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HomeMy WebLinkAbout1994-1659.McLellan.97-07-07 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (418) 328- 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (418) 3U- GSB # 1659/94 OPSEU # 94G303 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McLellan) Grievor - and - the Crown in Right of Ontario (Ministry of Housing) Employer BEFORE F.D Briggs Vice-Chair FOR THE M Cheng GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE D Holmes EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING July 23, 1996 The gnevor alleges that the collectIve agreement was VIolated by the Employer's asslgmng hnn a posItIon that IS InconsIstent WIth ills qualIficatIOns and abIlIty By way of remedy he asks that the Employer be ordered to place hun In a "appropnate pOSItIon In a sUItable locatIOn" Pnor to the first day of heanng, the partIes agreed on a Memorandum of Settlement dated February 15, 1996, whIch stated. Whereas the partIes have agreed to settle the above-noted gnevance on a WIthout precedent and WIthout prejudIce baSIS, the partIes have agreed as follows 1 The heanng oftlus gnevance has been adjourned by the partIes on consent to be heard March 18, 1996, by Vice ChaIT F Bnggs The heanng oftlus matter will proceed should tills Memorandum of Settlement faIl to be Implemented by the partIes 2 The partIes also agree that, should a heanng date be requITed, they WIll endeavour to submIt an Agreed Statement of Facts and seek the Board s detenmnatIon regardIng the applIcatIon and InterpretatIon of tlus Memorandum of Settlement, and/or any nghts or lIabilItIes of the partIes that anse by Vl11ue of tlus Memorandum of Settlement. 3 The employer wIll fOrthWIth seek to engage the finn of Geller, Shedletsky & WeISS for the purpose of obtammg an updated vocatIonal assessment report on Mr McLennan. It IS agreed and understood that the cost of the report wIll be borne by the employer 4 The employer undertakes to IdentIfy all pOSItIOns whIch constItute permanent vacancIes up to the OAG 6 level at the M1ll1stry of the SolICItor General and CorrectIonal SefVIces In OnllIa. 5 On the baSIS of the pOSItIOns IdentIfied by the employer, an ergonomIc assessment WIll be conducted by an Independent thrrd patty In order to determme what pOSItIons, If any, meet the gnevor's abihtJ.es and/or dIsabIlItIes, based on the vocatIOnal assessment. The cost of tills assessment WIll also be borne by the employer 6 The gnevor has agreed that If a posItIon IS IdentIfied as beIng SUItable for hIm pursuant to paragraph 4, and IS agreed upon by the partIes pursuant to the paragraph 5, he wIll be paId the salary of that pOSItIOn, proVIded that rt IS not 1 2 lower than an OAG 3 level salary 7 The gnevor will be assIgned to a permanent vacant posloon, when the partIes mutually agreed that he IS qualIfied to penorm the work of that pOSItIOn, or the posloon can be modrfied to accommodate hIs dlsablhoes Once thIs has been accomphshed, the Employer's obhgaoon to accommodate the gnevor's dlsablhty wdl be deemed to have been dIscharged. 8 It IS agreed that upon rmplementaoon of thts agreement, the gnevor retams hIs nght to gneve the Issue of accommodatIOn as It may anse m the future based on any further clfcumstances not already the subject ofGSB No 1659/94 and not already the subject of thIs gnevance 9 It IS the expectaoon that hIs process will proceed as soon as pracocably possible at every stage 10 The employer agrees to make best efforts to seek necessary MlIDStry approval to extend the present temporary aSSIgnment entered mto between the gnevor and the MlIDStry of the Sohcltor General and Correcoonal Semces 11 Once the gnevor takes the new posloon as a result of the foregomg process, It IS the employer's expectatIOn that Mr McLellan wdl meet the mmunal attendance standard requITed m the workplace 12 All of the foregomg IS Without precedent and WithOUt prejudIce to eIther of the partIes, and the gnevor WIll be enotled to proceed to arbltraoon should the foregomg process fad. Unfortunately, the gnevor was not proVIded WIth a posloon and the partles brought the matter to the Board for resoluoon. The Umon was content that the steps m the Memorandum had been followed. The Employer dId engage a fIrm to assess the gnevor The Umon put fOlWard seven possible posloons that the gnevor could manage and the Employer agreed to three of those for assessment. After the assessment, the Employer concluded that the gnevor was not quahfIed to do the work at Issue The Umon was of the View that no analysIs was done of possible accommodatIOn to enable the grlevor to do the work. Indeed, the Umon suggested that the legal quesoon for thIS Board to determme IS whether the report adequately addressed accommodation. It was the Umon's posloon that thIS Board should order the 3 Employer to place the gnevor m the most sUItable of the three IdentIfied posItIons and mollify the posItIon as reqmred to allow hnn to perform the work satIsfactonly or to proVIde on the Job trammg whIch would help the gnevor unprove hIs performance In the alternatIve, the Board should order the Employer to have the fIrm that assessed the gnevor IdentIfy how the posItIons could be modIfied. In the event that the Board dIsagrees WIth eIther of these suggestIons, the Dmon's further alternatIve was to have the Board order the Employer to assess those other four Identrfied posItIons referred to m paragraph four of the Memorandum of Settlement. It was the Employer's VIew that the Memorandum of Settlement had been complIed WIth m total and any oblIgatIons It had have been dIscharged. It was suggested that the Dmon and the gnevor are merely unhappy WIth the fmdmgs of the assessment and are attemptIng to obtam a remedy from tins Board that IS not appropnate m the clfcumstances As outlmed m the Memorandum of Agreement, the partIes brought the matter before tlus Board m an efficIent and expedItIous fasluon. Many documents were entered as exhibIts by agreement. One of the documents was a summary That document was fourteen pages m total and proVIded a good reVIew for tlus Board. Some of the matters dealt WIth were - the rehabIlItatIOn hIstory - educatIOn and work lustory - vocatIonal goals and mterests - level of emotIonal functIon - medIcatIOns - famIly structure & support - fmancIal status - factors affectmg return to work - background mformatIOn - mtellIgence - aptItude levels - cogmtIve abIlIties - perceptual abIlIties - clencal abIlIties - psychomotor abIlItIes 4 - achIevement levels - emotlOnal status - summary and recommendatlOns It IS appropnate to set out the summary and recommendatlOns m some detaIl. The psychologIcal vocauonal assessment, dated June 28, 1996, stated at page 9 Mr McLellan was referred to WORK ABLE Centres to address lus smtabihty for three posltlons offered to hun by the SohCltor General, that of Velucle Coordmator, Receptlorust/V enficatIOn Clerk; and Vehicle DocumentatIOn Clerk/ColhsIOn Clauns Clerk. He lS currently on dlsablhty leave smce leavmg his prevlOus posltlOn as Office Support Clerk, wluch has been declared surplus in a major reorgaruzatIon of the branch for wluch he worked. ThiS man has been dIagnosed as havmg a Generahzed AnxIety DIsorder and IS suspected of havmg a learnmg dIsabihty The partIcular subtype was not Identified but I presume It related to the comprehensIOn and wntten expreSSIOn of verbal and numencal InformatIon. Mr McLellan (sic) performance on VarIOUS test (sic) of mtelhgence places hun WItlun the average range of mtellectually abilities. His acluevement scores for readmg comprehensIOn was consistent WIth that of the IQ scores. His spellmg and arIthmetic results were lower than lus IQ results, but not to the degree one would expect for a learrung dIsabihty However, a formal assessment regardIng a learrung dlsabihty would be requIred to determme If there was a SignIficant dIfference between language skills and illtelhgence. These results were conSIstent WIth those tlus man obtailled ill a VocatIOnal Assessment conducted by Dr Geller ill 1992. Mr McLellan appears to have had a relatively long lustory of dIfficulties WIth performmg clencal tasks as revealed both by file documentatIon and self-report. Tlus major defiCIt appears to be lus weakness ill performmg perceptual Judgment tasks that reqUIre accuracy and speed. ThIs would seem to apply to both processmg InformatIOn and m respondIng to tlus InformatIon by mputtmg data mto eIther a manual or computer database. An anxIety disorder and a learrung dIsorder would mdIVldually be antICIpated to pose dIfficultles for someone who has to perform tasks oftlus nature. Together, they would undoubtedly present a person With senous problems m hlS ability to process and act upon Informatlon m an effiCient and accurate manner Furthermore, tlus deficlt would be exacerbated by pressmg deadhnes and close evaluatIOn by others regardmg hIS performance. Aptltude testmg revealed that tlus person performed m the low average range for cogrutlve and perceptual abllItles and m the below to low average categones for psychomotor abilItles. The aptitudes that are essential for clencal actlVltles mclude general learrung ablhty, verbal reasomng, clencal perception, and finger dextenty Tlus person scored m the low average range for generallearnmg ability and verbal reasomng, but m the average range for general and verbal mtelhgence. The difference m these results lS most likelv attributable to the hmed nature of the aptitude tests versus the untuned nature of the mtelhgence tests. Overall, lt appears that tills mdIvldual has the mtellectual ability to perform clencal tasks, although hiS reasomng effiCIency appears to degrade when he lS place under time demands. On the enhcal tasks of clencal perceptIOn and finger dextent\', Mr McLellan scored m the 5 below average band whtch IS lower than the levels listed for the occupatIOns that correspond to the posItIOns bemg conSidered for tlus person. His performance on vanous speCific sub tests measunng clencal abIlities ranged from the borderline to low average levels of profiCIency In general, these scores were not consistent With competitive levels of clencal functIOn m the work place. With these results m mmds, I will address the refemng questIOns I & 2(a) It appears that tlus person has the general mtellectual abilities to perform the vanous components of the pOSItIons of Vehtcle Coordmator, ReceptIomst/V enficatIOn Clerk and VehIcle DocwnentatIon Clerk/ColliSIOn Clmms Clerk. However, It IS clear that he lacks the speCific clencal ability to perform at a htgh level m these pOSItions. GIVen that 1) tlus defiCit reflects a possible learmng dIsability; 2) there IS the further complication of tlus person's anxtety disorder; 3) the likelihood that there will be condItIOns of tune pressure, multIple task demands, lugh expectatIOn for accuracy and a need to functIOn m a relatively autonomous manner; It IS unlikely that tlus person Will be able to meet the standards expected of lmn by the MinIstry of the SoliCItor General. 2.(b) It IS difficult to lIDagme accommodatIons that could be proVIded to tlus person whtch would not substantially change the nature of the tasks wluch he would be expected to perform. Typically, for both anxIety and learmng dtsorders, accommodatIOns such as provIdmg tune extensIOns for proJects, removmg "distractIOns" such as multiple task demands and reducmg the demand expectations for quality of performance are recommended. However, these aspects of the work enVIronment appear to be mtegral to the three pOSitIOns offered to tlus person and thus accommodatIOns such as these appear unrealistic. The preVIOUS assessment by Dr Geller emphaSIzed tlus person's personality strengths and recommended that he be employed m alternatIve pOSItIOns such as tOUrIst gwde where thee are relaxed tune constramts and clencal functIOns are greatly reduced. Mr McLellan has noted that m addItion to tlus type of work, he would probably be more SUIted for work m a Pnntmg Shop envrronment. Apparently, there IS mdependent docwnentatIOn as well as self- report regardmg hts success m VarIOUS work tnals testmg hts ability to perform m these types of settIngs, It IS likely that movmg thts person mto varIOUS lines of work more SUItable to hts vocatIonal strengths and vulnerabilities IS the best type of "accommodauon" that can be offered to thiS person. However I realize that thts optIOn may not be feasible gIVen the present fiscal reality of the OntarIO Government. 3 It IS my opllllon that thIS person IS least SUIted for the pOSItions of VehIcle Coordmator and Vehtcle DocmnentatIOn Clerk/ColliSIOn Claims Clerk. Based on the Job descnptlOn proVIded to WORK ABLE together WIth an analYSIS conducted on the work sIte III whIch thiS person would be employed, these pOSItIOns are charactenzed by clencal activIties that have to be performed WIth time pressures, multiple task demands, and hIgh expectatIOns for accuracv 6 Trus would most probably mteract WIth thIs man's clencal deficIts and anxiety problems and lead to unsatIsfactory work performance. The posItIon of ReceptIOlllst/VenficatIon Clerk appears to be less problematIc for thIS person. ThIS occupatIon offers more opporturuty for thts person to demonstrate rus SOCIal and mterpersonal strengths, the pOSItIon of ReceptlOlllst tYPIcally mvolves takIng and translllittmg mformatIon m the face of tune pressW"es and multIple demands for one's attentIOn. In my opllllon, gIven thts person's docwnented vocatIonal dIfficultIes WIth clencal actIVItIes, the consIstent fmdIngs of two assessments undertaken four years apart demonstratmg defiCIts m the area of clencal skills, the presence of a GeneralIzed AnxIety DIsorder; and the possibIlIty of a Job related learrung dIsabIlIty; the prognOSIS regardmg thIS person's abIlIty to succeed m these pOSItIons IS poor In a summary report entItled "VocatIonal EvaluatIon/W ork SIte AnalYSIS - Summary Report" dated July 3, 1996, WORK ABLE stated. Mr Mclellan was referred to WORK ABLE Centres Inc. for a VocatIonal EvaluatIOn. As well, WORKABLE Centres Inc. was requested to perform a Work SIte AnalYSIS on three potentIal employment pOSItIons for wruch he could be conSIdered. Velucle Coordmator, ReceptlOlllst/V enficatIon Clerk, Verucle DocwnentatIOn Clerk/CollIsIOn Clauns Clerk. The Work SIte AnalYSIS on the three pOSItIOns was performed on June 20 and 21 of 1996, performed by Dlaruelle Thompson, OccupatIOnal TherapIst and Jeruufer Moore, Certified KeneslOlogIst. Subsequently, Mr McLellan underwent a VocatIOnal EvaluatIOn wruch mcluded three 8-hour days of work sunulatIon evaluatIon, followed by a psycholvocatlOnal evaluatIOn wruch was performed on June 25,27,28 and 29, 1996 The work sunulatlOn component was performed by Erik Stone, CertIfied KeneslOlogIst and Daruelle Thompson, CertIfied OccupatIOnal Therapist wrule the psychologIcal vocatIOnal evaluatIOn was performed by Dr Kerry Lawson, RehabilItatIOn PsychologIst. Thts summary IS a composIte of all three components of the evaluatIOn performed. The Work Site analyses performed IdentIfied both the phYSIcal and cogmtIve demands of the three pOSitIOns avaIlable. Although the Jobs were qUite dIstmct, from a cntIcal task functIOn perspectIve, SIlllilarItIes were IdentIfied amongst all three pOSItIOns. The cntIcal Job demands of all three pOSItIOns were IdentIfied as phone communIcatiOn, data entl) mto varied computer software programs, wntten commumcatIOn skIlls, faxmg and photocopymg, mail dlspatchmg and sortIng, and vaned tune constramts. It was IdentIfied that both the Verucle DocwnentatiOn Clerk/CollIsiOn Clauns Clerk and the Verucle Coordmator pOSItIons were most challengmg m terms of autonomy and responsibility WIth regard to expected productlVlty and accuracy m rugh pressured tIme environment. The work sunulatiOn evaluatIon IdentIfied that Mr McLellan s data mputtmg/tvpmg speed was \aned from 6 to 21 words per mmute, which IS well below the requrred 30 to 50 words per 7 mmutes reqwred for the VenficatIOn Clerk/ReceptlOrust. Dunng the evaluatIOn of data mputtmg and clencal tasks mcludmg numencal calculatIOn, It was noted under time constramts that Mr McLellan's degree of accuracy decreased as did lus level ofproductlVlty to level which were deemed unacceptable m the workplace, particularly With regard to rate of error The psvchovocatlOnal evaluation revealed that based on the psychometnc test results, Mr Mclellan lacked the specific clencal abihty to perform at a high level m performmg the cntlcal Job tasks as Identified m the Work Site Analyses. It was Identified that the defiCit IS likely related to a possible learrung disability wluch IS further comphcated by Mr McLellan's anXiety disorder The conditions of tune pressure, multiple task demands and lugh expectations for accuracy while nmctlOrung m a relatively autonomous manner were Identified as vanables which Mr McLellan did not demonstrate the abihty to master With regard to accommodatIOn, the three occupatIOnal posItions were clencal and reqwred the cntIcal nmctIons of data processmg skills, wntten commurucatlOn skills, a need for accuracy and a lugh rate of productiVity The chrucal team IS unable to Identify any accommodatIOn that could be unplemented Without altenng the nature of the Job and ultunate productlVlty of the position. The best type of accommodation IdentIfied would be to have Mr McLellan pursue employment where clencal demands are nurumal and relaxed tune constramts are present. In summary, based on the measurement and the evaluatIOn performed by the assessment team, It IS the combmed opunon that Mr McLellan IS not SUIted for the three posItions currently Identified as avallable wlthm the Mirustry of the Sohcltor General and Correctional Services, AdmmIstratIve Branch of the Transfer and Supply section. SpeCifically, the pOSitIOns ofVelucle Coordmator and Velucle Documentation ClerklColhslOn Clauns Clerk are charactenzed by clencal actiVities that have to be performed With tune pressures, multiple task demands and lugh expectations for accuracy Mr McLellan's clencal defiCits and anxIety problems would lead to unsatisfactory work performance m these occupatIOns. In the pOSitIOn of Recephomst/Venfi.cahon Clerk, word processmg reqwrements were Identified at 30 to 50 word range, however, on multiple day testmg, Mr McLellan demonstrated word processmg abihtles rangmg from 6 to 21 words per mmutes, well below the performance standards Identified dunng the Work Site AnalYSIS. The assessmg team's recommendatIOn IS that Mr McLellan pursue occupatIOns m wluch clencal demands are luruted and wluch loose time constramts are available Should these factors be present, Mr McLellan would likely be vel) successful m resumption of employment. Union Submissions Ms Cheng, for the Uruon, argued that the Memorandum of Settlement has been breached and therefore the partles are appeanng before the Board III accordance WIth paragraph 12 of the Memorandum of Settlement. It IS the Employer's VIew that It has dIscharged ItS oblIgatIOns III full III accordance WIth paragraph 7 8 The Druon subnutted that the only Issue With the process of evaluahon IS that the assessment team dealt only twIce WIth the matter of accommodahon and when they dId It was poorly done It IS obVIous that the assessment team dId not consIder modificatIon of Job dutIes such as removmg the data processmg component from the posltlon and allowmg for more tIme for tasks to be performed. Indeed, there IS reference only to the degree of productIVity and accuracy necessary as estabhshed by the Employer This does not address the questIOn of whether the posItIon can be modIfied to allow for the gnevor's needs There IS no explanatIon m these documents as to why the posItIon could not be modIfied to accommodate the gnevor's needs. The report srmply sIde-stepped the Issue of accommodatIon. Ms. Cheng mformed the Board that the gnevor has been on d1sab1hty leave for seven of the prevIOUS 9 years Takmg mto account that penod of absence from the workplace, It IS not surpnsmg that Mr McLellan's typmg sk1lls rmght requITe some practIce Indeed, the results should have been encouragmg. Further, there were many posItIve comments throughout the documents The report IS encouragmg about a number of aspects of the gnevor's ab1htIes and yet It concludes that because, he can not type qUickly or deal well WIth tune constramts, he IS unable to do the work. GIVen the pOSItIve fmdmgs m the report, It IS mcumbent on the Employer to show this Board that to proVide one of the posItIOns at Issue IS beyond undue hardshIp The Dillon rehed on Re Board of School Trustees, School District No. 23 (Central Okanagan) et aI. V Renaud et aI., Ontario Human Rights Commission et aI., Interveners (September 24, 1992), 95 DoL R. (4th) 577 (S C C) (Sopmka, J), Re Metropolitan General Hospital and Ontario Nurses' Association (1993), 37 L A.C (4th) 113 (H. D Brown), and Re Canada Post Corp. And Canadian Union of Postal Workers (Milligan) (1993), 38 L.A.C (4th) 1 (P1cher) The Uillon contended that the gnevor should have and could have had one of the three 9 posItIons altered to allow for a lesser volume of work and tIme constramts The onus rests wIth the Employer to show that thIS request creates an undue hardslup EMPLOYER SUBMISSION Ms Holmes, for the Employer, asserted that the Issue for tlus Board to determme IS more narrow than suggested by the Umon. It IS whether the Employer has comphed WIth the Memorandum of Settlement and therefore dIscharged ItS obhgatIons Paragraph 5 of the Memorandum of Settlement stated. "On the baSIS of the pOSItIons IdentIfied by the employer, an ergonormc assessment wIll be conducted by an mdependent tlurd party m order to determme what pOSItIons, If any, meet the gnevor's abilities and/or dIsabIhtIes, based on the vocatIonal assessment. The cost of tlus assessment wIll also be borne by the employer" AccordIng to the expert report, all three pOSItions that were IdentIfied had a core of essentIal dutIes that the gnevor could not perform, such as multIple demands and tune constramts It was apparent from the documents that, unfortunately, the gnevor fell far short of what was requITed by the pOSItIons and that accommodatIon could be not be meamngfully apphed. Ms. Holmes asserted that the Umon never suggested that the report was wrong. There IS no eVIdence before tins Board that, absence the gnevor's handIcap, he could do the work. The Umon cannot now seek to get a better deal than It bargammg for m the Memorandum of Settlement. The reports deal WIth the Issue of accommodatIon and are clear that there can be no accommodatIOn m these CIrcumstances The type of testmg that was performed must be VIewed m terms of assessmg accommodatIOn. The assessors spent three days WIth the gnevor In a varIety of settmgs and determmed that he could not do the work. Ms Holmes revIewed the consIderable documentatIOn begmmng WIth the Work SIte 10 AnalysIs In that analysIs It was stated that the three posItIons reqUIre data entry skIlls, wntten commwucatIon skills, word processmg abibty, knowledge of facsumle tranSlll1SSIOnS and, m addItIon, multIple demands were present. Speed and accuracy were expected. The Work SunulatIOn Assessment of the gnevor shows us that he dId have those abIlItIes The PsychologIcal VocatIonal EvaluatIon made clear that the gnevor has dIfficulty wIth reference manuals and problems WIth computers. It IS apparent from the Psycho vocatIOnal Report and the Summary Report that Mr McLellan sunply does not have the abIlIty to perform the essential components of any of the three pOSItIons The Employer stated that the assessment team concluded that the gnevor was not cogmtIvely unparred. That substannates the Employer's VIew that but there IS no conclUSIve proof that, but for lus illsabihty the gnevor could do the work. He must work at lus own pace and cannot do the essentIal elements of the Job It would be fruItless to attempt accommodation because It IS Impossible to adjust the need for accuracy and the tune constramts In these cIrcumstances, the gnevor cannot slIDply pIck a Job that he would like The search for pOSItIons was lumted m the Memorandum of Settlement and the Employer has done what It was oblIged to do, Ms. Holmes asserted. Accordmgly, there IS no need to apply any other standard because the agreement of the partIes was clear However, m the event that tlus Board IS persuaded that It IS appropnate to conSIder the Issue of accommodatIOn, the Employer cannot be found derelIct m tlus regard. The Junsprudence IS clear that the Employer IS to accommodate to the pomt of undue hardslup However, the Employer IS obbged to aSSIst a person do perform a Job that they would otherwIse be entitled to Further, undue hardslup does not mean that the Employer has to accept substandard performance or lower productIVIty Nor does It force It to create pOSItIOns or assemble a bundle of dutIes to fill an employee's day or to make a Job for someone who cannot perform the functIons of theIr own pOSItIOn. 11 The Employer rehed on Re Canada Post Corp. and Canadian Union of Postal Workers (Godbout) (1993), 32 L A.C (4th) 289 (T A. B Jolhffe), Re Canada Safeway Ltd. and U F C W (1992), 26 L.A.C (4th) 409 (Wakelmg), Re PanAbrasive Inc. and United Steelworkers of America, Local 8777 (1993), 38 L.A.C (4th) 434 (Clement), Re Royal Alexandra Hospital and Alberta Hospital Employees Union, Local 41 (1992),29 L.A.C (4th) 58 (Power), Re Chamberlin v. 599273 Ontario Ltd. (June 16, 1989) 11 C H.R.R. (Spnngate), Re Cameron v Nel-Gor Castle Nursing Home and Marlene Nelson (August 30, 1984) Volume 5, DecIsIOn 371 C H.R.R. (Cumnung) In reply, Ms. Cheng stated that the consultant's report does not fmd that the gnevor cannot do the essentIal dutIes of the posItIons The report disputes whether the gnevor can perform Wlthm gIVen tIme frames. There IS no eVidence to substantIate that the gnevor IS completely unproductIve The questIon for th1s Board to address IS whether reduced productiVity IS beyond undue hardshIp Further, the Umon responded that there IS no eVidence before tlus Board that the gnevor could not do the work at hand absent ills dlsabihty DECISION It seems appropnate to begm by detenmmng the scope of my jUflsdlctIOn. The ongmal gnevance was resolved on the baSIS of the Memorandum of Agreement. It was the Vmon' s view that the Memorandum had been breached. The Employer subIllltted that It had discharged ItS oblIgatIons and, accordmg to paragraph 7, the matter has come to a conclUSIOn. I am of the view that, llTespectIve of whether the Employer comphed With Its obhgatIOns under paragraph 7, the matter IS properly before me and I have the junsdlctIOn to make a detenmnatIOn. Paragraph 12 states All of the foregomg IS Without precedent and Without prejudice to either of the parties, and the gnevor Will be entItled to proceed to arbItratIOn should the foregomg process fall. 12 Apparently It IS the View of the gnevor and the Umon that the process set out m the Memorandum of Agreement faded and It IS exercIsmg ItS clearly express nght to come before tlus Board. GIVen that decIsIOn, It IS not necessary to decIde whether the Employer has dIscharged Its obhganons under paragraph 7 However, m any event I fmd that the "Employer's obhgatIOn to accommodate the gnevor's dIsabihty" has not been dIscharged. Paragraph 7 states The gnevor wIll be assIgned toa permanent vacant posInon, when the parties mutually agree that he IS quahfied to perform the work of that posIbon, or the posItIon can be modIfied to accommodate ills dIsabdItIes Once thIs has been accomphshed, the Employer's obhganon to accommodate the gnevor's dIsabihty WIll be deemed to have been dIscharged. The end of the Employer's obhgabon to accommodate the gnevor IS predicated on certam matters bemg accomphshed. Absent that, the Employer contmues to have obhgatIons wIth respect to the accommodanon of the gnevor There has been much jW1sprudence on the Issue of accommodanon. It IS not my mtennon to reView that law or make sIgmficant comment because, m my View, there can be no doubt that the Employer has not shown that to facihtate the gnevor would requITe accommodanon beyond undue hardslup In the mstant matter, the partIes agreed to a process to resolve the matter of re-mtegratlng the gnevor mto the workforce The parties agreed that an outSIde consultant would provIde a vocatIOnal assessment of the gnevor and an ergonOmIC assessment of certam IdentIfied pOSItIons It was specIfically agreed that "an ergonOmIC assessment wIll be conducted by an mdependent thrrd party m order to determme what pOSItIOns, If any, meet the gnevor's abIlIties and/or dIsabIlIties, based on the vocatIOnal assessment" Those assessments were conducted m accordance WIth the partIes' agreement. However, 13 there was no agreement between the pa.rtles as to whether, based on those assessments, there were any posItIOns that met the gnevor's abIhtIes and/or dIsabIlItIes The Dmon suggested that the gnevor could do the work If alteratIons were made that fell short of undue hardshIp The Employer contended that gIven the reports of the thrrd party, the gnevor was unsmted for any of the three posItlons and further, that there was no eVIdence that he could do the work even m the absence of hIS dIsabIhty Normally m cases where the Issue of accommodatlon IS contemplated, a consIderable analysIs of the work and of the effect of the worker's dIsabIhty on that work IS undertaken by the Board of ArbItratlon. I have no need to go through eIther exerCIse because It has been done by people who are experts m thelT field. In tlus case, the Employer looked to the recommendatIOns of the consultant and determmed that no accommodatlon was possible I am not conVInced that IS the case There IS no eVIdence that the consultant was suffiCIently versed m the obhgaoons of employers regardmg accommodaoon m the workplace for people WIth msabilioes. Indeed, sectlons of thelT reports would lead one to beheve othelWIse There were references to the gnevor's mabIhty to "perform at a lngh level m these posIoons"and that the gnevor "lacked the specIfic clencal ability to perform at a lngh level m perfonmng the cnocal Job tasks as Idenofied m the Work SIte Analyses"( emphaSIs mme) Further, there was precIOUS httle reportIng on the Issue of accommodahon. One of the comments m tlns regard stated that "the clmIcal team IS unable to Idenhfy any accommodahon that could be Implemented WIthout altenng the nature of the Job and ultrmate producoVIty of the pOSItion" (emphasIs mme) One of the two references to accommodatIOn concluded by suggestmg that "It IS likely that mOVIng thIS person mto vanous lmes of work more SUItable to hIS vocatIOnal strengths and vulnerabIhtIes IS the best type of "accommodatIOn" that can be offered to thIS person" 14 I am not absolutely convmced that the gnevor can be accommodated mto any of the three posItions that were consIdered. However, gIven the frequent references to hIgh levels of performance amongst other comments, I am of the VIew that the consultants reports cannot be relIed upon for the purposes of proVIdmg advIse regardmg whether accommodatIOn IS possIble The JurIsprudence IS clear that the Employer IS oblIged to make attempts to accommodate to the pomt of undue hardshIp In the mstant case, the Employer relIed upon the consultant's report whIch SaId that accommodanon was not possible The report stated that the jobs could not be altered gIVen the Employer's expectanons. In order to facIlItate accommodatIOn, those expectations must be altered. That was not consIdered by the consultants or done by the Employer There was no eVIdence that the Employer attempted, to the pomt of undue hardshIp, to alter any of the posInons. Indeed, there was no eVIdence of any attempt at altenng any of the three posItIOns to accommodate the gnevor The Employer's relIance on the fmdmgs regardmg accommodation m the report IS not sufficIent to meet ItS oblIgatIOn eIther under the Memorandum of Settlement or ItS oblIganons to accommodate the gnevor m accordance WIth the jUTIsprudence I belIeve that my above findmgs are suffiCIent for the partIes to move forward m thIs matter In the event that there are dIfficulnes nnplementmg thIs decIsIOn, I remam seIzed. Dated at T ~