HomeMy WebLinkAbout1994-0429.HOGAN95_09_15
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r SEP 1 B 1995 OPSEU # 94D495
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t, \)\ "~L\\.... .....,....11 Ii .v_ IN THE MATTER OF AN ARBITRATION
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\ !\PPEAL BOARDS
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1--- Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Hogan)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Finance)
Employer
BEFORE L Mikus Vice-Chairperson
FOR THE R Murdock
GRIEVOR Counsel
Ryder, Wright, Blair & Doyle
Barristers & Solicitors
FOR THE M Nixon
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING May 24, 1995
June 9, 1995
August 2, 1995
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The grievor, Deborah Hogan, tlas been employed since 1987 by the Ministry of Finance
as a Records Management Clerk in the Corporate Tax Branch, Records Department, as
an Office Administration Grade 3 (hereinafter referred to as an OAG3) In 1989, she
underwent a spinal fusion and in November of 1992, she had to have a hip replacement
due to osteoarthritis She grieves that the Ministry has discriminated against her as the
result of her disability and has failed to accommodate her return to work since June of
1993, when she was declared fit to return for work, albeit not to her regular duties She
asks, by way of redress, that she be given a permanent modified position within the
Ministry of Finance but outside of the Corporate Tax Branch and Records Department.
As well, she is seeking reimbursement for the difference in pay between disability benefits
and her regular salary from June of 1993 to the date of the award and an award of
general damages consistent with those allowed under the Ontario Human Rights Code
R.S 0 1990, c. H 19 (hereinafter referred to as the "Cadell)
The Union takes the position that the Ministry was obliged to search for a suitable job for
the grievor first within its own department, then within its own Ministry and, finally, within
all the Ministries of the government, which it did not do It also takes the position that any
attempts at accommodation before June, 1993 are irrelevant because, since that time, no
offers of employment have been made to the grievor
The Ministry takes no issue with the general proposition that it has an obligation to
accommodate the grievor It takes the position, however, that it has done so by offering
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her several positions within her department, which she refused. In March of 1989, when
the grievor asked for accommodation after her spinal fusion, the Ministry offered her a
temporary assignment outside of her regular duties and in a higher classification That
accommodation went beyond the duty to accommodate the grievor in her regular job
In October of 1991, Ms. Nicole Anidjar, the Director of the department, met with the
grievor and explained that her temporary assignment had to end and that she would be
returning to her regular job with modifications. The branch was attempting to restructure
the job to meet her physical restrictions. Ms. Anidjar suggested that the grievor try the
redesigned job and, if it was unsuitable, they would try something else. She also
suggested that she try to upgrade her typing skills so that she could qualify for higher
rated positions and be in a more favourable position to compete for less physically
demanding jobs The job was ultimately redesigned so that the grievor was situated at
a desk in the department but was not required to do any of the physically demanding
aspects of the job According to Ms. Anidjar, the grievor refused to accept that job and
went off on sick leave She returned unexpectedly, according to Ms. Anidjar, in March
of 1992, not to her regular job but to a job that had been redesigned for another
employee By April, that work had been completed and arrangements were made for the
grievor to spend one half of her day in the word processing centre She continued in that
job until late May when she returned to sick leave
In November of 1992, the grievor had hip replacement surgery and has been off work
virtually since then. The parties agree that the duties of her position involved a significant
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amount of physical labour, including bending and lifting Indeed, it was agreed that most
of the OAG3 positions have similar physical demands and that the grievor would be
unable to perform most of those duties
The next time Ms Anidjar heard from the grievor was in June of 1993, when she received
a call from Mr Don Hamilton, Human Resource Consultant, who was assisting the griever
to return to work. In response to that call, Ms. Anidjar advised Mr Hamilton that the
department had already redesigned two positions to accommodate employees and that
there were no other positions within the department that could accommodate the
grievor's restrictions. She suggested that Mr Hamilton look elsewhere in the service for
a clerical position in the OAG3 category or to declare the griever surplus, which would
allow for a broader search.
Ms. Anidjar did not hear from the grievor until April of 1994 She was not aware that the
grievor had made arrangements to work at an unpaid job assessment assignment in the
interval. In fact, the grievor arranged for an additional unpaid job assessment the
following year as well. In any event, when the grievor contacted Ms Anidjar, it was with
respect to a job competition in the tax roll department. The grievor was concerned that
her application would be reviewed by Mr Jacques Gouldreau, Manager of the
department and her previous supervisor She advised Ms Anidjar the she and Mr
Gouldreau had not had a good working relationship and she was concerned that her
application would not be fairly judged by him That was the first time Ms Anidjar heard
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of any problems between the grievor and Mr Gouldreau, although she acknowledged
that she had received a complaint from another employee concerning inappropriate
conduct and comments made by Mr Gouldreau At the time Ms Anidjar spoke to Mr
Gouldreau and she received no further complaints about him until after this grievance was
filed. Ms. Anidjar reassured the grievor that she would be conducting the competition in
a fair and equitable manner based on the merits of the candidates.
At that time, the grievor advised Ms. Anidjar that she was fit to return to work but that she
would be unable to perform the duties of her position. Ms Anidjar asked for a medical
report to that effect and advised the grievor that there were no OAG3 positions available
in that branch and that it could not redesign any more positions to accommodate her
restrictions. She pointed out to the grievor that she had been offered eighteen months
of assignments in classifications above her OAG3 position and that it would be
inequitable to the other employees to continue those offers. She also reminded the
grievor that the branch had offered her a modified position of her filing clerk's position
which she refused to try Ms. Anidjar suggested she consult with the Human Resources
Branch to determine what work would be suitable and available.
Ms Anidjar explained that, at that time, this Ministry, as were all ministries within the
government, was subject to a prolonged hiring freeze so that the usual vacancies
attributable to attrition did not exist. As well, this particular department had already
modified two positions to separate the sedentary aspects of the job to accommodate the
physical restrictions of the employees involved In fact, a review of the employees in the
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Tax Return Centre showed that only fifty percent of the employees could do all aspects
of the job It was, therefore, impossible to modify another position for the griever
During the remainder of the summer and the fall of 1993, the grievor continued on long
term disability benefits. When Ms. Anidjar was asked why, she responded that she did
not have a position for her and, since there was little difference between the disability
payments and salary the grievor would have received on surplus status, it was a
reasonable alternative. Ms. Anidjar testified that she was hoping that, when a suitable
position was found, the grievor could apply for the job from the surplus list. For a time
the grievor was assigned to do inputting of the tax data but was unable to reach the
necessary 10,000 key strokes necessary to obtain the position permanently
In January of 1995, they had not found a suitable position for the grievor so Ms Anidjar
decided to offer her a special project in the records area. There were in excess of 40,000
pieces of mail requiring new addresses. The grievor agreed that the job offer met her
physical restrictions but did not want to accept a position that required her to be
supervised by Mr Gouldreau. Ms Anidjar testified that she was confused because the
previous April the grievor had applied for a job under Mr Gouldreau's supervision She
met with the grievor on February 21, 1995, to outline the duties of the project and to
better understand the grievor's problems Ms. Anidjar explained that this was a modified
position that would be vacant for a period of time that the grievor was able to do She
also hoped there would soon be a vacancy in the filing room Ms. Anidjar spoke to the
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manager of Word Processing who advised her that there were no vacancies but that
there was an opportunity for the grievor to do some proof reading, although it was not
in a classified position
Ms. Lois Marston, who is a Human Resource Consultant with the government, testified
that she took over the grievor's file in February of 1994, after the retirement of Mr
Hamilton. Her responsibities include conducting job searches to assist employees whose
positions are no longer available through lay-off, redundancy or an inability to perform the
duties of a position, such as the grievor She is familiar with the various duties of the
classifications. She testified that all OAG3 positions contain a physical component that
requires the ability to bend, lift and carry There were, in 1993, approximately fifty
positions within the OAG3 classification. Most receptionist positions are classed as
OAG3's unless bilingualism is a requirement, in which case they are OAG4's. She also
testified that during 1993-1994, all Ministries were subject to constraints and that there
was little recruitment during that time.
She first became acquainted with this case in June of 1993, when Don Hamilton told her
that the grievor was coming back to work and that he had spoken to Ms. Anidjar about
it. He did not explain the details of the case but asked Ms. Marston whether there were
any positions in her classification within the branch. When she replied in the negative,
he spoke to other consultants to widen the search. She could not say with certainty what
efforts Mr Hamilton made on the grievor's behalf She took over the file in January of
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1994, and commenced five weeks vacation in February and ending in March At the
same time there was some difficulty getting into Mr Hamilton's files, which were locked
in a cabinet. In any event, nothing was done on the grievor's behalf during that time In
April the grievor contacted Ms Marston concerning her return to work. During the
months that followed, the grievor spoke to Ms. Marston frequently, as did Ms. Sally
Rudka, President of the local. In fact, in August of that same year Ms. Rudka advised Ms.
Marston that there was a job posting for an OAG4 position and asked why the grievor
had not been approached about the position. Ms. Marston corrected the mistake and
held the job in abeyance until the grievor could have an assessment of her skills. That
assessment was done in October of 1994 but the grievor was unable to meet the
required 10,000 keystrokes. Ms. Marston was asked why the grievor stayed on disability
throughout the summer of 1994 She replied that after several discussions about the lack
of vacancies suitable for the grievor, it was agreed that she was safer on disability
benefits and that she would be brought back in November when her benefits expired, at
which point she could be declared surplus On November 23, 1994, the grievor was
declared surplus.
ARGUMENT
Ms Murdock, for the Union, took the position that the evidence established that the
Ministry did not make sufficient effort to provide the grievor with a position that would
accommodate her restrictions. It looked within its own branch, determined that it had too
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many positions already dedicated to returning injured workers, and decided that it was
not required to do more That, argued the Union, does not meet the test of undue
hardship required in these cases. There is no evidence before this Board that an
accommodation for the grievor would have resulted in undue cost, that it would have
caused safety concerns in the workplace or that an accommodation in the instant case
would have had any effect on the relationships within the workplace. The Ministry has
failed to meet that test and on those grounds this grievance should succeed.
The Union relied on the grievor's resume as proof of her ability to perform many and
varied job functions. It reminded the Board that she attempted to upgrade her skills by
taking home the department's laptop computer She arranged for unpaid work
assessments while she was off on disability benefits in order to improve her chances in
job competitions. As well, it is clear from the evidence of the grievor, Ms Rudka, Ms.
Anidjar and Ms Marston that the grievor was the driving force in the continuing job
search. She and Ms. Rudka met numerous times with various people, including Ms.
Marston, to suggest job possibilities or to prod further action
The Union contended that any offers of accommodation that predate the June, 1993,
return to work are irrelevant to this case. After the grievor advised the Ministry that she
was ready to return to work, no job offers were made to her The Ministry did offer the
grievor a modified position before June of 1993, but that position was unsuitable for
several reasons The grievor believed it would cause resentment amongst her co-workers
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because it required them to bring work to her thereby increasing their workload The
grievor found the job demeaning and it cannot be found to meet the objective of the
Code, which is to provide work while preserving dignity As well, it was under the
supervision of Mr Gouldreau who, the evidence has shown, did not want the grievor in
his department.
After June of 1993, there is no evidence that any serious attempts were made to find the
grievor suitable work. To the contrary, the evidence is that everyone was prepared to
leave the grievor on disability benefits for as long as possible to avoid dealing with her
problem The Ministry took the position there were no OAG3 positions available and that
was all it was required to do Indeed, Ms Anidjar testified that her department had
already redesigned two positions that included most of the sedentary job duties and that
it could not accommodate another one Yet there was evidence of extensive use of
GoTemps during this time who were called in to do work the grievor could have been
assigned.
In conclusion, the Union argued that the grievor has made out a prima facie case of
discrimination She has a disability that requires accommodation and the Ministry has
failed to do so A disabled employee has the right to be treated the same as other
employees In this case, the grievor was not even treated equally as between other
injured or disabled employees. The evidence is clear that the Ministry has, in the past,
accommodated employees by extracting some of the job duties of a classification to
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design a job that meets the requirements of the disability The grievor, however, was not
extended that same consideration which is, asserted the Union, a more egregious form
of discrimination. There is no evidence that this Ministry looked beyond its borders to
find a suitable job for the grievor, which it was obliged to do There is no evidence that
the Ministry considered redesigning a job for the grievor, which it was obliged to do As
well, the Union asked the Board to find that the Ministry acted in bad faith by not only
ignoring the grievor's complaint's concerning Mr Gouldreau, but further requiring that she
return to work under his supervision knowing his attitude towards the grievor specifically
and injured or ill workers generally
Ms. Rudka testified about her efforts to find the grievor suitable work. She stated that she
had more trouble accomodating the grievor than any other employee returning to
modified work and that, in her opinion, the Ministry worked more diligently to return
injured Workers' Compensation employees than it did for the grievor She also gave
evidence about conversations she had with Mr Gouldreau which supported the grievor's
assertion that he did not want her back in his department.
For these reasons the Union asked that the grievance be allowed, that the grievor be
provided with a permanent modified job, that she be paid compensation for lost wages
and general damages for pain and suffering. In support of its position the Union relied
on the following cases, Re The Crown in the Right of Ontario (Ministry of Government
Services) and OPSEU (Kimmel/Leaf) (1991),21 L.A.C (4th)129 (Kaplan), Re Beliveau
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v Steel Co. of Canada (1988),9 C H.R.R. 0/5250 (Ontario Board of Inquiry), Re Ontario
Human Rights Commission et al. and Simpson-Sears Ltd (1985), 23 0 L.A. (4th) 321
(S.C C), Re Munch v York Condominium Corp. (1992), 18 C H A.R. 0/339 (Ontario
Board of Inquiry), Alberta Human Rights Commission v Central Alberta Dairy Pool,
Canadian Human Rights Commission et at, Interveners (1990), 72 0 L.A. (4th) 417
(S C C), Re Rothmans, Bensen and Hedges Inc. and Bakery, Confectionary &
Tobacco Workers' Union, Local 325-T (1990), 10 L.A.C (4th) 18 (R.M Brown), Re
Marianhill and CUPE, Local 2764 (1990), 10 L.A.C (4th) 210 (R.M Brown), Re Emrick
Plastics Division of Windsor Mold Inc. et at and Ontario Human Rights Commission
et at (1992), 90 0 L.R. (4th) 476 (Divisional Court), Re York County Hospital and
Ontario Nurses' Association (1992),26 L.A.C (4th) 384 (Watters), Re T C.C. Bottling
Ltd and Retail, Wholesale and Department Store Union, Local 1065 (1993), 32 L.A.C
(4th) 73 (Christie), Re United Air Lines and International Association of Machinists &
Aerospace Workers (1993), 33 L.A.C (4th) 89 (J.M. Mcintyre) and Re Pharma Plus
Drugmart Ltd and United Food and Commercial Workers Union (1993),33 L.A.C (4th)
1 (Mitchnick)
Ms Nixon, for the Ministry, took the position that the duty to accommodate extends only
to the job the grievor was hired to do In this case, the grievor is unable to perform the
functions of her position and the Ministry was not obligated, after making that
assessment, to look beyond that.
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In the alternative, the Ministry took the position that the duty to accommodate extends
only to the classification of the grievor which was, in this case, an OAG3. That required
the Ministry to search for a job amongst the OAG3 positions within the Ministry It did
that and found none That fulfilled its obligation to accommodate Once the grievor was
declared surplus, the Ministry's obligation widened to positions within 3% lower or 10%
higher than an OAG3. At no time, contended the Ministry, did it have to create a new job
for her That would have been an undue hardship on the Ministry
In any event, argued the Ministry, the employee and the employer are expected to work
together to find a suitable position. In this case, despite the Ministry's efforts, the grievor
refused twice to perform the duties assigned. When the grievor first approached the
Ministry for modified work, it offered the grievor a temporary assignment outside of her
classification. That went beyond the Ministry's obligations to accommodate. In 1991,
when the grievor was offered a modified version of her previous position, she refused to
try the job to assess its suitability Finally, when a special project was set up that the
grievor acknowledged was suited to her limitations, she refused the job because of Mr
Gouldreau.
Which leads to the Union's argument, argued Ms. Nixon, that the Ministry was engaged
in a conspiracy to place the grievor in an impossible situation in retaliation for her
grievance There is simply no evidence before this Board to support that allegation Ms.
Anidjar testified that she did not know about the relationship between the grievor and Mr
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Gouldreau until April of 1994 She also testified that she had only received one complaint
about Mr Gouldreau, which she acted upon immediately In fact, when the grievor turned
down the special project because of Mr Gouldreau, Ms Anidjar testified that she was
surprised because the grievor had applied for a job in 1994, that would have placed her
under Mr Gouldreau's supervision. The allegations of reprisal and bad faith should be
dismissed by this Board.
In support of its position the Ministry relied on the following cases Re Board of School
Trustees, School District No.23 (Central Okanagan) et at v Renaud et al. Ontario
Human Rights Commission et al.,lnterveners (1992), 95 0 L.R.(4th) 577 S.C C , Re
Canada Post Corp. and Canadian Union of Postal Workers (Godbout) (1993), 32
L.A.C (4th)289 (T.A.B Jolliffe) and Douglas Bonner and Ministry of Health, Insurance
Systems Branch (1992), 16 C H R.R. 0/485 (Ontario Board of Inquiry)
DECISION
There are several material facts that have been agreed to by the parties. The grievor has
physical limitations that prevent her now and in the future from performing the essential
duties of her position. The Ministry has an obligation to attempt to find alternative
employment for the grievor that will accommodate her limitations to the point of undue
hardship The issue before this Board is whether, on the facts of this case, the Ministry
has met its obligation and whether, by declining some of the job offers made to her, the
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grievor is, in part or in whole, responsible for the fact that no alternative arrangements
were agreed upon.
Much evidence was offered concerning vacancies and Go-Temps which the Union argued
was proof of the existence of work that should have been offered to the grievor For
reasons to be explained later in this award, I have decided not to refer to that evidence
I also heard evidence from the grievor and other witnesses about Mr Gouldreau, some
of which was hearsay Mr Gouldreau did not testify on his own behalf I am satisfied,
based on the evidence I did hear that the grievor had reasonable grounds to be
concerned about his attitude towards ill or injured workers generally and the grievor
specifically I am equally satisfied that the Ministry did not intentionally plan to place the
griever in a position under Mr Gouldreau so as to thwart her attempts to return to work.
I do not find that the Ministry's actions can be characterised as a reprisal as suggested
by the Union.
I am also persuaded, based on the evidence before me, that the Ministry did not make
any serious attempt to find the grievor alternate work from June of 1993 to January of
1995. The evidence is uncontradicted that the Ministry and Ms. Marston were content to
leave the grievor on disability benefits for as long as possible to avoid dealing directly
with her needs. The evidence is also uncontradicted that the efforts to find the grievor
a modified job were initially limited to her own area. The Branch has already modified two
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jobs to accommodate the physical limitations of two employees In addition, at least fifty
! percent of the employees in the Branch were unable to perform all of the physical
aspects of the job Based on those facts, Ms Anidjar determined that she was unable
to meet the physical limitations of the grievor within her department. Given the
accommodation given to other employees in the area, I accept Ms Anidjar's assertion
that she was unable to design a job in the department for the grievor However, there
is no evidence before me that any similar attempts were made outside of that department
to find a suitable job for the grievor It would seem that everyone involved in the job
search except for the grievor and the Union, simply canvassed vacancies as they arose
but never considered whether the duties of the OAG3 positions could be redesigned for
the grievor The only evidence of a serious attempt to modify a position occurred early
in the grievor's request for accommodation. More will be said about that later in this
award.
The Ministry has taken the position that it was not required to create a new job for the
grievor and relies on the Canada Post case (supra) for that proposition. In that case,
Arbitrator Jolliffe stated that the employer was not obligated to create an occupation if the
duties involved in that new occupation were unrelated to the job the grievor was hired to
do and of little or no economic benefit to the employer If that case stands for the
proposition that an employer is not required to pay an injured worker to do work that is
unnecessary and unrelated to the business the employer operates, I agree that, in some
circumstances, that might create an undue hardship on an employer However, in this
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case, the Ministry never made any effort, after June of 1993, to compare the available
duties with the grievor's limitations to see whether it could design a job incorporating the
duties of an OAG3. The Ministry, in the instant case, cannot claim its attempts to
accommodate the grievor reached the point of undue hardship
I am convinced, on the evidence before me, that after June of 1993, most of the enorts
to find the grievor suitable work were at the initiative of the grievor and the Union. I find
it interesting that the Ministry, Ms. Marston and the Union believed that once the grievor
was declared surplus, the search for a suitable job would widen. Surely the right to be
accommodated in these circumstances is at least as broad, if not more so, than the
bumping rights under the collective agreement. And yet, everyone seemed to believe that
her chances for a position would improve once she was declared surplus.
In coming to the conclusion that the Ministry did not do enough to accommodate the
grievor, I am not suggesting that the Ministry did nothing. As stated previously, there was
an attempt to modify the grievor's position by removing the physical aspects of the job
and assigning her to a desk in the area. The grievor described that offer as demeaning
and suggested that it would cause resentment because other employee would have to
bring work to her She also stated that it was not a job offer but an assignment of duties
that did not have the permanence or standing of a position she could call her own As
well, the grievor turned down an offer of employment concerning a special project in the
area because she would have to work under Mr Gouldreau. I agree with the Ministry's
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assertion that while an employer has a duty to accommodate an employee in these
circumstances, there is an equal responsibility on the employee seeking accommodation
to co-operate with the employer The grievor's right to be accommodated is not
absolute It does not include a right to be placed in a position she is unqualified for
Neither does it give her the right to chose the position she will accept. Once an employer
has fulfilled its obligation by identifying a job that meets the physical limitations of the
returning worker, there is an obligation on the employee to attempt to perform the duties
of that job Neither can that employee expect that the modified job will be permanent,
any more than any other employee can consider a job to be permanent. The modified
job is subject to the same constraints and cut-backs that any other position in the
government.
With respect to the instant case, in January of 1995, the grievor was offered a job on a
special project that she declined because of Mr Gouldreau. In my view, notwithstanding
my earlier comments concerning the reasonableness of her concerns, and in view of her
acknowledgement that the job met her requirements, she should have accepted that
offer For that reason it is the order of the Board that the grievor be reimbursed for the
difference in pay between her regular salary and the disability benefits she was paid from
June of 1993 to January of 1995 For the same reasons, this is not, in my opinion, an
appropriate case to award general damages
It is also the order of this Board that the Ministry has a continuing obligation to
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accommodate the grievor That obligation includes an attempt to provide her with a
position that meets her physical limitations and is not necessarily limited to existing
positions in her department or branch but includes any existing or modified position that
or can be made available to the point of undue hardship The parties should be guided
in their search by the test for undue hardship cited by the Union earlier in this award
I will remain seized in the event the parties encounter difficulties implementing this award
Signed this 15thday of September, 1995 in Toronto
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Loretta Mikus
Vice-Chair