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HomeMy WebLinkAbout1993-0521.Langley.94-03-31 r' ( (' " ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTA RIO .... '1111 GRIEVANCE COMMISSION DE ... SETTLEMENT REGLEMENT BOARD DES GRIEFS i .1 180 DUNDAS STReeT weST SUITe 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONEITELEPHONE: (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FA'CSIMILE fTELECOPIE (4/6) 326-1396 521/93 IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Langley) Grievor - and - The Crown in Right of ontario (Ministry of Health) Danver Ambulance Service Employer BEFORE: w. Kaplan Vice-Chairperson E. Seymour Member D. Montrose Member FOR THE K. Whitaker UNION' Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE D Gorelle EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers &. Solicitors HEARING December 21, 1993 ---.---- --' ..-- - -~ --- -- --,---- ..... ........-...'7.-::7.-'~- .....-:--:-..........,.-: r --~~--- , " l 2 .... '(i -- Introduction By a grievance dated April 30, 1993, Loren Langley, an Ambulance Officer employed by the Danver Ambulance Service, grieves that the employer ( denied her employment contrary to the terms and conditions of the Collective Agreement. The case proceeded to a hearing in Toronto, at which time the Employer raised a preliminary objection It was not necessary to call evidence with respect to this objection Before turning to the Employer's objection and the submissions of the parties it is useful to set out some of the agreed' facts. The Facts The grievor was hired as a part-time Ambulance Officer in February 1990 I. On November 4, 1992, the grievor ,began to receive Workers' Compensation benefits. The grievor received WCB benefits until April S, 1:993 By a I letter dated April 8, 1993, the Workers' Compensation Board advised the I grievor that'she was fit to return to her jo~ as of December 3D', 1992 The I, I WCB has claimed an overpayment with respect to the January to April I period, and this matter is under appeal On April 15, 1993, after receivmg I i this letter, the grievor attended at the offices of the Employer and asked to be immediately. scheduled for work , I I Article 13 06 of the Collective Agreement requires the Employer to post the I hours and days of work of' each employee at least six weeks in advance I I Each week, the Employer prepares and posts the shift for five weeks hence I J Full-time employees are scheduled first; part..time employees are fit into whatever slots are left on the basis of openings and availability The Employer had learned, about one week after the grievor, that the weB had determined that she was fit to return to work. Prior to November 4, 1992, 3 .~- - the grievor regularly worked a 24-hour week~ On April 15, 1993, when she ( attended at the Employer's premises, the grievor was advised that she would have to wait for six weeks before she would be scheduled for work, that is, until June 1993 As it happened, the Employer was able to schedule the grievor for two shifts in the week beginning Sunday, May 2, 1993 By the week beginning Sunday, May 9, 1993, the. grievor had been restored to her regular weekly schedule of three shifts per week. On June 13, 1993, the grievor ceased work. She subsequently filed a claim alleging a reoccurrence of her earlier compensable injury ThiS claim has not yet been I. approved It is also under appeal 1 One additional fact should also be mentioned. The grievor has filed an I objection with the Reinstatement Branch of the WCB with respect to the i I manner in which the employer responded to the WCB's April 1993 I reinstatement order That matter has been adjourned sine die Employer Ar9umen~ Employer counsel began his submis$ions- by noting that there had been no - viol~tion of any term of the Collective Agreement. Counsel pointed out that ) upon receiving notification from the WCB, the employer immediately rescheduled the grievor in accordance with the terms of- the Collective Agreement and had, moreover, been able to provide her with employment within several weeks. On this basis alone, counsel argued that the grievance should be dismissed. However, in the Employer's submission, there were a number of other reasons why the Board should decline to take jurisdiction "in this case 4 - In counsel's view, the WCB was clearly the proper forum for the determination of the grievor's various claims In that regard, counsel noted that the grievance itself did not even allege a violation of the Collective Agreement, but referred instead to the Employer's alleged violation of the Workers' Compensation Act. Counsel pointed out that the gnevor has recourse to a specialized tribunal for the determination of her various weB claims, and suggested that it would be appropriate in this case for her to exercise her entitlements under that legislation Indeed, the very issue raised in this case, namely the Employer's reinstatement obligations under the Workers' Compensation Act, would be determined by the Reinstatement I Branch, a specialized and expert body mandated to deal wi~h issues of this kind Counsel also pointed out that the grievor had statutory rights of appeal before the WCB, and those rights could be exercised wheth~r or not the Board took jurisdiction with respect to the grievor's case It was I noteworthy, counsel suggested, that the grievor was, at the WCB, claiming, on the one hand, that the Employer should have reinstated her earlier, but \ was also claiming on the other, that she should not have been reinstated at all because she was still suffering from a compensable injury The WCB ~nd its appeal branches were in the best position to resolve these conflicting claims, and in this regard, counsel observed that proceeding first before the Board would introduce an element of unfairness to the Employer as it was precluded from referring to the medical documen~ation in the grievor's WCB file in defence of its case It could, however, make use of that information before the WCB -.-------- -~. -_.--._._-- -- .........-....'":1 - . -. .. - - 5 ?' In the circumstances of this case, and for the reasons given above, counsel urged the Board to either dismiss the grievance on the basis that there was no evidence of any Collective Agreement v!olation present in this case In the alternative, counsel asked the Board to adjourn this grievance sine die pending the resolution of the various issues before the WC~ '\ Union Argument It was the Union's position that the Employer had violated the Collective Agreement by not immediately rescheduling the grievor for work. This dispute was not academic as the grievor lost at least seven shifts in the result. In -the Union's submission, the Collective agreement must be read in a manner consistent with the Employer's obligations under the Ontario Human Rights Code and the Workers' Compensation Act. By failing to immediately reinstate the grievor, the Employer had, the Union argued, violated the spirit ~nd intention of these provisions by dfscriminating against the ,grievor on the basis of disability In the Unidn's submission, the Employer is required by both of these acts to accommodate a disabled employee to the point of undue hardship, and in this case that meant immediately reinstating the grievor upon being advised thcit she was fit to return to work. \ In the Union's submission, there were different issues before the Board and the WCB The WCB would ultimately be required to make certain determinations, but, in counsel's view, that did not alter the fact that the grievor was seeking to assert a Collective Agreement right, and that being the case, she was entitled to proceed before this Board It was true enough that the Board was not expert in worker injuries as was the WCB It was, however, expert, counsel argued, in matters relating to the Collective -. - - 6 .- Agreement, and this case squarely involved the appropriate interpretation of a provision of the Collective Agreement. Counsel argued that on this basis alone the Board should take jurisdiction with respect to this case Counsel also pointed but that it was the Union which \Vas the party before the Board, and the fact that the grievor, as an individual, had decided to take advantage of other rights conferred upon her by statute and appeal various decisions before the WCB should not be held against the Union and 1 the assertion of its claims In a related submission, the Union also argued that the evidence of conflicting or alternative claims should not be a bar to proceeding before this Board, and noted that it is commonplace for both management and union counsel to frame their submissions as alternative claims In this case, simply put, the Union was alleging a violation of Article 1 3 06, and it argued that this provision had been violated because the Employer had failed to immediately reinstate the grievor In counsel's view, the Employer is required to interpret this provision consistent with it's duty to accommodate This case was not, counsel argued, about medical evidence, Nor was it about whether the grievor was fit to return to work. It was about whether the provisions of the Collective Agreement had been observed in April 1 992 As that was a matter within the expertise and jurisdiction of the Board, counsel asked that we dismiss the Employer's objection- and take jurisdiction to hear the case In support of this submission, counsel argued that the Collective Agreement must be interpreted in a manner consistent with existing statutory and common law including certain relevant provisions of the Ontario Human =.'t'_ ._..",~ 7 ~ .. Rights Code and the Workers' Compensation Act. Certainly, statutory enactments of this kind were, counsel suggested, at the very least, useful aids to interpretation Counsel also argued that the Board was empowered to review management actions where there were allegations of bad faith, such as in this case where the Union was alleging that the Employer had not discharged its statutory responsibilities under the Workers'Compensation Act. Finally, counsel suggested that if the Board was satisfied that the Employer was seriously prejudiced by not being able to ref~r to the medical evidence in the grievor's WCB file, it could, as a condition of taking jurisdiction, require the grievor, if she wished to proceed, to consent to the release of that information to the Employer for the purpos~s of this particular case . Employer Reply In reply, counsel noted that the Employer was under no obligation to accommodate the grievor She was, at the time in question, no longer disabled. She was fit to return to work without restrictions,and the Employer returned her to work in the manner and according to the procedure agreed upon by the parties in Article 13 06 of the Collective Agreement. It was hard for the Employer to see, in this context, the possible relevance of the Ontario Human Rights Code as an aid to interpretation or anything else for that matter Counsel also objected to the characterization of the Employer's actions as in bad faith, and suggested that the evidence was to the exact opposite effect. The Employer in this case applied the terms and provisions of the Collective Agreement in the same way as it always did This was not, counsel argued, indicative of anything other than good faith - . -.---- --~.. ~ ,--- '~""-" ~_""',,-' ........-'----""-- _:.. ~- .---:'-'.:.-- - ~- :---...--- .--.--- --~- --- - -- -.- 8 ...... Decision Having carefully considered the arguments and submissions of the parties, including the numerous authorities relied by both counsel, we have come to the conclusion that the employer's preliminary objection should be upheld and the grievance dismissed Pursuant to section 1 9 of the Crown Employees Collective 'Bargaining Act we are required to decide differences between the parties In the normal course of events, a grievance with respect to a dispute concerning the interpretation of a scheduling provision of a Collective Agreement would fall squarely within out jurisdiction In our view, however, this is not such a case. I The parties to this gr.ievance are the Union and the Employer The Union has alleged that the Collective Agreement was violated insofar as the grievor was not immediately reinstated upon being determined fit by the WCB. I While' the issue of the grievor's fitness to return to work is ,under appeal, the fact of the matter is that the grievor presented herself as fully fit to work on April 15, 1993 having been advised of the WeB's determination in that respect. Section 54 of the Workers' Compensation Act sets out the obligations of an employer with respect to employees ordered reinstated by the WeB It clearly requires employers to accommodate employees who are impaired as a result of a workplace injury, and directs that this accommodation be to the point of undue hardship. It clearly doesl not, however, require employers to accommodate employees who are not impaired ,.~-~ _..._------~-'-~--~_.. """=~~,~ -- -~-- -- ---~ -- -- -- - -- ~ ------ -.-"-- ~ -, n..~-L.~";'- 9 ~ On April 15, 1993,. the grievor did not present herself as impaired She presented herself as fully fit to return to work, and this case concerns the " alleged failure of this Employer to immediately reinstate this fully fit '- employee, notwithstanding the grievor's conflicting or alternative claims before the WCB. Given that the grievor presented herself qS fully fit, in reinstating her the Employer was not required to accommodate her It was required to act in conformity with the provisions of the Collective Agreement, and the evidence indicates that this is exactly what took place It may very well be, as the Union asserts, that the Board has the power to take jurisdiction in cases inyolving allegations of bad faith where it is asserted that an employer has failed to discharge some obligation imposed :;. by a statute other than the Crown Employees Collective Bargaining Act. It may also be that statutes such as the Ontario Human Rights Code and the I Workers' Compensation Act are relevant to the determination of some grievances which come before this Board. This is not, however, such a case The Employer did not have any accommodation obligations to this employee in April 1993 Insofar as reinstatement was concerned, its obligations to 1 this employee were set out in the Collective Agreement. Article 1 3 06 was not breached as the grievor was scheduled for work exactly as provided for in that .provision As she is entitled to do, the grievor has claimed that the Employer is in breach of Section 54 of the Workers'Compensation Act. That is a matter between this employee and this employer It is not a matter between the parties to this Collective Agreement. Section 54 of the Workers' Compensation Act is ~. detailed scheme providing for the reinstatement of injured employees. In this case, the grievor has, among other appeals, --- ---_.. .~''''''',..."..,.~"'''''"'''O''=_......_--'"~.:.''''..-''-~==-'l..~_~-===-~!~:L.:._ ~~ - -'-- -- ~ --=--!._~:~ -'~.' 10 .{ ~ contested the WCB's determination that she was fit to return to work in April 1993, and she has also filed an objection with re/spect to the manner in which the Employer has fulfilled its reinstatement obligations under section 54 of the Workers' Compensation Act. Not only is the WCB is in the best position to resolve the grievor's alternative or conflicting claims, it is also the body designated by the Legislature for the resolution of cases of this kind In the instant case there is simply no dispute or difference between the parties. A fit employee returned to work She was rescheduled in compliance with the provisions of the Collective Agreement. The grievance is, accordingly, dismissed DATED at Toronto this 31 st day of March 1994 Jt.~~____ William Kaplan Vice-Chairperson I dissent. Dissent :tJl:.ched. ~-eA--~-~_ E. ~~Y'!.l_our _~ M~~~\l ~ -------~-------- - D Montrose Member Chairperson's Addendum It is worth emphasizing that the majority of the Board in this case dismissed the grievance having concluded that there was no difference between the parties. Had there been any evidence whatsoever supporting an allegation of a violation of the Collective Agreement, we would have, as Mr Seymour suggests, adjourned the matter sine die pending the determination of the related claims before the Workers' Compensation Board There was simply no such evidence in this case Moreover, it is also worth pointing I , -~--_..~-- - - ---------~"---~~........_--.~ -------'--"--,. ~'-'-:.: ... . : - ----.-- _~~____---....J..__ __-=.-___ --"----'-- '-~,.,~ ~~l-/ ~ ~ 21 1 I 11 '-"" . out that the majority of the Board did not say that the employer would have been obligated to immediately reinstate the grievor had she returned to '0 work partially fit. The employer, in that instance, would have been required to accommodate the grievor to the point of undue hardship, That might mean immediate reinstatement. It might also mean reinstatement in accordance with the procedure set out in the Collective Agreement. It might have meant something else entirely The majority decision does not express a view on this issue, there being no need for it to do so in the circumstances of this case. I '/; ~ .~-------"...--,,-.., - . -...-. ---~~, -.."----- ::0-" .~..,..-~'...,,-:- '--=:,: . re: G.S.B. FILE 521/93 O.P.5 E.-U. (Langley) - and - THE CROWN, IN RIGHT OF ONTARIO (~NISTRY OF HEALTH) DANVER AMBULANCE SERVICE DISSENT EdwaI;'d E. Seymour, Employee Nominee .. ~ 41~1'S I have read the Majority Award and, with respect, I find that I must dissent - Article 13 06 of the Collective Agreement doe's require the Employer to post the hours and days of work at least six weeks in advance, however, the Majority have placed too rigid anrinterpre- J tation on this Article In my view, nothing prevents the Employer from placing an employee, who is returning from a worker's compensation absence, i~to the schedule immediately As was evident in this situation, the Employer restored the griever into the schedule well before the six weeks had e.1apsed This did not occur until the griever had missed seven days of work, thereby depriving her of seven days' compensation It is unlikely that a similar delay would have occu~red if the griever had been returning from a sickness absence I am also in disagreement with the Majority view asserting that the Employer is obligated to return a partially-fit employee ---" to the workplace immediately, while denying the same courtesy to an employee who presents to work "fully fit" ( --~...-.- '= (- Page 2 While I appreciate the reasoning of the Majority in its concern for addressing issues which s,hould more properly be addressed by the Workers' Compensation Board, I believe the griever could have received her seven days' work through Ar~icle 13Q6 of the Collective Agreement As a minimum, this Panel could have ensured that the griever's interests were fully protected by adjourning the Hearing sine die, until all matters relating to the worker's compensation issue had been addressed through that forum ~ On completion of the Workers' Compensation process, the griever, and/or the Union would have been free to request a reconvening of a Hearing by thi~ Panel to address any outstanding Collective Agreement issues Unfortunately, the M~jority Ruling closes that option to both the Union and the griever -~/~ Edward E Seymour, Employee Nominee opeiu 343 -