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HomeMy WebLinkAbout2002-2375.Ranger.04-10-06 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2375 UNION# 2002-0411-0038 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (Ranger) Grievor - and - The Crown In RIght of Ontano (MInIstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Deborah LeIghton Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SohcItor FOR THE Fenna MurJI EMPLOYER Counsel Management Board Secretanat HEARING July 27 and 28, 2004 Interim Relief Order The umon seeks an mtenm relIef order from the board to dIrect the employer to place the gnevor, Mr Ranger, m an appropnate posItIOn (but not m a correctIOnal officer's posItIOn) that accommodates hIS medIcal restnctIOns, wIthm 15 days of the release of the order In the alternative the umon seeks an order that the gnevor be put back on the payroll, If and when the gnevor's L TIP expIres In a further alternative the umon seeks an order that the employer pay the gnevor the eqUIvalent of hIS L TIP benefits, untIl hIS return to work or the end of thIS heanng The employer opposes the motion, chIefly on the grounds that an order reqUInng the employer to accommodate the gnevor IS akm to a final order, and therefore not appropnate as an mtenm relIef order The gnevor has been a correctIOnal officer wIth the MmIstry smce 1991 HIS gnevance dated December 19,2002 alleges That the employer IS m vIOlatIOn of specIfically but not exclusIvely ArtIcles 3, No DIscnmmatIOn/Employment EqUIty and 9, Health and Safety and Video DIsplay T enmnals The employer has condoned and contmues to condone dIrect employee and management harassmg behavIOur that has created a pOIsoned work enVIronment. The pOIsoned envIronment has caused me to suffer harassment and dIscnmmatIOn due to my sexual onentatIOn. The remedy sought amongst other thmgs mcludes That upon medIcal clearance to work, or m the event that I no longer qualIfy to receIve dIsabIlIty benefits, I be placed on a paid leave of absence as a CorrectIOnal Officer 2 The paid leave of absence wIll contmue untIl the employer can demonstrate to an mdependent outsIde consultant that has expertIse m workplace harassment and dIscnmmatIOn Issues, that the employer has successfully eradIcated all systemIc and dIrect dIscnmmatIOn on all prohibIted grounds m the CollectIve Agreement and the Ontano Human RIghts code ThIs undertakmg wIll 2 apply to all workplaces controlled dIrectly or mdIrectly by the MmIstry of Pubhc Safety and Secunty Mr Ranger was on sIck leave when he filed thIS gnevance The medIcal eVIdence before me estabhshes that the gnevor was able to return to work m September 2003, provIded that he does not return to a correctIOnal facIhty The gnevor testified that he has suffered sIgmficant financIal losses because of hIS reduced mcome Further, there has been a sIgmficant emotIOnal Impact on hnn because he has not been returned to work, whIch IS begmnmg to affect hIS health adversely The medIcal eVIdence IS that It would be much better for the health of the gnevor to be workmg The employer tendered no eVIdence Counsel for the employer, Ms MurJI, agreed wIth the umon that thIS board has the JunsdIctIOn to order mtenm rehef m appropnate cIrcumstances, but argued that thIS was not one of them. Ms MurJI argued that whIle It mIght be appropnate to make an mtenm rehef order m a tenmnatIOn case, It IS not appropnate here Employer counsel argued that m a tenmnatIOn case the gnevor's Job IS clearly Identified. But m thIS case the umon IS requestmg that the employer "take posItive actIOn" to find another posItIOn for the gnevor, whIch counsel argues IS not appropnate In counsel's submIssIOn mtenm rehef should only preserve the status quo Counsel further submItted that whIle an order to place the gnevor m a posItIOn outsIde a correctIOnal facIhty was a potentIal remedy, It should only be ordered after the case IS proven on the ments Counsel argued that such an order could only be made after the umon had proved that the gnevor suffered dIscnmmatIOn and harassment and the 3 employer had faded to show a due dIhgence defence Ms MurJI also argued that the delay m bnngmg the motIon IS a factor that should be consIdered to deny the mtenm rehef. Counsel rehed on the followmg cases m support of the employer's submIssIOn. Morrison Meat Packers Ltd [1993] O.L R.B Rep Apn1358, Toronto Transit Commission andAmalgamated Transit Union, Local]]3 [1994] 42 L.A.C (4th) 61, William Neilson Ltd [1994] O.L R.B Rep March 326, Religious HospitaUers of Hotel Dieu of St. Joseph of Diocese of London and 0 NA [1995] 48 L.A.C (4th) 180, OPSEU (Union Grievance) and Management Board Secretariat [2002] GSB 0610/02 (Petryshen) Counsel for the umon, Mr Leeb, argued that thIS board has the JunsdIctIOn to award mtenm rehef wIthout heanng the case on the ments, and that m the nght cIrcumstances, that IS the whole purpose of mtenm rehef. Mr Leeb submItted that the rehef requested here flows from the ments of the gnevance the gnevor IS seekmg the nght to work m an envIronment wIthout harassment on the basIs of hIS sexual onentatIOn and wIthout nsk to hIS health. Counsel for the umon cIted the followmg cases m support of hIS argument that mtenm rehef should be ordered m thIS case OPSEU (Nield) and Ministry of Labour (1996) GSB 1471/96 (Roberts), (upheld on JudIcIal RevIew), OPSEU (Belanger et al) and Minis try of Health (1997) GSB 976 93 (Kaufman) OPSEU (Fox) and Ontario Human Rights Commission (2001) GSB 0507/01 et al (Stewart), OPSEU (Union Grievance) and Management Board Secretariat (2003) GSB 0001/03 (Stewart), OPSEU (Union Grievance) andManagement Board Secretariat (1997) GSB 1186/97 (DIssanayake), OPSEU ~'ltewart) and Ministry of Correctional Services (1995) GSB 1000/94 (Gorsky), OPSEU (Montgomery Rankin) and Ministry of Health (1995) GSB 4 2624/94 et al (Fmley), OPSEU (Sammy et al) and Minis try of Correctional Services GSB 0224/2001 (HarrIs) Havmg carefully consIdered the submIssIOns of the partIes on the first Issue of whether m the CIrcumstances mtenm rehef could be appropnate m thIS case, I am persuaded that It IS the kmd of mtenm rehef that the board has the jUnSdIctIOn to order SectIOn (48) (12) (1) of the Ontano Labour Relations Act provIdes arbItrators wIth the power "to make mtenm orders concernmg procedural matters" As noted by chair Stewart m Fox et aI., smce the semmal case Nield first granted mtenm rehefunder sectIOn 48 (12) (1) of the Act, the board has developed a consIstent body ofjunsprudence broadly mterpretmg thIS power The Chair noted that the DIvIsIOnal Court's reVIew of Nield endorsed a "broad meamng" of the phrase "procedural matters" Thus, It IS well estabhshed that the board has the jUnSdIctIOn to order mtenm rehef, provIded that the rehef IS not dISposItIve of the gnevance and the umon IS able to satIsfy the test for mtenm rehef. In the case before me the Issue IS whether the employer has vIOlated the gnevor's human nghts The gnevor alleges that hIS workplace IS pOIsoned and he seeks to work m a healthy, non-pOIsoned workplace I am of the VIew that an order to accommodate the gnevor m an alternate workplace, whIle the heanng on the ments proceeds, IS not dIsposItive of the gnevance Thus I am not persuaded that thIS order should only be made after the case IS heard on the ments As to the employer's submIssIOn that mtenm rehef should only preserve the status quo, a reVIew of the board's decIsIOns reveals that 5 thIS IS not the case The board has made mtenm rehef orders reqUInng posItive actIOn (See Sammy and Belanger by way of example) The next Issue IS whether the umon meets the test for mtenm rehef. The test as Identified by the board m Sammy IS (1) that there must be an arguable case on the ments of the gnevance and (2) the board must balance the potential harm or mconvemence of the partIes Ms MurJI conceded that the umon has an arguable case, therefore the only Issue to be decIded IS the balance of harm or convemence The employer counsel also acknowledged that the test of "Irreparable harm" has been rejected by the board m favour of a balancmg of potentIal harm or mconvemence of the partIes Counsel for the umon argued that the harm to the gnevor of not returnmg to work outweIghs any harm to the employer m thIS case Mr Leeb rehed on the eVIdence of the gnevor that Mr Ranger IS suffenng sIgmficant financIal hardshIp He argued further that the medIcal eVIdence suggests that the gnevor's health IS bemg adversely affected by remammg out of the workplace Counsel also submItted that the employer provIded no eVIdence of harm. Regardmg the Issue of the employer's harm, Ms MurJI argued that the harm to the employer IS that the order would 1) dIsplace others, 2) thwart the accommodatIOn process, and 3) be dIfficult because of msufficIent mformatIOn on how to accommodate the gnevor Counsel also argued that mere financIal harm to the gnevor was not enough to warrant mtenm rehef. 6 After careful consIderatIOn, I have decIded that the potentIal harm to the gnevor outweIghs the mconvemence or potentIal harm to the employer The potentIal harm to the employer, IdentIfied by counselm argument, IS aVOIdable FIrst, the board IS not makmg an order to dIsplace another employee, nor dId the umon ask for thIS Second, thIS order need not thwart any accommodatIOn process Nor does It change the gnevor's duty to provIde mformatIOn, as necessary, to facIhtate accommodatIOn. WhIle there IS nothmg before me to suggest mconvemence or potentIal harm to the employer, the potentIal harm to the gnevor IS sIgmficant I find thIS chIefly because the medIcal eVIdence mdIcates for the sake of hIS health, the gnevor needs to return to work. Also, Mr Ranger's own eVIdence IS that bemg Isolated at home wIthout work has sIgmficantly dImImshed hIS sense of self-worth. The courts and arbItrators have long recogmzed the Importance of employment to a person's dIgmty and self-worth. The potentIal harm to the gnevor here IS perhaps the most sIgmficant. Fmally, the Impact on Mr Ranger's finances has also been consIderable Had the umon's request for Mr Ranger to return to work not mvolved accommodatIOn thIS order would be straightforward. However, m effect, what the umon has asked for IS mtenm accommodatIOn, and there IS never an absolute guarantee that accommodatIOn wIll be achIeved. The employer's duty IS to accommodate to the pomt of undue hardshIp Therefore the order here has to recogmse that obhgatIOn and ItS hmIts The gnevor IS also obhged to cooperate m the accommodatIOn process Thus the umon's motIon for an mtenm rehef order IS granted. The employer shall make ItS best efforts to accommodate the gnevor m a sUItable posItIOn, consIstent WIth 7 the medIcal opmIOns provIded, wlthm 30 days of thIS order If the employer IS unable to place the gnevor m a sUItable posItIOn wlthm 30 days, the gnevor shall be placed back on the payroll, and the employer shall contmue to make ItS best efforts to accommodate the gnevor ThIs mtenm rehef order shall expIre when the deCISIOn on the ments IS Issued. Dated at Toronto, thIS 6th day of October 2004 D J.D LeIghton Vice-ChaIr 8