HomeMy WebLinkAbout1994-0755JOYNES97_02_14
ONTARKJ EMPLOYES DE LA COURONNE
CROWN EMPL.OYEES DE L.'ONTARKJ
IIIIGRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
./ 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388
180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396
GSB # 755/94
OPSEU # 94A989
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Joynes)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solitior General &
Correctional Services)
Employer
BEFORE H Finley Vice-Chairperson
FOR THE S Ursel
GRIEVOR Counsel
Ursel & Wilkey
Barristers & Solicitors
FOR THE D Costen
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING June 29, 30, 1995
October 18, 23, 24, 31, 1995
April 10, 1996
May 29, 1996
June 27, 1996
July 11, 1996
August 8, 1996
GSB # 0755/94
"" DECISION
Shelley Joynes, the Gnevor is a CorrectiOnal Officer 2 at the Burtch CorrectiOnal Centre In
Brantford. In March, 1990, she suffered a compensable Injury to her nght elbow while
particlpatmg m a self-defence trammg exerCise dunng Phase II CorrectiOnal Officer trammg at the
Ontano ProvmcIaI Police Academy She is right-handed. While it was thought, for a tIme, that
the result of her mJury would be only temporary, after a two-week penod in 1990 and a three-
week penod m 1991 m an arm-cast, weekly phySiotherapy for the remainder of 1990, cortisone
mJectiOn, and surgery, it proved to be a permanent condition with chrome pam, one which was
to be prone to aggravatiOn under certam conditIons. Accordmg to Ms. Joynes, the more she uses
thIS arm, the more her mJury SIte becomes aggravated. To manage thiS condItion, ongomg
accommodatiOn IS reqUired in the workplace. The process of arrivmg at the accommodatiOn and
the nature of the accommodation itself, have, accordIng to Ms. Joynes, aggravated her conditIon
and caused her stress, and at the tIme of the hearmg m 1995, contmued to do so She set out her
feelIngs on her SItuatiOn m a letter to the Deputy Minister on March 18, 1994
During a self-defence training session I received a permanent injury to my right arm. The injury
should never have occurred and I must carry the burden of this injury for the rest of my life.
The course of action undertaken by local management has become unnecessarily complex,
complicated and potentially unfair to myself and other employees.
On June 14, 1994, Ms. Joynes filed a gnevance allegmg ViOlatiOn of Articles A.l
(discnmmatiOn ), 18 (health and safety), and 50 (pregnancy leave) The relevant sectiOns of
these artIcles read as follows
A.I I There shall be no discrimination practised by reason ofrace, ancestry, place of
origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age
marital status, family status, or handicap, as defined in section 10 (I) of the
Ontario Human Rights Code (OHRC). [Emphasis added]
18 The Employer shall continue to make reasonable provisions for the
safety and health of its employees during the hours of their employment.
It is agreed that both the Employer and the Union shall co-operate to the
fullest extent possible In the prevention of accIdents and in the
reasonable promotion of safety and health of all employees.
1
5061 A female employee returning from a leave-of absence under section 50 I or '\0.5
to the mmistry in which she was employed immediately prior to such leave shall
be assigned to her former position and be paid at the step in the salary range that
she would have attamed had she worked during the leave-of-absence
./
The relevant sectIons of-the Human Rights Code are the follOWIng
5. (I) Employment.-- Every person has a right to equal treatment with respect to employment
without discrimination, because of race, ancestry place of origin, colour ethnic origin,
citizenship creed, sex, sexual orientation, age, record of offences, marital status, family
status or handicap. (Emphasis added]
17 (1) Handicap.-- A right of a person under this Act is not infringed for the reason only that the person
is incapable of performing or fulfilling the essential duties or requirements attending the exercise
of the right because of handicap.
17 (2) Accommodation.-- The Commission, the board of inquiry or a court shall not find a
person incapable unless it is satisfied that the needs of the person cannot be
accommodated without undue hardship on the person responsible for accommodating
those needs, considering the cost, outside sources of funding, if any, and health and safety
requirements, if any
17 (3) Idem -- The Commission, the board of inquiry or a court shall consider any standards
prescribed by the regulations for assessing what is undue hardship.
47 (1) Act binds Crown.-- This Act binds the Crown and every agency of the Crown.
(2) Act has primacy over other Acts.-- Where a provision in an Act or regulation purports to
require or authorize conduct that is a contravention of Part I, this Act applies and prevails
unless the Act or regulation specifically provides that it is to apply despite this Act.
The Umon was represented by Susan Ursel and the Employer, by DaVId Costen.
Ms. Joynes seeks aSSIgnment to a Duty Officer pOSItIOn WIthIn the Duty Office WIth dnver
responsibIlIty added as a modIficatIOn to that pOSItIOn. She maIntaInS that thIS cOmbInatIOn of
responsIbIlItIes would accommodate her disabIhty and she has concluded thIS based on her fillIng
the InstItutIOnal dnver pOSItIOn for several months. She IS not seeking schedulIng
accommodatIon. She also seeks damages for paIn and sufferIng, a letter of apology, a declaratIOn
that the Employer should cease aSSIgnIng her solely to the Duty Officer pOSItIOn, and a
mechamsm to ensure regular momtonng of the accommodatIon follOWIng the deCISIOn. For the
most part, these remedIes stem from the human nghts JunsdIctIOn.
2
The Employer takes the posItIOn that there IS no vIOlatIOn of the artIcles referred to by the Umon,
and qUbmIts that, even If there should be a findIng of vIOlatIOn, that there has been no financIal
/ damage to the GrIevor as she was paId as a CorrectIOnal Officer 2 throughout. The Employer
also referred to the overlappIng of oblIgatIOns between the Mimstry of the SolIcItor General and
Correctional ServIces, and the Workers' CompensatIOn Board and stated that the damages
requested by the GrIevor are thIngs properly compensated for under the Workers CompensatIOn
Board. AccordIng to the Employer, Ms. Joynes IS takIng steps In that forum. The Employer
belIeves that It has met Its oblIgatIOns In accommodatIng the GrIevor and that the pOSItIOn of Duty
Officer, as modIfied, IS approprIate gIven the medIcal Information prOVIded.
Burtch CorrectIOnal Centre IS a mimmum securIty InstItutIOn WIthin the provIncIal system. From
a seCurIty standpOInt, It IS rated the lowest of the facIlItIes. It IS located In 350 acres of farmland,
and functIOns as a correctIOnal centre, with a school providIng educational OppOrtunIty for
Inmates, and a functIOnIng farm providIng work for inmates and prOVISIOns for the InstItutIOn.
There are no fences, Inmates resIde In dormItOrIes and, compared to Inmates at other InstitutIOns,
they have enhanced freedom of movement which permIts them to undertake varIOUS actiVItIes.
For example, they can attend leIsure actIVIties outdoors, or In an unenclosed sports arena. Full
occupancy IS 305 Inmates and thIS may change on the weekends due to the presence of Inmates
who are servIng then tIme on weekends only The inmate population consists of first-tIme
offenders, those who have commItted non-VIOlent CrImes, who have no hIStOry of securIty
problems, and who are usually able to work In some capaCIty; In other words, a mIX of medIUm
and mlmmum securIty Inmates. According to Ms. Joynes, the Inmates who are at Burtch have
been through a filterIng process. DUrIng Ms. Moms' tenure, the number of CorrectIOnal Officers
at the Centre was 72, both claSSIfied and unclassIfied.
The parties dIscussed pnmarIly two employment areas drIvmg responsibIlItles both InSIde the
InstItutIOnal grounds and In the larger commumty, and duty office (control room) responsIbIlItIes
The drIVIng responsibIlItIes are camed out by the mstltutIOnal drIver, a Motor VehIcle Operator
1, and by CorrectIOnal Officers, should the InstltutIOnal dnver be unavaIlable The Duty Office
3
responsibilities are carned out solely by CorrectIOnal Officers The 1I1stltutlOnal dnver posltlOn IS
a Monday to Fnday 0800 to 1600 hours positIOn The dnver IS responsible for the general pick-
up and delIvery of Items necessary to the functIOnIng of the Centre, the dally maIl run,
/'
pharmaceutical pick-up transportatIOn of 1I1mates for medical app01l1tments and volunteer work
and, some on-site dutIes such as transportmg Items from stores. M1I11stry polIcy reqUIres that an
escort be a CorrectIOnal Officer 2, and Mr Dalgleish testified that only 111 the case of an extreme
emergency, for example a medical emergency, would It be acceptable to send a person with a
lower classIficatIOn. The spare General Duty Officer IS sometImes used for dnvmg dutIes and on
occaSIOn, a CorrectIOnal Officer may be pulled off a umt to act as an escort. It was the Umon's
OpInIOn that s1l1ce the mtroduction of the "Intenm Escort Procedures" m June, 1995, the health
and safety of the person m the dnvmg positIOn IS better protected because of the restramt
reqUIrement and the new procedures.
As part of the escort procedure, there IS provlSlon for a second Correctional Officer If you are a
Dnver/CorrectlOnal Officer, However, If you are a Dnver and not a CorrectIOnal Officer, then It
provIdes for two CorrectIOnal Officers. The decision as to whether an Inmate reqUIred an escort
(CorrectIOnal Officer) IS made by the Shift Supervisor m charge, and IS based on a number of
factors. the nature of the actIvity, cnmmal history of the mmate, the nature of his offence (s), the
length remammg In his sentence, prevIOus temporary absence experience, conduct and mdustry
withIn the 1I1stltutlOn, and whether or not he has a history of breach of trust offences.
The vehicle used by the dnver IS a van with a permanent lattice cage which IS locked and Inmates
use only the back or Side doors. The SIde door cannot be unlocked from the mSlde It seats 8
passengers comfortably The current dnver Motor Vehicle Operator I, transports Inmates who
are deemed to be "on a pass" as distInct from those who are reqUIred to be escorted by a
CorrectIOnal Officer When the dnver arrIves at the Inmates' vanous destmatlOns, unescorted
Inmates are dropped off and m the case of escorted Inmates, both the mmate and the escortmg
CorrectIOnal Officer are dropped off.
4
The Duty Officer, as dlstmct from a CorrectIonal Officer functIOnmg as a General Duty Officer
works m the Duty Office whIch IS m effect, the Control Room of the Centre It has lockable
t/ doors, and a speaker receptIOn arrangement. The only mmates that reside m that general area are
m the segregatIOn cell area and are confined 23 hours a day They have an hour out for fresh-aIr
exerCIse under the superVlSlon of CorrectIOnal Staff other than the Duty Officer Other Inmates
who mIght need to be m contact wIth the Duty Officer would be separated from that officer by a
glass wmdow and a Dutch door which can be opened at the top whIle bottom half remams
secured. DIrect contact wIth llunates could occur If the Duty Officer chose to come out mto the
area outsIde the office to speak wIth an mmate. The professIOnal vIsItmg room IS m the Duty
Office area and Inmates come from the hvmg umts for those VlSltS or to see the Deputy
Supenntendent on a mIsconduct. Mr DalgleIsh testlfied that when the Employer revIewed the
Duty Officer posItIOn it was noted that there were certam occasions when the Duty Officer would
assIst WIth the escortmg CorrectIOnal Officer to place an mmate m segregatIOn and it was hIS
opmIOn that this would clearly put both the Correctional Officer and the InstitutIOn at some rIsk
since the Duty Officer controls the alarm system and has control of the radIO base statIOn WhICh IS
used for announcmg emergencIes. If a physIcal altercatIOn were to occur and the Duty Officer
were there, that would, m effect, disable the emergency alarm as no one would be there to
announce the problem. When thIS concern arose, It was mandated that when there was any
movement of Inmates, the Duty Officer was to lock the door of the Duty Office and remam mSIde
the office
Mr DalgleIsh explamed Employer's relatIOnshIp wIth the Workers' CompensatIOn Board. He
stated that as a Government Schedule 2 client of W C.B CorrectIOnal ServIces IS self-funded
and the Collectlve Agreement spells out how benefits WIll be paId out. The Employer IS not
assessed and does not pay assessments to W C.B , so that when payments are made to mJured
workers, they are, m effect, made by the Employer For the first 30 days, untIl a claIm IS
established, the employee IS paId full salary Once the claIm IS established and up to the end of
the 65th day of lost tlme, the employee IS paId full salary by the Employer After 65 davs, the
5
payments may come from the W C B but they are paId back by the Employer with an
admInistrative fee
;'
The folloWIng persons were Involved In this matter and those whose names are marked With an
astensk testified. (Most of those haVIng only penpheral Involvement are not lIsted here)
The Employer
H Cornfoot Supenntendent at Burtch untIl October 1993
Doug Dalglelsh* Actmg Supenntendent at Burtch from October 1993 to
October 1994
Cathy Morns* Semor ASSistant Supermtendent, OperatIOns at Burtch from
July 1992, to Apn11995, all OperatIOnal Managers and
CorrectIOnal Officers reported to her; responsible for well-
bemg of mmates and staff
R. * * Kalmns (A) Deputy Supenntendent at Burtch in Apnl and July 1994
Ted. Anthony Regional Personnel Admlmstrator, Mimstry of SOlICItor
General and CorrectIOns
MIchelle Noble Deputy Mimster, Mimstry ofthe SolIcItor General and
CorrectIOnal ServIces (at the tIme)
Nell T McKerrell ASSIstant Deputy Mimster, CorrectIOnal ServIces, (at the
tIme)
Momka Campbell Workplace DlscrimmatlOn and Harassment Coordmator,
Mimstry of the Sohcltor General and CorrectIOnal SerVIces
The Union
Shelley Jovnes* CorrectIOnal Officer 2, at Burtch from 1987, ClaSSIfied from
1989, Gnevor
H Auld Incumbent m the InstItutIOnal Dnver pOSItIOn untIl
November 30, 1993
BIll McLaughhn* Employee at Burtch for 24 years, currently Engmeermg
Officer, a Umon Steward for 20 years
6
Ian Smlth* Previously Chief Steward, and Health and Safety Steward.
At time of heanng, Umon Steward
Barbara Marshall OPSEU RegIOnal Staff Representative
......
Don Workman InstitutIOnal Dnver from August 2, 1994
The Medical Profession
Mana CIcona-BIard (BIard) Gnevor's FamIl} PhysIcIan from March 1991
Carolme Quartly, M.D PhysIcal RehabIlItatIOn SpecIalIst
Eung-Jun Cha, M.D OrthopaedIc Surgeon
The Workers' Compensation Board
Tracy LatImer V ocatIOnal RehabIlItatIOn Counsellor, Client ServIces
DIVISIOn, HamIlton RegIOnal Office, W C.B
T BrownrIdge Claims AdjudIcator, Chent ServIces DIVISIon, HamIlton
RegIOnal Office, W C.B
D Sangster Complex Case UIllt (Injuries) W C.B
J Tutchie MedIatIOn Officer, Hearings and Re-employment Branch,
WC.B
D.E Graham DeclSlon ReVIew SpecIahst, Decision ReVIew Branch,
WC.B
L ** Peddle Claims AdJudIcator, Chent ServIces DIVISIOn, HamIlton
RegIOnal Office, W C.B
Peter C Clark, M. Sc Ergonomics SpecIalIst, Chent ServIces DIVISIOn, W C.B
The process of arnvmg at the accommodatIOn took place over a penod of time and mvolved a
number of mdIvIduals, more than one agency and factors of tImmg WhIle It may seem tedIOUS,
I belIeve that a chronologIcal and detailed recountmg of the eVIdence offers the best opportumty
for those mvolved to understand the perspectives, ratIOnale, and declSlons of the partICIpants m
the accommodatIOn process, as well as my own. The eVIdence, when set out, also Illustrates the
attItudes of those mvolved and the Impact that those attItudes had on the process and the outcome
7
I propose therefore to set out the eVIdence m that form It IS lengthy because the accommodatIOn
process was lengthy
PRE-1990
May 20, 1987
Ms Joynes was hIred
Pre-1990
Pnor to 1990 Ms. Joynes dId not escort mmates smce she was unclassIfied and It IS the polIcy at
Burtch that unclassIfied employees do not escort Inmates. However, she testIfied that she thought
she mIght have done so on a couple of occasions.
1990
Ms. Joynes became a classIfied employee retroactive to 1989
Ms. Joynes' functioned as a Correctional Officer on the living units.
March 22, 1990
The Gnevor sustamed an mJury to her right elbow dunng self-defence trammg at the OntarIO
Provmcial Police College in Brampton. Ms. Joynes returned to work as a General Duty Officer
after the trammg, but took time offweekly for phYSIOtherapy seSSIOns, and for a two-week penod
when she was m an arm cast. She receIved W C.B credIt dunng her time off when she was
wearmg a cast.
Post March 22, 1990
Mr McLaughlIn assIsted Ms Joynes durmg the mvestIgation of her aCCIdent.
1991
Ms Joynes worked as a General Duty Officer thIS year and took 3 weeks off when her arm was
agam m a cast. She receIved W C.B credIt for this tIme off.
March 1991
Ms Joynes sIgned on as a patIent WIth Dr BIard.
September 23, 1991
A DIrectIve and GUIdelme respectmg the Ontano PublIc ServIce was Issued "AccommodatIOn m
Employment for Persons WIth DIsabIlIties DIrectIve The first set out the obJectIve, the
8
applIcation and scope and the responsibilities of persons With disabilIties The second dealt With
certa1l1 specifics to help mll1lstnes understand the Directive These were 111 place at the time of
the accommodatIOn process respect1l1g Ms Jovnes
December 4, 1991
Gnevors Auld and Solomon (dnvers) (GSB # 217/91, # 219/91) were specIfically advIsed by
their Employer of the lImItatIOns under whIch they were to operate
1992
Pre-August 1992
Ms. Joynes worked as a General Duty Officer thIS year untIl her surgery whIch took place 111
August 1992
March 22, 1992
The expIry of Ms. Joynes' re1l1statement nghts through W C.B as noted on her VocatIOnal
RehabIlItatIOn Plan SIgned and dated on January 5,1994
August 5, 1992
The GrIevor who had been dIagnosed as hav1l1g "rIght elbow cubItal tunnel compressIOn"
underwent an operatIOn described as a "nght elbow cubital tunnel release" The dIagnosIs
follow1l1g the surgery rema1l1ed "right elbow cubItal tunnel compressIOn" Ms. Joynes receIved
W C.B credIt for thIS tIme
September 1, 1992
Tracey Latimer, a VocatIOnal RehabIlItatIOn Caseworker at the HamIlton Regional Office of the
Workers' CompensatIOn Board (W C.B) wrote to the GrIevor stat1l1g that her file had been
referred to VocatIOnal RehabIlItatIOn and that a caseworker would be 111 touch WIth her durmg the
next month. She 1l1vIted contact for questIOns or concerns. Ms. Joynes stated that she dId not
receIve thIS correspondence
September 15, 1992
Ms. Joynes expla1l1ed to Dr Cha the tasks that she carrIed out throughout her work day Pnor to
her surgery, she had been functlOl1lng as a General Duty Officer and It was m thIS context that he
advIsed "lIght duty Jobs" Dr Cha prOVIded a note statmg that Ms. Joynes could return to work
as of September 21, 1992 He noted that she was to be re-exammed m two months by her and
should be on "lIght duty Jobs" He dId not mdIcate whether the lIght dutIes were to be for a short
penod of tIme or whether they would need to be permanent, nor dId he adVIse that her contact
WIth 1l1mates should be restrIcted.
9
September 23 1992
Ms. Joynes returned to work at Burtch. Ms Morns was responsIble for arrangmg her return to
work and It was theIr understandmg that these arrangements were to be temporary NeIther Ms
Joynes nor the Employer was aware at thIS pomt m tIme, that the dIsabIlity resultmg from her
mJury was to be permanent. Ms. Joynes took up modified, light dutIes on ShIft # 3 (0900 to 2100
or 1130 to 2330 hours) m compliance WIth Dr Cha s return-to-work permISSIOn note of
". September 15, 1992 According to Ms. Morris, she placed her on a combination of duties
within her restriction of minimal contact with inmates, that is, a position in which she was
not the only staff in contact with inmates. Further, this contact was minimal. However,
this restriction of her contact with inmates was not part of Dr Cha's medical restrictions, it
might have arisen from Ms. Morris' common-sense approach to assigning a correctional
officer who had recently had surgery on her elbow to duties in which the risk to her injury
site was minimized. Ms. Joynes performed VISIt duties, some dnver dutIes and some duty-
office dutIes. Accordmg to Ms. Morns, she had spoken WIth Ms. Joynes about the hftmg
mvolved m the dnvers' pOSItion and had "made it clear that she should only do those thmgs
wIthm her restnctIOns and that was all she should do" The major modIfication to her aSSIgnment
was that she was no longer workmg on the umts. Ms. Morns testIfied that she was aware that Ms.
Joynes had a medIcal appomtment scheduled for November 17, 1992, and she stated that at this
pomt m tIme, she had not receIved any correspondence from W C.B
October 2, 1992
There was telephone contact between the Employer, m the person of Ms. Culver ofthe Personnel
Department at Burtch and B Ursel of W C.B VocatIOnal RehabIlitation, and telephone message
contact between Ms. MorrIS and BUrse!. Accordmg to Ms. Morns, It began by the ASSIstant
Personnel Clerk (assummg that IS Ms. Culver), calling W C.B and dIscussmg Ms Joynes' claIm
and at that pomt W C.B advised that due to Ms. Joynes' modIfied pOSItIOn WIth the Employer
that they were not proceedmg further WIth the claIm. (Ms. Morris recalled speakmg to Ms. Joan
Fnednch of W C.B on thIS date or possibly on another date Ms. Morris testified that she
informed W C.B. that, from the Employer's viewpoint, Ms. Joynes "was still on modified
duties and she had not yet been placed in a permanent position and that [the Employer] was
requesting W C.B. assistance with permanent accommodation.)
October 13, 1992
A caseworker (evIdence does not mdIcate whom) from W C B VocatIOnal RehabIlitatIOn
dIrected a Closure Report to the Manager, Ms Wanda Cnchton, outlimng Ms. Joynes' medIcal
condItIOn as follows
-worker receIVed aggressive medical treatment by Dr BleschmIdt
-worker partICIpated m various forms of therapy throughout an mItIal recovery penod
-worker had surgery August 6, 1992, (sic) from Dr Cha
-note recent RegIOnal MedIcal AdVIsor report dated August 17, 1992, on file, recovery
tIme CIted to be 2-3 months
10
-permanent Impairment was not eVIdent at that tIme
The report also noted that the worker returned to work pnor to VocatIOnal RehabIlItatIOn
Involvement and therefore, "no extenSIve vocatIOnal rehabIlItatIOn was secured for thIS worker"
October 14, 1992
B Ursel ofW C B VocatIOnal RehabIlItatIOn wrote to the Gnevor IndIcatmg that she had spoken
lw wIth Ms. Culver of Burtch and had a telephone message from Ms Morns She conveyed her
understandmg that Ms. Joynes was employed m a modIfied pOSItIOn WIth her employer and that
V ocatIOnal RehabIlItatIOn servIces were now complete She also understood that Ms. Joynes
returned to employment on September 23, 1992 B Ursel mVIted contact. Ms Joynes stated that
she dId not speak WIth anyone from W C B WIth respect to thIS letter or her modIfied work and
she "dIdn't understand how vocatIOnal rehabIlItatIOn servIces were complete when [she] never
heard from them"
October 15, 1992
Ms. Morns sent a memorandum to Department Heads, and to all ShIft and Umt SupervIsors at
Burtch concerning the "Co-ordmatIOn of Dnver' s DutIes" m WhICh she confirmed that the
mstItutIOnal dnver positIOn now reported officially to the Semor Assistant Supenntendent,
OperatIOns and that the procedures whIch she set out would become effective October 19, 1992
In thIS memorandum she referred to D Auld, as Motor Velucle Operator 1
October 20, 1992
Dr BIard wrote a note statmg that "due to nausea and vomItmg for now m thIS stage of
pregnancy [she] would like Shelley to be on 8 hr ShIftS" Ms. Joynes testIfied that as a result she
was accommodated by her Employer as requested WIthout any dIfficulty Accordmg to Ms.
Morns she had "no qualms about the placement of Ms Joynes on 8-hour ShIftS"
October 23, 1992
On thIS date, J L Butler, the Sr Asst. Supt., Programmes, Burtch, sent a memorandum to all
ShIft and Umt SupervIsors mformmg them that the Grievor had been approved for a modIfied
work schedule for medIcal reasons and that she would be workmg 0645 to 1515 hours, Monday to
Fnday, effectIve October 26,1992, and that her medIcal status would be revIewed November 17,
1992 In the memorandum It was stated that she was able to work at "VISItS, Duty Office and
Dnver as requIred" Ms Morns acknowledged that thIS letter dId not state or Imply that the
modIficatIOns to Ms. Joynes' aSSIgnment were temporary but mdIcated that It dId say that It could
mean a reVIew or reconsIderatIOn of her aSSIgnment.
October 26, 1992
Ms Joynes began her new eIght-hour, daytIme schedule and was assIgned to VISItS, duty office,
and dnvmg Her dnvmg responsibIlItIes consIsted of 4 hours a day, smce the mcumbent, Mr
Auld was workmg part-tIme as the result of a W C B injury
11
Nm,cmbcr 17, ]992
Ms Joynes second post-operatIve appomtment wIth Dr Cha was to take place on thIS day and
there was no eVIdence to suggest that It dId not.
Ms Jovnes' mstItutIOnal "medIcal status" was to be revIewed, however, no specIfic eVIdence was
presented wIth respect to thIS reVIew
/ November 24, 1992
Dr BIard wrote a note statmg that "due to present health state, Shelley would benefit from day
work" ThIs was due to her pregnancy Ms. Joynes testIfied that thIS request was accommodated
by her Employer wIthout any dIfficulty
November 30, 1992
On or about thIS date, Mr Auld began a W C.B absence full-tlme and then accordmg to Ms.
Morns, Ms. Joynes "mhented a lot of the dutles and dId fewer duty office duties and VISItS" Ms.
Morris stated that from this point until Ms. Joynes left on maternity leave in May 1993,
her duties were primarily driver duties.
December 18, 1992
The Gnevance Settlement Board Issued its decIsIOn m the Auld/Solomon clasSIficatIOn matter and
ruled that pnor to removal of the custodial duties from the driver's position (fall of 1991), the
appropnate classIficatIOn would have been CorrectIOnal Officer 2, but smce the Employer had
removed the custodial dutles and responsibIlItles, that Motor VehIcle Operator 1 was the
appropnate classIficatIOn for the dnver posItIOn at Burtch.
1993
January 21, 1993
WhIle dnvmg the mstltutIOnal vehIcle, Ms. Joynes hIt a wall while dnvmg at "1 kph" She cut
the finger on her nght hand. The aCCIdent was reported to W C B, but no tlme was lost. Ms
Joynes attended at Dr BIard's office and Dr Biard completed a MedIcal DIsabIlIty CertIficate m
whIch stated that she had seen Ms. Joynes on thIS date and that she had recovered sufficIently to
return to modIfied work on June 22, 1993 In It she set out the followmg restnctIOns "No heavy
lIftmg or work where Shelley has to repetItIvely fleXIOn (sic) or extensIOn ofnght wnst." She
testIfied that It was her understandmg that thIS mJul) was the reason for the note wntten by Dr
BIard on January 21, 1993, regardmg restnctIOn on "repetItIvely fleXIOn or extensIOn of rt
wnst. whIch was dIfferent from the ongmal problem whIch was elbow"
February 23, 1993
FIve months after Ms. Joynes' return to work followmg her surgery, Dr wrote "To Whom It Mav
Concern" , confirmmg that he had adVIsed Ms Joynes that she should be "on modified duty
]2
permanently" (He did not advise a restriction on inmate contact. ] Ms Joynes testIfied that
she dIscussed the pOSItion she held as of September 23, 1992 WIth Dr Chao
Ms Joynes dehvered Dr Cha's second note to Ms. Morns shortly after February 23, 1993
Accordll1g to Ms. Morns, she found the note vague It left her WIthout a clear pIcture of Ms
Joynes' abllItIes Ms Morns testified that she understood the note to mean the "modIfied duties
,; she had at the time", that IS, dnver plus other correctIOnal officer dutIes modIfied based on her
arm ll1 JUry She testIfied that the duty office functions and the dnvll1g functIOns both mvolved
nlll1lmal mmate contact, when one consIders the type of contact. Ms Morns then adVIsed Ms.
Joynes that more specIfic mformatIOn was reqUIred and Ms. Joynes was not certam that she would
be able to obtam that. Ms Morns testIfied that m her opmIOn Ms. Joynes should have from her
doctor, what her restnctIOns were, based on her ongmal mJury, and an mdIcatIOn of what duties
she could perform and those whIch she could not perform. Ms. Morris testIfied that in response
to Ms. Joynes mqUIry about where she could be placed, she told her that she "would certamly try
to place her locally and if a placement could not be found at Burtch and that the process was that
we would find a work SIte out of Burtch and after that [she] dId not know"
March 4, 1993
Ms. Moms wrote to Ms. Joynes with a copy to Dr Cha, confirming her receIpt of Dr Cha's note
of February 23rd. She stated that she had provided "[her] doctor" WIth a copy of the C02 Job
SpecIficatIOn and the PhYSIcal Demands Analysis Form "in order that he may determine what
dutIes you can or cannot perform, hours of work, contact With Inmates, all WIth respect to [her]
phYSIcal lImItatIons regardmg [her] injured right elbow" [EmphasIs added.] She provIded the
C02 PhYSIcal Demands AnalYSIS because that was Ms. Joynes' home pOSItion. Accordmg to Ms.
Joynes, she would not have been provIded WIth a copy of the drIver positIOn job specIficatIOn
because she was a Correctional Officer, not a drIver Accordmg to Ms. MorrIS, she needed to
know If Ms. Joynes could perform the duties of a Correctional Officer 2 and If not, what duties
she could possibly perform. She offered to provIde further mformation to the doctor and an on-
SIte VISIt. Ms. Morns went on to note the dual accommodatIOn (elbow and pregnancy) reqUIred
and stated that when the Employer receIved the necessary informatIOn from "[her] doctor, a final
reVIew of [her] modIfied work placement [would] be made on [her] return from MaternIty Leave"
Ms. Morns dId not refer to the dnver's pOSItion m thIS letter A copy of thIS letter WIth
attachments though was sent to Dr Cha was not forwarded to Dr BIard. [ThIS suggests that It
may be Dr Cha to whom the Job specIficatIOn was sent Ms. Joynes testified that Dr Cha was not
asked to reVIew the Job specIficatIOn.] Ms Morns testIfied that she dId not recall receIvmg a
response from Dr Chao
Ma) 3, 1993
Ms Joynes began maternIty leave At the time she left she mdIcated to her Employer that she
would be askmg for a SIX months leave of absence to follow the 17 weeks and that she expected
to return on or about January 31, 1994 Ms. Morns recommended the sIx-month extenSIOn WhICh
was granted by the S upenntendent. Ms. Joynes testified that at the tIme she left, she expected to
contmue "domg the Job [she] was dOll1g" on her return and there "was no sense m finalIzmg
13
anything because [she] was gOing off" on maternIty leave However, she agreed in cross-
eXaminatlOn that the MInistry dId not hold out that the dnver's Job would be hers, in fact she
stated that the "MInistry dId not hold out anything" except that the finahzatlOn of her
accommodatlOn would be held untIl she returned to work follOWing her maternity leave.
May 16, 1993
/' Ms. Joynes' second chIld was born on thIS day
October 1993
Mr DalgleIsh began hIS duties as Supenntendent at Burtch.
October 12, 1993
It appears that thIS IS the date on whIch Burtch receIved the undated memorandum from Dr Cha
stating the follOWing
When Shelley returns to work she is to have minimal inmate
contact as to avoid confrontation. She should have the same
job as before she left on maternity leave.
[ThIS would indicate that Ms. Joynes had an appointment wIth Dr Cha after November 17, 1992]
This is the first medical advisory for a restriction on inmate contact. Ms. Morris testIfied that
the Employer's mterpretation OfthlS was not that there should be no Inmate contact, but that there
could be some mimmallevel of contact. The Employer, in arrangmg Ms. Joynes'
accommodatlOn, sought a posltlOn for her wIth the least nsk.
November 1993
Ms. Joynes' gave notice that she would be returmng to work from her maternity leave as of
January 31, 1994 and Ms. MorrIs appnsed Mr DalgleIsh of thIS and of the fact that she had a
doctor's note requmng llummal contact with Inmates. It was Mr DalgleIsh's understandmg that
thIS restnctlOn related to her earher compensable mJury and he testified that he found the note
vague. Accordmg to Ms. Moms, Mr Dalgleish asked to know the "Issue before [Ms. Joynes']
return to work" and wIshed to meet wIth her pnor to her return. Mr DalgleIsh testified that he
wanted to involve the W C.B. given that this situation likely required permanent
accommodation as a result of a W C.B. compensable injury and "asked Ms. Moms to have
W C.B contacted to elicit their assistance and to determme the status of the claIm."
November 30, 1993
Mr Auld left the emplov of the MmIstry and at the time he dId, he was a Motor VehIcle Operator
I From thIS date untIl August 2, 1994, the posItion of InstItutlOnal Dnver was vacant, although
for a portlOn of that tIme, Ms Joynes camed out the duties of the posItion.
14
December 1993
At some pomt dunng thIS month Ms Joynes was contacted by Mr Anthony, the RegIOnal
Personnel AdmInIstrator and, m her words, was ordered to contact weB and mvolve them m
her case. As advIsed by Mr McLaughhn, she refused to do so He testified she had not had a
recurrence of her mJury, and she was bemg accommodated most recently for pregnancy whIch
had nothmg to do wIth W C.B He beheved that there were no grounds to mvolve them
,..
December 6, 1993
Ms. Brownndge, ClaIms AdjudIcator at the HamIlton Office of the W C.B , spoke to Ms Fran
Foulds of the Human Resources Department of the MInIstry of CorrectIOnal ServIces, located m
North Bay wIth respect to the Grievor
December 9, 1993
Ms. Joynes wrote to Ms. Morns askmg her to IdentIfy the mformatIOn reqUired from her
physIcIan to "finahze [her] modified duties", In the context of "the employer's modIfied work
program" She asked Ms. Morns to send her response to her home She testIfied that she
began to get concerned once she heard the word "redeployment" from Ms. Morns who had told
her, that If somethmg could not be found for her that redeployment might have to be consIdered.
December 10, 1993
After a W C.B Vocational RehabIhtatIOn Counsellor was assIgned, Ms. MorrIS wrote to Ms.
Joynes about her "ModIfied Work ASSIgnment" IIi the letter she confirmed Ms. Joynes' request
for a modified work aSSIgnment and noted that it was her surgeon's request that she "remain m a
modIfied duties positIOn" She acknowledged that Ms. Joynes' "mJury [had] restncted [her]
abIhty to perform some duties and responsibIlIties of a CorrectIOnal Officer" and requested that
pnor to her return to work on January 31, 1994, she "revIew with [her] physIcIan the attached Job
SpecIficatIOns for both the CorrectIOnal Officer 2 and Motor VehIcle Operator 1 and then
respective PhYSIcal Demands AnalYSIS" and attached these. She testIfied that she attached the
Motor VehIcle Operator 1 Job SpecificatIOn because 80% of the duties Ms. Joynes performed
before gomg on maternity leave came under thIS specIficatIOn. She asked specIfically for
clanficatIOn of the followmg
1) Is your injury of pennanent or temporary nature and what need for accommodation are
[sic) required,
2) Please provide an assessment of any physical restrictions as they pertain to each position.
3) Please advise me what duties or responsibilities are consistent with your ability to perfonn
them.
In closmg she informed Ms. Joynes that the Employer had been m contact WIth the W C.B and
had requested to meet with "all partIes concerned, mcludmg the Area Personnel AdmInIstrator
Mr E J Anthony to dISCUSS accommodatIOn for permanent work placement" Ms. Morns
testIfied that Mr Anthony was mcluded smce "he was the regIOnal expert m areas of W C.B
15
The followmg mdlvlduals were sent copIes of thIS correspondence Supenntendent DalgleIsh, Mr
Anthony, Ms Joan Fnednch (W C.B Caseworker), Ms. Brownndge (W C.B AdJudIcator)
December 15 1993
Ms. BrownrIdge wrote to Ms Foulds and copIed Ms Joynes In her letter she stated that Ms.
, Foulds had requested that "VocatIOnal RehabIlItatIOn ServIces be actIvated for the above noted
claIm and worker" and that assIstance be provIded m returnmg her to work, notmg that she, Ms
Brownndge had establIshed that Ms. Joynes had "a permanent ImpaIrment as a result of her
compensable mJury" (The Workers' Compensation Act defines "permanent ImpaIrment" as
follows
"permanent impairment", in relation to an injured worker
means impairment that continues to exist after maximum
medical rehabilitation of the worker has been achieved
A copy OfthIS letter was sent to Ms. Joynes on the same day and It appears that thIS was the only
notIce that the Board forwarded to her mforming her that It had made the determmatIOn that she
was suffenng from a "permanent Impairment"
Ms. BrownrIdge went on to state that she had referred the file to Vocational RehabilitatIOn
ServIces "for activatIon" and "back to the RegIOnal MedIcal AdVIsor to obtam medIcal
restrictions whIch would be appropriate for her type of mjury"
December 1 7, 1993
Ms. Joynes contacted Ms. MorrIS by telephone to clanfy a concern. She had asked Ms. Morns
whether Mr DalgleIsh had saId that If she dId not attend the meetmg on January 5th that she
could not return to work. She expressed the fact that she felt threatened by that comment. Ms.
Morns attempted to allay her concerns by saymg that she dId not belIeve that Mr DalgleIsh
meant to threaten her Ms Joynes explamed that, m spIte of the reassurance, she stIll felt
threatened, and she dId not want telephone calls at home smce they were provmg upsettmg to her
and her husband. Mr DalgleIsh testIfied that he belIeved that "there was an Inherent nsk m
returnmg an mJured worked to the workplace WIthout explonng all the nsks that mIght be
mvolved m domg so"
December 1993
Ms Joynes testIfied that she was feelmg so "scared" that she contacted Mr McLaughlm who
adVIsed her to speak WIth Momka Campbell m North Bay Ms. Joynes explamed that she knew
that the Supenntendent, the ASSIstant Supenntendent, OperatIOns and the RegIOnal Personnel
Admlmstrator were to attend the meetmg on January 5th and that she had never heard of anyone
attendmg such a meetmg WIthout umon representatIon when there was a threat of her Job bemg on
the lme and she felt that she needed a representatIve WIth more expenence than she herself had.
After a conversatIon WIth Mr DalgleIsh, Ms. Campbell spoke once agam WIth Ms Joynes and
16
reassured her that there was nothmg for her to be worned about and that the meeting was to
focus on information gathering. At the same tIme, she suggested that Ms Joynes telephone Mr
Dalgleish and speak with hun herself, which she did She described the conversatIOn as very
pleasant and when she conveyed to him that she dIdn't "apprecIate the threat" she receIved an
apology and an explanatIOn that "he dId not mean It as that" Mr Dalgleish testified that he
explained that the purpose of the meeting was "to gather information about her permanent
accommodation''''and to reassure her, as she seemed very concerned about losing her job
He also tned to explam the reason for the mclusIOn of the W C.B representatIve m the meetmg.
Mr DalgleIsh belIeved he had provIded Ms. Joynes wIth an adequate explanatIOn but had the
sense that she was not "fully satIsfied"
December 14, 1993
Ms. Marshall mformed Mr SmIth that she would be absent on holidays m January, untIl January
17,1994
December 17/18, 1993
Followmg a telephone conversatIOn WIth Ms. Joynes, Mr SmIth telephoned Ms. Morris and
requested that the meetmg be held m February, following Ms. Joynes' return to work. He
conveyed to her that he and Mr McLaughlIn dId not belIeve that they were appropnate
representation for Ms. Joynes and that Barbara Marshall, whom they consIdered to be the
appropriate representatIve could not meet on January 5, 1994 Ms. Morris testified that she
attempted to convey to Mr Smith that "we were not setting the date to avoid participation
of Ms. Marshall" but to "have a fact-finding meeting" with the parties and get the issues
clarified. She told him that the meetmg was called for the benefit of Ms. Joynes and to enable
Supenntendent DalgleIsh to familiarIze himself with the case and, WIth the Umon, to find out
what the Employer could do for Ms. Joynes.
December 20, 1993
Ms. Morns wrote to Ms. Joynes on thIS date confirmmg a meetmg on January 5th whIch was
ongmally scheduled for 1000 hours and which was to be changed to 1300 hours at Ms. Joynes'
request, subject to Ms LatImer's (W C.B Vocational RehabIlitatIOn) confirmatIon. The purpose
of the meetmg was to dISCUSS her planned return to work on January 31, 1994 Ms Morns
advised Ms. Joynes that she was welcome to "arrange representatIOn"
December 24, 1993
Ms Morns telephoned Ms. Joynes to mform her that a letter confirmmg the January 5th meetmg
was m the maIl to her and that Ms. LatImer could not make 1300 hours and therefore the meetmg
would have to be scheduled at 1000 hours
December 29, 1993
Ms Morns followed up her letter of December 20th, confirmmg the January 5th meetmg but
changmg the tIme back to 1000 hours due to the schedule of Ms. LatImer ThIs caused concern
17
to Ms Joynes as she was havmg dIfficulty schedulmg umon representatIon. Her choIce was
Barbara Marshall, a RegIOnal Staff RepresentatIve, who was famlhar WIth her sItuatIOn. It was
Ms. Joynes' feehng that If the Employer was havmg someone at Mr Anthony s level, she should
do hkewlse
"" December 31, 1993
A letter from the Employer was hand-dehvered to Ms. Joynes at her home by a superVIsor from
Burtch. Ms. Joynes was upset by thIS and felt she needed to contact the Umon to ensure that she
would have representatIOn at the meeting. It was her ImpreSSIOn, that no one was sure If the
Employer was gomg to let her go back to work.
1994
January 1, 1994
Ian SmIth receIved a telephone call from Ms. Joynes expressing concern about the
correspondence from her Employer and ItS dehvery to her
January 5, 1994
Meeting # 1 was held and attended by Ms. Joynes, accompanIed by Mr SmIth and Mr
McLaugWIn (on theIr own tIme), Mr DalgleIsh, Ms. Morris, Mr Anthony and Ms. Latlmer
Mr Anthony attended at the mvitatIOn of Mr DalgleIsh since, he was farmhar WIth all the Issues
at Burtch, since, Mr DalgleIsh was a recent arrIval. Mr Dalgleish felt that he could rely on Mr
Anthony for adVIce In the matter At the tIme of the meeting the medical InfOrmatIOn was not
avaIlable for Ms. Joynes.
Mr Dalgleish testified that "Ms. Latimer explained the purpose of the meeting and the
process" and stated that the W C.B was Involved because there had been a compensable Injury
Mr DalgleIsh recalls that they looked at "one or two pOSItIOns or areas where accommodatIOn
mIght be consIdered and that IS where the dnver s posItion and the duty office pOSItIOn came up "
Mr Dalgleish recalled that "Management was looking at the pre-injury job (Duty Officer)
and the Union was looking at the Driver's position" and Management took the posltlon that
the dnver's Job was not appropnately classIfied III relatIOn to her pre-injury Job, and knowmg that
one of Ms. Joynes' restrictIOns was mInImal mmate contact, they realIzed that the duty officer
pOSItIOn would be a possibIlIty [In fact, Ms. Jo'mes pre-mJury Job was as a CorrectIOnal Officer
2 and her aSSIgnment was as a General Duty Officer She was not aSSIgned to the Duty Office and
was not, therefore, the "Duty Officer" ]
Mr SmIth testIfied that at thIS meetmg "tempers were up on all SIdes" Ms Joynes testIfied that
she "was scared" and felt on the defenSIve She described the meetmg as an emotIOnal one and
stated that she was begInmng to feel that they would "take [her] status away [she] had worked so
18
hard for" or that she mIght not have a Job 110wever, Mr SmIth testlfied that "there were no
threats" at thIS meet10g Ms. Joynes had a letter saY10g that VocatIOnal RehabIhtatIOn was
complete and she was not able to understand why Ms Latlmer was present. Accord1Og to Ms
Joynes, Mr Anthony stated that he could not say whether or not she would keep her status, and
Mr DalgleIsh Said that she could have no 10m ate contact and that the dnver's Job was not
aVailable because It was not a correctIOnal officer pOSItIon. Further, the only pOSItIon to be
,.. looked at was the Duty Officer pOSItIOn. Ms. LatImer presented 1OformatIOn from the W C.B
medIcal adVIsor concermng restnctIOns whIch should be placed on Ms Joynes for her type of
10Jury and Ms Joynes po1Oted out that she had a medIcal appo1Otment set for January 11, 1994
to answer the questIons that had been put to her 10 the letter (the letter of December 10, 1993)
Ms. Joynes was stIll off on maternIty leave
At this point, only Dr Cha's notes of September 15, 1992, February 23, 1993 and October
1993, were available to those at the meeting. They speCIfied
September 15, 1992 "hght duty Jobs"
February 23, 1993 "modIfied duty permanently"
October 1993 "mInImal 10mate contact to aVOId confrontatIOn
"the same job as before she left on maternIty leave"
Ms. Joynes dId not have the medIcal report from Dr BIard and the W C.B dId not yet have the
ergonomIcs study Accord1Og to Ms. Joynes' they put her "back as 1OstItution dnver
temporarIly" ThIS pOSItIOn happened to be an eIght-hour, day-shIft pOSItIon, although the
reqUirement for these scheduhng accommodatIOns had passed with Ms. Joynes' departure on
maternIty leave and Ms. Joynes testified she was not askIng to for accommodatIOn of her
scheduhng.
Mr SmIth stated that he asked Mr DalgleIsh about the Correctional Officer 2 DrIver pOSItIOn that
Ms. Joynes had occupIed previously and was told that the only position being offered was the
position in the Duty Office. Ms. Latimer's response to the same question was that she dId not
get 1Ovolved In umon-management concerns. Mr SmIth also asked Mr Dalgleish whether, If Ms.
Joynes chose to take the drIver's Job with the reductIOn In pay, would the Employer conSIder that.
He was told, once agaIn, that the only pOSItion beIng offered was the pOSItIOn In the Duty Office.
It was hIS recollectIOn that the Employer dId not brIng up the possibIhty of a blended Job He put
forward the Dnver and the dnver/utIlIty pOSItIOn and the Employer took the pOSItIOn that the
drIver's pOSItIOn was a Motor VehIcle Operator I pOSItIOn. Ms. Morns dId not recall a formal
response at thIS meet10g to the Union's request that Ms. Joynes be placed In the "drIver's Job"
Accord1Og to Mr SmIth, as a result of thIS meet1Og, It was arranged that Ms. Joynes would return
on a temporary baSIS "to the dnver's Job and would be paid at the C02 rate"
A W C.B form was produced by Ms. Latlmer It set out the VocatIOnal RehabIhtatIOn ObjectIve
as "Pre-accIdent employment", the Employment Target as "CorrectIOnal Officer II" and the
RehabIlItatIOn ActIVItIes as follows
19
Clanfication of medical precautIons (Noted as worker s responsibility) (Completed January I]
]994)
- Once clarified determme physical appropnateness of the above position look at accommodation
if necessary and/or suitable positions. (Noted as responsibility of the worker the employer and
the caseworker) (Completed February] I, ]994)
It was noted that these were completed.
/'
Followll1g ll1structIOns from Ms. LatImer, Ms. Joynes, Ms. Morns and Ms LatImer sIgned thIS
form at the meetll1g and Dr Biard sIgned It at a later date
Accordll1g to Ms. Morns, at the end of the meetll1g, It was agreed that Ms. Joynes was to be
"temporanly assIgned as the InstItutIOnal Dnver untIl there was a reVIew by Ms. LatImer Ms.
Latimer was to look at all medical information, to receive all details about Ms. Joynes'
abilities, the Employer's abilities, obligation to accommodation and the whole issue under
the guidelines for permanent accommodation"
Followll1g the meetll1g, Mr SmIth spoke to Mr DalgleIsh and advIsed him that he would be
pursuing labour or other charges agamst hIm concernmg the schedulmg of the meetmg. Mr
DalgleIsh testIfied that he was not aware of this avenue having been pursued.
January 10, 1994
Ms. Morns wrote to Ms. Joynes confirming her return to work on January 31 st and statmg that, as
discussed on January 5th at the meetmg, that she would "be temporarIly assIgned as InstItutIOnal
Dnver untIl the reVIew of your accommodatIOn by Ms. Tracy LatImer IS completed" Her hours
of work were establIshed as 0745 to 1615 hours.
January 11, 1994
Ms. Joynes had an appomtment with Dr BIard. She took the letter dated December 10, 1993 and
the W C.B form dated January 5, 1994 The first was accompanied by the Job SpecIfications and
the PhYSIcal Demands AnalYSIS for both the CorrectIOnal Officer II and the Motor VehIcle
Operator I and she mformed Mr DalgleIsh and Ms. Momka Campbell of thIS
January 25, 1994
Ms Joynes was sent a letter on thIS date from Mr D Sangster, of the W C.B. Complex Case
Unit (Injuries) informing her that once an injury has been determined to have resulted in
"'permanent impairment" a review takes place at the W C.B. and this had taken place in her
case. He explall1ed to her that the reVIew demonstrated that "despIte eVIdence of a permanent
Impmrment" that she was "capable of returnll1g to the level of [her] pre-accIdent wages" For thIS
reason, he ll1formed her, she was not to be granted a "future economIC loss benefit" Mr Sangster
ll1vlted Ms. Jovnes to contact hIm If she had questIOns or suffered a "loss of earnll1gs capaCIty"
20
Januar) 31, 1994
Ms Joynes returned to work at Burtch folloWIng her maternIty leave and was temporanly
assIgned to the posItIOn of InstItutIonal Dnver "until the reVIew of [her] accommodatIOn by Ms.
Tracy Latimer IS completed"
February 07,1994
/" Meeting # 2 was attended by Mr DalgleIsh, Ms. Morns, Ms Joynes, Mr SmIth, Ms. Marshall,
and Ms Latimer AccordIng to Ms. Joynes there was no dIScussIon of "the appropnate pOSItIOn"
for her SInce the Employer was only puttIng forward the Duty Officer/Duty Office pOSItIOn and
was not wIllIng to develop the "dnver's Job Into a pOSItIOn" According to Ms. Joynes, the
Union put forward a position which "would incorporate" the driver's job, not the driver's
job at the Correctional Officer 2 rate. Mr Smith recalled dIScussIon of the dutIes Ms. Joynes
was carryIng out after returnIng from maternIty leave and It was hIS ImpressIon that Ms. Joynes
"was comfortable In the dnver, escort" pOSItIOn. Mr Smith did not recall any discussion of
alternate or blended jobs.
No mInutes were produced In eVIdence, and the only notes presented, were the cursory notes of
Ms. MorrIS taken sImultaneously wluch demonstrate the range of the dIScussIon.
Voc Rehab Counsellor - Tracy Latimer
(G.P ) Has stated no repetitive movement or lifting over 25 lbs in weight (pushing & pulling)
-clarify restrictions; also minimal contact with inmates to avoid confrontation.
Has been competing duties of (MVO 1) Driver - all duties heavy lifting done by others as
assistance.
Pre-injury worksite Unit #1 64 inmates total
Open settings - cubicle - 4 dorms am. Dr & Dental parade go down to HCU to supervize [sic]
medical parade.
What position at B C.C. as minimal to no inmate contact.
Restriction is 11m #'s ? (B. Marshall)
Risk is minimal aI B C C.risk is same with two or sixty-four i/ms.
AltematiYes
I2uty_~er - position who administrates computer, keys & radios etc
Cell Officer- supervizes segregat[tion]
Driver - vacant position at present ($568 less per hour) MVO 1 class.
EssentiaL:luties - T Latimer - states when we review we look at:
C02 - oversees & supervizes # im's 80-90% time
Shelley is asking to be a C02 - with restrictions of minimal contact
Can Shelley do basic duties (D Dalgleish)
Shelley is available for suitable work (with restnctions)
Cannot do essential duties as per Dr's review
Driver position carries out care, custody and control. Shelley can do but can she do Dnver as C 0
GSB as jurisprudence that stands (Barb Marshall)
Shelley appears to think she should be able to Drive as CO2
Duty Office would be designated as Duty Officer & Cell Officer
21
-Cannery
#3 shift - supervising visits Dining Hall
pickets and patrols
* Shelley's future economic loss was denied last week can be reviewed (T L.)
What about risk in Duty Office
If an 11M goes crazy in cells even if there are 2 other officers present?
Ministry & Human Rights
Duty to Accomodate [sic] (2 yr limit ran out, to accomodate
- Human Rights will say you have to accomodate
Driver at Brantford Jail - no contact with inmates.
~MarshalI - stated
We would like to keep Shelley in the Duty Of Driver but pay as CO2.
* just pay her as a C02 on a permanent basis.
1 Comfortable with Driver's position
2. Not so comfortable with Duty Officer as it would mean displacing an existing employee.
Union cannoLgrieYe~ifications (B.M.)
- computer input/output
- reaching
- better stool
- headset for Duty Officer
List of Duty Officer duties to be drafted. [by Employer]
[These notes are accepted as "cursory" notes of the meeting and not as minutes, The union
witnesses' view of the meeting was that only the Duty Officer position was considered. These
notes demonstrate that the discussion ranged more broadly ]
Ms Morns testIfied that the undated memorandum of Dr BIard completed after she had vIewed
the PhYSIcal Demands AnalYSIS "of her Job" was brought up as part of the discussIOn by Ms.
LatImer (Dr Biard was sent the Physical Demands AnalYSIS of the CorrectIOnal Officer 2 and
the Motor VehIcle Operator 1 pOSItions.) She also explaIned that Ms. Latimer had Indicated that
"the dIscussion that took place was lookIng at pre-injury pOSItIOn (CorrectIOnal Officer 2) and that
Ms. Latimer had saId that when they (W C.B ) look at essential dutIes they look at dutIes of pre-
Injury job" and that she frequently Interjected to say that they were responsible to look at the pre-
mjury job first and others pOSItIOns only after they had looked at the pre-Injury one. At the end
of the meeting it was agreed that the pre-injury job would be looked at, and that the job
with "no inmate contact" was the Duty Officer position. The Employer was to hst the dutIes
(non-Inmate contact functIOns performed daily m the Duty Office), and send the hst to the Umon
for reVIew The partiCIpants were to get together at some future date Ms. Morns was to co-
ordmate thIS She dId so and several drafts were prepared.
Mr DalgleIsh s recollectIOn ofthe meetmg held on thIS date was that Ms Marshall took the
pOSItIOn that the Umon was seekmg Ms Joynes' accommodatIOn In the dnver pOSItIOn and the
Employer's and Ms. Latimer's contentIOn was that the duty office pOSItIon was the one beIng
exammed. Further, he testIfied that the Issue of the claSSIficatIOn of the dnver's pOSItIOn and the
Auld/Solomon grievance was raised, and Ms. Marshall IndIcated that m her OpInIOn, the
22
Employer had Implemented It Incorrectly She believed that the posItIOn should have been at the
CorrectIonal Officer 2 level ClassIficatIOn, accordIng to Ms Marshall was not an Issue, but even
If It were, It was proposed that the Employer place Ms. Joynes In the dnver posItIOn and the
f classIficatIOn could then be remedIed later, through the gnevance procedure In Mr Dalgleish's
opinion, the Employer considered the Duty Office post the appropriate one since it "fitted
the minimum contact restriction"
He recalled that In response to the Umon's concern about the contact wIth Inmates In the cell
area, the Employer offered to separate the functIOns of the Duty Officer and the Cell Officer and
to obtaIn a clearer descnptIOn of those posts,
February 11, 1994
Mr P Clark, the ErgonomIcs SpecIalIst wIth the W C.B , contacted Ms Morns as requested by
Ms. LatImer wIth a VIew to an "onsIte ergonomIc consultatIon" Mr SmIth recalled that a lIst of
dutIes was "tabled" on thIS day, pnor to Mr Clark's arrIval. Those In attendance wIth Mr Clark
were Mr DalgleIsh, Ms. Morns, Ms. Joynes, Mr SmIth, Ms. LatImer, Mr Clark and those on
duty In the Duty Office. At thIS pOInt In tIme, Ms. Joynes had not yet been assigned to work In
the Duty Office but she was InvIted to partIcIpate In the study and she was measured for seatIng
posItIOns and asked to complete certaIn specIfic tasks which she dId. Two other CorrectIOnal
Officers also partIcIpated. The cell area was not Included In the consultation, although Ms.
Morris took Ms. LatImer Into that area. It was Ms. Joynes' recollection that Mr Clark had a copy
of her medIcal report and he did not ask questIOns about repetItIve wrist and elbow movements.
February 24, 1994
Mr Clark produced a report on thIS date whIch was dIrected to Ms. LatImer He set out the
parameters of hIS assIgnment as follows
To assess the task and physical demands of the Duty Office job and to provide recommendations
that may assist the worker to fulfill the essential duties of this job
As part of hIS assessment, he IntervIewed, Ms. Morns, Ian SmIth (Umon Steward), the Gnevor,
Ms Latimer and the "Incumbent duty office workers" From a medical perspective he had
information from 2 sources
(1) from the Regional Medical Advisor, who advised "avoid[ing] repetitive
movements of the right arm, pushing and pulling and avoid[ing]
lifting/carrying greater than 15 pounds" and
(2) from an undated letter of Dr Biard who advised "avoid[ing] repetitive
wrist/elbow flexion and extension with further avoidance of lifting, carrying
pushing, pulling, handling, gripping and throwing... using no more than 15
pounds....[and] avoid[ing] contact with inmates per chance physical force
needs to be used."
23
Mr Clark exammed m detaIl four separate dutIes, the tasKs mvolved m each and the Immediate
physIcal environment m WhIch the tasKS were routmely carned out. He made a number of
applIcable recommendations, some dIrected to the Gnevor specIfically, others that were to a
range of employees, for example the shortest worker, or the tallest worker Some reqUired
rearrangmg of tools WIth no cost mvolved, others reqUired some mmor physIcal modIficatIOns,
stIll others were adVIce to the workers carrymg out the tasks on how to conduct themselves m an
ergonomIcally beneficial way Mr Clark offered further serVIce on request.
Mr DalgleIsh and Ms. Morns revIewed the report.
March 4, 1994
BIll McLaughhn receIved from the Deputy Co-ordmator Freedom ofInformatIOn and Pnvacy,
Mmlstry of the Sohcltor General and CorrectIOnal ServIces, a photocopy of the statistIcs on
temporary and permanent work pOSItIOns at Burtch. These were undated and showed 3 males and
1 female members of the Bargaimng Unit on temporary modified work and no members of
Management. It also showed no one on permanent modIfied work.
March 18, 1994
Ms. Joynes, WIth the aSSIstance of eIther Barbara Marshall or BIll McLaughlin and her sister,
wrote to Ms. Michelle Noble, Deputy Minister, expressmg her concern, dIssatisfactIOn, and
frustratIOn, and asking for her interventIOn to arrive at a solutIOn whIch would allow her to
contmue to work at Burtch WIthout economIC loss and wlthm her medIcal restnctions. She
testified that she was feelmg that neIther the Employer nor the W C.B was hstemng to her and
both were dlsregardmg her phYSICIan's notes. Accordmg to Ms. Joynes, at that pomt m time, she
was very worned that her arm would get worse, as she had been told that she mIght be reqUired to
have a repeat of her surgery; she was domg everythmg in her hfe outSIde the workplace to aVOId
that and wanted to do the same at work. Ms. Joynes speCIfically proposed that she be placed m
the pOSItion ofUtIhty Officer/Driver at Burtch, notmg that such a position eXIsts at other
correctIOnal mstItutIOns.
March 21, 1994
Meeting # 3 was held at Burtch WIth Ms. Joynes, Ms. Marshall, Mr McLaughlm and Mr SmIth,
Mr DalgleIsh and Ms. Morns, and Ms. Latimer m attendance Ms. Marshall again asked that
the driver's position at the Correctional Officer 2 rate be looked at. Accordmg to Ms.
Jovnes, she was undertakmg these dutIes, along WIth more than what a dnver would be domg, she
mdlcated that those workmg m the Duty Office would not be affected. Ms. Joynes testIfied that
at thIS meetmg she asked Ms. Latimer for an ergonomIC study on the Job that she was domg and
was turned down. Ms. Morns testIfied that Ms LatImer responded to Ms. Joynes' request statmg
that the Duty Officer pOSItIOn was bemg offered at no wage loss and that the dnver's pOSItIOn
would be demed. Other pOSItIOns at Burtch were conSIdered as they had been before but, as Ms.
Morns stated, "the mmate contact factor always seemed to anse"
24
Accordmg to Ms Morns notes, towards the end of the meetmg Ms. Joynes requested that the
dnver's posItIOn be reclassIfied to a CorrectIOnal Officer 2 posItIOn for the purpose of the
permanent accommodation. She recorded that Mr DalgleIsh replIed emphatIcally that the
Employer was "not prepared to do that !" Mr DalgleIsh testIfied that he was not prepared to tie
the classIficatIOn of the dnver's pOSItion mto the accommodatIOn of Ms. Joynes m her pre-mJury
pOSItion" It was clear m hIS mmd that when the Umon spoke of the dnver pOSItIOn that It was the
Motor VehIcle Operator pOSItIOn that they were referrmg to smce they made "repeated references
to claSSIficatIOn, statmg that [the Employer] should Ignore that It was clasSIfied as MVO place
Ms. Joynes m the Job and have her retam her C02 status" He explamed that he was not prepared
to entertam the dnver's pOSItion because the Employer was "attemptmg to follow the W C.B
gUIdelmes for the remstatement ofmJured workers and the 1st pOSItion WhICh [they] reVIewed
was her premJury pOSItion, then [they] reVIewed her pre-mJury Job WIth modificatIOns"
Ms. Joynes testified
At that time I was contemplating, I was almost prepared to take it at the lower
rate. What I wanted was something to help my arm and if it was proven that the
driver's position was better for my arm therefore I might have to consider the
financial.
From the discuSSIOn at thIS meetmg, Ms. Joynes understood that there would be another meetmg
before she started the pOSItion at WhIch a final hst of duties and responsiblhtIes was to be
presented and whIch she was then to present to her doctor
March 30, 1994
Ms. Joynes wrote to Ms. Latimer requestmg an ergonomIC study of the institutIOnal dnver
pOSItIOn to WhIch she was then aSSIgned, so that if it was ergonomIcally SUitable for her, she
could "contmue to fight" for the pOSItIOn.
March 1994
It was dunng thIS month, Ms. Morns testIfied, the declSlon to aSSIgn Ms. Joynes to the Duty
Office became final and from that pomt the focus was on her in thIS pOSItion only, m spIte of the
fact that the medIcal reports whIch were receIved between January and March showed that the
Duty Office pOSItion was not appropnate [However she testIfied as well that the Employer was
only consldenng the duty office pOSItIOn from the mltIal meetmg on January 5, 1994 ]
Apnl 15, 1 994
Ms. Latimer responded to Ms. Joynes' request of March 30,1994, and copIed Ms. Moms and, m
refusmg the request set out the followmg ratIOnale
I Your original position is a Correctional Officer It is our mandate at the
Workers' Compensation Board to employ you back to your pre-accident
position in a regular or accommodated capacity We have determined
with the help of an ergonomic consultation done by Mr Peter Clark that
25
the positIon of CorrectIOnal Officer in the Duty Office could be
accommodated for you.
2 The position of Correctional Officer/Duty Officer will be
accommodated by your employer at no wage loss.
3 The posItion of Driver/Messenger which yoU have been doing on a
temporary basis is not a posItIOn which is being offered by your
employer and should you decide to take this position it would be at a
wage loss
4 Should the position of Driver/Messenger be offered to you, you have
been employed in this position and it has previously been agreed upon
by your family doctor to be physically suitable. Therefore it would not
necessitate an ergonomic study
Ms. Latimer also referred to Ms. Joynes' concerns about the posItion of Duty Officer wIth regard
to other employees and how they WIll handle doing the other responsibIlIties that she would not
be reqUired to do and assured her that thIS concern was bemg addressed by her Employer and
would be dealt WIth pnor to her moving mto the posItion.
Ms. Latimer explained to Ms. Joynes that she could appeal the decision and the protocol to follow
to do thIS.
Apnl 14, 1994
A meetmg of the Labour RelatIOns CommItteelEmployee RelatIOns CommIttee was held and was
attended by representatIves from both UnIon and Management. ThIS commIttee deals WIth Items
of mutual concern such as Issues related to labour relations and the operatIon of the facihty m a
general context. It does not deal with mdivIdual SItuations, smce doing so could mterfere WIth
the gnevance resolutIOn process. BIll McLaughlm, Ian Smith, and Doug DalgleIsh, were among
those attendmg and one of the Items dIscussed was the "Need to Accommodate Employees
Returnmg to Work after W C.B As part of thIS discussion It was raIsed that the "Duty Office
(admInIstrative pOSItIOn) has been IdentIfied as a possible permanent accommodatIOn pOSItIOn"
and It was agreed that a further meetmg would be held for those likely to be affected, along WIth
Umon and Management representatives, also, further mput would be sought. Ms. Joynes'
SItuatIon m relatIOn to accommodatIOn was discussed With the agreement of both partIes Two
mdlvlduals who were present (Barter and Varga) agreed to meet WIth the staff aSSIgned to the
Dutv Office to dISCUSS changes that would be reqUired m the Duty Office. (ThIS must not have
been very POSItIve smce the eVIdence shows that Mr Varga opposed the mtroductIOn of an
accommodated pOSItIOn mto the duty office work SIte. It IS worth notmg that there IS always a
nsk gIvmg a senSItIve task to the person who volunteers to do It SImply on the baSIS that he or she
is wlllmg The nsk mcreases With the degree of sensltlvltv reqUired.) As well, the Issue of umon
representatIOn for bargammg umt members at W C B meetmgs was brought up and favourably
receIved. A protocol m that regard was to be recommended by the Umon.
26
Apnl ] 994
At thIS pomt m tIme the Employer had a draft aVailable "dehneatmg the Duty Officer from the
Cell Officer dutIes" WhICh had been dIscussed WIth Ms Joynes "and her representatIve" Dunng
Its preparatIOn, the Employer had all the medIcal reports that had been entered at that time The
Duty Officer would remam m the Duty Office WIth the door locked, although the Duty Officer
would gIve dIrectIOn to Inmates through the open half of the Dutch door, whIle the Cell Officer
would be m charge of the Inmates m the cell area, and would superVIse showers, cell cleanmg,
order meals, and other daily routmes Ms. Morns explained that the orIgmal mtent that there be
two separate pOSItIons, two separate functIOns, WhICh over tIme had melded. The reason for the
separatIOn at thIS tIme was to accommodate Ms. Joynes One of the effects of thIS change and of
placmg Ms Joynes m the pOSItIon as an accommodatIOn would be that one of the 10 staff
members would be aSSIgned elsewhere m the Centre
Apn119, 1994
The UnIt # 6 meetmg held on thIS day was to be a general meetmg concernmg permanent
accommodatIOn m the Duty Office for Staff on restrIcted duties. Ms. Joynes and Mr SmIth
attended, as well as Ms. MorrIS, Mr KalnIns (Deputy Supenntendent) and G Robmson (OM 16),
along WIth nine unIt # 6 staff members. Ms. Morns described the meetmg as "heated" Staff
were told that" [input] from Duty Office Staff was bemg sought to determme how
accommodatIOns could be made most effectively" and "were remmded that both Management
and OPSEU had a moral and legal obligatIOn to provide accommodation." It was her
understandmg that the meetmg was to be "a pull together to see If it was possible to do this
accommodation" The mmutes show that the group wanted to know who was being replaced and
when, and expressed concern regardmg the chOIce of the Duty Office as a locatIOn for permanent
accommodatIOn. They pomted out that the area had always run effiCIently as "a shared
responsIbIlIty by both officers" Staff were asked to particIpate m the process ofupdatmg the hst
of dutIes and to submIt further suggestIOns of areas wIthm the mstItutIOn that could be conSIdered
for permanent accommodatIOn. Ms. MOrrIS dId receive two suggestion lIsts addressmg the
omISSIons from the duty hst.
At the meetmg, Ms. Joynes heard many concerns expressed and she dated the negative feedback
she felt she expenenced from thIS date. There were concerns about who was gomg to be replaced,
how theIr Jobs would be affected. Ms. Joynes was of the opmIOn that her accommodatIOn m Umt
# 6 was dIstmgUIshable from most accommodatIOns due to the fact that the UnIt was small- 10/12
CorrectIOnal Officers. Mr SmIth testIfied that those at the meetmg dId not want to see an
accommodated pOSItIOn m the Duty Office because of the team concept employed and the shared-
dutIes arrangement whIch was m place These would be dIsrupted. ThIS OppOSItIOn was not
dIrected at Ms. Joynes, he explamed, it was SImply not the nght pOSItIOn for an accommodatIon.
The Duty Officers aSSIgned to the Duty Officer were asked to make suggestIOns to the Employer
27
Apnl 1994
SuggestIOns were receIved In partIcular, there was a memorandum from W Varga
who sIgned as PresIdent of Local 218, and an officer assIgned to Umt #6 He conveyed
hIS dIsagreement and that of "many of [hIS] fellow workers" WIth the Employer's
proposal to make" the Duty Office a permmate [sic] post for staff returnmg from
mJury or requmng a permmate ShIft for whatever reason" He hsted a number of
reasons for thIS
(A) 99% of the Duty Office responsibilities are shared during a 12 hour shift with both
employees involved with all aspects of the Control off operations.
(B) By utilizing the shared post concepts (sic) the operation minimizes cost not increases
cost by staffing and complements.
(C) Staff now assigned here are well trained and need little or not supervision in the
operation of the Duty Office (as far as proceedure [sic] go.
(D) Aside from cell routine the work load is handled by two the majority of the shift.
(E) The groups are well adjusted to work within this setting alowing [sic] the shift
supervisor the time to oversee other areas of the institutions operations.
(F) The changes would disrupt 10 staff that have become a unit with consistant [sic] work
habits.
Mr DalgleIsh stated that It was hIS opinIon that Mr Varga was "epltomIzmg the
representatIOn of an mtransIgent umon agamst accommodating an mJured worker and
that gIVen hIS concerns Just addressed that It would be dIsruptIve to that work UnIt, that
[he] stIll had a legal responsibIhty to accommodate Ms. Joynes or others" and
explamed that the Employer, under SectIOn 54 of the Workers' Compensation Act, had
an obhgatIOn to re-employ
Apn121, 1994
Ms. LatImer and Ms. Joynes spoke by telephone and Ms. Joynes notIfied Ms. Latimer
verbally that she was appealmg her denial of an ergonomIC study of the
dnver/messenger pOSItIon In relation to her speCIfically
Apnl 22, 1994
Ms LatImer mformed Ms. Joynes that her file had been referred to the Re-Employment
Branch of W C B for further reVIew
May 16 1994
Ms. Jovnes was mformed that her assignment would be to the Duty Office
28
May 17, 1994
Ms Joynes was sent a response to her letter to the Deputy MInIster It was from the
ASsIstant Deputy MInIster, CorrectIOnal ServIces DIVISIOn, who had been asked to
reply He stated that
In the case of an employee returning to work followmg a Workers Compensation
Board injury the employer is obliged to return the employee to the pre-injury
occupation, if it is available.
I have been advised that there was a mutual understanding that your assignment to the
driver s position was a temporary one to allow regional and institution officials an
opportunity to explore the availability of suitable work in your pre-injury classification
as a correctional officer
In this case, I understand your pre-injury occupation is available with certain
modifications and that local management is working toward a timely resolution of this
matter in accordance with the requirements of the Willkers'_Compensation Act.
May 26, 1994
Ms. Joynes wrote to Ms. Noble expressmg her dissatIsfactIOn with what she VIewed as
a "pat answer" She was unhappy that a full mvestIgation had been not undertaken and
was partIcularly concerned that the author of the letter had draWfl conclusIOns about her
situatIOn WIthout havmg had any contact WIth her
Ms. MorrIS sent a memorandum to Ms. Joynes entitled "Permanent AccommodatIOn -
Duty Office ASSIgnment" The memorandum mformed her that effective June 27,
1994, she would be aSSIgned to the Duty Office schedule slot # 6 She also stated that
This placement is in accordance with your Permanent
Accommodation as discussed previously with yourself and Ms. T
Latimer
May 30, 1994
Ms. Joynes sent a memorandum to Ms Moms and Mr DalgleIsh statmg that she would
lIke to contmue m the dnver pOSItIon until It was posted for competItIOn and filled. She
dId not receIVe any mformatIOn from her Employer m response to thIS memorandum to
mform her that the pOSItIOn was not a correctional officer pOSItIon, nor dId anyone ask
If she was requestmg the dnver's pOSItion permanently She dId not remam In the
pOSItIOn untIl It was filled.
May 31,1994
Mr DalgleIsh sent a memorandum to W Varga, PreSIdent Local 218, m response to hIS
Occurrence Report of Apnl 26, 1994 In It, he made the Employer's duty to
accommodate and the baSIS of that duty cleaT'
29
Whlie I can appreciate the points which you have made none of them reflect a consideratIon of
the legal responsibility whIch I have to accommodate an injured worker who is returning to
duty If the situation were reversed and I was resisting the placement of the injured worker into
the Duty Office for the reasons [you] have given me, my position would not withstand scrutiny
by either of the Workers Compensation Board or the Human Rights Commission
He went on to say that
Consequently it remains my position that the final arbiter of whether or not we have met our
duty to accommodate the injured worker is the Workers' Compensation Board itself, and that
remains an avenue of appeal.
It was not clarIfied whether or not Mr Dalgleish was suggestmg that Mr Varga, as
PresIdent of the Local, Ms. Joynes' as the mJured worker and member of the Local, or
the Employer mIght take thIS avenue of appeal.
Mr Dalgleish closed hIS letter by statmg clearly that the Employer would "be movmg
forward m thIS accommodation" and offered to dISCUSS the matter further, ifMr Varga
WIshed to do so
June 1, 1994
Ms. Joynes wrote to Ms. Latimer and copIed a number of management and unIOn
mdIvIduals. In the memorandum, she expressed her concern that the guidelmes WhICh
she receIved from her Employer on May 27, 1994 were "contrary to the guidelines
dIscussed at prevIOus meetings at Burtch CC" She made the point that the gUIdelmes
dIscussed at the meetings were based on the ergonomIC study whIch assumed that she
would not be entenng the cell area. She also expressed her concern WIth workmg as a
member of a teanl whIle bemg exempt from certam dutIes WhICh might cause
antagonIsm amongst the members of the group
She asked about several other aspects
I What will my duties and responsibilities of my relief week be, so as not to
cause confusion as to who does what.
2 What my specific duties and responsibilities are in the duty office
3 Coverage for emergency response for the cell area.
4 Conflict or harassment I may receive due to my required accommodations
especially during relief week.
5 Unable to rest my arm when necessary This excess use may cause more pain
and further injury to my arm resulting in an earlier operation
30
6 Stress from conflict with other employees and stress from the splittmg of the
present eXIsting duty office and its operations. This stress may effect [sic] my
mental well being.
7 How the video display terminal will effect [sic] me in the term
Ms Joynes also expressed concern that there was a nsk that m future the modIfied
pOSItIon would not be recogmzed as a CorrectIOnal Officer pOSItion smce, m the
modIficatIOn, "all Inmate contact had been removed from the pOSItIon"
June 6, 1994
Ms Joynes attended at the chmc of Dr Quartly m the Department of PhYSIcal MedICme
and RehabIlItatIOn at St. Joseph's HospItal m Brantford, on the referral of Dr BIard.
WC.B IS also noted under the "Referrmg PhysIcIan(s)" Dr Quartly prepared an
Electromyography Report m which she made the followmg findmgs and
recommendatIOns
My clinical impression, therefore, is that this woman has at least three different processes
affecting her right upper extremity, that can all be related temporally and to the nature of the
offending injury
Ms. Joynes continues to experience intermittent swelling in the medial elbow area and indeed
she remains quite tender of the medial epicondyle and continues to experience pain on
resistance to ulnar flexion of the wrist (pain along the musculo-tendinous portions of the flexor
carpi ulnaris muscle).
Clinically, then she appears to have recurrent epicondylitis and/or flexor tendonitis ofthe flexor
carpi ulnaris with intermittent irritation of the ulnar nerve.
I respectfully suggest that given the fact that she has all along had symptoms in the
medial aspect of her upper arm, it would be totally inappropriate for her to be
put in a position where she is doing a sedentary job which may involve sustained
postures of flexion of the neck, until the more proximal aspect of her condition is
addressed. Furthermore, it would seem to me unlikely that she would be able to
tolerate a job involving a lot of writing with the evidence of tendonitis that is
present clinically today
Dr Quartly also suggested further medIcal dIagnostIc mterventIOn to obtam a more
refined dIagnosIs and management technIques such as the wearing of a sheep-skm
protector over the elbow area as a remmder to the Gnevor not to lean on her elbow
The Employer noted that Dr Quartly dId not have Ms Joynes' Job speCIficatIOn or a lIst
of her dutIes when she wrote her report. Ms Joynes explamed that the report was based
on her mItIal meetmg WIth Dr Quartly and that the report IS baSIcally the mformatIon
gleaned from the tests. She testIfied that at that pomt Dr Quartly was not suggestmg
that wrltmg should be totally banned, but that she dId so eventually
31
June 7 1994
Ms Latimer spoke to Ms. Joynes by telephone
June 10, 1994
Ms LatImer wrote to Ms. Joynes In response to the concerns expressed m her letter of
June 1 st and mformIng her that a meetmg had been convened for June 22nd and that
updated reports had been requested from the Employer Ms LatImer asked Ms Joynes
to have her doctor reVIew the ErgonomIcs Report WIth her m tIme for the meetmg. She
mdlcated to Ms. Joynes that concerns # 1, #2, and #3 could be addressed at the June
22nd meetmg, that "all" her medIcal restnctIOns had been taken mto account dunng
the reVIew of the ErgonomICS ConsultatIOn Report, and that concerns #4, # 5, #6, and
#7 must be dealt WIth dIrectly by her Employer
June 14, 1994
Ms. Joynes filed her gnevance on this date
Ms. Joynes testIfied that Dr Quartly's report WIth respect to the proposed
accommodatIOn m the Duty Office was sent to W C.B She could not recall whether or
not she had provided it to her Employer before thIS date.
EVIDENCE SUBSEQUENT TO THIS IS POST-GRIEVANCE EVIDENCE
I have admItted post-grievance and subsequent-event evidence which relates to the
completIOn of the accommodation process, and evidence which relates to Ms. Joynes'
functionmg m the modified duty officer pOSItIon in the Duty Office and ruled at the
hearmg that It would be kept separate and dIstmct from the pre-gnevance eVIdence
Mr Costen argued that the post-gnevance eVIdence should only be admItted in relatIOn
to remedy and cIted, Compagnie miniere Quebec Cartier v. United Steelworkers of
America, infra, m support of thIS approach. The case at hand IS, m my opmIOn,
dlstmgUIshable, m that there IS a contmumg nature to thIS gnevance and the tImmg IS
unusual m that, whIle Ms. Joynes knew that she was gomg to be aSSIgned to the
pOSItIOn In the Duty Office pnor to fihng her gnevance, the actual aSSIgnment dId not
take place untIl after Further the aggravatIOns to the mJury SIte whIch were
complaIned of were the IllustratIOns of the applIcatIOn of the dutIes WhICh had been
contra-mdlcated pnor to the filmg of the gnevance In the CIted case Mme JustIce
L Heureux-Dube wrote
ThIS brings me to the question I raised earlier regarding whether an arbitrator can
conSIder subsequent-event evidence in ruling on a grievance concerning the dismissal
by the Company of an employee. In my view an arbitrator can rely on such evidence,
but only where it is relevant to the issue before him. In other words, such evidence
will only be admissible if it helps to shed light on the reasonableness and
appropriateness of the dismissal under review at the time that it was implemented.
Accordmgly once an arbitrator concludes that a decision by the Company to dismiss
32
on the sole ground that subsequent events render such an annulment, in the opmion of
the arbitrator fair and equitable
v Mme JustIce L'Heureux-Dube states that an arbItrator can rely on subsequent-event
eVIdence WhICh IS relevant to the Issue before hlmlher If It helps to shed hght on the
reasonableness and appropnateness of the declSlon WhICh IS bemg grieved.(m that case
dIsmIssal, m thIS case accommodatIOn) This IS the sItuatIOn m the case at hand.
Further the event, m the mstant case was, I beheve, a contmuous one, mcorporatmg
the accommodatIOn process, the aSSIgnment into the accommodated pOSItIon and Ms
Joynes' functIomng In that pOSItIOn. It dIffers from the SItuatIOn m whIch an Employer
dlsclplmes an employee for certam conduct. In that case, the fact that the Employee
subsequently does somethmg pOSItIve, does not change the baSIS for the mltIal
dIsclplme.
I agree WIth Mr Costen, that the medIcal eVIdence whIch should be taken mto account
m a conSIderatIOn of the ments relatmg to the aSSIgnment to the duty office pOSItIon
should be restncted to that which was avaIlable to the Employer pnor to the gnevance.
In other words, medIcal eVIdence whIch came to the Employer's attentIon after June
14, 1994 should be relevant to remedy only
Unfortunately~ one of the effects of filing a gnevance is that the actIon of domg so
normally entrenches the positions of the parties and unless the pOSItions are changed
through settlement, partIes are normally unwillmg to alter theIr pOSItions pnor to
arbItratIOn. ThIS has happened m the instant case and has left Ms. Joynes m a pOSItIOn
m WhIch her dIsabilIty IS aggravated. It IS unfortunate that the Employer and the UnIon
could not have seen theIr way around thIS obstacle for Ms. Joynes' benefit.
June 17, 1994
Mr DalgleIsh proVIded Ms. LatImer WIth an up-to-date report on the Employer's
follow-up to the recommendatIOns ofMr Clark's ErgonomIcs Report. He enumerated
ten recommendatIOns, one with two sub-sections, to make a total of twelve Nme of
these were modIficatIons which the Employer was to undertake in the work area, and
Mr DalgleIsh reported completion of these. Two others were categonzed as future
employee responsibIlIty gIVen that they mvolved her functIOnIng m the work area. In
response to the recommendatIOn that the Employer proVIde an admmIstratIve
accommodatIOn where the worker would not be placed in a pOSItIOn where force IS
reqUired to be exerted upon an inmate ThIS mcludes emergency SItuatIOns. Mr
DalgleIsh wrote that
It would be our intention that during Ms. Joynes [sic] relief week she will be
assigned to duties consistent with her restrictions. These will largely be
confined to the Duty Office area and will not require her to be put in
positions where force might be required.
33
In closmg, Mr DalgleIsh stated that the Employer belIeved the steps It had taken
constituted complIance wIth the recommendatIOns of the ErgonomIc Report. (ThIS
report whIle It gave recommendatIons on how to perform the eXlstmg tasks m a less
stressful and more ergonomIcally effiCIent manner, It dId not deal specIfically WIth the
repetItive aspect of the tasks, m spite of the fact that the restnctIOns were noted by
hIm)
June 21, 1994
On thIS day, Dr BIard wrote "To Whom It May Concern" She had last met WIth Ms
Joynes on June 17, 1994 and had revIewed the duty officer aSSIgnment. She stated that
'the extent of desk work and writing is totally inappropriate for Shelly's [sic]
injuries" (EmphaSIS added) and mdIcated her agreement WIth Dr Quartly's comment
that "it would be totally inappropriate for her to be put in a position where she is
doing a sedentary job which may involve sustained postures of flexing of the neck
it would seem unlikely that she would be able to tolerate a job involving a lot of
writing" (EmphaSIS added.) She referred to the dIscomfort Ms. Joynes contmued to
expenence, her mabIlity to partICIpate m sports as she had done prior to her mJury and
the pam caused when she hfted her baby of a few months. Dr Biard wrote that she
hoped that the Ministry of the SolICItor General and CorrectIOnal Services and W C.B
would be able to see that "this would further aggrevate [sic] Shelley's already inJured rt
arm and let her continue at her present job where she IS doing well." She offered to
answer further questIons should these arise.
June 22, 1994
Ms MorrIS sent a memorandum to Ms. Joynes m whIch she notified her that when she
was scheduled to work her rehef week m the Duty Office, she would be aSSIgned to
admmlstratIve dutIes and that those duties would not reqUire her to have contact WIth
Inmates or put her m a pOSItIon where she might have to use force She would, m all
likelIhood, be aSSIgned to the "Duty Officer pOSItIOn dunng that relIef week." As well,
Ms. MOrrIS enclosed the "reVIsed gUIde-lmes for the operatIOn of the Duty Office
notmg that "the Items under 'Staff Responsible' WhICh have the astensk pertamed to
her pOSItIon."
Meeting # 4 was held. In attendance were S Joynes, B Marshall (OPSEU Staff
RepresentatIve) , I SmIth (Umon Steward), D DalgleIsh (Supenntendent, Burtch), R.
KalnInS (ASSIstant Deputy Supenntendent, Burtch), C Moms (ASSIstant
Supenntendent, Burtch), and, T Latimer, Vocational RehabilItatIOn Counsellor,
W C.B) The Issue of the Gnevor's neck problems was brought up at this meetmg Dr
BIard's report of June 21st was dIscussed. Those present went to the Duty Office to
check out the modIficatIOns whIch had been made.
34
June 23, 1994
A telephone conversatIOn between Ms Joynes and Ms. Latimer took place on t hIS day
Accordmg to Mr DalgleIsh, Ms. Latimer mformed Ms. Moms that the medIcal
reports had been shared and dIscussed with the medIcal officer and the claims
adJudIcator and the decision reached was that they should proceed with the
accommodation as planned.
Ms Latimer dIctated thIS "Follow-up Report Caseworker" on June 23, 1994 and
dIrected It to Judy Fraser Program Support Clerk. The followmg excerpts are of
partIcular note
MEDlCALCONDITlON
Medical Status
. to this date it is determined that worker has a permanent impairment, no Non
Economic Loss award has been process for her
. restrictions that were placed on this worker by the Regional Medical Advisor are
as follows
-avoid repetitive movements of the right arm, pushing and pulling and
avoid lifting/carrying greater that 15 lbs
. further, Dr Biard in an undated letter added further restrictions which we have
agreed to use as well which are fairly compatible with those of the Medical
Advisor
. they are;
avoid repetitive wrist/elbow flexion and extension with further avoidance of lifting,
carrying, pushing, pulling, handling, gripping and throwing using no more that 15 Ibs.
-avoid contact with inmates per chance physical force needs to be used.
Contact with Attending Physician.
. In a report date June 6, 1994 Dr Biard outlines further restrictions for this woman and
further diagnosis which we had not originally indicated
. she [Dr Biard] is talking about epicondylitis and tendonitis and this claim (sic)
we were looking at a cuvital [sic] release [This is the surgical procedure that
the Grievor underwent. It does not describe her condition.]
. some of the duties do require her to write however, these duties of writing are in the
form of record keeping, there are no long essays, etc.
. the worker does have to do some computer and typing work but it is maximum one
hour spread over a 12 hour period
. the contention today is that with this new medical evidence they are saying that this
job is inappropriate
. the employer has made all accommodations for June 27
Worker's Present Complaints
. worker is complaining that this job IS inappropriate for her due to these medical
conditions
35
. however when we discussed this job she was mainly concerned about gOIng into cell
area
VOCA TIONAL REHABJLIT A TION SITUATION
V R. Objective Status.
. please note worker can do any reach wIth her left arm
. the contention as we said earlier is the fact that the duty office position IS a pre-
accident accomodated
- the position that she currently holds is that of an Institutional driver
-this IS a temporary position, it is not a pre-accident and has been given to her on a
temporary basis only
the worker wants this position and the accident employer will not be offering it
- counsellor [Ms. Latimer] does not feel that it would be appropriate wIth these
restrictions that the worker has on her when we are talking about flex neck positions
and sustained postures etc.
- therefore, the worker might be unable to have any position at all
WCB Designate Action Since Last Contact:
. counsellor did bring up the situation that if fudher medical was provided we would
obviously look at time, however, until it was agreed upon by the Medical Advisor that
it was compatible with her diagnosis everything should remain the same. [sic]
-this is was [sic] discussed at our meeting and the union became quite upset at this fact
that I would not be accepting a specialist report on this date
- counsellor indicated to the union that it would have to be reviewed by the Medical
Advisor, that I was not a doctor, that everything stands the same as we were now
looking at problems with the neck which was not the initial entitlement of this claim.
-they did not seem to understand this and the union representative Ms. Marshal was
very antagonistic and obnoxious at this meeting regarding any of the information even
though she had not been present at most of our meetings except for one
- counsellor will now once again review this with the Manager
Obstacles to VR Objective
. as was stated earlier we can that there are a lot of obstacles to this worker returning
which seemed to be put up by her
Recommendation.
. this counsellor believes that this job is still suitable and I do not see any difference with
the medical information other than the neck position
. if the doctor is saying a sedentary occupation would not be appropriate for her
counsellor does not understand what kind of position she would have to do as any
other position would be light to medium which would required lifting, etc and would
be outside of her restrictions
June 24, 1994
Ms. Joynes wrote to Ms. Moms enclosmg Dr BIard's report dated June 21 1994,
lettmg her know that she was takmg on the aSSIgnment unwIllmgly
36
Ms Jovncs testIfied that she spoke wIth Ms Latimer on thIS day and was told that she
had deten11lned that the duty officer pOSItIOn, as modIfied, was the Job for her and that
Dr Quartly's report was not part of her claim
Ms Laura Peddle, Claims AdJudIcator at the HamIlton RegIOnal Office of the W C.B
wrote to Ms Joynes "to prOVIde [her] WIth a deCISIOn regard1l1g [her] abIlIty to perform
the comparable pOSItion of "Duty Officer" Her letter was wntten followmg a reVIew
of the recent reports of Doctors. Biard and Quartly referred to above In thIS letter she
clanfied that entItlement under thIS claim IS for an mJury to the nght elbow sustamed on
March 22, 1990 She went on to state that
There IS no entitlement to any other area. I clarify this as both your family physician
and Dr Quartly indicate that there is a concern with sustained posture of the neck m
the position of duty office. As there is no entitlement to an injury to the neck
under this claim, these comments are not relevant to the issue at hand.
[Emphasis added.]
She stated that she had been adVIsed that the duty officer pOSItIOn IS actually part ofthe
rotatIOn of a CorrectIOnal Officer WhICh was Ms. Joynes' pre-aCCIdent pOSItIOn and that
her Employer was WIlling to offer that positIOn to her She went on to say that Ms.
Joynes would retain her "senIonty etc. "wIthm the collectIVe agreement, would suffer
no wage loss and would m all probabIlIty have a future economIC loss award of zero
smce there was no antIcipated wage loss." Ms. Peddle, on the baSIS of mformatIOn she
set out m the letter, concluded that the permanent pOSItion of duty officer was SUitable,
would result m no economic loss, and was wIthm Ms. Joynes' medIcal restnctIOns. She
also mformed Ms. Joynes that she had a nght to appeal the deCISIOn.
June 27, 1994
Ms. Joynes' began her aSSIgnment to the modIfied duty officer pOSItIon, the
accommodatIOn pOSItIon. She had a four-day orientation and began on the nIght ShIft,
whIch IS normally not as busy as the day ShIft. At that point Ms. Joynes was
removed from any driving duties and these were reassigned to another
Correctional Officer Prior to maternIty leave, Ms. Joynes had been d01l1g dnvmg
aSSIgnments m SItuatIOns m WhIch an escort (another CorrectIOnal Officer) was
reqmred.
Mr DalgleIsh testIfied that followmg the duty office aSSIgnment, he was aware that
Ms Joynes expenenced aggravatIOn to her nght elbow Accordmg to theIr testimony,
followmg thIS date untIl the end of then respectIve tenure at Burtch, neIther Mr
DalgleIsh nor Ms Moms dId anyth1l1g speCIfic to deal WIth Ms. Joynes' ongomg
aggravatIOn of her elbow, although Ms Moms dId mqUIre and was told that Ms
Joynes' was aWaItmg an MRI test and report. Further, there was no reVIew of the
SItuatIOn by Mr Clark.
37
June 28 1994
Ms Latimer wrote the followmg to Ms. Joynes
Further to our meeting of June 22, 1994 and our telephone conversation of June 23,
1994 this letter is to confirm that Vocational Rehabilitation Services have been
completed at this time Your employer has accommodated the position of Correctional
Officer in the Duty Office as per the recommendations made by our Ergonomic
Specialist and this Counsellor You are to commence this position on June 27, 1994
This position is at no wage loss and you will also maintain your Correctional Officer's
status as well as seniority, benefits, and responsibilities.
At our meeting on June 22, 1994 you presented me with two medical documents, one
from your family physicians, Dr Biard and from your specialist, Dr Quartly These
medical documents contain further medical information not pertaining to your
original entitlement under this claim for your right elbow This information was
discussed with our Claims Adjudication Department as well as our Regional
Medical Advisor They have indicated that this further medical information does
not pertain to your entitlement under claim #176277529 for your right eJbow
Therefore, this medical information will not be used for the position of the
accommodated Duty Officer [Emphasis added]
All restrictions that were given to me by our Regional Medical Advisor as well as your
family physician, Dr Biard have been accommodated by our Ergonomic Specialist.
The one area in the cell area which was not looked at and outlined by our Ergonomic
Specialist was viewed by me on June 22, 1994 We discussed that your only necessity
for going into the cell area would be on staff breaks and relief only for a cell check.
During this time all cell doors are locked and you confirm the lock of the cell doors
with the Detex punch. The Detex punch weighs approximately two pounds and can
be used with your left arm. You will spend approximately 20 minutes depending on
the amount of cells that are occupied in the cell area twice every 12 hours. You are
also required to log in information on a clipboard located in the cell area. As you are
not having any inmate contact these duties fall within your medical restrictions as
outlined by Dr Biard and by our Regional Medical Advisor Therefore all areas
of this position of Correctional Officer in the Duty Office have been
accommodated and/or are suitable for you. [Emphasis added]
I am aware that you currently hold a temporary position of an Institutional Driver at
the Burtch Correctional Facility I am also aware that this is a position which you wish
to continue in. However this position is not being offered to you by your employer
and does not have the same Correctional Officer stats.
Therefore the position of Duty Officer fulfills all criteria necessary for returning you
back to your pre-injury/accommodated position
As no further services from the Vocational Rehabilitation Department of the Workers'
Compensation Board is [sic] necessary for you at this time Vocational Rehabilitation
Services are being closed.
Ms Joynes was mformed of her nght to "obJect to thIS declSlon"
38
Ms Joynes testIfied that she dId not belIeve that her Employer or the wnter of thIS
report had been 111 touch WIth or had sought to contact Dr Quartly, nor had she ever
seen the W C B RegIOnal MedIcal AdVIsor
Mr J Tutchle, MedIatIOn Officer from the Heanngs and Re-employment Branch ofthe
W C.B office m Toronto, spoke WIth Ms Joynes concern111g her obJectIOn to the
demal of an ErgonomIc SpeCIalIst's 111vestlgatIOn and explamed that It was not an
appealable Issue"
June 29,1994
Mr TutchIe wrote to Ms. Joynes confirmmg theIr telephone conversatIOn of the
prevIous day, explammg that It was not possible to appeal a demal of an ergonomIc
mvestlgatIOn and mformmg her that he would be takmg no further actIOn.
At 0400 hours, Ms. Joynes reported a swollen nght elbow, and numb baby finger of
her nght hand to her ShIft Supervisor, Mr Laughlm, who adVIsed her to see medIcal
staff She dId so at 0530 hours, and Mary Alderson, R.N , noted the followmg
mformatIOn provided by Ms. Joynes on a W C.B Treatment Memorandum. Ms. Joynes
testIfied that the SItuatIOn arose when there were 13 new arrivals and she had to wnte
up the cards. She began typing and when she was not able to do any more, she wrote
the rest. She did spread out the work. The cards had to be done over a 5/6 hour period.
ThIS actIVIty contmued to cause her elbow to flare up on a regular basis. Ms. Joynes
acknowledged that whIle she dId inform her Employer by way of memorandum on the
days whIch she found her elbow was worst, that IS "when the pain went beyond [her]
tolerance" she dId not at any time request a break dunng the shift from the Shift l/C
July 1994
Durmg thIS month, Ms. Joynes submItted four memoranda to Mr Carvalho, ShIft
SupervIsor, three complaimng of mcreased pam and swellmg m her nght elbow and
one recordmg that she could not find the foot rest. The latter concern was also
presented m a memorandum to Supenntendent Dalgleish.
Julv 4 1994
Dr BIard wrote a note statmg that Ms. Joynes had been seen on June 29th and July 4th,
and on both VISItS complamed of nght medIal elbow pam, swellmg and 5th dIgItal
numbness She wrote that
Obviously her epicondylitis & neuralgia has flared
up I want Shelly off work x I wk.
(There IS a air of exasperatIon m thIS note)
39
Julv 7 ]994
Mr R. Kalnms, the Actmg Deputy Supenntendent, wrote to Ms. Latlmer "for [her]
mformatIon" as follows
It is clearly understood that W C B decIdes whether a work related" injury claim is
compensable However in reviewing this case you should be aware of the following
before makmg a decision.
The WeB and this facility have gone to great lengths to accommodate Ms. Joynes
back to her pre-injury occupation. There has been considerable medical consultation,
including an ergonomic study, upon which the accommodation was based. In spite of
this, the following events have occurred.
(I) Ms. Joynes began her first day of accommodation on Jun 27/94
She worked her regular twelve hour shift. No complaints of
discomfort or injury were made that I am aware of.
(2) On Jun 28/94 she worked her regular twelve hour shift, but
complained of pain and swelling in her right elbow and
numbing in her right, small finger Ms. Joynes related this
injury to the fact that she had completed the typing and
handwriting of some identification tags. She did see the
nurse at the end of her shift. The right elbow was slightly
swollen and she complained about a numb baby finger
Treatment was not requested nor administered. The
contact was apparently for reporting purposes.
(3) On Jul. 02/94 at 1050 hours (during her regular twelve hour shift)
she reported to our Health Care Services Unit. Her right elbow had
some swelling. Ms. Joynes said that the swelling was noticed thirty
minutes earlier when she was doing some writing. She did not
request treatment and refused to accept pain medication and ice
treatment as recommended by the nurse on duty
(4) Ms. Joynes next twelve hour shift was on Jul. 03/94 It is unclear at
this time whether there was a further complaint. She did complete
her shift.
(5) Ms. Joynes (sic) next shift was Jul 04 94 She completed only nine
of the twelve hours of her shift. Ms. Joynes again reported to our
Health Care Services staff with a swollen right elbow She was
advised to use ice on the joint, (twenty minutes on and twenty
minutes oft), and see her physician. Ms. Joynes informed the nurse
that she tried the ice treatment, but found it to aggravate the area.
Ms. Joynes left work early Jul. 04/94 to see her family physician.
(6) A medical certificate was received on Jul. 05/94 showing that Ms.
Joynes would be off work for one week for the reasons outlined
above (See attached)
40
In short, Ms Joynes had worked only two days when the mjury was brought to our attention m
spIte of the accommodation No unusual/excessive work loads were noted during that period.
By the time Ms. Joynes incurred lost time she had worked a total of four and three quarter days
In this regard I am not questioning the existence of any injury, but I do find the circumstances
most unusual Smce just before this accommodation, she had worked as a vehicle driver WIth
parcel pick-up duties for approximately five months. We had not received any rep0l1s from Ms.
Joynes regarding any injury related to the driver's assignment. Could her present injuries be
related to that?
Submitted for your information.
Signed, R. Kalnins,
(A) Dept./Supt.
Burtch Correctional Centre.
ThIS letter was copIed to the Staff file.
July 13, 1994
A meetmg of the Operational ReVIew CommIttee was held on thIS day The mmutes
sIgned by Supermtendent DalgleIsh, note that Mr DalgleIsh explamed that the drIver
positIon had gone to redeployment for filmg and, if cleared there, would move to
competition. He told the meetmg that If the process was to take longer than 2 weeks
someone would be assIgned as a regular driver untll the pOSItion was filled.
July 21, 1994
A memorandum from Mr DalgleIsh was CIrculated throughout Burtch announcmg that
Mr Don Workman would commence dutles as the InstltutIOnal Dnver effective August
2, 1994 The memorandum prOVIded the mformation that he had been a Motor Vehicle
Operator at Oxford RegIonal Centre and had extenSIve expenence m that capaCIty It
was noted that he was commg to Burtch through the deployment program.
July 27, 1994
On her return from vacation Ms. Joynes was unable to find the footstool WhICh was
part of her ergonomIc eqUipment and she wrote 2 memoranda concernmg the fact that It
had gone mlssmg The stool reappeared.
August 1994
Dunng thIS month Ms Joynes reported mcreased pam and swelhng of her nght elbow
WIth numbness m her nght baby finger on 5 occaSIOns when carrymg out vanous
wntmg duties m the Duty Office, One of these mCldents was confirmed by medIcal
staff. Mr Kalmns asked Ms. Moms to speak to Ms. Joynes to see If "we can be of any
aSSIstance Ms Moms spoke to Ms. Joynes.
41
August 4 1994
Ms Joynes wrote to Ms Peddle at W C.B appealmg her declSlon of June 24 1994, on
the grounds that, (a) as predIcted by Dr BIard and Dr Quartly the dutIes and
responsIbIlIties of the Duty Officer m the Duty Office had aggravated her medIcal
condItIon and (b) the letters from Doctors Biard and Quartly were dIsregarded as "not
pertammg to [her] Il1ltIal mJury" She also mdIcated to Ms. Peddle that Dr Biard had
ImtIated the process of havmg an MRl performed on the elbow area.
August 29, 1994
Ms. Morns spoke to Ms Joynes and offered aSSIstance of an ergonomIC sort, and she
also learned that Ms. Joynes was aWaItmg her MRl procedure Accordmg to Ms.
Joynes, she asked If there were anythmg that "they could do to make the area better",
and that she replIed that there was, and mformed Ms. Moms, that "they hadn't lIstened
to thIS pomt"
September 1994
DUrIng thIS month, Ms. Joynes reported 5 occurrences of mcreased pam and swellmg m
her rIght elbow and this was accompanIed by numbness her right t baby finger The
last of the reports was confirmed by Ms. Alderson who wrote the followmg
memorandum to Carolyn * *
- R elbow slightly swollen
- R hand swollen & baby fmger is numb
- extremely painful
- Tylenol # 2 - 1 tab given for pain relief
- Advised to see Doctor,
September 2, 1994
Ms Moms wrote to Mr DalgleIsh to mform hIm of her contact WIth Ms. Joynes
regardmg her accommodatIOn.
While in charge of the # 2 shift on August 28, 1994, I reviewed two
speedy memos submitted by Shelley Joynes C02 dated August
27 28, 1994 These memos were submitted to her respective Shift
Supervisor advising of the pain in her elbow and numbness in her
baby finger Ms. Joynes has submitted memos of this nature on
almost every shift worked since her permanent placement into the
Duty Office on June 27 1994
At approximately 0015 hours on August 29, 1994, I adVIsed Ms.
Joynes that I had reviewed her two memos that she submitted this
weekend and asked her if there was anything I could do to assist in
alleviating her discomfort. Ms. Joynes advised me that she was
awaiting further medical testing (M.R.I.) And a date had not been
arranged by her family physician as yet. Ms. Joynes stated this test
was very specific and could only take place in London or Hamilton
42
I advised her that if anythmg could be done in an ergonomic manner
to assist her in her assigned duties, to please advise me.
September 20, 1994
Ms Peddle (W C B Claims AdJudIcator) wrote to Ms. Joynes mformmg her of the
follOWIng
(1) Her claim for lost time between July 5th and 27th, 1994 was approved,
(2) Her request for access to her claim file had been InItiated
(3) Her formal letter of obJectIOn to Ms. Peddle's declSlon as to the
SUitabIlIty of the Duty Officer, Duty Office position had been forwarded
to the DeclSlon ReVIew Branch, for reVIew
(4) A report from Dr BIard mdIcatmg that the 45-mmute wrItmg penod was
aggravatmg the elbow and that she had authorized time off work.
(5) She mformed her that
Additional benefits may be awarded in a claim if it is shown that the
further disability is related to the original injury This is established
by examining evidence of continued problems and medical
treatment. Most importantly, the medical information must show a
relationship between the further problems and the original disability
Ms. Peddle offered to proVIde clarificatIOn of any Items and enclosed mformatIOn on
the deCISIOn makmg process at the W C.B
September 28, 1994
Ms. Joynes was absent on thIS date and for other days durmg the penod from thIS date
through to October 17th.
October 1994
Dunng thIS month a smgle report was filed by Ms. Joynes on the last day of the month.
She complamed of mcreased pam and slIght swellmg In her nght elbow and Dorothy
Guest of the medIcal staff wrote the followmg report to Scott Stewart:
On Oct. 31/94 at approx 1245 I examined Ms. Joynes' elbow It
appears to be more swollen and warmer to touch that (L) elbow She
was given one Tylenol # I for discomfort.
WCB claim 17627529 Oct
43
November] 994
On one occaSIOn thIS month Ms. Joynes reported mcreased pam and swellmg of her
nght elbow
In the above memoranda wrItten over several months, Ms. Joynes specIfied the
followmg actIvItIes as ones WhIch she belIeved were Irntants completmg the new
arnval tags, wntmg the work gang sheets, completmg the master populatIOn board. She
stated that the repetItIveness of typmg and wntmg has Irntated or aggravated the nght
elbow and hand - a prevIOUS mjury
November 17, 1994
Ms. Joynes testified that as of this date she had begun to use her left hand which
is not her normal writing hand.
November 18, 1994
Dr Quartly wrote to Ms. Latimer and Ms. Peddle of the W C.B in support of Ms.
Joynes' appeal of the Peddle deCIsion and in her letter she wrote that "these
repercussIOns of injury m~mary probl~Ith the already accepted claIm for
her nghtelbm~.. They relate duectly to the ulnar nerve"
Mrs. Joynes has no difficulty doing any of the work in her new job ~ that work
which is medically contra-indicated, that of writing. She is unable to write extensively
in either a sedentary position, or when she is required to use a population board.
The purpose of this letter then is to support Dr Cicoria-Biard's medical contra-
indications that Mrs. Joynes [sic] should not be a position of repetitive rest, elbow
flexion and extension. In short, writing is contra-indicated.
I understand that the decisions of what was "ergonomically appropriate" were made by
an ergonomist who reviewed the work place, but did not review the patient's condition
or ability to perform the tasks. That is a little bit confusing to me, given the fact that
objective evidence would seem to stand you in stead. You cannot see what the patient
is capable of doing unless you put them through a functional abilities evaluation. That
is the closest that you can get to an objective documentation of their work capacity
Suffice it to say, that Mrs. Joynes herselffeels that she can certainly handle all of the
duties of her current job except the writing.
My recommendation to her, and I have given her a note to her work to that effect, is
that wnting be taken out of her job description.
The note was submItted to the Employer No actIOn was taken.
44
November 22, 1994
Management Board Secretanat, Employment EqUity DIvISIOn Issued a Draft for
DISCUSSIOn. "Proposed Framework. Plannmg and Implementmg Employment
AccommodatIOn for/WIth Persons WIth DIsablhtles"
1995
May 16 1995
Mr D E Graham, DeclSlon ReVIew SpeCialIst at W C B Issued hIS declSlon respectmg
the obJectIon of Ms Joynes to the deCISIOn of the claIms adJudIcator at the HamIlton
office regardmg ClaIm # 17627529 - A. In hIS conSIderation of the obJectIOn he
"recogmzed that the worker has contmumg discomfort m the nght elbow due to the
mJury that occurred on March 22, 1990" He also took mto account the medical
comments of Dr Quartly made m her report of November 18, 1994 m WhICh she
"recommended the ehmmatIOn of all writmg responsibIlIties due to the fact that wrItmg
exacerbates the worker's condItIOn"
In the result, Mr Graham found that
The risk of exacerbating the worker's compensable condition can be reduced greatly
by attempting to space the writing throughout the worker's shift and even if this is not
possible, the risk of exacerbation is far less with continuing in the position than the
problems that would occur in attempting to find the perfect job There are no
guarantees that there will not be an exacerbation of the workers's [sic] condition no
matter what job is provided or found for the worker The decision review specialist
determines that the risk of recurrence or aggravation of the worker's symptoms by the
job of duty officer is a reasonable risk. The position of duty officer is therefore
considered suitable and appropriate and achieves the goal of restoration ofthe
worker's early ability Under these circumstances, the worker's objection is denied.
October 1995
Mr DalgleIsh completed hIS tour of duty at Burtch
October 18 1995
A hst of appropnate dutIes compIled by Ms. Joynes was faxed to Supermtendent
Lockhart.
Mr DalgleIsh's and Ms Moms' exammatIOns-m-chlefprovlded eVIdence of the
process whIch they undertook to accommodate Ms Joynes. It IS mcluded m the
chronology above TheIr cross-exammatIOns and re-exammatIOns focussed on the
45
optIOns whIch Mr DalgleIsh had and the ratIOnale for the chOices he made He stated
that when Ms. Joynes was ready to return to work, it was hIS expectatIOn that she would
return to work as a CorrectIonal Officer 2 whIch he consIdered her pre-mJury pOSItIOn,
although he recogmzed that her aSSIgnment pnor to her mJury was that of a
CorrectIOnal Officer workmg m the IIvll1g umts He acknowledged that he was
endeavourmg to keep her m the same claSSIficatIOn, that of CorrectIOnal Officer 2, and
that thIS claSSIficatIOn could encompass a number of dIfferent duties, among them,
dnvmg dutIes It was because Ms. Joynes' mJury was a compensable one, that he
belIeved she must be returned to her pre-mJury pOSItIOn and for that reason he was not
prepared to conSIder the dnver's pOSItIon as put forward by the Umon, as he VIewed It
to be outSIde her claSSIficatIOn of CorrectIOnal Officer 2
With respect to the drIver's pOSItIon Mr DalgleIsh explamed that some tIme pnor to
the accommodatIOn of Ms. Joynes there had been 2 dnvers but that It had been
determmed that the dnver duties could be accomplIshed by a single dnver and one of
the dnver pOSItIOns was, therefore, converted to a clencal pOSItIOn. He acknowledged
that CorrectIOnal Officers do undertake drivmg duties at Burtch when the regular dnver
IS not avaIlable or an extra dnver IS needed. This may be dnver and escort functIon.
Mr DalgleIsh was asked whether or not Ms. Joynes could have "some driver's dutIes
m her Job" He responded that hIS VIew was that "she would hke to be the mstItutIOnal
dnver" He later clarIfied that It was not the Employer's position that dnver's dutIes
could never be part of Ms. Joynes' Job, and that there was no reason why dnver's duties
could conceptually not be mcluded m a CorrectIOnal Officer 2 Job
Ms. Ursel reVIewed the substance of the medICal reports and contact by Mr DalgleIsh
and m thIS reVIew, Mr Dalgleish acknowledged that the Correctional Officer 2 Job
Specification was sent to Ms. Joynes' physician but that there was no information
sent about the Duty Officer position, and that in spite of that lack, Dr Biard
raised the question of wrist and elbow extension. He also acknowledged that the
Employer had not clarified the February 23rd, 1993 letter of Dr Cha, and did not
consult on the Duty Officer job in any way with Dr Biard, or with Dr Quartly
He also agreed that Dr Biard's letter which was taken into account by Mr Clark
in his Ergonomic Report noted that one of the restrictions was to "avoid repetitive
wrist/elbow flexion and extension and that he was aware that there would be
potential problems with repetitive motions" It was his view that the Union had
not made that clear and that Ms. Joynes' focus on the driver's position was simplv
that she liked the position and wanted it; it had nothing to do with her
accommodation. Her wantmg to be a Motor Vehicle Operator 1 and be paid as a
CorrectIOnal Officer 2, as he saw It, created, m Mr DalgleIsh's mmd, a mIsmatch. He
was not, he explamed, prepared to conSIder dnver's dutIes exclUSIvely for Ms. Joynes
and pomted out at the same tIme, that the pOSItIOn of Duty Officer dId not have dnver
46
dutIes To mcorporate them m to thIS posItion would, he explamed by addmg Job
responsIbIlItIes, not modIfymg them
Mr DalgleIsh artIculated hIS VIew of Ms. Joynes' accommodatIOn and hIS deCISIOns
concernmg that accommodatIOn as follows
She lie} Joynes was injured at work for which she was compensated
(it was a compensable injury). Her injury and our duty to reemploy
her falls squarely into the Workers' Compensation Act and
Regulations and therefore they are vitally involved in the
management of this case
In fact, Mr Dalgleish stated that he saw "the W C.B. as taking the lead role" and
given that "they are the ones who are going to decide if [he had] met my
obligation to reemploy, [he] would always take their advice" It was his
understanding that he could not act independently of the W C. B. to
accommodate a worker and that, even if he were too discover that he could, he
would still involve the W C.B. and would adhere to their directions. Mr
Dalgleish did acknowledge that the "suitable job" category set out in the Worker's
Compensation Act could be used to provide permanent accommodation to an
employee.
Mr Dalgleish dId not agree WIth the proposition that he considered the Employer's
obligatIOn to be complete, and commented that if the W C.B came and told hIm that
Ms. Joynes was unable to perform her pre-inJury job with the accommodatIOns as
proVIded, then he would follow the next step m the process and would include the
W C.B m any changes to the accommodatIOn SItuatIOn. He would not, for mstance,
send m an ergonomIst unless the W C.B said that he should do so and If they were not
wIllIng to do so then the matter should stand as It does at present and as far as what then
would happen WIth Ms. Joynes, he testIfied that he could "not honestly say"
He VIewed the role of the VocatIOnal RehabIlitatIOn Worker as that of "lImson between
the worker, the employer and the board, to faCIlItate Ms. Joynes back mto the
workplace" He dId not rely on Mr Anthony, the RegIOnal Personnel Admmlstrator,
for adVIce, but kept hIm appnsed. He also mdicated that he had not asked for
clanficatIOn of any ofthe medIcal matenal WhICh was submItted.
Mr DalgleIsh testIfied that followmg Ms Joynes' placement m the Duty Office
pOSItIOn he was aware that Ms. Joynes suffered aggravatIOn of the mJury to her elbow
whIle carrymg out those dutIes, but that he dId nottake any steps to modIfy the work so
that the mJury would not be further aggravated. He agreed that he was concerned that
Ms Joynes stay m her pre-mjury claSSIficatIOn. Mr DalgleIsh was not aware of her
SItuatIOn smce hIS departure m October 1994
47
Mr DalgleIsh agreed that, accordmg to the Workers' Compensation Claims Guide
(Helpmg you to manage workers' compensatIOn claims m the OPS Issued by
Management Board Secretanat m March 1993), he was not restncted m hIS chOices
wIth respect to the accommodatIOn of an employee and accepted that the Human
Rights Code and the CollectIve Agreement both Impact on accommodatIOn
requIrements.
Ms Moms testIfied that dunng the accommodatIOn of Ms Joynes, she haIsed pnmarIly
WIth Mr DalgleIsh and was aware that he was consultmg others. She testIfied that the
Employer was dealmg WIth the "gUidelInes sent out through our Management"
respectmg accommodatIOn. The)' were aware, she stated, that they had oblIgatIons to
Ms. Joynes under the Human Rights Code, although she was not speCIfically aware
that It IS not neceSSaI)' to go through the hIerarchy set out III the gUIdelmes, before you
cast a WIder net. She stated that It was her understandmg that the use of the term "pre-
mJury pOSItion" referred m Ms. Joynes' case, to the pOSItIOn she held prior to the mjury
to her elbow, that IS, the pOSItIOn of a CorrectIOnal Officer 2 and she acknowledged
that pOSItIon could be modified "somewhat" wIthm the parameters of the CorrectIOnal
Officer 2 dutIes. She agreed that If Ms. Joynes' could not be accommodated WIthIn her
pre-mJury job, then the Employer would look to other duties withm the mstItution and
faIlmg that, would look outSIde the mstitutIOn , but withm the Ministry She testIfied
that Ms. Latimer mentioned that the Dnver 1 position would not be looked at because it
was not being offered by the Employer and that Mr DalgleIsh had saId that the
Emplover would not conSIder the dnver pOSItIon because It was possible to
accommodate Ms. Joynes m the Duty Office. Ms. Moms was not aware of whether or
not Management Board of CabmetlManagement Board SecretarIat had Issued
gUIdelmes to the mstItutIOns on the conSIderatIOn of vacanCIes and pOSItIOns m respect
of Human RIghts and Workers' CompensatIOn obhgatIOns VIS a VIS the surplus
obhgatIOns, but she trusted that Mr Anthony or Mr DalgleIsh would have referred to
thIS had It been addressed.
Ms Moms testIfied that there had been several "small dIScussions" about other
pOSItIons, and that they "had gone through all the pOSItIons at Burtch and reVIewed
them VIS a VIS Ms. Joynes. She acknowledged m cross-exammatIOn that after January
5 1994, that the Employer dId not conSIder the dnver's pOSItIOn, and explamed that thIS
was because the Employer was lookmg at the pre-mJury Job She accepted that m June
1994 the Employer had medIcal opmIOns from Drs BIard and Quartly WhICh Said that
the Duty Officer accommodatIOn was mappropnate but that they accepted the opmIOn
of the W C.B MedIcal AdVISor who had never seen Ms. Joynes as conveyed by
telephone through Ms LatImer to her Ms Moms acknowledged that she had no
reason to dIspute Ms. Joynes' reports of aggravatIOn to her mJury, that she was not
aware of any other mJury WhICh mIght have caused thIS aggravatIOn, and stated that she
accepted the symptoms outlmed by Ms. Joynes' m her memos. She acknowledged that
48
when one took mto account the ultimate response from the doctors" that It was better
to let Ms. Joynes have some dnver's duties as part of her Job
It was Ms. Morns' understandmg that If Ms. Joynes were to accept a lower paymgJob,
It would then be up to the W C B to make up the dIfference between the remuneratIOn
for that pOSItIon and that of a CorrectIOnal Officer 2
ARBITRAL JURISPRUDENCE
The partIes presented the followmg cases for my gUidance
The Union
Re Marianhill and Canadian Union 0/ Public Employees, Local 2764 (1990) 10
L.A.C (4th) 201 (R.M. Brown)
Re Regional Municipality 0/ Halton and Ontario Nurses' Association (1991) 18
L.A.C (4th) 428 (R.M. Brown)
Central Okanagan School District No. 23 v. Renaud (1992) 2. S C.R. 970
Re Corporation o/City o/Thunder Bay (Grandview Lodge) and Service Employees'
International Union, Local 268 (1992) 27 L.A.C (4th) 194 (Joyce)
Re York County Hospital and Ontario Nurses' Association (1992) 26 L.A.C (4th)
384 (Watters)
Re Calgary Co-operative Association and Calco Club (1992) 24 L.A.C (4th) 308
(McFetndge)
Workers' Compensation Appeals Tribunal Decision No 173/92 (1992) 24 W C.A.T
132 (Newman)
Workers' Compensation Appeals Tribunal Decision No 852/92 (1993) Unreported
(N ewman)
Re Metropolitan General Hospital and Ontario Nurses' Association (1993) 37 L.A.C
(4th) 113 (H.D Brown)
OPSEU (MacKinnon) and The Crown in Right 0/ Ontario (Ministry 0/ Health)
(1994) GSB # 1378/92, 1379/92 (Venty)
49
Re Calgary District Ho,~pital Group and United Nurses of Alberta, LocaII2I-R
(1994) 41 L.A.C (4th) 319 (Ponak)
Re Board of Governors of Riverdale Hospital and Canadian Union of Public
Employees, local 79 (1994) 41 L.A.C (4th) 24 (Knopf)
Workers' Compensation Appeals Tribunal Decision No 690/93 (1994 (Cook)
Re Lever Brothers Ltd. And Teamsters - Chemical, Energy & Allied Workers, Local
132 (1995) 51 L.A.C (4th) 373 (Hams)
OPSEU (Baldeo) and The Crown in Right of Ontario (Management Board
Secretariat) (1995), GSB # 3739/92, 1270/93 (Fmley)
Re Greater Niagara General Hospital and Ontario Nurses' Association (1995) 50
L.A.C (4th) 34 (H.D Brown)
The Employer
Re Douglas Bonner and Her Majesty the Queen in Right of Ontario (Ministry of
Health) (1992) Unreported (Hubbard)
Re Better Beef Ltd. And United Food & Commercial Workers International Union,
Region 18 (1994) 42 L.A.C (4th) 244 (Welhng)
Re Greater Niagara General Hospital and Ontario Nurses' Association (1995) 50
L.A.C (4th) 34 (H.D Brown)
Re OPSEU (Toplin) and The Crown in Right of Ontario (Ministry of Correctional
Services)
(1995) Unreported GSB # 2690/92 etc (WaIsglass)
Re Compagnie miniere Quebec Cartier v. United Steelworkers of America, Local
6869, Lippe, mis en cause (1995) 125 D.L R. (4th) (S C C)
Re Stelco Inc., Hilton Works and United Steelworkers of America, Local IOOS (1995)
50 LAC (4th) 301 (Marcotte)
OPSEU (Fleming) and The Crown in Right of Ontario (Minister of the Solicitor
General & Correctional Services) (1996) (Knopf) GSB # 461/95
I have revIewed the above cases and consIdered them m relatIOn to the case at hand
50
ARGUMENT
The Union
Ms. Ursel, Counsel for the UnIon stated at the outset of her submIssIOn that It was
agreed by all, that the Gnevor, Ms Shelley Joynes, suffered a Workers' CompensatIOn
Board InJury leadmg to permanent, partial dIsabIlIty WhICh reqUires permanent
accommodatIOn m the workplace
She went on to argue that, m thIS case, the Workers' Compensation Board wasfunctus
as the Employer had already met Its obhgatIOns and had moved mto the new terram of
the Human Rights Code WIth Its obhgatIOn to accommodate. She based thIS on the
followmg analYSIS. When Ms. Joynes returned to her employment m 1992 followmg
her mJury m 1990 she was SUitably accommodated m the Duty OfficerlDriver pOSItIon
and It was communIcated to the Workers' Compensation Board that Ms. Joynes had
returned to her employment in a modIfied pOSItIOn. There was nothmg conveyed to the
W C.B , she submItted, that thIS was a temporary arrangement. The result was that the
Workers' CompensatIOn Board closed its file as the Employer had apparently met its
oblIgatIOn. The W C.B had no further responsibihty to the partIes smce a return to
work had already been achIeved. What was at issue was the contmumg involvement.
In her submIssIon, Ms. Ursel stated that It IS not the duty of a W C.B officer to uphold
the Human Rights Code A reVIew of the tIme hmits Imposed by the Workers'
Compensation Act m relation to remstatement obligatIons and m relation to Ms
Joynes' ongmal compensable mJury, w1l11ead one to conclude that the remvolvement
of the Workers' CompensatIon Board was neIther statutorily reqUired, appropnate, nor,
ultimately useful to thIS Employer In determining how to meet It oblIgatIOns under the
Human Rights Code.
There was eVIdence, Ms. Ursel submItted, that the placement of the Gnevor m the Duty
Office pOSItIon resulted m the followmg
. The Gnevor usmg her left (non-dommant) hand for wrItmg and other
purposes.
. The Gnevor expenencmg aggravatIon of the underlymg Injury and pam
and suffenng suffiCIent to cause her to absent herself from work and to
be concerned about her contmumg abIlIty to work.
. The Gnevor havmg to curtail her personal actIVItIes, mcludmg chIld care
There were no adverse effects on the Employer's oblIgatIOn m allowmg the Gnevor to
perform the dnver's duties as part of the Duty Office/ CorrectIOnal Officer 2 pOSItIon
and there was no eVIdence that allowmg her to perform thIS work thIS work resulted m
51
undue hardshIp dunng the mltIal penod It was also confirmed m eVIdence, she
submItted, that dnvmg dutIes are not extraneous to the CorrectIonal Officer 2 pOSItIon,
nor to Its class standards. On the contrary the eVIdence demonstrated that there IS room
WIthIn the parameters for a COITectIOnal Officer 2 or of any level, to be asked to
perform dutIes, as necessary, that are mCldental to a CorrectIOnal Officer's baSIC
functIOn whIch IS to deal WIth Inmates, and therefore the dnver s dutIes can be
encompassed.
Ms. Ursel addressed the process In her argument and commented on several aspects
from the Umon s perspectIve and that of the Gnevor'
. The Employer failed to meets Its oblIgatIOns artIculated m Renaud,
supra, when It scheduled the mItIal meetmg to favour the schedule of the
W C.B worker (who wasfunctus) whIle Ignoring the Gnevor's request
to have It take place when her representatIve of chOice, the expenenced
Staff RepresentatIve was aVailable.
. the Employer assIgned Ms. Joynes to the Duty Office pOSItion m spite
the contrary recommendatIOns of the Gnevor's own doctors.
. The Employer faIled to give conSIderation to other pOSItions or to other
bundles of duties WhICh the UnIon suggested.
. The Employer faIled to conSIder the mclusion of some dnver's dutIes to
accommodate the Gnevor
. The Employer faIled to undertake ergonomic studIes of alternative
pOSitions or of the Gnevor's SItuatIOn smce her placement m the
. The Employer failed to respond to the Umon's hsts and schedule of
dutIes whIch It prepared and submItted and whIch It conSIdered were
conSIstent with the Employer's practice and demonstrated need In the
InstItutIOn, other than to say that the dnver dutIes were performed
exclUSIvely by a Motor VehIcle Operator 1
. The Employer faIled to conSIder any other dutIes or ways of Ms. Joynes
performmg the work assIgned to her m order to prevent and alleVIate
aggravatIOn of the mJury
. The Employer consIstently Ignored the Ul11on's requests for further
accommodatIOn of Ms. Joynes
52
The argument of the Employer about the dnvmg dutIes bemg performed by a Motor
VehIcle Operator does not answer the questIOn of why the Gnevor cannot be spelled off
from her Duty Office Job WIth drivmg. It does not answer the questIOn of why It would
pose undue hardshIp on the Employer and does not prOVIde the Employer's answer
about appropnate actIon m lIght of the fact that the duty office Job as currently
constructed, aggravates mJury, remforces dIsabIlity, and further damages Ms. Joynes
m JUry She has a nght under the Human Rights Code, Ms. Ursel mamtamed, not to
have that happen. The Employer's failure to eIther remove or alleVIate eIther the
repetItIve nature of the work whIch, as predIcted by the doctors was causmg
aggravatIOn of the underlymg mJunes has created an unreasonable nsk to Ms Joynes'
health and safety, contrary to ArtIcle 18 of the CollectIve Agreement and IS m vIOlatIOn
of ArtIcle 50 6 1
Ms. Ursel acknowledged that the Employer was makmg certam efforts but suggested
that some were mIsgUided. For instance, she cited the meetmg arranged WIth the
employees m the Duty Office WhICh was mtended to dISCUSS accommodation of
workers generally with the subtext that they would be addressmg the Issue of Ms.
Joynes' need for accommodatIOn. The problem with thIS method she stated, IS that It
left the Gnevor in the positIOn of being centred out for specIal attention thereby
creatmg a negatIve chmate for her introduction into the Duty Office and resultmg m
addItIOnal stress to her Ms. Ursel suggested that accommodatIOn needs are better met
by followmg Renaud, supra, WhICh requires the mvolvement of the employer
representatIve, the unIon representatIve and the worker bemg accommodated and that It
IS not appropnate to request other workers to become mvolved in how a worker m need
of accommodatIOn can be accommodated. This IS not to say, that It IS not appropriate
to prOVIde mformatIOn to other workers or to address concerns when they arIse, but that
It IS mappropnate to ask a group of workers to conSIder eIther the needs of a speCIfic
worker or to ask them to devise an accommodatIOn for that mdIvldual. To do so would
mvolved dIsclosmg confidentIal medical mformation and other confidentIal mformatIOn
about the worker who IS m need of accommodatIOn. Such an mtrusIOn would not be
appropnate or senSItIve to the needs of the worker
The claSSIficatIOn Issue of the dnver's pOSItion has been an underlymg conSIderatIOn
throughout thIS gnevance, and the Employer was more concerned WIth reclassIficatIOn
problems than WIth what It could do for Ms Joynes, Ms Ursel stated. She submItted
that whIle It contmues to be a matter of dIspute between the Employer and the UnIon,
thIS has no place m a Ms. Joynes' human nghts complamt.
Ms Ursel submItted that the Employer's ratIOnale for keepmg Ms. Joynes m the Duty
Office was dnven by the questIOn of how much Inmate contact the Grievor should
have The mmlmal contact reqUirement set out by Dr Cha, dunng the penod when Ms.
Joynes was assIgned to dnvmg dutIeS was parlayed by the Employer mto a reqUirement
that she have no mmate contact and the effect of so domg was to bar her from dnver's
53
duties Further there IS no logIcal connectIOn between the escalatIOn from nummal to
no mmate contact, or between lImIted contact and the pOSItions aSSIgned to the Gnevor
smce her mJunes and therefore she argued, the Employer s ratIOnale fads m aSSIgnIng
her to the duty office pOSItion alone There IS no medIcal reqUirement to elImInate
mmate contact. One must assume the good faith of the Employer and that It dId not
want to put Ms Joynes m a pOSItIOn of Jeopardy, to nsk the InstitutIOn's interests m
secunty and safety One must also conclude from that, havmg made an assessment of
the reqUirements and the nsks mherent In placmg Ms. Joynes m the dnver's pOSItIOn,
that It found the dnving dutIes could reasonably be assigned to her and that havmg her
m that pOSItIOn an acceptable nsk for 1992/1993, even m hght of the doctor's
reqUirement that their be mInImUm mmate contact. The UnIon IS entItled to rely on thIS
and to assume that drIvmg dutIes can be aSSIgned and that they constitute a reasonable
nsk. A reVIew of the type of Inmates and the van and Its secunty addItIOns along WIth
the extra precautIOns taken for escortmg Inmates who pose greater than the mInImal
secunty nsk, as well as the current practIce of usmg an Motor Vehicle Operator not
tramed m mmate control and secunty Issues, one can conclude the aSSIgnment of Ms.
Joynes to the drIver's pOSItion was an acceptable risk. Further a reVIew of the duty
office pOSItIOn demonstrates that Ms. Joynes as the Duty Officer would have more
dIrect contact WIth Inmates through the "Dutch door" and more random contact with
Inmates than she would while driving them m the van m WhICh there IS a complete
barrIer between the dnver's compartment and the area used for inmates.
When consIdermg remedy and appropnate redress, Ms. Ursel submitted, state of mmd
and knowledge are relevant issues. WhIle we do not need to know the state of mmd to
determme If an alleged dlscnminatIOn occurred, It is relevant to remedy ThIS
Employer has conSIstently taken the positIOn through these events and the hearmg that
W C.B compliance has constituted all Its statutory obligatIOns despIte its clear mInIStry
polIcy on human nghts oblIgatIOns. The Employer's rehance on determmatIOns made
by the W C.B under ItS statute do not have any part m the determmatIOn of whether the
CollectIVe Agreement or the Human Rights Code have been VIOlated, nor can
determmation by the W C.B answer whether these were VIOlated as the W C B has no
JunsdIctIOn over these matters ThIS mSIstence mdIcates a wIlful and flagrant dIsregard
of law, Mr Ursel mamtamed and any remedy should endeavour to address the harm to
the Gnevor and to place her m CIrcumstances that she would have been m but for the
wrong domg.
The remedy Ms. Joynes IS seekmg IS, accordmg to Ms. Ursel, reaSSIgnment to her pre-
pregnancy pOSItion of Duty Officer/Dnver She also seeks damages for pam and
suffenng aVailable under the Human Rights Code and the Collective Agreement
through the mcorporatIOn of the Code wlthm It. As part of the damages, she also seeks
the repayment of 52 hours whIch was she lost for non-compensatIOn due to WeB
respectmg recurrence Further, Ms Joynes seeks an order that the Employer cease and
deSIst m ItS actIOn In failIng to accommodate her properly and that It move to
54
accommodate her properly eIther through reassIgnment to the Duty Officer/Dnver
position or through such other modIficatiOn of her duties that results m appropnate
medIcal accommodatIon of her dIsabIlIty Ms. Ursel acknowledged that whIle
apologIes are not common m the arbItral forum, the Umon belIeves that It IS
appropnate, m thIS case that the Gnevor receIve an apology for the manner m WhICh her
case has been handled. She should not, Ms. Ursel mamtamed, have been reqUired to go
through thIS whole process Fmally, Ms. Joynes seeks momtonng by an mdependent
thIrd party of the manner m whIch accommodatIOn Issues are bemg dealt WIth, and WIth
reports to the Umon, that follow the reqUIrements set out m Renaud, supra
The Umon asked that I rem am seIzed.
The Employer
Mr Costen, Counsel for the Employer, conceded at the outset of hIS argument that
ArtIcle A of the CollectIve Agreement WhICh mandates the Employer not to
dISCrImmate on the basis of handIcap applIes, and that Ms. Joynes fits wIthm the
handIcap deSIgnatIOn of that artIcle. He also acknowledged the fact that the Employer
dealt WIth accommodatIOn extensIvely from a Workers' CompensatIOn Board
perspectIve. ThIS is not, he submitted, a case where the Employer has refused to
accommodate or mvestIgate, nor is It a case where the employee was left not workmg
or demoted. Such cases frequently leave the employee in a dire situatIon. It is, he
stated, essentIally a case about whether the accommodation chosen by the Employer
was the appropnate one Throughout thIS case, whether the Employer was nght or
wrong, Ms. Joynes has contmued to be paid at the same salary level she was receIvmg
at the tIme of her InJury and there has been no Impact on her employment SItuatIOn.
The Employer consIdered a number of possIble areas for Ms. Joynes' accommodatIOn,
but concluded that the Duty Office was the work locatIOn WIth the least mmate contact
and therefore, as of February 1994, It became the Employer's focus for Ms. Joynes'
accommodatiOn. There IS no dIspute, Mr Costen submItted, that the Employer met the
mInImUm mmate contact reqUirement, m fact, it was successful to the pomt that Ms.
Joynes expressed concern that her claSSIficatIOn mIght be adJusted for lack of mmate
contact.
Mr Costen submItted that a number of pnnclples based on the arbItral JUrIsprudence
must apply m the consIderatIOn ofthe case at hand.
. The duty to accommodate does not mean the creatiOn of a new Job
. The duty to accommodate does not mean toleratmg substandard
performance
55
. The duty to accommodate does reqUire the Employer to look at what IS
avaIlable With respect to the employee and pOSItions.
. The Employer does have an oblIgatIOn to look at the duties wlthm an
eXlstmg pOSItIon to see if It can reconfigure an eXIstmg Job
. The Employer IS not reqUIred to go out and employ an extra person that
It would not have employed before.
. The Employer IS also reqUIred to abIde by the accommodatIOn
reqUirement set out m s. 54 of the Workers' Compensation Act WhICh
states that mJured workers must be reemployed where possible m a way
that mamtams theIr eXIstmg salary levels.
It IS the Employer's pOSItIOn, Mr Costen submItted, that If you look at the case law and
the requirements of the Workers' Compensation Act, s. 54, there IS not a lot of
dIfference m how the Employer goes about It. There IS no dIspute that Ms. Joynes was
hIred for the pOSItIOn of CorrectIOnal Officer and that the dutIes and responsibIhtIes of
that pOSItion are as set out m the PositIOn SpecIficatIOn and Class AllocatIOn for a
General Duty Officer, Correctional Officer 2, as submItted m evidence In arrlvmg at
an accommodatIOn, from an Human Rights Code pomt of VIew, an employee's work
should be adJusted to arrive at the situation where that person is accommodated to the
posItion mto WhICh he or she was hIred. ThIS IS done where it IS possible for the
mdIvIdual to perform a substantIve part of the Job but the Employer IS not reqUired to
accommodate a person m a pOSItIOn for WhICh the Employer has no use.
Obligation of the Employer
Mr Costen submItted that the CorrectIOnal Officer pOSItIOn IS Important as a startmg
pomt because the Employer has to satisfy Itself that when accommodating a person,
that person IS performmg a Job reqUIred by the orgamzatIOn and It must first look at the
CorrectIOnal Officer pOSItIOn before It moves off and looks at other pOSItIOns. When
Ms Joynes returned from her surgery m September 1992, It was clear at that pomt, that
she was not to be returned to her regular pOSItIon as a CorrectIOnal Officer but to
modIfied duties, and what was modIfied ImtIally was the CorrectIOnal Officer pOSItIOn.
The modIficatIOn was adJusted somewhat due to her pregnancy and then, due to the
absence ofMr Auld who occupIed the dnver's pOSItIOn. At that pomt It was
appropnate, on a temporary baSIS, for Ms Joynes to be placed mto the pOSItIon of
dnver At that moment, no one knew whether the wrist injury was permanent or
not. Then, when Mr Auld went off on W C.B untIl Ms. Joynes went off on her
pregnancy, she was domg Mr Auld's dutIes, almost exclUSIvely That was because he
was not there In spIte of the fact she was domg the dnver's Job, she remamed at the
correctIOnal officer rate of pay The Employer put off the determmatIOn of her
peImanent accommodatIOn at that pomt. Then the Employer wrote to Ms. Joynes'
56
phYSICIan provldmg a copy of the correctlOnal officer posItIOn speclficatlOn, and m the
speCIficatIOn, there IS no reference to dnvmg. The Employer also, qUite appropnately,
asked what dutles Ms Joynes could and could not perform, hours of work, contact WIth
Inmates and Ms. Joynes' phYSIcal lImItatIOns. Nothmg m thIS correspondence,
submItted Mr Costen, represented a permanent accommodatlOn. Rather, the letter
Said, once she returned, the Employer would look at the correctional officer posltlon
and see what she could do wlthm the confines of that posltlon. The Employer's actlOn
was completely appropnate as that IS the posltlon mto WhICh Ms Joynes was hIred.
At that pomt m time, the Employer was lookmg at the correctIOnal officer pOSItIOn as
the framework m WhICh to address Ms. Joynes' future accommodatIOn. It may be
argued that because the Employer has accommodated Ms. Joynes temporanly dunng
thIS penod in the dnver's pOSItIOn, that It IS oblIged to make thIS accommodatIOn
permanent. However, the Gnevance Settlement Board recognized in OPSEU (Toplin),
supra, that an Employer IS not forever bound by the accommodatIOn arrangements it
makes temporarIly When Ms. Joynes returned to the workplace followmg her
pregnancy leave, CIrcumstances had conSIderably changed. Mr Auld was no longer m
the 'pOSItIOn of dnver, Ms. Joynes was no longer pregnant and It has been confirmed by
the Gnevance Settlement Board, in a deCISIOn relating to a gnevance filed by the Union
well before Ms. Joynes performed the dnver's Job, that the pOSItion that Ms. Joynes
and Mr Auld were occupying was appropnately claSSIfied as a Motor VehIcle Operator
after October 31, 1991 when the escort responsibihtIes of the dnvers were removed.
The pOSItIOn that Ms. Joynes occupied before she left for her maternIty leave was that
of a Motor VehIcle Operator, a classificatIOn whIch IS paid conSIderably less than a
CorrectIOnal Officer Ms. Joyce could not occupy that positIOn and be paId as a
CorrectIOnal Officer
The UnIon IS suggestmg, Mr Costen submItted, that the Employer was preoccupIed
WIth claSSIficatIOn and this blmded the Employer with respect to ItS Human Rights
Code responsiblhty for accommodation. Mr Costen argued that It was the Union that
was so preoccupied. The Union, he mamtamed, wants to relItIgate the Issue of the
claSSIficatIOn of the dnver pOSItIon and thIS was made clear in the eVIdence of Mr
McLaughlm. The UnIon wants to elevate the claSSIficatIOn of dnver ThIS pOSItIOn IS
not m the pool for the purpose of accommodatIOn because as It IS stated m York County
Hospital, supra, and m Greater Niagara General Hospital, supra, the Employer has to
look to the eXlstmg class and qUite clearly the Job performed by Mr Auld and Ms.
Joynes was out of that sphere by VIrtue of the Gnevance Settlement Board declSlon. It
IS the oblIgatIOn of the Employer to look wIthm the correctIOnal officer pOSItIOn, and
thIS IS what It dId. It IS not open to the Employer to accommodate Ms. Joynes by
placmg her m a lower claSSIficatIOn. He submItted that both the Human Rights Code
and the Workers' Compensation Act seek to protect the salary of the accommodated
worker and placmg her back m the dnver's pOSItIon would VIOlate the Human Rights
Code Dunng the dIScussions, the eVIdence demonstrates that the Umon was askmg
57
that she be placed III the dnver s posItIOn, WIth the protectIOn of the correctIOnal officer
salary It was not saymg that It wanted "thIS bundle of dutIes" that was heard about
later There IS no case that has been submItted whIch says that accommodatIOn IS
achIeved by puttmg someone m the lower claSSIficatIOn but by paymg at a hIgher rate,
rather It IS achIeved by placmg the person wIthm the claSsIficatIOn of the prevIOus Job
On the facts of the case from that perspectIve, Mr Costen submItted, the Employer dId
accommodate Ms. Joynes m accordance wIth the Human Rigllts Code
Conduct of the Employer
Mr Costen consIdered the conduct of the Employer m lIght of the medIcal mformatIOn,
partIcularly that WhICh It had receIved pnor to June 1994 It had the letter from Dr Cha
mdlcatmg that Ms. Joynes should have mmImum mmate contact and should have the
same Job as she had before she left on maternIty leave. ThIS m no way, he mamtamed,
suggests any kmd of bluepnnt for the Impairment that Ms. Joynes had. Any employer
would be left wondermg gIven that the accommodatIOn had to take place m the context
of Ms. Joynes' classIficatIOn as a CorrectIOnal Officer Ms. Moms then corresponds
WIth Dr Cha (7) and mcludes, thIS tIme, both the posItion specIficatIOn of the
CorrectIOnal Officer and the Driver, specIfically what the Employer needs to deal WIth
ItS assessment of appropnate accommodatIOn. At the February meeting the group had
aVailable the undated letter from Dr Biard which resulted from Ms. Joynes' January
11 th appomtment. The letter, Mr Costen pointed out, speaks m general terms and does
not Impose restnctIOns m terms of absolute. She points to minimal inmate contact and
the aVOidance of repetitive wrISt /elbow fleXIOn and extenSIOn, and a 15 pound IIftmg
hmlt. There is no mentIon of wrIting or computer input. At that pomt the Employer,
workmg WIth the W C.B bnngs m an ergonomist who assesses the work SIte m
reference to the restrictIOns set out by the doctor in her report. WhIle there may be
concerns about how thIS report was carried out, It IS the only study WhICh goes into the
work place and looks at the functions ofthe Job on SIte. That IS not aVailable m eIther
of the post-gnevance medIcal reports The study looked at computer use, handwrItmg
and repetItIve stram among other aspects, and made a number of recommendatIOns
concernmg adJustments to the workplace He also suggested the prOVISIOn for breaks to
alleVIate repetItIveness. Mr Costen noted that Ms Joynes acknowledged m her cross-
exammatIOn that the employee has dIscretIOn to space out wrItmg and to set certam
pnontIes to reduce the Impact of certam dutIes m the Duty Office Durmg the process
that took place m February, no senous questIons were raised about the ergonomIC
study or by the approach of the ergonomISt. Changes were however, made to the draft,
and the cell dutIes WhICh caused concern to Ms. Joynes were removed Between
February and June, 1994, no further cntlque of the dutIes was forthcommg. As of June
14, 1994 (the date of the gnevance) the medIcal mformatIOn was the letters from Drs.
BIard and Cha, and based on that, the Employer's course of conduct was not
mappropnate In effect, the Employer took all reasonable steps up to that date and was
verv senous about fulfillmg ItS oblIgatIOn under the Workers' Compensation Act and
58
the Human Rights Code and It IS only follOWIng the gnevance that there was a
suggestIOn of contra-mdlcatIOn.
Approach of the Union
The Umon was concerned that Ms. Joynes should sImply remam m the dnver's Job It
was also concerned about the Impact on those on regular aSSIgnment to the Duty Office
ofplacmg Ms. Joynes m that office. Mr Costen cIted the letter from Mr Varga, who
wrote as preSIdent of the local rather than as a worker aSSIgned to the area, expressmg
hIS concerns about appropnate accommodatIon. It seems IronIC that the Employer
should be seen to be Impedmg the Umon from carrYIng out ItS oblIgatIOns under
Renaud when a umon offiCIal seems to be takmg a very negatIve VIew of the
accommodatIOn. The Employer dId seek the mvolvement of the employees who would
be affected but what It receIved from them was not helpful
After JuIttl4~94, the D~of1he_~vance
Mr Costen made the pomt that arbItratIOn boards are generally speaking reluctant to
look at post-gnevance eVIdence and more so to determme If there has been a prevIOUS
VIOlatIOn. The approach of Compagnie miniere Quebec Cartier should be followed.
This brings me to the question I raised earlier regarding whether an arbitrator can
consider subsequent-event evidence in ruling on a grievance concerning the dismissal
by the Company of an employee. In my view, an arbitrator can rely on such evidence
but only where it is relevant to the issue before him. In other words, such evidence
will only be admissible if it helps to shed light on the reasonableness and
appropriateness of the dismissal under review at the time that it was implemented.
Accordingly, once an arbitrator concludes that a decision by the Company to dismiss
an employee was justified at the time that it was made, he cannot then annul the
dismissal on the sole grounds that subsequent events render such an annulment, in the
opinion of the arbitrator, fair and equitable.
It may be appropnate to conSIder the post-gnevance eVIdence WIth respect to remedy,
but not, Mr Costen urged, with respect to the ments
In the latter part of June 1994, Mr Costen pomted out, the Employer receIved the
Electromyography Report WIth the recommendatIons of Dr Quartly In whIch she
notes, not that wntmg IS mappropnate but that a lot of wntmg IS mappropnate It also
receIved a report from Dr BIard. WhIle the Umon makes the pomt that the W C.B
RegIOnal MedIcal AdVIsor had not seen Ms. Joynes, the Employer makes the pomt that
neIther Dr Biard, nor Dr Quartly had observed the work settmg
At the begmnmg of her placement m the accommodatIOn pOSItIOn Ms Joynes dId
expenence some aggravatIon and the case IS partIcularly dIfficult, Mr Costen pomted
out, because Ms. Joynes IS m pam all the tIme Dr Quartly says she IS a lot of pam and
59
when that comment was made, Ms. Joynes was fillmg the dnvers posItion. It appears
that over tIme, M Joynes has coped wIth the pam, has made her own adJustments and
she contmued to work In the accommodated pOSItIOn at the tIme of the heanng. There
IS no eVIdence beyond the summer of 1994 that thIS was Impedmg her ablhty to work.
v When Ms. Morns spoke WIth Ms Joynes m August 1994 to ask what she could do, she
was mformed of the upcommg MRI procedure but nothmg further She has been
accommodated. Mr Costen urged that If post-gnevance eVIdence IS taken mto account,
then It Important that all of It be taken mto account.
Mr Costen looked at the "bundle of dutIes" whIch the Umon submItted and pomted out
that none of these had been approved by a doctor, nor were any put to the Employer
Indeed, thIS was mformatIOn whIch the Employer had been seekmg but WhICh was
never forthcommg. It was the undIsputed eVIdence of Mr DalgleIsh that the bundle of
dutIes as presented, would create a new pOSItion which IS what arbItrators and human
nghts adJudIcators are not prepared to do It IS a pOSItion for which the InstItution has
no need. Such suggestIOns were not forthcommg from Ms. Marshall whom the Union
conSIdered had expertIse m the area of accommodatIOn. Yet, Mr Costen noted, she
only put forward the drIver's Job The UnIon came forth with nothmg about how Ms.
Joynes could be accommodated WIthm the correctional officer pOSItion.
WJll"ke~~ompensation Boal'Q
Mr Costen submItted that, whether or not the W C.B was correct, It is clear that those
empowered by legIslation to admmIster the Act have taken the VIew that the oblIgatIOns
under the Act have been appropnate The W C.B looked at the Issue from s. 54 of the
Act and the Employer SImply could not Ignore the W C.B It may be, Mr Costen
submItted, that there IS a duty IS some cases where the duty to accommodate under the
Code and under the Workers' Compensation Act IS dIfferent, but that cannot extend to
the Employer bemg oblIged to Ignore the W C.B The oblIgatIOns are SImilar - look
first to accommodatIOn m the hIred positIOn. The Union IS saymg, Mr Costen stated,
that because Ms Joynes' W C.B file was closed that the Employer should have no
further W C.B concerns. The Emplover could not close the book. It's oblIgatIOn under
the Act IS to return an mJured employee to hIslher pre-mJury Job Then, half way
through the Gnevance Settlement Board holds that the Motor VehlCle Operator was a
lower claSSIficatIOn. GIven thIS rulmg, the Employer could not, under s. 54 keep Ms
Joynes m the Motor Velucle Operator's pOSItIOn. To do so could, he submItted, be In
VIOlatIOn of S 54 The Employer's oblIgatIOn was to keep her m a correctIOnal officer
pOSItIon whIch IS not very dIfferent from what IS reqUired under the Code and that IS
what the Employer dId. The Employer s pOSItIOn IS that she has been appropnately
accommodated.
60
Health and Safety - Article 18
The Employer cannot guarantee the health and safety of an employee and that IS
partIcularly true of correctIOnal officers who are dealmg WIth an mherently dangerous
clIentele The Ontario Health and Safety Act recogmzes thIS and prohibIts correctIOnal
officers from refusmg unsafe work based on the understandmg that correctIOnal officer
work IS unsafe Reasonableness should be Judged m terms of the Employer's attempts
to work WIth the W C.B m terms of determmmg what would be proper
accommodatIOn. The Employer sought out the W C.B It worked out a sItuatIOn m
WhIch It extracted from Ms. Joynes' pOSItIOn most of the mmate contact. It sought
mput from the Umon as reqUired under ArtIcle 18 as to how thIs could be done It dId
not crack the WhIP m the workplace, It dId not stand over Ms. Joynes. It was prepared
to look at her accommodatIOn through an ergonomIC study, and dId not turn a bhnd eye
to health and safety concerns. There IS "a faIr bIt of dIscretIOn" wIthm the dutIes
aSSIgned to Ms. Joynes so that she can set her own pnontIes. In consldenng
reasonableness up to the time of the grievance. It IS the Employer's pOSItIOn that It had
taken all reasonable steps under the circumstances. As well, it permItted Ms. Joynes to
remam m the Motor VehIcle Operator's pOSItIon while paymg her at the hIgher rate,
fora long penod. There is no VIOlatIOn of ArtIcle 18, Mr Costen maintamed.
Pregnancy Leave - Article 50.6.1
ThIS article states that a female employee shall be assigned to her former pOSItion on
return from pregnancy leave The operative word, submitted Mr Costen, IS "positIOn",
not the dutIes whIch she had before. To do that would be to return her to a pOSItion
with a lower salary The word "pOSItIOn" must be broadly mterpreted, in thIS case,
return to the pOSItIOn of correctIOnal officer She has been returned to that pOSItIOn and
to that salary
Remedy
The Employer takes the pOSItIOn that It has not VIOlated anyone of the three artIcles
raIsed by the Umon. However, should I conclude that there IS a breach of anyone of
these, and I must find a breach to tngger a remedy, accordmg to Mr Costen, then he
suggests the following
(a) state that there has been a technIcal breach but not Issue any damages as
there IS no proof of loss of pay
(b) conclude that neIther side has fully exhausted all possibIlIties for
accommodatIOn and order that the Employer has to look further
With respect to damages, Mr Costen submItted that there IS no eVIdence whIch would
reqUire me to Impose an award of speCial damages. The Employer's conduct could not
meet the WIlful or reckless threshold reqUired under the Code, s 41 (1) (b)
61
Mr Costen stated that whIle It was hIS understandmg that the Employer "to the extent It
has had an Impact" on Ms Joynes, "regrets that thIS has happened", It should not have
to apologIze for somethmg whIch It handled m good faith. There IS no eVIdence
whatsoever of vmdIctIveness towards Ms Joynes. In fact, she remams and IS paid at
the same rate NeIther damages nor apology IS appropnate m thIS case
REPLY
Ms. Ursel replIed that "the genesIs of thIS case IS that the accommodatIOn offered to
Ms Joynes does not work for her and was not fine tuned appropriately The Umon, she
stated, recognIzes that the Employer took steps but the substantive result IS not
appropnate ThIS IS not, she emphaSIzed, a claim for the dnver Job "for all tIme", nor
IS It a claim for the motor vehIcle operator Job at the CorrectIOnal Officer 2 rate. It is a
claim for the dnvmg duties such as she was performmg pnor to maternIty leave based
on the fact that the eVIdence demonstrates that some dnver's dutIes offer a workable
package, that IS, work that can be done wIthm thIS Institution and wIthm correctIOnal
officer specIficatIOns. When dnvers m the Auld/Solomon deCISIOn performed custodial
dutIes, they were consIdered to be performing correctIOnal officer 2 duties and when
Ms. Joynes provided dnvmg duties, she had control of inmates.
There IS no allegatIOn that Ms. Joynes cannot perform the core dutIes of her job It IS
the bundle WhICh aggravates and the Umon IS askmg for refinement. ThIS IS not a case
that the post-gnevance facts were not known pnor to the gnevance. Concerns were
expressed all along concernmg the appropriateness of the accommodatIOn, Ms. Ursel
submItted. The post-gnevance eVIdence showed that the concerns were valId. If the
OpposIte were true and she had suffered no problems, the Employer would be wantmg
to use that eVIdence
The Employer dId have, WIth the reports of Doctors Cha and BIard a complete pIcture
because It allowed the ergonomIc report to be done. The UnIon, does, however, dispute
the completeness of the ergonomIc report WhIch dId not consIder dnvmg dutIes. The
RegIOnal MedIcal Officer from W C.B had neIther exammed Ms. Joynes, consIdered
the Job duties as described by Ms. Joynes or anyone else, nor had he or she dealt with
the effect of the placement on Ms. Joynes. The W C.B phYSICIan suffered from multI-
handIcaps m hislher assessment. Doctors Biard and Quartly had better mformatIOn.
Further the ergonomIcs speCIalIst dId not look at the effect of the pOSItIOn of Ms. Joynes
m her accommodated pOSItIon. The study undertaken SImply dealt WIth the Job m
general
The eVIdence relIed on does not satisfy the ongomg duty to accommodate, accordmg to
Ms Ursel, It mdIcates that the Emplover IS not prepared to reVISIt the tOpIC and It IS
obliged to do so If the accommodatIOn IS not workmg.
62
DECISION
The accommodatIOn of employees IS one of the most dIfficult and sensItive aspects of
the functIOnIng of the workplace It reqUIres a focus on the reqUIrements of the person
" bemg accommodated and the co-operatIOn of that person, the Employer and members
of management, the Umon and members of the bargammg umt, the Workers'
CompensatIOn Board (If It IS Involved), and the MedIcal ProfeSSIOn. InformatIOn
gathenng and analYSIS, Identlfymg the options, and selectmg the accommodatIOn are
three necessary parts of such a process In some cases, the process may be sImple and
be accomplIshed wlthm a short length of tIme, m others It may be complex and tIme-
consummg. Further, a worker's accommodatIOn may need to be adJusted from time to
tIme for any number of reasons ansmg from CIrcumstances of eIther the accommodated
employee or the accommodatmg employer
The "GUIdelmes for Assessmg Accommodation Requirements for Persons WIth
DlsabihtIes" publIshed in 1989 and 1992 by the OntarIO Human RIghts CommISSIOn,
under "Standards for Accommodation" state the followmg:
1. Requirement of Accommodation
THE NEEDS OF PERSONS WITH DISABILITIES MUST BE
ACCOMMODA TED IN A MANNER WHICH MOST RESPECTS
THEIR DIGNITY, IF TO DO SO DOES NOT CREATE UNDUE
HARDSHIP
2. Respecting the Dignity of Persons with Disabilities
THE PHRASE "RESPECTS THEIR DIGNITY" MEANS TO ACT IN A
MANNER WHICH RECOGNIZES THE PRIVACY, CONFIDENTIALITY,
COMFORT, AUTONOMY, AND SELF-ESTEEM OF PERSONS WITH
DISABILITIES, WHICH MAXIMIZES THEIR INTEGRATION AND
WHICH PROMOTES THEIR FULL PARTICIPATION IN SOCIETY
The dIgnIty of the dIsabled person IS not respected when that person IS put through a
frustratmg, adversarIal process as opposed to a co-operatIve problem-solvIng process
m order to arrIve at an accommodatIOn. It IS not respected when the accommodatIOn
results m an mcreased level of pam and aggravatIOn of the dIsabIlIty Nor IS It
respected when co-workers are more concerned about mamtammg the status quo, for
theIr own benefit. Such an attItude says to the dIsabled person (who would prefer not
to be saddled WIth the dIsabIlIty) that he or she wIll not be accepted In a partIcular
sectIOn of the workplace The result of such attItudes and actions IS that the person
WIth a handIcap/dIsabIlIty IS dISCrImInated agamst. A dIsabled worker needs the
support and understandmg of those m the workplace m order to have hIS or her dIgnIty
respected.
63
Arnvmg at sUitable accommodatIOn for a dIsabled person can be a complex and trymg
process. The Mlmstry has recogmzed thIS by postmg, m 1995, two posItIons for
"AssIstance Coordmator" One of the dutIes of the mdIvlduals m thIS pOSItIon IS to
aSSIst "WIth accommodatIOn of employees" and some of the quahficatIOns mentIoned
are "excellent commumcatIOn, medIatIon and negotiatIon skIlls" and a "proven abIlIty
to exerCIse dIscretIOn and confidentialIty" Such an mdIvIdual would have been
helpful to the partIes dunng the accommodatIOn process of Ms. Joynes and mIght have
assIsted the partIes to work m a more co-operatIve and focussed manner
Ms. Joynes filed her gnevance two weeks prIor to her placement m the modIfied
pOSItion because she dId not beheve that the pOSItIOn whIch had been deSIgnated for her
would work well, m spIte of the ergonomIc modIficatIOns WhICh were bemg
undertaken and the dIScussIons whIch had been held WIth her future co-workers m the
Duty Office She recognIzed that her commg into the Duty Office on a permanent baSIS
was perceIved to be upsetting a comfortable workmg relatIonshIp She was also
frustrated by the sIx-month process ofworkmg out thIS accommodatIOn. In a letter to
the Deputy MinIster dated March 18, 1994, she saId.
I find myself in the middle of the conflicting
interests of local management, the union and the
Workmens' Compensation Board [sic].
I have concluded that Ms. Joynes' perceptIOn of her pOSItIOn was not maccurate and the
Irony of the situatIOn IS that the three groups WhICh were to develop the accommodation
m consultatIOn WIth her (the Employer, the Union and the W C.B ), were, for much of
the process, workmg agamst each other, defendmg pOSItions, and m the case of the
Employer and the W C.B , deferrmg to each other to uphold then own positions agamst
the UnIon and Ms. Joynes. In spite of the fact that it was the Employer's mtentIOn that
the January 5, 1994 meetmg was to be an "information-gatherIng meetmg" It did not
fulfil that functIOn. Indeed, the partIes, at the mltIal meetmg possessed very httle
useful mformatIOn. Rather than focussing on what other mformatIOn was necessary
prIor to revlewmg possible accommodation arrangements and how they were gomg to
gather that mformatIOn, the Employer took one pOSItIOn, supported by the W C.B , and
the Umon, on behalf of Ms. Joynes, took another The result was that the process, the
medIcal mformatIOn and the optIons were narrowed at the outset Just when they should
have been broadened.
In the mIddle of all thIS was Ms. Joynes, WIth the fear that she mIght come out of the
process WIthout a Job and her chosen career at an end. She also knew from her medIcal
reports that she faced a future WIth a dlsabIhty that restrIcted her personal and work
actIVItIes and WhICh could, If aggravated, result m mcreased pam and further surgery
Ms. Jovnes' pOSItIon m thIS SItuatIon was vulnerable and rather than partIclpatmg m a
co-operatIve and focussed process mvolvmg the Employer, the Umon, the W C.B and
the MedIcal ProfeSSIOn, she found herself part of a process that was adversanal,
64
accusatory, and negatIve Ms Joynes suffered from the reperCUSSIOns of that. That IS
not to say there were not IndIVIduals who were concerned about her welfare and acted
pOSItIvely but overall, those pOSItIve actIOns were overshadowed by the negatIve ones
and the result was an acnmomous, frustratIng, and time-consumIng process for all
The eVIdence set out above demonstrates thIS. However, the responsIbIlIty for the
problems WhICh Ms. Joynes expenenced as a result of the process and her fifth
accommodatIOn WhICh aggravated her mJury SIte, cannot, If1 my opmIOn, be laid at the
feet of anyone party to the process Almost all mvolved bear some of the
responsIbIlIty
The gnevance, however, focuses on three alleged VIOlatIOns of the CollectIve
Agreement by the Employer dlscnmmatIOn under ArtIcle A, health and safety under
ArtIcle 18, and employment placement followmg pregnancy leave under ArtIcle 50,
and It IS those allegatIOns whIch I must address. It must be stressed that there was
never any questIOn on the part ofthe Employer about whether or not Ms. Joynes should
be accommodated. In fact, m hIS letter to Mr Varga dated May 31, 1994, Mr
DalgleIsh made his positIOn clear'
While I can appreciate the points which you have made, none of them reflect a
consideration of the legal responsibility which I have to accommodate an injured
worker who is returning to duty If the situation were reversed and I was resisting the
placement of the injured worker into the Duty Office for the reasons [you] have given
me, my position would not withstand scrutiny either of the Workers' Compensation
Board or the Human Rights Commission.
It IS agreed by the partIes that there is no dIspute that the Gnevor, Ms. Joynes,
1 suffered an mJury dunng workplace trammg
2. receIved confirmatIon that the dIsabihty caused by the mJury was
permanent durmg late February 1993
3 was entItled to workplace accommodatIOn under the Human Rights
Code.
Nor IS It dIsputed that the Employer had a duty to accommodate thIS employee short of
undue hardshIp and that no such hardshIp eXIsted, and further, the UnIon acknowledges
that the Employer dId make efforts to accommodate the Gnevor, and m fact the Gnevor
was accommodated through her placement WIth five accommodatIOns. The partIes also
recogmze that the Gnevor dId not actually commence work m the fifth modIfied
pOSItIOn untIl after filmg her gnevance and that certam of her dutIes and responsibIlItIes
m the pOSItIon have caused some aggravatIOn to the mJury site dunng the post-
gnevance penod.
65
TERMINOLOGY
As I have been consIdenng thIS matter It has become clear that certam termmology has
been the cause of some of the commumcatIOn dIfficultIes and perhaps of some
confUSIOn and mlsunderstandmgs ThIS IS partIcularly true of commumcatIOns wIth the
f MedIcal ProfeSSIOn. I note the follOWIng but others may also have been problematIC
General Duty Officer
A CorrectIOnal Officer who IS aSSIgned to general duty at posts throughout the
mstltutlon.
Duty Officer
A CorrectIOnal Officer who IS aSSIgned to the Duty Office (Control Room)
Minimal Inmate Contact
ThIS phrase was used ImtIally by Dr Cha m a note that was receIved by the
Employer on October 12, 1993, dunng Ms. Joynes' maternIty leave, this phrase
became the Employer's goal for her accommodatIOn. It referred to medIcally
necessary restrictIons which were to apply on her return to work m January
1994 The purpose of makmg thIS suggestIOn was so that Ms. Joynes would
"aVOId confrontation" Minimal Inmate contact could refer to frequency of the
contact, directness of the contact, the qualIty of the contact or the number of
Inmates a correctIOnal officer is m contact WIth at any gIven time. It may be
that Dr Cha dId not take mto account the variety of possible mterpretatIOns of
hIS restnctIOn or the fact that Burtch Correctional Centre is a mImmum securIty
mstItutIOn when askmg for thIS restnctIOn.
In consIdenng what the phYSICIan mtended, the purpose, "to aVOId
confrontatIOn", offers some clues It IS reasonable to assume that Dr Cha was
concerned about phYSIcal confrontatIOn WhICh mIght place Ms. Joynes m a
pOSItIon m WhIch she mIght exacerbate her InJury site The SImplest way of
aVOIdmg phYSIcal confrontatIon WIth Inmates IS to never have contact WIth
them. However, Ms. Joynes works In a correctIOnal faCIlIty and IS a ClaSSIfied
CorrectIOnal Officer She WIshes to contmue m that pOSItIon, and the Employer
WIshes to contmue to employ her m that pOSItIOn. The essence of her Job IS to
work WIth mmates m a vanety of capaCIties. Therefore, a restnctIOn of no
mmate contact, would, m effect, mean that she could not partICIpate In the core
dutIes of her Job Dr Cha appears to have recogmzed thIS and does not suggest
that there should be no Inmate contact WhIch leads one to conclude that he
mtended some level of contact, and If the purpose IS to aVOId phYSIcal
confrontatIOn, a reasonable mterpretatIOn IS that Ms Joynes should be placed m
situatIOns m the workplace where phYSIcal confrontatIon IS least hkely to occur
and/or where, If It does Ms Joynes has some degree of protectIOn. There was
no eVIdence that phvslcal confrontatIOn had occurred between Inmates and the
66
persons occupymg eIther the drIver posItIOn or the duty officer posItIOn. There
IS physIcal protection for the drIver In the vehIcle m the form of a separatmg
cage, and when the quality of contact IS of concern, there IS the protectIOn of
the escortmg officer (s) The duty office aSSIgnment WIthout the cell dutIes
places Ms. Joynes m a pOSItIon WhIch mmlmIzes the chance of Involvement m
phYSIcal confrontatIOn. Ms. Joynes appears to be of the opmIOn that both
pOSItions offer an acceptable level ofnsk, as does the UnIon. The Employer
only vIewed the Duty Office as acceptable because It offered the least dIrect
Inmate contact. I have concluded m the context of the mmlmal deSIgnatIOn of
the mstItutIon that the duties Involved in the duty office work and dnvmg offer
acceptable levels of mmate contact to meet the concerns of Dr Chao There may
also be other dutIes which meet thIS same level of rIsk.
Reinstatement Obligations
ThIS term IS used by the MinIstry to describe the obhgatIOn of the Employer
under the Workers' Compensation Act to bnng an employee who has suffered
and IIlJUry back mto the workplace into hIslher pre-mJury Job, or If the
employee IS not medIcally able to perform the essential dutIes of that Job, mto
SUitable work. The W C.B uses the term "re-employment" AccommodatIOn
mayor may not be necessary to achIeve remstatementlre-employment WhICh IS
the focus of the Workers' Compensation Act. Under the Act an employer
cannot SImply say that the worker no longer fits into the workplace An
obhgatIOn IS placed on the Employer to adapt the workplace to the worker It is
set out m SectIOn 54 (6)
(6) Impaired worker -- In order to fulfil the
employer's obligations under this section the
employer shall accommodate the work or the
workplace to the needs of a worker who is
impaired as a result of the injury to the extent that
the accommodation does not cause the employer
undue hardship
Duty to Accommodate
The "duty to accommodate" IS termmology used m the human nghts context.
A defimtIOn of the "duty to accommodate" IS quoted in Discrimination in
Employment in Ontario, Grosman and Martm, Canada Law Book, Aurora,
OntarIo, 1994 at pages 147, 148 It IS taken from an artIcle m the CanadIan
Labour Law Journal, Vol 1 , pi, wrItten m 1992 by M. DaVId Lepofsky
entItled The Duty to Accommodate' a Purposive Approach
At the core of any accommodation is the tailoring of a work rule,
practice, condition or requirement to the specIfic needs of an
individual or group The need ma) be associated with their religion,
gender disability or other human attribute enumerated in Human
Rights Codes. An accommodation can include such steps as an
67
exemptIOn of the worker from an existing work reqUIrement or
condition applicable to others, the provision to the worker of a
benefit ordinarily or routinely provided to others, and the provision
of some kind of job support or assistance which is ordinarily or not
routinely provided to others. At its core, it involves some degree of
differential treatment. The litmus test of the accommodation s
necessity is whether such a measure is needed to ensure that the
worker can fully and equally particIpate in the workplace
The duty to accommodate (short of undue hardshIp) IS a duty under the Human Rights
Code, placed on, m thIS case, the Employer to make adJustments m the workplace
whIch wIll enable, a worker who has suffered an mJury and consequent dIsabIlIty to
contmue to work m the workplace m WhICh he or she was employed pnor to the mJury
There IS also, as expressed m Renaud, supra, the duty of the UnIon at pp 988
The objection of employees based on well-grounded concerns that
their rights will be affected must be considered. On the other hand,
objections based on attitudes inconsistent with human rights are an
irrelevant consideration.
Temporary Accommodation
ThIS term has been used by the Employer to describe the workplace assIgnments of Ms.
Joynes durmg the penod pnor to June 27, 1994 NeIther the Workers' Compensation
Act, nor the Human Rights Code differentiates between temporary and permanent
accommodation. Nothmg m the Workers' Compensation Act states or implIes that
remstatementlre-employment has not taken place If the employee is placed m a pre-
mJury posItIOn, be It temporary or long-term. It may occur that an employee IS
accommodated temporarIly for rehablhtatIve purposes m pOSItions WhICh assIst that
employee m working towards full pre-mjury or full sUitable work. Further, the term IS
not used m the "Workers' CompensatIOn Claims Guide" put out by Management Board
SecretarIat.
Permanent Accommodation.
ThIS term has been used by the Employer and the Union to refer to what they conSIder a
long-term assIgnment m WhIch adJustments m the workplace are made to allow an
employee wIth a dIsabIlIty to functIOn on a long-term or on-gomg baSIS WhIle a
worker may need to be accommodated for the duratIOn of hIS or her employment, and
the accommodatIOn may be permanent m that sense, the partIcular accommodatIOn
cannot be saId to be permanent. It IS not realIstIC for eIther the employee or the
employer to expect accommodatIOns to be "permanent" There IS always the pOSSIbIlIty
that the accommodatIOn WIll need to be changed or adJusted. The term "permanent
accommodatIOn" IS not used m the Workers' Compensation Act the Human Rights
Code, or m the "Workers' CompensatIOn Claims GUide" put out by Management
Board Secretanat. A more accurate descnptIve term would be "on-gomg" or "long-
term "
68
Modified Work
The term "modIfied work" IS used by both the Employer and the Umon. It IS one of the
tools an Employer can use to effect the accommodatIon of a worker An employer
may arrange modIfied work for an employee as a rehabIhtatIve tool to meet the
temporary or long-term needs of an employee The essence of modIfied work IS that
the dutIes and responsIbIlItIes of the normal pOSItIons or Job are changed or adjusted. It
does not follow, as Ms MOrrIS reasoned, that because an employee IS domg modIfied
work that the arrangement IS temporary The duty office pOSItIOn IS also modIfied
work.
Repetitive WristlElbow Flexion and Extension
ThIS term was used by Dr Biard m her letter of January 1994 It IS repeated m the
medIcal restnctIOns set out in the ErgonomICS Report of February 1994 A SImIlar
phrase, "repetItIve movements of the nght arm" was used m thIS same report and
attnbuted to the RegIOnal MedIcal Exammer It appears that no one stopped to mterpret
or mqUIre as to the actual, practIcal meanmg OfthIS phrase If one thmks carefully, It IS
ObVIOUS that It must mclude wrltmg and typmg.
SUMMARY OF MS. JOYNES' EMPLOYMENT AND W.e.B. HISTORY
It IS helpful to summarize Ms. Joynes' work and W C.B hIStOry following her mJury
Ms. Joynes was mJured on March 22, 1990, and Claim # 17627529 was opened by the
W C.B at that time. Her employment history following her mjury can be summarized
m four dIstmct penods.
Work Period # 1 - Post-injury
SprIng 1990 to Summer 1992
Ms. MOrrIS arrIved at the end of thIS penod to take the pOSItIOn of Semor ASSIstant
Supenntendent OperatIons, WIth responsibIlIty for, among other thmgs, correctIOnal
officers. There was no speCIfic eVIdence as to who occupied that pOSItIOn pnor to her
arrIval, nor was there eVIdence as to who occupIed the pOSItIOn of Supenntendent
dUrIng that penod.
Ms. Joynes returned to work as a General Duty Officer, within the Correctional
Officer 2 classification dIrectly followmg her Phase II trammg. (Return to Work
# 1) She remamed m that pOSItion for approXImately 2 1/4 years untIl the summer of
1992 In other words, she contmued m her regular pOSItIon and III the eyes of the
WC.B would have been re-employed to her pre-mJury pOSItIon, and the Employer
would have been deemed to have met ItS obhgatIOn to re-employ her Dunng thIS
penod she underwent regular treatment for the effects of her mJury It was not clear
whether or not the medIcal mterventIOns wlthm thIS tIme perIod were reported to the
W C B speCIfically at that tIme or dunng a conversatIOn WIth the Employer m Work
Penod # 2 There was no eVIdence of any request from the Employer or Ms. Joynes to
69
W C B for mterventIOn dunng thIS work penod, nor of mterventIOn mltIated by the
WCB Claim # 177627529 (Alloc ****) whIch appears to have remamed open
throughout the penod. Further, no eVIdence was mtroduced that Ms. Joynes sought
accommodatIOn dunng thIS work penod other than time off for treatment, nor was there
eVIdence of her reportmg work-related aggravation of her mJury SIte
Work Period # 2 - Post-injurylPost- surgerylPregnancy
September 1992 to May 1993
Dunng thIS work penod Mr Cornfoot was the Supenntendent and Ms. MOrrIs, the
Semor ASSIstant Supenntendent OperatIOns
On August 5, 1992, Ms. Joynes underwent surgery on her elbow SIX weeks later, on
September 23, 1992, Ms. Joynes returned from her surgery and thIS IS the date that
W C.B noted her havmg returned to work. (Return to Work # 2) W C.B claim #
17627529 (Alloc REHAB/SD321B24) was actIvated followmg surgery and It appears
that thIS occurred WIthout the interventIOn of the Employer or Ms. Joynes. ThIS claIm
was then closed in October 1992 and Ms. Joynes' status was noted by the W C.B as
"employed", and once agam, the Employer would have been deemed to have met its
oblIgatIOns to re-employ her Therefore, in the eyes of the W C.B she was re-
employed.
In Ms. Joynes' return-to-work note, Dr Cha asked that she be placed on "hght duty
Jobs" There was no request that she be in a position with minimal inmate contact.
She was assIgned, by Ms. Moms, WIthout the mvolvement of the Umon, to a
combmatIOn of duty office and dnver dutIes. The driver duties were convenIently
avaIlable smce the mcumbent was workmg reduced hours due to an InjUry Ms. Morris
considered minimal inmate contact in her assignment, although Ms. Joynes'
doctor had not advised this at this time. It IS not clear from the evidence whether
Ms. MorrIS was aware of Ms. Joynes' pregnancy at the time of creatmg the combmatIOn
of duties WhICh mvolved an exclUSIOn of lIving-unit posts. ThIS was the first
accommodatIOn (whIch, smce not deSIgnated as long-term, could be assumed to be
short-ternl) Ms. Moms requested speCIfics from Dr Cha and Ms. Joynes followmg the
notIficatIOn from Dr Cha on February 23, 1993, that Ms. Joynes condItIOn was
permanent and would reqUire modIfied dutIes "permanently" At this point, there was
still no medical request for minimal inmate contact. That did not come until
October, 1993, while she was on maternity leave. There was no eVIdence ofMs
Joynes reportmg work-related aggravatIOn of her mJury SIte or problems WIth Inmates
dunng thIS work penod.
Ms. Joynes reqUired scheduhng accommodatIOn dunng her pregnancy As of October
20, 1992 she was placed on eIght-hour ShIftS (the second accommodatIOn whIch was
tIme-hmIted) and as of November 24, 1992, she was further accommodated (the thIrd
70
accommodatIon whIch was time lImIted) by haVIng bemg assIgned addItIonally to
daytIme ShIftS. She left on pregnancy/matermty leave In May 1993 and WIth her
departure, these two schedulIng accommodatIons were no longer necessary
(Dunng thIS penod, the Gnevance Settlement Board ruled that the pOSItion of
mstItutIOnal dnver as It was constItuted at the time of the deCISIOn, dId not fall wlthm
the CorrectIOnal Officer 2 claSSIficatIOn. However, dnvmg was and stIll IS carned out
by CorrectIOnal Officer 2s when the InstItutional Dnver who IS claSSIfied as a Motor
VehIcle Operator lIS unaVaIlable. It IS a reasonable conclUSIOn, that whIle the full-tIme
mstItutIOnal dnver pOSItIon may be claSSIfied as a Motor VehIcle Operator 1 that some
dnver duties per se may be covered by the claSSIficatIOn of the CorrectIOnal Officer 2
pOSItion, under "escortmg Inmates as reqUired" and "assIstmg staff dunng
emergenCIes" Further the eVIdence demonstrated that there was a practIce at the
Burtch CorrectIOnal Centre of assIgnmg CorrectIOnal Officer 2s to drIve. ThIS IS, m
part, due to the neceSSIty of replacmg the InstItutIOnal Dnver dunng vacatIOn and other
absences, and provIdmg transportatIOn dunng the hours he/she IS not scheduled. )
Absence Period - PregnancylMaternity Leave
May 3, 1993 to January 31, 1994
Durmg thIS absence penod, Mr Cornfoot and Mr DalgleIsh were the Supenntendents
and Ms. Morns was the Senior ASSIstant Supermtendent Operations.
Near the end of Ms. Joynes' leave, Ms. Morns brought Ms. Joynes' pendmg return to
work to the attentIOn of Mr DalgleIsh who mstructed her "to have W C.B contacted to
ehcIt theIr aSSIstance and to determme the status of the claIm" The W C.B. had
already recorded Ms. Joynes employment status as "employed" on October 13,
1992, and the fact that she went off on maternIty leave would not have altered that. A
request went from Human Resources to W C.B to have vocatIOnal rehabIhtation
serVIces actIvated for Ms. Joynes and the request was granted in December 1993, under
ClaIm # 17627529 (Alloc. SD 31/BB24) At the same tIme, the Board declared Ms.
Joynes' Impairment to be permanent. NeIther Ms. Joynes nor the Umon was m favour
of the Involvement of W C.B at thIS pomt m time as they beheved that her return to
work was from her maternIty leave, and that she had been preVIOusly re-employed from
her mJUry and surgery
Work Period # 3 - Post-injurylPost-surgerylPost-Maternity Leave
January 31, 1994 to June 26, 1994
Dunng thIS thIrd work penod, Mr DalgleIsh was the Supenntendent and Ms. Morns
was the Semor ASSIstant Supermtendent OperatIons.
Following her return from maternity leave on January 31,1994 Ms. Joynes was,
WIth the mvolvement of the Umon, temporanly placed m the pOSItIOn of the
InstItutIOnal dnver whIch was not now a CorrectIOnal Officer 2 posltlon. (Return to
71
Work # 3) ThIs placement, In the mstItutIOnal dnver's posItIOn (Motor VehIcle
Operator] ) was convemently avaIlable due to the mcumbent's retIrement. (ThIS was
the fourth accommodatIOn and was tIme lImIted.) Ms Joynes was, nonetheless, paid
,.. as a CorrectIOnal Officer 2 There was no eVIdence of her reportIng work-related
aggravatIOn of her mJury SIte or of dIfficultIes WIth mmates.
Work Period # 4 - Post-injury/Post-surgery/Post-Maternity LeavelPost Grievance
June 27, 1994 onwards
Mr DalgleIsh was the SuperIntendent for approxImately the first 3 months of thIS work
penod and was replaced by Supenntendent Lockhart m October 1995 Dunng the latter
part of 1995, Ms. Moms moved to another InstItutIon and was replaced by M. J
Knappett, as Deputy SuperIntendent AdmInIstratIOn/Programmes.
On June 27, 1994, Ms. Joynes was placed m a modIfied pOSItIon of Duty Officer m the
Duty Office, WIthout cell dutIes, and followmg a number of ergonomically
recommended adaptatIOns to the work space. She has remamed there smce. (ThIs was
the fifth accommodatIOn and It was deSIgned to be long-term.) There was no eVIdence
that she had been aSSIgned driver dutIes for any portIon of the penod from her
aSSIgnment to this pOSItion untIl the end of the hearing. There was evidence of her
reporting aggravation of her work-injury site, but not of problems with inmates.
INVOL VEMENT OF THE WORKERS' COMPENSATION BOARD
The appropnateness of the mvolvement of the W C.B IS dIsputed by the UnIon whIch
takes the pOSItIOn that at the stage that the "permanent accommodatIOn" was bemg
developed, the W C.B had completed ItS work, and had no authOrIty to be mvolved. It
took the pOSItIOn that thIS was a matter solely for the Employer and the UnIon.
Only scant eVIdence was produced concernmg Ms Joynes' mvolvement WIth W C.B
from 1990 to August 1992 It IS reasonable to conclude that her W C.B file was
opened m March 1990, at the time of her mJury, and we know from Ms. Joynes'
testImony that there was no mterventIOn on the part of the W C B to return her to the
workplace, nor to aSSIst the Employer WIth adJustments and adaptatIOns wIthm the
workplace to facIlItate that return. A W C.B Closure Report dIrected to a W C.B
Manager, and dated October 13,1992, records that she receIved "aggreSSIve medIcal
treatment by Dr Bleschmldt" and partICIpated m vanous forms of therapy throughout
an InItial recovery penod" It also notes that there was a "recent RegIOnal Medical
AdVIsor report dated August 1 7, 1992, on file whIch would have been follOWIng her
surgery The October 1992 report states that Ms. Joynes returned to work pnor to
vocatIOnal rehabIlItatIOn mvolvement, and that her present status was "employed"
ThIS document was the W C.B 's admmlstratIve clOSIng of the file To mform the chent
of thIS a letter from W C B dated October 14 1992, went to Ms Joynes It told her
72
that 'VocatIOnal RehabIlItatIon ServIces has [sic] been completed at thIS tune as [she
was] employed m a modIfied pOSItIon WIth [her] employer" In other words, she had
returned to work, had been accommodated to achIeve that return, Implymg as well, that
her Employer had met Its obhgatIOn to re-employ her
Accordmg to Ms. Moms, followmg her surgery, Ms Joynes was performmg "a
combmatIOn of dutIes" ThIS appears to have been mutually acceptable and there was
no eVIdence of the W C.B 's mvolvement m the arrangement of thIS first
accommodatIOn. However, the Employer's VIew of the accommodatIOn was,
accordmg to Ms. Moms, that Ms. Joynes was stIll on "modIfied dutIes" and she had not
been placed m a permanent pOSItIOn. She testIfied that Mr Cornfoot, the then
SuperIntendent told her that they should be lookmg for permanent accommodatIOn for
Ms. Joynes. At this point, the Employer had not been informed that the effects of
Ms. Joynes' injury were to leave her with a permanent disability The Employer
dId not learn of thIS untIl four months later when It receIved the mformatIOn contamed
m Dr Cha's memorandum of February 23, 1993, that Ms. Joynes should be "on
modIfied duty permanently" Ms. Joynes dId not even know that at that pomt m tIme
that her mJury was to cause a permanent dIsability ThIS was also a year pnor to the
arrIvalofMr DalgleIsh, as Actmg Supenntendent. Eight month's after informmg her
Employer that her iIlJury was to leave her WIth a permanent dIsabIlIty, Ms Joynes
announced to Ms. Morris she was about to return to work from her maternIty leave.
Ms. Moms then spoke WIth Mr DalgleIsh who mstructed her to request the aSSIstance
of the W C.B m accommodatmg Ms. Joynes. By this tIme, the W C.B was confirmmg
her re-employment with a VIew to closmg her file and havmg determmed that she had
returned to work, and that the Employer had met ItS obligations to re-employ It dId
mdeed close the file However, Mr DalgleIsh wanted the W C.B ' s assistance m
arrangmg appropnate on-gomg accommodatIOn for Ms. Joynes on her return. In
summary, then, Ms. Joynes had three returns to work and five accommodatIOns
Return-to- Work # 1 - re-employment followmg a compensable
1990 mJury WIthout W C.B vocatIOnal rehabIlItatIOn
servICes and WIthout knowmg the permanent
nature of her dIsabIlIty and WIthout
accommodatIOn
Return-to-Work # 2- re-employment followmg surgery ansmg
1992 out of a compensable mJury WIthout W C B
vocatIOnal rehabIlItatIOn serVIces, WIthout
knowmg the permanent nature of her dIsabIlIty,
and WIth accommodatIOn #1 for her mJury and
accommodatIOns # 2 and #3 for her pregnancy
73
Return-to Work # 3 - return to work followmg
1994 pregnancy/matermtv leave wIth W C.B
vocational rehabIlItatIOn serVIces, and knowmg
the permanent nature of her dIsabIlIty, and that
the accommodatIOn # 4 for her dIsabIlIty was
fixed until the on-gomg accommodatIOn was
settled. ThIS was followed by accommodatIOn # 5
WhICh was considered the on-gomg
accommodatIOn.
The Employer could have acted m February 1993, and begun the process ofplacmg Ms.
Joynes m a long-term modIfied pOSItion. That dId not make much sense, smce she was
bemg accommodated for her pregnancy m a SItuatIOn that was satIsfactory both for that
condItlon and her elbow condItion and she was due to go on maternIty leave withm two
months. Further, Ms. Joynes was comfortable m that pOSItIOn. At thIS pomt, It made
perfect sense for the Employer to take no actIOn with respect to long-term
accommodation for Ms. Joynes' dIsabIlIty When the Employer dId deCIde to take
actIOn during the latter part of Ms. Joynes' absence perIOd, the focus was on the
permanent dIsabilIty WhICh arose out of her onginal compensable mjury, the
permanency of which, surgery had failed to prevent.
The question arises, since the Issue of W C.B mvolvement was raised by the Union,
whether there IS anything m the Workers' Compensation Act or m the poliCIes and
procedures of the MinIstry WhICh would prohibit or restnct the Employer from
requestmg and receiving the aSSIstance ofthe W C.B., Ifw1l1mg to assist, once an
employee who has had a compensable inJury is re-employed. ThIS brIngs up a related
questIOn. Can the Employer avail itself of the servIces of the W C.B m the case of a
worker who has had a compensable mJury resultmg m permanent Impairment when hIS
or her accommodatIOn needs to be changed or adJusted, followmg the fulfillment of
the Employer's oblIgatIOn to re-employ and following the closmg of hIS /her W C.B
file ?
Once the Board has made a determmatIOn that a worker's ImpaIrment IS permanent.
SectIOn 42 (21) of the Workers' Compensation Act refers to "unantICIpated
detenoratIOn" and "redetermmatIOn", and whIle both are aImed at the employee they
are concepts WhICh are future OrIented and suggest that It IS permItted to return to the
Board once an employer s oblIgatIOn to re-employ has been fulfilled. The sub-sectIOn
reads as follows.
(21 ) Unanticipated deterioration.-- A worker may apply to the Board for a
redetermination of the degree of the worker's permanent impairment.
(a) if the Board has determined that the worker has a permanent impairment:
74
(b) if the worker has sufTered a significant deterioratIOn of condition that was not
anticipated at the time of the most recent medical assessment under this
section
NeIther the "unanticIpated detenoratIOn" nor "redetermmatIon" has tIme hmIts, other
than a lImIt WhIch restncts the worker for applymg for a redetermmatIOn untIl a penod
of twelve months has passed. SectIOn 53 has certam tIme-hnes wIth respect to
assessment WhICh places the onus on the W C B staff to keep the assessment process
"on track" and to achIeve re-employment as soon as IS medIcally feasible SectIOn 54
obhges an employer to re-employ up to the day WhICh IS the earhest of
(a) two years after the date of the injury to the worker;
[In thIS case March 22, 1992, although It dId not come m to playas Ms.
Joynes' Return-to-Work # 1 was WIthout the mvolvement of the W C.B]
(b) one year after the date the Board notifies the employer that the worker is medically
able to perform the essential duties of the worker's pre-injury employment; and
[That never occurred m Ms. Joynes case as she returned to work
WIthout the mvolvement of the W C.B]
(c) the date the worker reaches sixty-five years of age.
[This does not apply to Ms. Joynes.]
In thIS case, both the Employer and the Emplovee managed the return from mJury and
the return from surgery without the neceSSIty of mvolvmg the W C.B and there was no
need to make use of ItS vocatIOnal rehablhtatIOn services. The return from maternIty
leave comclded WIth the need to plan a long-term accommodatIon for Ms. Joynes.
The fact that the Employer's obligatIon has run out, should not mean that It is barred
from requesting the assistance ofthe W C.B The W C.B has servIces and expertIse
that may be of value to an employer provIdmg, and an employee needing well-planned
accommodatIOn. It should mean, however, that the authonty whIch the W C.B
possesses under the statute to compel employers and employees to comply, IS out of
tIme Therefore, theIr role m such a case, and m the case at hand, should be and have
been one of assIstmg and advIsmg m theIr area of expertIse
Mr Dalglehsh asked for theIr aSSIstance However, rather than hmlt the W C.B ' s role
to asslstmg and advlSlng, he abdIcated hIS leadershIp role m the accommodatIOn
process to the W C.B , m partIcular, to Ms. LatImer ThIS began WIth the schedulmg
of the meetmg pnmanly to meet Ms LatImer s convemence It contmued WIth
allowmg her to take the lead role m the meetmg. It was she, accordmg to Mr
DalgleIsh, who explamed the purpose of the meetmg and the process. At the end of the
meetmg, Ms. LatImer was left to undertake a reVIew She "was to look at all medIcal
mformatIOn, to receIve all details about Ms Joynes' ablhtIes, the Employer's ablhtles,
75
oblIgatIOn to accommodatIOn and the whole Issue under the gUIdelmes for permanent
accommodatIOn" Rather than provldmg assIstance, she took on her normal
statututory-backed role ofhavmg the partIes act to ensure the re-employment of Ms.
Joynes to her pre-mJury Job The mvolvement of the W C B was m some respects
helpful, partIcularly the serVIces of Mr Clark, the ErgonomICS SpecIahst. It was
unfortunate that m many other respects It was not, and thIS was crucIal, gIven that Mr
DalgleIsh was takmg hIS lead from Ms Latimer
WhIle Mr DalgleIsh acknowledged that he was not restncted m hiS chOices WIth
respect to the accommodation of an employee, and accepted that the Human Rights
Code and the Collective Agreement both Impact on accommodation reqUirements, he
nonetheless testIfied that he saw "the W C.B as takmg the lead role" and given that
they are the ones who are gomg to deCIde If [he had] met [hIS] obhgatIOns to re-employ,
[he] would always take theIr adVIce." ThIs IS troublesome. Mr Dalgleish, as
Supermtendent, owed a duty of accommodatIOn under the Human Rights Code and
the CollectIve Agreement to Ms. Joynes, and hIS statement leads one to conclude that
he would choose the W C.B adVIce under any cIrcumstances, not because he belIeved
It would ensure or aSSIst m ensurmg that he had met hIS obhgatIOns to Ms. Joynes but to
ensure that he would not find himself accused of faIlmg to meet hIS oblIgations under
the Workers' Compensation Act to re-employ a worker The irony OfthIS was that Ms.
Joynes' status at the W C.B was, at that time, "employed"
MINISTRY POLICIES AND PROCEDURES
The followmg mmistry polIces and procedures were m place at the time arrangements
were bemg made for Ms. Joynes' long-term accommodatIOn. In September 1991,
Management Board Secretariat issued the following directive entitled
"AccommodatIOn m Employment for Persons WIth DisabIlities" The followmg
excerpts are pertment:
OBJECTIVE
To ensure'
. that employees with disabilities receive the accommodation they require in a way that
is equitable and that maximizes their contribution and participation in employment.
APPLlCA TION AND SCOPE
ThIS directive applies to
. all classified and unclassified employees with disabilities hired under the Public
Service Act in all ministries and Schedule I agencIes,
. persons with ongoing disabilities and persons with temporary disabilities
For the purpose of this directive, accommodation is defined as an adaptation or
adjustment to enable the person with a disability to perform the employment activities.
It is provided to support or assist the individual and must not result in the replacement
of the individual.
76
In March 1993, Management Board Secretanat provIded Its Managers WIth a tool for
'helpmg [them] to manage workers' compensation claims m the OPS" It was entItled
Workers' CompensatIOn Claims GUide" The IntroductIOn, entItled "Manager's Role
1I1 Returnmg the Worker to the Workplace" proVIded paths and steps for varIOUS
SItuatIOns. The one WhICh would have apphed to Ms Joynes had she not returned to
work WIthout W C B mvolvement was the followmg
r . Worker has indicated he/she:
. can return to modified job or suitable work
. Contact worker to identify his/her restrictions and permission to call his/her physician*
. Obtain information from worker's physician to determine next appropriate steps*
. Develop rehabilitative employment (in consultation with worker, Board and worker's
physician*
. Contact Workers Compensation Coordinator/Human Resources Branch*
. Complete and submit a Form 9 to the Board*
. Monitor worker's progress and make changes to work assignment as necessary*
. If worker improves and returns to regular job, inform Board*
* [ActIOn to be taken by the manager]
Note The obligation to reinstate an injured worker can begin at any point in the process.
It also suggests that
. Ministries should consider providing vocational rehabilitation services directly Some
ministries could train an injured worker or arrange for training "in house" in order to
avoid WCB costs. You must identify whether or not this can be carried out within
your ministry, given available resources, or within the OPS Once determined, the
Board should be notified.
It is imperative for managers to remain in contact with the Board to ensure
that a vocational rehabilitation program is not established without their [This
must be read the manager's] involvement. Managers who monitor claims and
persist in their attempts to return workers to the workplace will get results.
Managers who expect the Board to rehabilitate the worker may be
disappointed.
The Employer dId contact one of Ms. Joynes' phYSICIans on one occaSIOn dIrectly by
maIl requestmg a response but receIved none. ThIS was pnor to Mr DalgleIsh's arrIval
at the mstItutIOn. A second contact was made mdlrectly through Ms. Joynes and a
wntten response was prOVIded by the phYSICIan. ThIS was followmg Mr DalgleIsh s
amval. There was no eVIdence of requestmg a release so that the Employer could
receIve helpful mformatIOn from the phYSICIans, or of contactmg any of the phYSICIans
for clanficatIOn. There was no eVIdence of attempts to contact resources other than
the W C.B
It IS Important to note the roles defined for the Manager and the W C.B m the above
excerpts Once the worker has mdlcated he/she can return to work the Manager has a
proactIve role m contactmg the worker, obtammg a medIcal release from the worker,
obtammg medIcal mformatIOn from the phYSICian and developmg rehabIlItative
77
employment (in consultation with the worker, the Board and workers physICian),
contactmg W C.B and Human Resources, filmg Form 9 (Early InterventIOn) and
momtonng worker's progress. These dutIes and responSIbIlItIes are mdlcatlve of an
expectatIOn that the Manager wIll take the lead role m the process and not hand thIS
over to the W C.B The deferral to the W C.B WhICh Mr DalgleIsh belIeved was
appropnate was, m my opmIOn, mIsgUided.
MEDICAL PROFESSION
It IS not unusual for employers and employees to find It dIfficult to mterpret the notes
that doctors proVIde. The notes usually rely on mformatIOn provIded by the patIent.
Some are vague, some are undated, some use medIcal termmology whICh the average
layperson does not understand, most offer no explanatIon and many state what the
employee wants as much as what IS medIcally mdlcated. In this case, we have
examples of all of these. It was Important, therefore, for the Employer and for Ms
Joynes to clanfy vague comments and medical termmology which reqUired
mterpretatIOn. For mstance, Dr Cha's note of February 23, 1993, stated that Ms.
Joynes "should be on modified duty permanently" What does that mean? Ms.
Joynes was unclear, Ms. Morns thought It meant the modified position that Ms. Joynes
was occupying at the tIme the note was wntten.
First of all It must mean that she should not be placed m her normal pOSitIOn of General
Duty Officer, where she mIght be posted to a varIety of dIfferent posts throughout the
mstItutIOn. Ms. Morris did follow up to obtam more details by correspondmg WIth Dr
Cha and Ms. Joynes on March 4, 1993 In an undated note received m October, 1992,
WhICh he may have consIdered the reply, Dr Cha specified that the modified work
should be "the same job as before she left on maternity leave" That of course, IS
not partIcularly helpful to the Employer since It does not take into account the
restnctIOns that an Employer may be under and Dr Cha would not, in all probabIlIty
have understood that the pOSItIon oflnstItutIOnal Dnver, WhIch IS the pOSItion Ms.
Joynes' occupied before she went on maternIty leave, was m a dIfferent claSSIficatIOn
WIth a conSIderably lower wage rate. It dId, however, support Ms. Joynes' WIshes and
responded to her havmg functIOned m that pOSItIon WIthout aggravatIOn to her mJury
SIte He also, m that same note, stated that "she is to have minimal inmate contact
so as to avoid confrontation", NeIther the Employer nor Ms Joynes attempted to
clanfy that further (See pp 66 and 67 for a dISCUSSIOn of ItS mterpretatIOn)
In an undated letter from Dr BIard WhICh appears to anse from Ms. Joynes'
appomtment WIth her on January 11, 1994, further mformatIOn IS aVaIlable. Dr BIard
states that her comments are made havmg reVIewed the "PhYSIcal Demands AnalYSIS of
Ms Joynes' Job" and that she belIeves Ms Joynes can perform the duties of her Job
However Dr BIard was sent, from Ms. Moms VIa Ms. Joynes, the 'PhYSIcal
Demands AnalYSIS" for two pOSItIOns, that of the CorrectIOnal Officer 2 and the Motor
78
Velllcle Operator I and asked to provIde "physIcal restnctIOns as they pertam to each"
It IS not clear m her letter whether she IS refernng to one, the other or both. In any
case, she further stated. "However, if she remains within the usual weight for lifting,
carrying, pushing, pulling, handling, gripping and throwing. [sic]" If her note IS
read m conJunctIOn wIth the "PhysIcal Demands AnalYSIS" forms, a confUSIOn anses
SInce the "usual" weIghts lIsted m each are dIfferent. Dr Biard goes on to say that "Ms.
Joynes "should avoid repetitive wrist/elbow flexion and extension with further
avoidance of the above activities (lifting, carrying, etc.). She should be using no
more than 15 lb. It IS dIfficult to get a clear pIcture of Dr BIard's restnctIOns.
Havmg SaId that Ms Joynes could do hftmg, carrymg, pushmg, pullmg, handlmg,
gnppmg and throwmg provIded that she stays wIthm the usual weIght range, WIthout
speclfymg whIch one, she then goes on to say that Ms. Joynes should aVOId these
actIvIties. Her cap of 15 pounds IS the hIghest wlthm the usual range set out m both the
"PhYSIcal Demands Analyses" and that partIcular pomt IS clear
Further, It appears that no one stopped to mterpret "repetitive wrist/elbow flexion and
extension" If one analyses It, the actIOns described clearly incorporate both wrltmg
and typmg. Ms. Moms had also asked If she beheve that Ms. Joynes' "mJury" was
"of a permanent or temporary nature" One can conclude from thIS that as of
December 10, 1993, the Employer must have wanted a second opmion as to whether or
not Ms. Joynes' dlsabIhty was permanent. Dr Biard confirmed that the disability
was permanent, She also said that Ms. Joynes"should have minimal contact with
inmates per chance physical force needs to be used" The restrictIOn of mImmal
Inmate contact ordered by Dr Cha IS thus clarIfied shghtly and confirms the
mterpretatIOn set out at pages 66 and 67
On February 24, 1994, the W C.B ErgonomICS Speciahst was famIlIar WIth Dr
BIard's restrictions and was also appnsed ofappropnate restnctIOns for Ms. Joynes'
condItIon by the RegIOnal Medical AdVIsor of the W C.B (although there was no
exammation of Ms. Joynes) This phYSICIan adVIsed that Ms. Joynes should "avoid
repetitive wrist/elbow movements of the right arm, pushing and pulling and avoid
lifting/carrying greater than 15 pounds" It may be that the Employer mterpreted
"repetItIve wrIst/elbow movements" to refer to "pushmg and pullmg" as opposed to
readmg the sentence as a sequence WhICh more clearly stated would read "aVOId
repetItIve wrIst/elbow movements of the nght arm, avoid pushmg and pullmg, and
aVOId IIftmg/carrymg greater than 15 pounds" Further, no clarIficatIOn of the term
"repetItIve" was requested. No one asked what level of wrIst/elbow fleXIOn, or
movement of the wnst/elbow was acceptable
The ErgonomIst s functIOn IS to recommend adaptatIOns to the workplace WhICh allow
mdlvlduals who are employed there to functIOn reasonably I twas appropnate for hIm
to make suggestIons about how wrIst/elbow movements could be made eaSIer for Ms
Joynes. Those adaptatIons should be aVaIlable to her whether she IS undertakmg a few
79
wnst/elbow movements of the nght arm or repetitIve movements of that arm. The fact
that the Employer comphed WIth all of the ErgonomIst's recommendatIons, does not
mean that It has met the restnctIOn of seemg that Ms. Joynes IS able to "avOid repetitIve
wrIst/elbow movement", or repetItIve wrItmg and typmg.
On June 7, 1994 the electromyography report of Dr Quartly was transcnbed. It was
sent to Dr BIard as the referrmg physIcIan, and the W C.B claim number IS noted.
Ms LatImer dId not have the report by the meetmg on June 22, 1994 and refused to
accept It at that tIme, saymg, accordmg to her own report, that she was not a doctor,
that the report would have to be revIewed by the MedICal AdVIsor She further stated
that the} had now turned to lookmg at the neck and that thIS was not the mItIal
entItlement of Ms. Joynes' claIm. It IS dIfficult to comprehend that an mdlvIdual
workmg m the field of rehabIlItatIOn would not understand that an mJury caused to one
part of one's anatomy can cause problems m another part. It IS not that the elbow and
the neck are so very far apart and we have medICal eVIdence referrmg to Ms. Joynes'
elbow, her upper arm, her finger and her neck. The Employer, followmg Ms.
Latimer's lead, was not m receIpt of a copy Had thIS been accepted and dIscussed at
the meetmg of June 22, 1994, or had Ms. Joynes delivered a copy to her Employer
dIrectly, It would have been aware that Dr Quartly's opinIon was that:
.given the fact that (Ms. Joynes] has all along had symptoms in the
medial aspect of her upper arm, it would be totally inappropriate
for her to be put in a position where she is doing a sedentary job
which may involve sustained postures of flexion of the neck, until
the more proximal aspect of her condition is addressed.
Furthermore it would seem to me unlikely that she would be able to
tolerate a job involving a lot of writing with the evidence of
tendonitis that is present clinically today
The Employer dId not have Dr Quartly's letter to the W C.B of November 18, 1994,
m WhICh she stated that "In short, writing is contra-indicated" at the tIme of takmg
ItS declSlon to place her m the duty office pOSItIon and to not mclude any dnver dutIes
or other dutIes WhICh could have reduced the amount of wrltmg. Dr Quartly referred
to a note she had gIven to Ms. Joynes' to gIVe to her Employer and It may be that the
Employer was aware of thIS medIcal restnctIOn through that.
THE ROLE OF THE UNION
The Umon's pOSItIOn dunng the negotIatIOns and the heanng was SupportIve of Ms.
Jovnes except that those representmg her at the meetmg dId, from tIme to tIme, allow
the Issue of theIr dIssatIsfactIOn WIth the claSSIficatIOn aSSIgned to the mstItutIOnal
dnver's pOSItIon by the Gnevance Settlement Board to mtrude on the process. Further,
lIke the Employer the representatIves became focussed at the outset on a smgle
accommodatIOn WhICh they knew that the Employer opposed and dId not broaden theIr
honzons to look at other pOSSlblhtIes.
80
The PresIdent of the Local, Mr Varga, spoke for the future colleagues of Ms Joynes,
when he wrote to Mr DalgleIsh to dIscourage the Employer from plaCing an
accommodated employee m the Duty Office He was not supportIve of an
accommodated employee m the Duty Office and hIS pOSItion made It more dIfficult for
Ms. Joynes to mtegrate mto the duty office pOSItIOn. ThIS was not a case of employees'
nghts being affected but of a change to the status quo resultmg m the movement of one
employee from the group that had been assIgned as Duty and Cell Officers and
changmg some of the dutIes of others. Mr Varga charactenzed hIS concern m terms
of "concern over the qualIty of worked performed if these changes should take place"
ThIS says that the placmg of Ms. Joynes or any other accommodated worker In the
Duty Office would lower the performance level of the duty office staff There IS no
foundatIon for hIS saymg thIS In fact, one could Just as well conclude that Ms. Joynes
placement mIght Improve the overall performance level, proVIding that those
CorrectIOnal Officers workmg m thIS area are pOSItive, co-operative and encouragmg.
THE ROLE OF THE GRIEVOR
In the accommodatIOn process, the person requmng accommodation must be part of the
co-operatIve, problem-solvmg process It IS VItal to the process that the person
requmng accommodation share hIslher needs and the adaptations whIch are necessary
to permIt him or her to be a productIve worker in the workplace Once those needs are
set out and analysed then, that person needs to be part of the search for the optImal
accommodatIOn for both hllnlher and the Employer
In the case at hand, Ms. Joynes, whose vulnerabilIty was Increased by bemg compelled
to attend the January 5, 1994 meetmg WIthout the representative whom she felt was
knowledgeable, and WIthOut her up-to-date medIcal mformatIOn smce her appomtment
was the followmg week, became defenSIve. She fixed on the driver's pOSItIOn as the
one WhIch she wanted, gIven that It was a known quantIty and she had suffered no
aggravatIOn to her mJury m that pOSItIOn. She was supported by the UnIon m her deslfe
to be placed m that pOSItIon. It would have been helpful If she had been more wIllmg to
look at other possibIhtIes. However, the Employer made that dIfficult smce It was only
offenng one, that m the Duty Office, and the Umon dId not suggest that Ms Joynes
mIght broaden her honzons.
Ms. Joynes was co-operatIve m providmg medIcal informatIOn throughout the process
and whIle certam mformatIOn would have been more helpful earlIer, that was not
necessanly somethmg over whIch she had controL It would also have been helpful If
she had SIgned a release with her phYSICIans for the Employer, If she and her phYSICIan
belIeved that was appropriate However, as a patient and emplovee, she may not have
been aware of the neceSSIty for such a document. She also co-operated m the
ergonomICS testmg.
81
It was unfortunate that the process led to her bemg vIewed as a obstructtve and
demandmg In her "VocatIOnal RehabIlitatIOn HIstOry" compiled by Ms Latimer on
June 29, 1994, there IS the followmg comment.
as was stated earlier we can see that there are a lot of obstacles to this
worker returning which seemed to be put up by her
ThIS IS a clear statement set out m Ms. Joynes' W C.B file It labels her as
obstructIOmst and reslstmg a return to work. Many mdIvIduals wIthm a bureaucratic
organIZatIOn such as the W C.B refer to the file of an mdIvldual wIthout the
opportumty of havmg first-hand mformatIOn, the label of obstructIOnIst expresses the
frustratIOn of Ms. Latimer, smce It IS an maccurate and unfaIr reflectIOn of Ms. Joynes
attItude to her work when one analyses the accommodatIOn process. There IS no
mdIcatIOn whatsoever to suggest that Ms. Joynes has been a slacker wIth respect to
work or wIth her wIllmgness to return to work. In fact, she returned to work followmg
her mJury and her surgery with no proddmg or mvolvement of the W C.B
On ~uly 7, 1994, approximately a week after Ms. Joynes began her duty office
aSSIgnment, Mr KalnIns wrote to Ms. Latlmer to make her aware before she made a
deCISIon respectmg "whether a "work related" mJury claim [was] compensable"
regarding Ms. Joynes' dIsabIlity in the duty office pOSItion. He noted that the
Employer and the W C.B had "gone to great lengths to accommodate Ms. Joynes" He
then set out her complamts during that week and how she had handled them. His letter
revealed hIS exasperatIOn and his apparent VIew that Ms. Joynes was bemg
unreasonable and mtranslgent. The followmg excerpts Illustrate that.
She did see the nurse at the end of her shift. The right elbow was slightly swollen and
she complained about a numb baby finger Treatment was not requested nor
administered. The contact was apparently for reporting purposes.
She did not request treatment and refused to accept pain medication and ice treatment
as recommended by the nurse on duty
Ms. Joynes informed the nurse that she tried the ice treatment, but found it to aggravate the
area.
In short. Ms. Joynes had worked only two days when the injury was brought to our
attention in spite of the accommodation. No unusual/excessive work-loads were noted
during that period. By the time Ms. Joynes incurred lost time she had worked a total of
four and three quarter days. In this regard I am not questioning the existence of an
injury, but I do find the circumstances most unusual. Since just before this
accommodation, she had worked as a vehicle driver with parcel pick-up duties for
approximately five months. We had not received any reports from Ms. Joynes
regarding any injury related to the driver's assignment. Could her present injuries be
related to that?
The letter leaves the ImpreSSIon that Ms. Joynes was bemg dIfficult about her
aSSIgnment. Mr Kalnms comments that "no unusual/exceSSIve work-loads were noted
82
dunng that penod" ThIS comment seems to mdlcate that he belIeves that her problems
should occur only when work-loads are exceSSIve or unusual. He falls to apprecIate
that what IS a normal work-load for a person WIthout a dIsabIlIty, maybe an exceSSIve
work-load for a person WIth one, and that IS the case for Ms. Joynes when the work
mvolves "repetItIve wnst/elbow fleXIOn and extenSIOn" He also fails to apprecIate that
the aggravatIon that Ms. Joynes was expenencmg followed wIthm hours of the
aggravatmg actIvIty, not several days or months later At thIS tIme there was medIcal
mformatIOn WhICh mdIcated that wrItmg was problematIc. It IS Important for the
Employer to appreciate that Ms. Joynes suffers a base level of chrOnIC pam, and that
any aggravatIOn she mcurs mcreases her pam level and has phYSIOlogIcal repercussIOns.
It also mcreases her stress, and her anXIety about further surgery
Mr Kalnms suggests that she was gomg to the nurse for reportmg purposes and that
there was somethmg Improper m that. It IS qUite proper for an employee WIth a
condItIOn whIch IS being exacerbated by work actIVItIes to report this and to keep the
Employer mformed. To fall to do so could put both the Employer and the employee at
nsk, and further, the employee has an oblIgatIOn under the health and safety rules to
make her Employer aware of actIVitIes in the workplace whiCh are detnmental to the
health and to keep the Employer apprised If these actiVItIes contmue
(The comments of Ms. LatImer and Mr Kalnins have not been taken mto account m my
determmatIOn of whether or not the Employer has VIolated the CollectIve Agreement.)
Was Ms. Joynes subject to discrimination by her Employer as set out in Article
A.I.1 ofthe Collective Agreement, with reference to the Human Rights Code
during the accommodation process and in her placement into a position some of
the duties of which were medically contraindicated prior to her assignment into
the position?
A.II There shall be no discrimination practised by reason of race, ancestry, place
of origin, colour ethnic origin, citizenship, creed, sex, sexual orientation, age
marital status, family status, or handicap, as defined in section 10 (I) of the
Ontario Human Rights Code (OHRC). [Emphasis added]
F or the reasons set out above, I have concluded that the actIOns of the Employer and ItS
faIlure to take a leadershIp role dunng the accommodatIOn process resulted m
dIscnmmatIOn agamst Ms. Joynes, based on her handIcap ThIS occurred pnmanly
because Mr DalgleIsh abdIcated hIS leadershIp role to the W C.B and because he dId
not follow the route he ongmally planned WhICh was an mformatIOn-gathenng stage
pnor to the declsIOn-makmg stage, and the W C.B m the role of aSSIstant. The
83
Employer, the W C B and the Umon all faIled to mterpret the "repetItIve wrIst/elbow
actIOn" as meanIng wrItmg and typmg, and failed to enqUire of the members of the
MedIcal ProfeSSIOn, precIsely what they meant by theIr mstructIOns. Ms. Joynes has
suffered dlscnmmatIOn as a result of her placement m a pOSItIOn WIth duties WhICh were
medIcally contramdICated pnor to the aSSIgnment. Therefore, the Employer has
VIOlated ArtICle A.I 1 of the CollectIve Agreement thIS constItutes as well
dISCrImmatIOn under the Human Rights Code.
Did the Employer violate Article 18 of the Collective Agreement by placing Ms.
Joynes in a modified position, the duties of which three doctors had indicated were
not appropriate for her condition prior to both her grievance and the assignment?
18 The Employer shall continue to make reasonable provisions
for the safety and health of its employees during the hours
of their employment. It is agreed that both the Employer
and the Union shall co-operate to the fullest extent possible
in the prevention of accidents and in the reasonable
promotion of safety and health of all employees.
By placmg Ms. Joynes III a positIOn WIth dutIes whIch were mdIcated as medIcally
mappropnate for her pnor to that aSSIgnment, the Employer faIled to make reasonable
proVISIOns for the safety and health of Ms. Joynes, itS employee It has therefore
VIOlated ArtIcle 18 of the CollectIve Agreement.
Did the Employer violate Article 50.6.1 of the Collective Agreement by assigning
Ms. Joynes to duties within the correctional officer classification but without
assigning her driving duties which she carried out, sometimes as part, sometimes
as all, of her assignment prior to leaving for her pregnancy/maternity leave?
5061 A female employee returning from a leave-of-absence under section 50 I or
50.5 to the ministry in which she was employed immediately prior to such
leave shall be assigned to her former position and be paid at the step in the
salary range that she would have attained had she worked during the leave-of
absence.
Ms Joynes' baSIC pOSItIOn IS that of a CorrectIOnal Officer at the Burtch CorrectIOnal
Centre Followmg her surgery m late 1992 her pOSItion as a General Duty Officer was
modIfied wIthm the CorrectIOnal Officer 2 pOSItion m response to three requested
accommodatIOns. Two of these for scheduhng were no longer reqUired after her
pregnancy The hght dutIes medIcal restnctIOn of September 15, 1992, was m the
context of re-exammatIOn m two months. In other words, It was not presented as a
long-term modIficatIOn. ThIS was replaced III February 1993 bv a reqUirement for long-
term accommodatIOn, a reqUIrement that was put on hold untIl 1994 for practIcal,
mutualh acceptable reasons. Ms. Joynes was returned to the pOSItIOn of a CorrectIOnal
84
Officer fillmg the InstItutIonal dnver vacancy on her return In January 1994 TIns was
by agreement of the partIes and Ms. Joynes. Her subsequent positIon as CorrectIOnal
Officer assIgned to the Duty Office placed her m a correctIonal officer pOSItIon. She
suffered no loss of mcome due to her placement. For these reasons, I find that the
Employer has not vIOlated ArtIcle 50 6 1 of the Collective Agreement.
When Ms. Joynes returned to work on January 31, 1994 she was assIgned to the
InstItutIOnal dnver s dutIes WIth CorrectIOnal Officer pay She was not domg the same
combmatIOn of dutIeS" as she had been prevIOusly However, she and the UnIon
agreed to thIS arrangement and I therefore, find no VIOlatIOn of the Collectlve
Agreement.
REMEDY
SectIOn 41 of the Human Rights Code addresses the powers of boards of mqUIry, and
thIS sectIOn apphes to the Gnevance Settlement Board, hearmg a grievance of
dlscnmmatIOn pursuant to thIS Collective Agreement.
41. (I) Orders of boards of inquiry -- Where the board of inquiry, after a hearing
fmds that a right of the complainant under Part I has been infringed and that the
infringement is a contravention of section 9 by a part to the proceeding, the board may,
by order,
(a) direct the party to do anything that, in the opinion of the board, the party
ought to do to achieve compliance with this Act, both in respect of the
complaint and in respect of future practices, and
(b) direct the party to make restitution, including monetary compensatIOn, for
loss arising out of the infringement, and where the infringement has been
engaged in wilfully or recklessly, monetary compensation may include an
award not exceeding $ I 0,000, for mental anguish.
ThIS IS m addItIOn to the normal JurIsdIction of the Gnevance Settlement Board.
There was no eVIdence to mdIcate that Ms. Joynes had suffered a financIal loss due to
the actIOns of the Employer The Umon asked that I award damages for the stress and
anXiety caused to Ms. Joynes There was no bad faIth on the part ofthe Employer, and
no questIOn as to whether Ms. Joynes should be accommodated. The threshold for
damages for "mental angUish" IS that the mfnngement of the nght of the complamant
has been engaged m "wIlfully or recklessly" I do not beheve that the actIOns of the
Employer meet thIS threshold and I therefore declme to award damages
Ms Joynes also asked for an apology from the Employer ApologIes are normally not
ordered, and the reason for thIS IS that an "ordered" apology may not be a SIncere
85
apology and therefore may be worthless. Mr Costen stated the Employer was not
conductmg Itself m bad faIth, nor was It actmg m a vmdIctIve manner towards Ms
Joynes, and I agree But, he went on to say that to the extent that thIS case has had an
Impact on Ms. Joynes (1 assume he meant a negative Impact) then the Employer regrets
what has happened. I belIeve that Ms. Joynes should accept thIS as an expreSSIOn of
regret on behalf of the Employer I dechne to order a further apology
The Umon also asked for 52 hours of wages whIch are bemg questioned as
compensable by the W C.B No further mformatIOn was presented wIth respect to thIS
and I am not prepared to make a ruhng on this at thIS tIme If the matter IS not resolved
the partIes can return It to me With submISSIOns at a later tIme
Ms. Joynes IS to be prOVIded wIth accommodatIOn WhICh meets the up-to-date medIcal
and ergonomIC guidelmes for her ThIS may mean an adjustment of the dutIes that she
currently undertakes or It could mean further ergonomic adaptatIOn. It may mvolve
some occupatIOnal therapy or traming on her part, or the use of certam aIds to prevent
aggravatIon and to mcrease comfort. I have also concluded that It will be hkely that
some mmimallevel ofwritmg would be reqUIred in almost any correctIOnal officer
pOSItion. I have taken these factors mto account m fashIOnIng the following order'
1 Ms. Joynes is to arrange to have a functIOnal abIlIties evaluatIOn through
Dr Quartly, who refers to this m her letter of November 18, 1994 She
IS to contact Dr Quartly WIthin ten days of thIS award bemg Issued by
the Grievance Settlement Board to arrange for thIS. At the same time
she IS to dISCUSS WIth her the adVIsabIlIty of developmg the use of her
left hand. If Dr Quartly consIders thiS to be adVIsable, then she should
ask for a referral to a specialIst to tram her m this. It may be that thIS IS
wIthm the purvIew of an Occupational TherapISt. If there are costs
arISIng out of thIS they are to be assumed by the Employer, and If tIme
off from work IS reqUired, this IS to be granted WIth pay
2 The Employer is to appomt a co-ordmator to oversee the process wlthm
ten days of the Issuance of thIS declSlon by the Gnevance Settlement
Board. While aWaItmg the functIOnal analYSIS report, the Co-ordmator
IS to accumulate recent medIcal mformatIOn WIth a VIew to revlewmg
Jomtly Wlth Ms. Joynes and her UnIon support person, and workmg
towards an accommodatIOn plan WhICh does not mvolve medIcally
contramdIcated actIvItIes.
3 Withm three weeks ofthe Issuance of thIS deCISIOn, Ms Joynes IS to
provIde releases to Dr Quartly and Dr BIard and any other medIcal
person currently mvolved, nammg the Co-ordmator as the person WIth
whom they are able to dISCUSS that part of her medIcal SItuatIOn WhIch IS
86
relevant to her accommodation. If she or the doctor IS unwlllmg for her
to do thIS, a letter of explanatIOn from the doctor should be sent to the
Co-ordmator
4 Withm three weeks of the Issuance of thIS declSlon, Ms Joynes is to
provIde to the Co-ordmator wIth the most recent medICal reports from
Dr Quartly and Dr BIard, and any other relevant medical mformatIOn.
(These need not mvolve new assessments.) She IS to provIde the
functIOnal analYSIS evaluatIOn as soon as It IS aVailable
5 Ms. Joynes and the Co-ordmator are to reVIew the medICal reports and
the evaluatIon Jomtly and ensure that they have a clear understandmg of
the meanmg of each and every restrictIOn and how It would play out m
practIcal terms. The author of the report should be contacted for
clarIficatIOn If any IS reqUired. Ms. Joynes may WIsh to mvolve a unIOn
support person m thIS.
6 At that point, If the Co-ordmator and the Employer agree with Ms.
Joynes and the UnIon that the modIficatIOn of the duty office pOSItIOn
through the addItion of dnvmg duties IS compatible WIth the functIOnal
abIlities analYSIS and the most recent medical restrictIOns, then the
Employer IS to mcorporate some dnver duties mto Ms. Joynes' modIfied
position and remove those medIcally contramdicated aspects whIch
cannot be handled in some other medIcally acceptable manner, and she
IS to remam m the modIfied duty officer pOSItIOn.
Should thIS not prove feasible, (and the reasons for not domg so would need to be
compellmg), then the followmg process wIll come mto play'
7 Ms. Joynes and the Co-ordmator are to Identify SItuatIOns where the
hkelihood of phYSIcal confrontatIOn IS mImmal and havmg done so, are
to develop a detailed lIst of the physIcal activitIes mvolved m the dutIes
of correctIOnal officers workmg m those pOSItIons. The Gnevor may
WIsh to mvolve a umon support person m thIS.
8 Ms Joynes IS to take thIS lIst of potential dutIes to Dr Quartly for
approval and submIt It to the Co-ordmator
9 MeanwhIle, the Co-ordmator IS to develop a lIst of potentIal modIfied
pOSItIons.
10 Once the approval has been receIved, and the hst of potentIal modIfied
pOSItIons prepared, a meetmg IS to be held. It should mclude Ms.
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Joynes and her umon support person, the Co-ordmator and the person
who IS the local declSlon-maker m the matter of accommodatIOns. The
purpose of the meetmg IS to consIder medIcally acceptable
accommodatIOn options.
11 If the partIes are unable to agree on one of the optIOns wlthm four
months of the Issuance of thIS deCISIon, they are to present the
medIcally approved optIOns and theIr submISSIOns to me at a heanng on
a date to be set and I shall make the declSlon.
Once the on-gomg workplace has been selected for Ms. Joynes and the dutles clarIfied,
an ErgonomIst IS to be asked to reVIew the work sIte and to make recommendatIOns.
ThIS IS to happen even If the work SIte remams the Duty Office. If dnver's duties are
mvolved, the van should be exammed. The ErgonomIst should have the up-to-date
medIcal reports, the functIOnal abIhties evaluatIOn and any other relevant medICal
mformatIOn avaIlable. The Employer should carry out these recommenatIOns.
From the date Ms. Joynes begms her newly modIfied pOSItIon reviews are to take place
at the followmg mtervals.
1 Three months after the commencement date
2. Nine months after the commencement date, and
3 EIghteen months after the commencement date
The Co-ordmator and Ms. Joynes, WIth a unIOn support person If she WIshes, are to
meet and reVIew her accommodatIOn, lookmg at those areas WhICh may be problematIC
and those whIch are workmg well. If adJustments are needed, they are to work co-
operatIvely to achIeve these
Ms. Joynes should mamtam a log notmg mCIdents WhICh are problematIC and mCldents
which mdIcate that her accommodation IS workmg well and have It avaIlable for the
reVIew She should also notIfy the Co-ordmator m wrItmg any tIme she finds It
necessary to report to the Health ServIce due to aggravatIOn of her mJury SIte
I shall remam seIzed of thIS matter m the event the partIes expenence dIfficultIes WIth
ItS ImplementatIOn.
Dateda~~1;;; ~r
gL V Ice-chair
ThIS ~ day of February, 1997
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