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HomeMy WebLinkAbout1995-0461FLEMING96_06_14 --.- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO /' 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 461/95 OPSEU # 95A704 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTXVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Flemin<J) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional services) Employer BEFORE P Knopf Vice-Chairperson FOR THE R. Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING February 1, 1996 INTERIM DECISION In April of 1994 the Grievor was injured at work. As a result she was awarded Workers' Compensation benefits. She was out of work for a number of months. Thereafter. she was reintegrated into the work force via a "work strengthening program" devised jointly by the employer and Workers' Compensation. It involved a gradual increase in her number of hours and days per week over a two month period. She is now working an eight hour shift. five days a week. This grievance arises because the grievor was previously working a compressed work week shift with twelve hour days. She wants to resume that pattern. However. the employer wants to retain her on the eight hour schedule for the tune being. This means the grievor must work seven days in a row at times to make up her complete hours. The grievor asserts that she has a contractual right to the compressed work week and that the employer's denial of that schedule is discrimination on the basis of disability The employer denies discrimination. Further, the employer raises a preliminary objection to the arbitrability of this grievance, arguing, that the issue in dispute falls within the exclusive jurisdiction of the Workers' Compensation Act and its tribunals instead of the Grievance Settlement Board. The parties agreed that the preliminary jurisdictional issue should be decided before they proceed with any evidence on the merits. However, for the sole purpose of resolving the preliminary issue, some factual background was presented through counsel. The relevant facts are set out below' The Factual Context of the DiSt'ute The Grievor is a correctional officer She was injured at work in April of 1994 and received Workers' 1 F Compensation benefits. She was completely off work for a number of months and has subsequently been awarded a 17% permanent disability pension. Her re-integration to work was arranged by the employer and Workers' Compensation by a program which placed her in the "main control module." Her work strengthening began with the grievor returning to work two hours per day This was built up to eight hours per day, five days a week. Prior to the incident, the grievor had successfully competed for and been placed in a position entitling her to a twelve hour per day compressed work week. This placement met all of Workers' Compensation's physical restrictions for the grievor's work including that she not come into direct contact with inmates. By March of 1995, the grievor formally asked to resume the twelve hour shift. The employer's response was "if and when the Workers' Compensation Board deems you fit to resume 'full duties' on a full post rotation basis, you will resume your previous compressed work schedule." Part of the griever's complaint is that she is being treated differently than other employees in her situation and that there are other disabled employees in the module who are working the twelve hour, compressed work week. This would be preferable to the grievor because it gives her more days off per week. The grievor continued her attempts to regain the twelve hour shift. She initiated a Workers' Compensation review to determine the eligibility of some lost time benefits. This review also raised the issue of the grievor's complaint that the employer was "forcing her to work the eight hour instead of the twelve hour shift." In September of 1995, the Workers' Compensation Board senior claims adjudicator ruled that the employer had provided "appropriate alternative employment" and had therefore met its obligations under the Workers' f'AJmpensation Act. The grievor continued to pursue her attempts to regain the twelve hour shift. She filed medical evidence in November and December with the Workers' Compensation Board and the employer That evidence contains her doctor's opinion that the grievor can work "no more than three days on 2 and two days off' A further Workers' Compensation review in November 1989 concluded that: The job offered by the emPoyer is suitable and within Ms. Fleming's restrictions and capabilities. Given the mllUre of her injury and physical fmdings submitted, Ms. Fleming can work the shifts as outlined by the employer The employer has met their obligation under Bill 162 and has provided a comparable job with no wage loss. Ms. Fleming, under the terms of employment, is required to work the scheduled shifts..... The employer has outlined scheduling for a twelve hour work week. The fIrst week would be working sixty hours and rhe second week twenty-four hours. This two week cycle repeats itself. Given Ms. Fleming's complaints ofoot been able to work more than three days in a row, the aforementioned shifts woukJ certainly be more fatiguing. Working the shifts for the module position would certainly be less fatiguing. If Ms. Fleming worked tlJ:twelve hour shifts the fIrst week of sixty hours, you would have to add the two hour a day driving. This would make a seventy hour work week. Based on the above information, it is felt the decision as outlined. in the letter of September 25, 1995, remains appropriate... In a nutshell, the Workers' Compeosation continued to uphold the ruling that the employer's offer of the eight hour shifts was appropriate to meet the requirements of the Workers' Compensation Act. The employer continued to receive requests from the grievor to be "accommodated" with the twelve hour compressed work week. The emJ*>yer considered this in light of the doctor's notes which the grievor provided to the employer and WeBerS' Compensation. On November 16, 1995, the employer responded. Having regard for the aforesaid docwnents, please be advised the your position in the Main Control Module on a eight hour scbedule remains available for you to return to. This 'pre-injury job with accommodation' is within your restrictions as outlined by the Board, and as such meets the employer's obligation under the Workers' Compensation Act. The Positions of the Parties The employer takes the position that the real nature of the grievor's dispute is between the grievor and Workers' Compensation, not the grievor and the employer The employer asserts that it is acting under the 3 direction and in accordance with the requirements of the Workers' Compensation Board in offering the eight hour shift accommodation to the grievor Accordingly the employer argues that the detennination of whether the grievor has been offered an appropriate accommodation rests exclusively with the Workers' Compensation Board. The employer argues that Sections 54 and 69 of the Workers' Compensation Act create the obligation to re-employ the grievor and gives the Workers' Compensation Board the exclusive jurisdiction to detennine whether the grievor has been appropriately accommodated. The employer expressed concern about the possibility that the grievor may be able to pursue a remedy before both the Grievance Settlement Board and the Workers' Compensation Board and conceivably obtain two conflicting rulings. The employer asks rhetorically "if the Workers' Compensation Board continues to tell us that the eIght hour schedule is appropriate, how could a Grievance Settlement Board decision be given any effect if it orders differently?" It is argued that nothing in the collective agreement or the Labour Relations Act overrides the exclusive jurisdiction of the Workers' Compensation Board to deal with the issues raised by the grievor's situation. Therefore, it was argued that the Grievance Settlement Board rule that this grievance is not arbitrable and dismiss the grievance at this stage. The Union is relying on Article A of the collective agreement which promises that there shall be no discrimmation by reason of "handicap" as defined in the Ontario Human Ri~ts Code. Further, the Union stresses that the grievor has the contractual right to the twelve hour work week. Therefore, it was argued that by denying the grievor the compressed work week, the employer is discriminating against the grievor under the collective agreement which gives the Grievance Settlement Board jurisdiction over such a grievance. Further, the employer's statement that the grievor will be denied the compressed work schedule until she IS fit to resume "full duties" was said to be evidence of direct discrimination on the part of the employer The Union acknowledges that the employer's actions may in someway be motivated by the desire to comply with Workers' Compensation. But, it was argued that where there is an allegation of discrimination, the collective 4 agreement allows for a remedy through arbitration. Accordingly, this Board was asked to take jurisdiction over the matter In addition, it was argued that the employer's obligation under the Workers' Compensation &t with regard to re-employment expired two years after the incident according to Article 54 (8) (a), which would bring the parties to one week after the hearing of this matter Therefore, it was said that in terms of a continuing remedy being available to the grievor, the Grievance Settlement Board is the only appropriate venue for determination. Continuing her presentation of the most professional of ways, counsel for the employer. Ms. Murdock pointed out that the Grievance Settlement Board has issued three decisions in situations similar to this. Two of the decisions go against the Union's position. They are Lister and Minisuy of Community and Social Services, GSB File 340/89, (Samuels) and Johnston and Minisuy of Health, GSB File 1225/91, (Tacon). On the other hand. she offered a decision which was said to be in favour of the Union. Ri ~~lesworth and Ministry of Transportation, GSB File 637190, (Fisher). The Decisioo The collective agreement provides in Article A. There shall be no discrimination practice by reason of race, ancestry, place of origin, colour, origin, ciuzenship, creed, sex, sexual orientation, age, marital status, family status, or handicap as defmed in Section 10 (1) of the Ontario Human Rights Code... The Workers' Compensation Act provides: Definition "Board" means the Workers' Compensation Board; ("Conumssion") 1982, c. 61, s. 3(1). Obligation 54 -(1) The employer of a worker who as a result of an injury to re-employ has been unable to work and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section. 5 (4) Upon receiving notice from the Board that a worker is able to perform the essential duties of the Worker's pre-injury employment, the employer shall offer to reinstate the worker in the position the worker held on the date of injury or offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on that date. Impaired (6) In order to fulfil the employer's obligations under this section, the Worker 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. Duration of (8) An employer is obligated under this section until the day that is the obligation earliest of, a) two years after the date of the injury to the worker; 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 c) the date the worker reaches sixty-five years of age. Termination (10) An employer who, having re-employed a worker in accordance with of re-employment this of re-employment section, tenninates the employment within six months, is presumed, unless the contrary is shown, not have fulfilled the employer's oblIgations under this section. Consequences (13) If the Board finds that an employer has not fulfilled the employer's of non obligations under this section, the Board may, compliance (a) levy a penalty on the employer of a maximum of the amount of the worker's net average earnings for the year preceding the injury; and (b) make payments to the worker for a maximum of one year as if the worker were entitled to compensation under section 37, and subsections 37 (2) and (3) apply to the payments with such modifications as the circumstances may requires. Conflict with (14) If this section conflicts with a collective agreement that is binding collective upon the employer and if the obligations of the employer under this section agreement in respect of a worker afford the worker greater re-employment terms in the circumstances than the terms available to the worker under the collectIve agreement, this section prevails over the collective agreement. Idem (15) Subsection (14) does not operate to displace the seniority provisions of a collective agreement. 6 --- The case law is of some limited assistance. In the Lis1cI case, the Grievance Settlement Board (GSB), dealt with a grievance seeking both damages and enforcement of the employer's health and safety obligations under the collective agreement as a result of a work place accident. The GSB ruled that it had no jurisdiction over the claim for damages. However, it did take jurisdiction over the question of the enforcement of the health and safety obligations under the collective agreement. In the Ri~~lesworth case, the grievor had filed a claim with the Workers' Compensation Board and was awarded short term compensation due to health problems arising from the use of chemicals at work. The grievor subsequently filed a grievance under the collective agreement claiming [mandal compensation for past loss of wages and physical hardship The ~ case was raised by the employer and considered by the Grievance Settlement Board. The Rii~lesworth decision interpreted the positions of the Workers' Compensation Act differently than were done in Lis.teLand concluded that Unions and employers are free to negotiate clauses in collecuve agreements which provided additional [mandal benefits to workers' compensable injuries. The Johnston case involved a claim for "compensation for excessive workload and overtime." The employer objected to the GSB taking jurisdiction over the matter In an interim preliminary decision, the GSB ruled that it is "constrained from awarding damages for work related injuries which are compensable under the Workers' Compensation Act," However, it also noted "its acceptance of the notion that benefits under the collective agreement may well be capable of co-existing with compensation under the Workers' Compensation Act." These cases are of some assistance but none are completely applicable to the facts at hand. In the grievance before the Board at this time, there is no claim for additional compensation or damages beyond those 7 available under the Workers' Compensation Act. Instead, the sole issue is whether under the present circumstances, the grievor has a contractual claim, enforceable before the GSB, to be returned to the twelve hour compressed work week. It is clear that Workers' Compensation has decided consistently to date, despite several appeals by the grievor, that the employer's msistence on the eight hour schedule does not offend the Workers' Compensation &1. It is easy to understand the employer's concern that it may face an arbitral ruling requiring reinstatement to a twelve hour work week which may be inconsistent with the WCB Workers' Compensation certainly has the exclusive JurisdictIon to determine whether or not there has been compliance with the Workers' Compensation Act. Compliance with that Act includes the employers obligation to re-employ an injured worker to a suitable position which does not cause undue hardship to the employer According to the Workers' Compensation Board, the employer has complied with the Act. However, the employer also has an obligation to comply with the collective agreement. This collective agreement requires the employer not discriminate on the basis of handicap. This latter obligation brings with it the duty to accommodate someone in the grievor's position. The question as to whether there has been reasonable accommodation in accordance with the collective agreement is a question that is enforceable and arbitral before the Grievance Settlement Board. It has jurisdiction to determine whether reasonable accommodation has been made. The grievor alleges that she has been discriminated against because there are people in positions and situations like hers who are not being forced to accept the eight hour work schedule. The grievor seeks the twelve hour schedule. The question of whether she has been reasonably accommodated is a factual one which will depend on the evidence of the case. To a large extent, this will be determined by the medical evidence. 8 No tribunal will be willing to make a determination on the questIOn of accommodation and/or order the remedy the grievor is seeking unless medical evidence will support that. But the sole issue before the GSB at this time is simply whether the GSB has jurisdicaion to hear the claim. It must be acknowledged that there appears at fll'Sl blush to be some possibility of inconsistent rulings if the GSB were to take jurisdiction over the accommodation issue, given that the Workers' Compensation has already ruled that there has been compliance wilb me Workers' Compensation Act. But, it is conceivable that the employer has complied with the Workers' f'nmpensation Act, yet still be in violation of the collective agreement. However, the law is capable of.operating on a conunon sense basIS. The Grievance Settlement Board has jurisdiction over the issues of discrimination and acconunodation. This does not necessarily interfere with the Workers' Compensation Board's exclusive jurisdiction over whether or not there has been compliance with that Act. The rights under the collective agreement between these parties are concurrent and at times greater than the rights available undertbe Workers' Compensation Act. The nghts in the collective agreement are enforceable through the arbitratioo provisions. The determination of the grievor's individual case will be based on the facts and medical evidence filed. Unlike the Li.sta and the Johnson cases, this is not a situation where the griever is seeking compensation for a work related injury The GSB has no jurisdiction over that type of claim. This is a claim for enforcement of a collective agreement work schedule and a claim for a remedy (other than compensation) under the parties' contract. As such, these limited claims fall within the jurisdiction of the GSB. Of course, the chances of success for the remedy being sought depends entirely upon the strength of evidence available for examination. Under these circumstances. it is concluded that the Grievance Settlement Board does have Jurisdiction over the grievance as filed. The matter can proceed to be heard on the merits of the case. As indicated to both 9 parties during the course of the preliminary proceedings, it is in both parties' interest that this matter be determined on the basis of appropriate medical evidence. Therefore, the matter can proceed to a hearing on its merits. I shall remain seized with the issue. Due to the sensitive nature of the matter and the desire of both parties to expedite the process, the matter should be scheduled for conbnuation as soon as can be reasonably accommodated. DATED at Toronto this 14 dayocJ~ 1996. I 10