue receiving coverage, the employee must be unable to perform any and every duty of any gainful occupation for which he or she is reasonably fitted by education, training or experience In brief, the union claims a violation of this provision in that the Huronia Regional Centre (hereafter "the Ceriltre") failed to provide the grievor with employment following the change of definition It is the union's claim that this article obligates the employer to provide the grievor with a "gainful occupation for which [s]he is fitted by education, training or experience," and that the "employer" for the purpose of this provision is not the Centre, but the Crown in right of Ontario If such a position cannot be found, that ) j' ( ( i' ~. 3 fact, given the size of the Public Service and the wide range of positions found within it, demonstrates that the grievor should properly be receiving LTIP The employer takes the position that it is not required by the Collective Agreement to create a job The case proceeded to a hearing in Toronto, at which time evidence and argument were heard Some Background Facts Before turning to the evidence, it is useful to set out a few of the background facts. The grievor commenced employment with the Centre as a part-time Food Services Helper in 1978 Her duties required her to lift heavy pots and pans. In 1988, the grievor underwent major surgery, and as a result, was no longer able to do heavy lifting Her inability to do heavy lifting was medically diagnosed as a permanent condition, and it is a continuing one On November 8, 1988, the grievor returned to work at the Centre, and was given a clerical position There was no dispute between the parties that in offering the grievor this position the employer was attempting to assist in the grievor's rehabilitation, and at no time were these clerical assignments held out as a permanent job The grievor continued In thiS pOSition until March 14, 1990 Some time previous to that date she had been advised that the position would be discontinued as of that date When it was discontinued, the grievor went on short-term sick leave In October 1990, the grievor applied for L TIP, and her application was accepted effective September 1990 Various medical reports were introduced into evidence, and the documents make it clear that the grievor kept the employer aware ( ,r' J " \, I ,f, 4 I of her medical condition, and by and large, that medical condition, and thel physical limitations it imposed, did not change over time As provided for in the Collective Agreement, after twenty-four months, the eligibility definition changed The grievor was advised that her L TIP benefits would be terminated in September 1992 on the basis that she was fit to do some Job Subsequently, the grievor's LTIP benefits were extended until the end of October 1992 When they were terminated, the instant grievance was filed The Collective Agreement also provides for employees to bring complaints about or concerning, among other things, the discontinuation of benefits, to the Joint Insurance Benefits Review Committee The grievor's complamt was referred to that Committee However, as was agreed by the parties, the complaint was not considered It was, according to a letter introduced into evidence, "removed from the table" to "be dealt with at arbitration" Introduced into evidence was a letter from the Administrator of the Centre to the Senior Advisor of the Ministry's Benefits Section, Compensation Programs Branch It is useful to set out the text of this letter, dated March 31, 1993 Since we have not been able to speak together in detail regarding the situation of Ms. Karen Mcinnis, I thought it would be helpful to provide you with some observations and findings that I have gathered Ms. McInnis was employed as a food services helper (Regular Part Time) at HRC. She was approved for L TIP on September 15, 1990 On October 29, 1991, she received a letter from Confederation Life stating that, ~ \ ;- ( ( 5 \ i \:- II while you are unable to perform the duties of a Food Service Helper, you can nevertheless engage in another occupation II Coverage was extended to, and termmated at the end of October, 1992, according to my records. In reviewing a Stage II Grievance involving Ms McInnis, where I was acting as the designate of the Deputy Minister, I contacted a number of information sources and made the determination that Ms Mcinnis could not engage in another occupation at HRC, and from sources, it was questionable if Ms Mcinnis could engage in another occupation- outside HRC I did not, however investigate this latter observation I spoke with Ms Lynne Michael-Reid, Counsellor with the Employee Counselling Service, the VRS Counsellor in the Orillia Office of MCSS, and various management staff at HRC who supported Ms Mcinnis during traming placements. In all cases, the understanding that I had was that, while eager and willing, Ms Mcinnis was not able to meet the minimum requirements of positions here at the facility I trust that this information is helpful to you in your deliberations. Please contact me if I can add to, or clarify information provided The Evidence Ms Mcinnis testified on her own behalf She is thirty-eight years old, married and has one five-year-old child She lives in Orillia, and she described her duties and responsibilities as a Food Services Helper These duties involved heavy lifting, and after undergoing abdominal surgery in 1 988, the grievor could no longer perform this part of her position After recovering from her surgery, Ms. McInnis was assigned clerical duties for a period of approximately two months The grievor was advised that this assignment was to assist her in her rehabilitation, and the goal was to return the grievor to her previous pOSition The evidence indicates that the ---- / (' I, 6 grievor was an extremely hard-working, eager and conscientious employee who did the best job she could in a variety of c1encal assignments throughout the Centre On or about March S, 1990, the grievor received a letter from Esther Martin, the Food Services Administrator, adVising her that after March 14, 1990, the Food Service Department would no longer be able to continue funding the grievor's modified employment. The letter went on to state. "It is with regret th~t I have to make this move It was hoped through the various placements that you would find a new direction and develop the necessary I skills or take the necessary training to equip yourself for a full time clerical position " The letter went on to suggest that the grievor should I avail herself of various avenues of assistance available through the Ministry of Government Services or that she consider returning to school for further training In the summer of 1992, the grievor returned to work at the Centre, and was assigned to a clerical position in medical records The grievor worked a forty-hour week in this position The grievor did not receive L TIP during this assignment. As already noted, the grievor was cut off L TIP in the fall of 1992, and she testified that she would like to return to modified work In cross-examination, the grievor testified that she has taken a computer course, and has looked for work through the Ministry's vocational rehabilitation services The gnevor testified that her assignment in the summer of 1992 was part of an assessment of her qualifications and abilities, although no formal tests were given as part of that process The grievor also testified that she has never been offered a modified Food Services Helper position -- . ',' ( ( \ 7 ~ Evidence of Ms. Esther Saunders Ms Saunders testified, and advised the Board that she IS the Esther Martin who signed the letter referred to above In brief, Ms Saunders told the Board about various positions given to the grlevor following her surgery At one point, the grievor attempted to return to the kitchen to resume her duties as a Food Services Helper, but quickly found that she could not perform the lifting part of the position She held a number of other clerical positions at the Centre In brief, Ms Saunders' evidence mirrored that of the gnevor Ms Saunders testified that the kitchen used to employ 19 regular part-time employees It now employs 14 regular part-time employees The kitchen has been reorganized tWIce since the gnevor first went on L TIP, and Ms Saunders testified that not only has the gnevor's positIon been elimmated, there have been no Food Services Helper position vacancies since the grievor went on L TIP Ms Saunders testified that if there was a vacancy, the job could be modified in order to accommodate the gnevor In cross-examination, Ms Saunders testified that as far as she was aware the grievor was not qualified for a secretarial position and would not likely win a competition Funding for the various clerical positions the gnevor was assigned to following her surgery came out of the Food Services Department budget. Ms Saunders testified that the grievor is likeable, eager and wants to work, but is only capable of physical work. As far as Ms Saunders is aware, there is no position currently available at the Centre that the grievor would be suited for Ms Saunders told the Board that the grievor is more senior than three or four of the other kitchen helpers ( F 8 \ Evidence of Ken Van Vliet Mr Van Vliet is the Human Resources representative at the Centre, and he IS aware of the grievor's experience and abilities. He told the Board that the only other job at the Centre that the grievor could perform is that of Office Cleaner, but that there were no vacancies available He reiterated Ms Saunders' evidence that the gnevor's Food Services Helper position was eliminated as a result of a reorganization after she went on L TIP Mr Van Vliet told the Board that according to the Collective Agreement, the grievor's disability definition changed in October 1992 At that time, the surplus provisions of the Collective Agreement did not extend to regular part-time employees He was aware, however, that the parties were negotiating an amendment to the CollectIve Agreement to extend thIs coverage to part-time employees, and so instead of the grievor being laid off, the decision was made to treat her as an employee on unpaid leave so that she could have the benefit of the surplus provisions should they eventually be extended to part-time employees These benefits were extended to part-time employees when, in December 1992, Management Board and OPSEU entered into the following agreement: The parties agree that when regular part-time employees (RPT'S) cannot be placed in other RPT pOSItIons within 40 km in the same Ministry and consequently are to be laid off, the RPT positions and the incumbents shall be converted to full time posItions and, at the same time, the positions declared surplus. The affected RPT employees shall be assigned to those full time positions on a job sharing basis in accordance With Article 7 8 of the Collective Agreement and will have full access of the provisions of Article 24 of the Collective Agreement The parties agree that the provisions of Article 4 of the ---- I ( \ 9 Collective Agreement shall not apply in assigning surplus RPT employees to job sharing positions under this agreement Any positions left vacant which are intended for staffing following the placement of RPT'S in accordance with this memorandum will become part of the corporate surplus process The parties agree that this Memorandum of Agreement will expire on December 31, 1993 and the parties further agree that the matter of job secunty for RPT employees will be discussed at the next set of negotiations Mr Van Vliet testified that normally, at a change of definition, the grievor, assuming there were no jobs as was the situation in this case, would have received a layoff notice. Mr Van Vliet testified that since the change of definition there have been, to his knowledge, no suitable positions available at the Centre, or within a forty kilometre radiUS of it The evidence having been completed, the case turned to argument. Union Argument Union counsel began his submiSSions by arguing that the term "gainful occupation" in Article 42 2 4 meant gainful occupation within the Public Service of Ontano, and as authority for this proposition he referred to the Board's decision in Addario 350/89 (Dissanayake) The Addario case, like the instant one, involved the deCision of the carrier not to provide L TIP benefits to an employee following the change of definition as a result of its determination that the employee could resume some occupation. The employee, Mrs Addario, grieved this determination, and the Board upheld her grievance What is important for the Instant case 10 ( r is the reasoning of the Board in Addario in reaching that result We first turn to the employer's position that the grievor's obligation goes so far as to require her to establish that she cannot perform any work outside the Ontario Public Service Counsel submits that article 42 2 4 refers to "any gainful occupation for which he is reasonably fitted by education, training or experience" In his view, in order to limit the scope of this provision one would have to read in the words "In the Ontario Public Service" into the article This he submits is tantamount to amending the collective agreement, something the Board is not empowered to do With respect we cannot accept the employer's position It must be remembered that the collective agreement is between the crown as the employer and OPSEU as the employee bargaining agent. The purpose of this collective agreement, as is the case with all collective agreements, is to set down terms and conditions that will govern the employment relationship between employees and the particular employer who is party to it. The purpose of L TIP is to proVide income protection to employees when they are disabled and unable to earn a livelihood with the employer It Will Indeed be an extremely unusual event that a benefit negotiated between the parties hinges on the availability of employment elsewhere We cannot thmk of any other provision in this or any other collective agreement we have come across, where circumstances outside the employer's workplace dictate the eligibility to a benefit under a collective agreement. We have no doubts whatsoever that when the parties refer to "any occupations" in article 42 2 4 they are referring to occupations with the employer, namely, the crown in right of Ontario We are reinforced in this view by the practical difficulties created by adopting the employer's position If the employer is correct, how broad is the scope of the phrase "any occupation." If the employee had been . ( 1 1 \ employed in Toronto In the Ontario Public Service for example, is she required to show that she cannot perform any occupation in all other levels of government and the private sector in Toronto only? Or must she show that she cannot perform any job anywhere in Ontario? Since the provision simply says "any occupation" without any qualification, arguably she may then be required to show that there is no job in Canada that she is able to perform before she qualifies for L TIP benefits for the post-definition change period How is anyone going to establish at a Grievance Settlement Board hearing that I there were no jobs outside the Ontano Public Service I that the grievor was able to perform. It simply makes no I I se nse This leads us to the employer's position that as long as an employee IS 'able to work to any extent, he is disqualified from receiving L TIP benefits during the post-definition period, even though no position meeting the employee's restrictions is available As already noted, the medical evidence is that the grievor was able to work within certain restrictions, namely only four hours per day and no prolon.ged sitting If the employer's position is accepted, then clearly the grievor would not meet the test in article 42 2 4 When an insurer or a physician refers to "total disability" it is possible and indeed is probable that they would understand the term in the way the employer suggests However, here we are attempting to ascertain what the employer and the trade union intended by inability to perform any and every duty of "any gainful occupation", for which he is reasonably fitted This provision of the collective agreement must be interpreted In light of ItS purpose, namely to provide income protection to employees who are prevented from earning a living because of disability Given this intention of income protection, does it make sense that the parties would deny that income protection to an employee who has the ability to perform the duties of an occupation in the abstract, but is still unable to earn a living because no position within her abilities is available? We think not. I ( l 12 \ If an employee has the qualifications and experience to be a model and is able to perform duties in that occupation two hours a day, does that disentitle her from receiving L TIP benefits in the absence of eVidence that she could have such a position That does not In our view make any sense because that. employee and an employee who cannot perform any work whatsoever, are in the identical position when It comes to the ability to earn income through work. They both have no income because I of a disability The parties would have intended to cover ! both employees under article 42 2 4 I Despite the very able submissions of employer counsel, I I we are persuaded first that when the parties referred to "any gainful occupation", they were referring to real and I available occupations and not to imaginary ones The use I of the term "gainful" implies an ability to earn income An ability to perform duties in an occupation in the abstract does not enable the employee to earn any income. The parties in our view did not intend to exclude such an employee from coverage Employer counsel submits that the onus is on the grievor to establish that there were no positions available within her restrictions We cannot accept that. It IS the employer who has the knowledge as to what positions are available in the public service Once it is established that the grievor made the employer aware of her restrictions and her willingness to work withm those, the onus shifts to the employer to show that such a position was available and that the grievor was made aware of that (at 8-10) It should be noted that the employer nominee in the Addario case submitted a partial dissent. The dissent clearly states, however, the member's agreement with the principles set out In the award, and only takes issue with certain factual determinations relating to the evidence establishmg the duration of the disability ( " 13 I. I Counsel argued that the Addario award was on all fours with the instant case, and suggested that the reasoning set out in that decision should also apply in this one Counsel argued that the employer could not avoid its obligations under Article 42 2 4 by stating that the grievor could perform some job, but at the same time, not offering her any position Counsel noted that the evidence established that while willing and eager, the grievor was not fitted by training or experience to the performance of clerical work The union did not take Issue with the employer's determination in that respect. In counsel's view, the employer has an obligation to offer the grievor a real job, and he noted that while employer witnesses testified to the effect that the Food Services Helper position could be modified to accommodate the grievor, or to the effect that the grievor could work as an office cleaner, those jobs were advanced in the abstract as there were no vacancies in either position Counsel also referred to the evidence of Mr Van Vliet that there were no jobs within a forty kilometre radius that the grievor could perform. Given that there was no real job at the Centre, or within the vicinity, counsel argued that the only way that the employer could meet its obligations under the Collective Agreement was to continue the grievor on L TIP until such time as it could place her in an occupation for which she was reasonably fitted by way of education, training or experience Employer Argument Employer counsel began his submissions by attempting to distinguish Addario from the instant case In his view, that case Involved a different set of facts. Counsel noted that unlike in the instant case, in Addario there were positions to which the grievor could be assigned Moreover, counsel ( I 14 \ noted that in Addario the employer made minimal, if any, efforts to assist and accommodate the grievor That was not the Situation, in counsel's view, in the instant case Counsel pointed out that the employer in this case would be willing to modify a Food Services Helper position to accommodate the grievor, should a vacancy arise In the alternative, counsel argued that the Board should disregard the Addario decision because it is clearly wrong, and because the Board in that case exceeded its jUrisdiction by reading into Article 42 2 4 "in the Ontario Public Service" Counsel suggested that the practical consequences of Addario were absurd, and that applied in the manner proposed by the union, an employee who was able to return to work could, if no positions were available, indefinitely collect L TIP notwithstanding the fact that he or she was perfectly able to return to some employment In counsel's submission, the grievor should have been placed on the surplus list following the change of definition Counsel argued that the grievor Was, at that point, ready to return to some job, and her rights to a position in the Ontario Public Service should have been determined in accordance with the surplus procedure set out in the Collective Agreement. Counsel noted that employees receive six months' notice of a surplus declaration or pay in lieu of notice, and that during this six-month period they can seek alternative employment. Union Reply In reply, union counsel argued that the grievor is, and always has been, only qualified for physical work. This being so, counsel argued that the employer was obligated, under the Collective Agreement, to provide the r ( ( '5 \ " grievor with employment she is qualified to perform. Counsel argued that Article 42 2 4 provides a job guarantee, and that this obligates the Centre to either provide the grievor with a position for which she is reasonably fitted by education, training or experience, or to continue her on L TIP Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion, for reasons set out below, that the grievance should be upheld in part. In our view, Article 42 2 4 of the Collective Agreement does not provide an employee with a job offer guarantee or perpetual L TIP coverage following the change of definition What this article does provide is L TIP coverage during the qualification period and first twenty-four months of disability when the employee cannot "perform the essential duties of his normal occupation. "(emphasis ours) The reference in the Collective Agreement to "his normal occupation" obviously refers to the employee's position within the Ontario Public Service In the instant case, the evidence establishes that the grievor could not perform her normal position during the qualification period and for the first twenty-four months of the benefit period, and so obviously was eligible to receive L TIP We cannot, however, reach the same conclusion following the change of definition Continued L TIP coverage, following the change of definition, is contingent on "the inability of the employee to perform the essential duties of any gainful occupation for which he is reasonably fitted by education, training or experience" (emphasis ours) This part of the provision does not refer to the employee's normal job, nor does it limit the applicability of the . ( ( 16 provision to the Ontario Public Service It states, very simply "any gainful occupation" Obviously, our finding in this case departs from the reasoning in the Addario award In Blake 1276/87 (Shime) the Board held Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the pnvate sector is not appropriate for the Grievance Settlement Board The Act does not give one panel the right to overrule another panel or to sit on appeal on the decIsions of an earlier panel Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load We are mindful, however, that there is no provision for appeal and there are limits to judicial review While It is our view that the "manifest error" theory is too lax a standard, we recognize that there may be exceptional I circumstances where an earlier decision of this board I might be. reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determmed on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances (at 8-9) In Her Maiesty the Queen in Right of Ontario (Ministry of Correctional Services and OPSEU (Dupuis), (unreported decision dated May 8, 1990) the Divisional Court considered the "manifest error" and "exceptional circumstances" tests in the context of its judicial review of another Board decision The Court held (' ( , 17 We have had to consider carefully what was the basis upon which this Board approached its task. We are satisfied that although its language was not entirely free from doubt and although it did refer to the exceptional circumstances policy, its decision really rested on acceptance of the manifest error policy We are in agreement with the manifest error policy Because we are satisfied that was the basis on which the Board approached its task, we do not find It necessary to make any pronouncement on the appropriateness of the exceptional circumstances test, but I should not leave it without saying that we have some concerns with It (at 2) In our view, the Divisional Court's decision In Dupuis has cast some senous doubt on the continuing viability of the "exceptional circumstances" test. Obviously, as the Chair notes in Blake, maintaining continuity in decisions its absolutely critical to the proper functioning of this Board We are, however, obliged to hear and decide the matter, and we cannot discharge that function by applying decisions which we believe to be fundamentally and manifestly wrong And it would be fundamentally and manifestly wrong to apply Addario in this case because it would either result in an employee who, on her own evidence, is ready and Willing to return to work, receiving long term disability benefits or it would require thiS employer to create a position for the grievor when it did not require her services With respect, we cannot follow the reasoning in Adda rio as we believe that the panel of the Board, in that case, exceeded its Jurisdiction in its interpretation of the Collective Agreement by reading into Article 42 2 4 the words "in the Ontario Public Service" and in that way amending the ( / 18 \ Collective Agreement. Inasmuch as exceptIonal cIrcumstances are still required for one panel of the Board to depart from a decision of another panel, we find exceptional circumstances in this case given the fact that the panel of the Board in Addario exceeded its jUrisdiction by amendmg the Collective Agreement. If the parties, in this case, had wished to limit Article 42 24 to any "gainful occupation within the Ontario Public Service" they could have done so But they did not, and notwithstandmg our compassion and respect for this particular grievor, we cannot read this provision in this way We are in complete agreement with the Board in Addario that "thiS provision of the Collective Agreement must be mterpreted In light of its purpose, namely to provide income protection to employees who are prevented from earning a living because of disabilITY..: (emphasIs ours) It is not, however, intended to provide a pension or income to employees who are able to work simply because there are no positions available to them in the Public Service, at the change of definition The purpose of L TIP is not to provide employees of an employer with a guaranteed Income where an employee, following the change of definition, can perform a gainful occupation, although no such position is available with that particular employer The purpose of L TIP is to provide employees with long-term income protection when they cannot work because of disability In this case, while equivocal, the eVidence establishes that the grievor is currently able to return to work, wishes to return to work, and, if an appropriate job can be found, would return to work On what basis then is the grievance upheld in part? In our view, employees are entitled to look first to their own employer for "any gainful occupation" i ( " 19 following the change of definition If they no longer qualify for continued benefits, and the employer is then required to make real and substantial efforts to determine whether it can offer the employee a position The employer is not required, however, to create a job We find that the employer, in this case, failed to make any real and substantial efforts to determine what Jobs might be available for the grievor Abstract discussions about possible future vacancies in one particular location such as the Centre will not satisfy the burden this article Imposes. Moreover, the evidence of Mr Van Vliet that he was "not aware" of any suitable vacancies within a forty kilometre radius of the Centre is insufficient to discharge this obligation (although we should note in passing that the evidence in this case indicates nothing but good faith toward the grievor) It is the employer which has full knowledge of what suitable positions, if any, are available throughout the public service, and it must fully and comprehensively go about determining whether a suitable position is available We are, in this regard, in complete agreement with union counsel that the employer, for the purpose of Interpreting this provision, is the Crown in right of Ontario, and as such it is in the position to know, or to find out, what jobs, if any, are available and appropriate for an employee who, at the change of definition, is determined to be no longer eligible for L TIP In the event that no suitable position is available with that employer, the provision clearly contemplates that an employee will not be eligible for continued coverage if he or she is able to perform the essential duties of some other gamful occupation for which he or she is reasonably fitted by education, training or experience A t that point, the employer may issue the employee a surplus notice. I ( 20 ( A few additional observations are in order In determming whether an employee is able to perform the essential duties of any gainful occupation (either within or outside the Public Service), for which the employee is reasonably fitted by education, training and expenence, the only relevant yardstick will be the existence of real positions, not hypothetical ones The existence of a job somewhere in the world that the employee could conceivably perform will not be sufficient to deprive an employee of the benefits of the provision There must be a real job, and in determining whether that job is real, the Board will, of necessity, be called to take a number of factors into account such as the situation of the employee, his or her age, marital status, geographic location and so on Ultimately, an employee will either be eligible for continued L TIP benefits because he or she cannot, because of disability, perform the duties of any gainful occupation for which the employee is fitted by education, traming or experience, or the employee will be ineligible because his or her circumstances are such that there are real jobs which the employee is able to perform It is worth emphasizing that, in our view, it would be absurd for this grievor, or any employee who is similarly situated, to have to establish, to borrow the language used in the Addario case, that there is no job anywhere in the world that they can perform to obtain the benefit of this provision Equally absurd would be for the employer to defend an L TIP claim by asserting the availability of hypothetical positions in the face of medical evidence of a continued disability Some middle ground must be established, and the requirements of the provision must be reasonably interpreted given both its language and intent. Each of these cases win inevitably be decided on their own peculiar facts -- I ( 21 Accordingly, and for the foregoing reasons, the grievance is upheld in part The employer is directed to conduct a complete and comprehensive Job search to determine whether it can offer the grievor a gainful occupation for which she is reasonably fitted by education, training and experience Obviously, given the employer's duty to accommodate, in conducting its search the employer must also consider what modifications could be made to existing jobs so as to accommodate the grievor's disability The accommodation obligation, needless to say, imposes a duty on the employer to accommodate to the point of undue hardship If following this search, and the appropriate application of its duty to accommodate, the employer determmes, that it has no position to offer the grievor, it may then issue her a surplus notice The onus will then shift to the grievor to look for gainful employment outside of the Public Service If the grievor can then establish that she is unable, because of her disability, to perform the essential duties of any gainful occupation for which she is reasonably fitted by education, training or experience, she will be eligible for the continuation of her L TIP - ----- I (- 0 22 I We remain seized with respect to the implementation of this award I DATED at Toronto this 5th day of October, 1993 I I lit 1 / --.--- I { ----------------- I William Kaplan Vice-Chairperson I I "I Partially Dissent" (attached) ----------------- I P Klym Member ~ ' Jl Addendum attached. -- -- D Barsoski Member , . ( ~ GSB 2967-92 OPSEU (McInnis) and Ministry of Community & Social Services PARTIAL DISSENT OF UNION NOMINEE Even though the decision of the Chair in this case results in what appears to be a reasonable remedy for the grievor, I find that I must dissent from that portion of the decision that refuses to totally follow the conclusion of the Panel in the Addario case (GSB 350/89) My reasons for dissenting are based on the principles enunciated in the Blake decision (1276/87) . The Blake decision states that a finding of manifest error alone is insufficient grounds to allow one Panel to refuse to follow a previous decision of another Panel. There must also be a ~inding of exceptional circumstances. The Blake decision does not spell out a definition of "exceptional circumstances". However, my experience is that this has been either a finding of some significant differences in the facts from those that were before the previous Panel or a new argument advanced that was not made to the previous Panel. While expressing some concern, the Divisional Court in the Dupuis case declined to make any definite pronouncements regarding the appropriateness of the "exceptional circumstances" test. I am not aware of any other Court rulings squarely addressing this issue. Therefore, I feel the Blake principles should still be considered good law. The principles enunciated in Blake have served the Board well during the years and should not be discarded without a thorough discussion and analysis specifically directed to this issue. The Chair's decision in this case finds that the Addario Panel exceeded its -jurisdiction by implicitly reading in certain words into Article 42.2.4 and that this finding of jurisdictional excess by our Panel is an "exceptional circumstance" as contemplated by the Blake decision. With respect, I cannot agree that this is anything more than a finding of manifest error. . , ( ( . - 2 - The issue of reading in extra words into Article 42.2.4 was directly before the Addario Panel and the challenge to their jurisidction on this point was thoroughly argued before that Panel. They unanimously decided that they were within their jurisdiction in making their decision and rejecting these argu- ments. To the best of my knowledge based on information given to our Panel, the decision of the Board in Addario was not over- turned by judicial review either on the basis of manifest error or exceeding jurisdiction. There are problems with one Panel of the same Board essentially sitting in review of another Panel's decision with no real differences in the facts to consider or arguments presented. These were the problems that the reasoning in the Blake decision was striving to prevent. Therefore on the basis that the Blake decision is still good law, I believe we should follow all of the findings of the Panel in Addario regarding the meaning of "any occupations" in Article 42 2.4 . ~ ~~ Peter Klym ~ ' . GSB 2967-92 OPSEU and Ministry of Community and Social Services Addendum I concur with the Chairman's decision. The arguments were based, in the main, on the meaning of Article 42.2.4 Of the Collective Agreement which states Total disability means the continuous inability as the result of illness, mental disorder, or injury of the insured employee to perform the essential duties of his normal occupation during the qualification period, and during the first twenty four (24) months of the benefit period, and thereafter during the balance of the benefit period, the inability of the employee to perform the essential duties of any gainful occupation for which he is reasonably fitted by education, training or experience, More specifically, the words in italics were at issue. It should be noted that this is a standard clause, found, with some minor irrelevant modifications, either in most collective agreements which refer specifically to the terms of a long term disability plan, and/or in long term disability plan documents The intent is simple these plans provide income protection to workers for two years who are unable to perform their former jobs, and for longer periods if the worker is totally disabled. If after two years a person is able to perform some job for which he/she is reasonably fitted by education, training or experience, the onus is on that person to accept an alternative suitable job from the employer if one is available, or to find suitable work elsewhere if a suitable job is not available with the employer Perhaps the standard system could have been set up as this Union now argues, namely, that if the employer is unable to supply a suitable job the person receives payments for life, but, simply put, it wasn't so established I suppose the reason that long term disability plans did not evolve that way (no union has ever asked me for such an alternative system in 20 years) is that considering the costs of such an alternative it was not considered to be money well spent in view of other union and company priorities. As well, the inherent unfairness of such a system should make it unacceptable to both parties The unfairness is obvious. To give just one example let us suppose that a person, who can perform several jobs in a company, is declared surplus because of unavailability of work in his/her job classification. If the person has no bumping rights into other classifications, or lacks the seniority to bump even if he/she has the right to bump into other classifications, the person is laid off and must seek employment elsewhere. I I , \ ~ . " . Contrast this to the Union's argument in this case Here a person cannot perform the duties of her current job and there is no alternate job available The Employer's position is that the Grievor should be placed on the surplus list with the rights which would accrue to her as a result. If no alternate job is available, and the Grievor's seniority is insufficient to bump into another job, she would be laid off and have to seek employment elsewhere. The Union's position is that if she does not obtain a job with the Employer, she should receive payments for life. This is inequitable to others and is absurd. Yet this is the result of the Board's decision in the Addario case. It would be intolerable if all subsequent Grievance Settlement Board panels had to follow the decsion of one Board, such as that convened in the Addario case, which had exceeded its jurisdiction and was wrong, particularly on a non-trivial matter I completely concur with the Chairman's decision. ~;;-~ Diane Barsoski September 30, 1993