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HomeMy WebLinkAbout2002-2375.Ranger.05-07-29 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 PublIc ServIce Employees Umon (Ranger) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Deborah lD LeIghton Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER F enna MurJ I Counsel Management Board Secretanat HEARING January 26 and May 13 2005 2 DeCISIon In hIS gnevance dated December 19 2002, Robert Ranger a CorrectIOnal Officer alleges that the employer has breached the collectIve agreement by condomng dIrect dISCnmInatIOn by fellow employees and managers, whIch has created a pOIsoned work envIronment for hIm at Ottawa-Carleton DetentIOn Centre He alleges further that thIS pOIsoned envIronment has caused hIm to suffer harassment and dISCnmInatIOn because of hIS sexual on entatIOn. A second gnevance dated June 18 2004 allegIng that the employer has faIled to accommodate Mr Ranger was consolIdated on the first day of the heanng Into the ments of thIS case ThIS decIsIOn addresses a motIOn by the employer to exclude eVIdence of events, whIch occurred pnor to Minutes of Settlement dated June 22, 1998 sIgned pursuant to earlIer gnevances The motIOn was argued on January 26 2005 and the board receIved addItIOnal submIssIOns from the partIes on March 1 2005 March 4 2005 and March 15 2005 ThIS decIsIOn also addresses a motIOn by the umon seekIng that the employer be ordered to comply wIth an Intenm relIef order made October 6 2004 whIch was argued on May 13 2005 THE EMPLOYER'S MOTION TO EXCLUDE EVIDENCE The umon seeks to adduce eVIdence of the gnevor's employment hIStOry when he worked at the L'Ongnal JaIl ThIS Includes eVIdence that the gnevor was absent from June 1996 to January 1997 and from May 1997 to November 28 1997 and why the absences occurred. The essence of the proposed eVIdence IS that the gnevor expenenced harassment and dISCnmInatIOn because of 3 hIS sexual onentatIOn whIle workIng at L'Ongnal JaIl, became III and was thus absent from work In the two pen ods of tIme noted above Counsel for the UnIon, GavIn Leeb argued that the proposed eVIdence has two purposes In the UnIon's case The first addresses the Impact on the gneVOf" the theory of the unIon's case IS that the alleged harassment at OCDC the subject matter of the current case, has had a greater Impact on the gnevor because he suffered earlIer harassment and dISCnmInatIOn at L'Ongnal JaIl The second purpose of the proposed eVIdence relates to remedIal entItlements that the UnIon wIll argue at the end of the day that IS, that the gnevor has a "thIn skull" and therefore should receIve greater compensatIOn for the dISCnmInatIOn and harassment that he suffered at OCDC Mr Leeb stated that he dId not seek to Introduce thIS eVIdence for the purposes of proVIng the ments of the gnevances before the board. Thus the proposed eVIdence IS tendered only to proVIde proof of the extent of the harm suffered by the gnevor and as a baSIS for the argument for remedIal entItlements THE EMPLOYER'S SUBMISSION Counsel for the employer Fenna MurJI, strongly opposes the IntroductIOn of thIS eVIdence for essentIally two reasons, that It IS excluded under Minutes of Settlement and that It IS too old. Counsel argued that the eVIdence proposed by the UnIon could not be used for any purpose In the present proceedIng because an earlIer gnevance, complaInIng about events at L'Ongnal JaIl, was settled by Minutes of Settlement on June 22, 1998 Clause 2 of the Minutes of Settlement proVIdes as follows 4 The partIes agree that these Minutes of Settlement and any consIderatIOn are deemed to be no admIssIOn of lIabIlIty whatsoever on the part of the Crown, nor wIll these Minutes and/or the underlYIng facts ever be referred to In any other admInIstratIve, quasI-JudICIal or legal proceedIng. Thus counsel argued that the partIes had agreed to settle the gnevor's complaInts whIle at L'Ongnal JaIl by entenng Into Minutes of Settlement that expressly preclude the gnevor from raiSIng these allegatIOns In any future proceedIng. Counsel for the employer took the posItIOn that to allow thIS eVIdence to be Introduced now would be a clear contraventIOn of the Minutes Ms MurJI argued that the Minutes of Settlement were clear and unambIguous, that the underlYIng allegatIOns for the December 3 1997 gnevance and any other gnevances outstandIng at the tIme of the Minutes of Settlement could not be used In a subsequent arbItratIOn heanng. She argued that there were strong labour relatIOns reasons not to allow the eVIdence If the Minutes of Settlement were not honoured, there would be a strong dISInCentIve for the employer ever to settle agaIn. Counsel also noted that the gnevor receIved consIderatIOn under these Minutes by way of a payment of money and a transfer to OCDC thus It would go agaInst every contract pnncIple to allow thIS eVIdence to be presented now when there was a clear promIse never to rely on It In the future Counsel argued In addItIOn that the employer should not be reqUIred to defend allegatIOns that are between nIne and seven years old. RelYIng partIcularly on the Hotel Dieu Grace Hospital case, infra, counsel argued that arbItrators must stnke a fair balance between the concerns of both partIes when deCIdIng how many years of eVIdence can be tendered In a case, whIch alleges a pattern of dISCnmInatIOn over a number of years 5 Counsel argued In sum that It would not be eqUItable to reqUIre the Mimstry to defend allegatIOns that occurred so many years ago and that were also the subJect matter of Minutes of Settlement. Counsel concluded that the balance favoured the employer here and that the eVIdence should not be admItted. Counsel for the employer relIed on the folloWIng cases In support of her submIssIOn Hotel Dieu Grace Hospital and Ontario Nurses Association (1997) 62 L AC (4th) 164 (PIcher) OPSEU (Dale et al) and Ministry of Health and Long Term Care (2002) GSB 2000-1314 (Abramsky) OPSEU (Waraich) andMinistlY of Labour (2004) GSB 2003-0187 (Watters) OPSEU (Patterson) and Ministry of Public Safety and Security (2003) GSB 2001-0925 (LeIghton) THE UNION'S SUBMISSION Counsel for the umon argued that the eVIdence proposed was not beIng adduced to support the ments of the current gnevances The reason for the eVIdence was to show why the gnevor's mental state has been so adversely affected by the alleged dISCnmInatIOn and harassment at OCDC Mr Leeb noted that a consIderable part ofa medIcal expert's eVIdence (Dr Koch) was based on the hIStOry gIven to her by the gnevor ThIS hIStOry Included events that occurred whIle the gnevor was at L'Ongnal JaIl It was Dr Koch's OpInIOn that the harassment at OCDC had had a profound effect on the gnevor It was her OpInIOn that wIth each Instance of dISCnmInatIOn and harassment the gnevor became more III Mr Leeb also argued that the eVIdence of the events at L'Ongnal were necessary to provIde the foundatIOn for Dr Koch's expert OpInIOn, cItIngR. v Abbey (1982) 2 S C.R. 24 at p 14 6 Counsel for the UnIon noted that the Minutes of Settlement referred to three outstandIng gnevances IncludIng a Hammond-Mier gnevance, an L TIP gnevance and a gnevance whIch attacked the method of InVestIgatIng the gnevor's allegatIOns Into harassment and dISCnmInatIOn suffered at L'Ongnal JaIl Thus, counsel argued, the thIrd gnevance was merely about the adequacy of a WDHP InVestIgatIOn report. He noted that there was no desIre to re-lItIgate the adequacy of thIS report. The UnIon SImply wanted to submIt the report for ItS face value In sum, counsel for the UnIon noted that thIS IS a case of first Instance before the board and that the cases submItted by the employer are dIstIngUIshable because the dIsputed eVIdence was beIng tendered to prove the ments In those cases The eVIdence Mr Leeb proposes to adduce goes to the harm suffered by the gnevor and remedy He argued that the eVIdence was relevant, and that there was no preJudIce to the employer to allow the eVIdence In. Counsel for the UnIon relIed on the folloWIng cases In support of hIS submIssIOn UFCWand The Comstock Funeral Home Ltd (1981) OLRB Rep Dec 1755 Upholsterers International Union of North America (AFLCIO) and The Craftsline Industries Ltd (1977) OLRB Rep Apnl 246 IWA Canada Local 1-1000 and The Mad([l1,aska Hanbtood Flooring Inc (1995) OLRB 2761 ATU Local1l3 v Toronto Transit Commission (1993) 34 L.AC (4th) 85 (ShIme) OPSEU (Mirosolin) and Ministry of the Attorney General (1991) GSB 1990-2054 (Venty) OPSEU (Maghsoudi) and Ministry of Transportation (1999) GSB 0988/97 (LeIghton) EMPLOYER'S REPLY SUBMISSION In reply counsel for the employer argued that the UnIon IS propOSIng to Introduce eVIdence that the gnevor was harassed and dIscnmInated at L'Ongnal JaIl, became III and, therefore, was 7 absent from work dunng the two penods IdentIfied by the umon. However Ms MUIJI noted thIS IS exactly the allegatIOn that was addressed m the gnevance of August 28 1997 and whIch was settled by way of Minutes of Settlement where the employer admItted no lIabIlIty for the allegatIons Thus, she argued, there IS nothmg to establIsh that the gnevor's absences m 1996 and 1997 were dIrectly attnbutable to the Mimstry Had the gnevance proceeded to arbItratIOn the Issue of whether the gnevor's claims of dIscnmmatIOn and harassment were legItImate would have been adJudIcated. However there has been no determmatIOn on those Issues smce they were resolved by Minutes of Settlement. Thus, counsel argued, It would not be appropnate or fair to allow thIS eVIdence to be mtroduced now Counsel also argued agamst the umon's proposal that It must call eVIdence on the events that happened m L'Ongnal JaIl to prove the factual basIs on whIch Dr Koch relIed on m makmg her opmIOn. Counsel noted the eVIdence that Dr Koch proVIded regardmg the gnevor's hIStOry at L'Ongnal JaIl IS not dIrectly at Issue m the current proceedmg. She noted further that Dr Koch's eVIdence would have to be assessed m lIght of the facts that she relIed upon m commg to her conclUSIOns Counsel summanzed the Mimstry's posItIOn as follows 1 The gnevor's self-servmg testImony about what he allegedly suffered whIle at L'Ongnal JaIl wIll not, m and of themselves, prove the allegatIOns 2 To allow the gnevor to proVIde testImony about L'Ongnal JaIl wIll reqUIre the Mimstry to respond to those allegatIOns ASIde from the fact that the partIes entered mto an agreement that was mtended to guard agamst havmg to lItIgate the complamts, requmng the Mimstry to defend these allegatIOns now almost eIght years later IS severely preJudICIal 3 There IS no admISSIble eVIdence that relates to the allegatIOns that stem from the gnevor's tIme at L'Ongnal JaIl because those matters have been fully and finally settled VIa Memorandum of Settlement and because those facts are not at Issue m the present matter 8 In concludIng, counsel for the employer argued that the umon should not be permItted to Introduce eVIdence of events between the penods of June 1996 to November 1998 DECISION - EMPLOYER'S MOTION TO EXCLUDE EVIDENCE The central Issue to be decIded IS whether the eVIdence of events, whIch occurred at L'Ongnal, IS admIsSIble In thIS heanng. The employer takes the posItIOn that the eVIdence IS not admIsSIble because In Minutes of Settlement the gnevor bound hImself not to raise thIS eVIdence In any new proceedIng. Also the eVIdence IS too old and It would be preJudICIal to the employer to have to refute It so many years after the alleged events The umon' S posItIOn IS that It IS admIsSIble not to prove the case on the ments, but for a lImIted purpose gOIng to remedy Counsel for the umon also argued that the Minutes related to a complaInt about how a WDHP InVestIgatIOn was conducted, not the alleged dISCnmInatIOn and harassment. The first Issue to decIde IS whether or not the Minutes of Settlement, sIgned June 22, 1998 refer to the gnevor's complaInts about events at L'Ongnal HavIng carefully revIewed the documents provIded to me I have decIded that It does relate to those allegatIOns In the Minutes of Settlement the umon agreed to wIthdraw all hIS gnevances pendIng as of the 22nd day of June 1998 One of the gnevances pendIng at that tIme was filed December 8 1997 That gnevance stated "I gneve that the employer IS In VIOlatIOn of specIfically but not exclUSIvely ArtIcle 3 and ArtIcle 22 10 of the collectIve agreement." The settlement desIred In that gnevance stated That I be sIgmficantly compensated for all paIn and suffenng and pumtIve damages done as a result of the harassment and dISCnmInatIOn, for past, present and future, that has caused mental scarrIng. 9 The Stage 2 response to thIS gnevance IndIcates that the gnevor was not happy wIth the way a WDHP InVestIgatIOn was conducted. Although the gnevor and hIS representatIve may have been cntIcal of the WDHP process, It IS clear that the gnevance In essence, alleges that he was dIscnmInated and harassed at L'Ongnal ThIS IS one of the gnevances, whIch was settled by the Minutes dated June 22, 1998 HavIng decIded that the alleged harassment and dISCnmInatIOn at L'Ongnal was the subJect matter of the Minutes of Settlement, the next Issue IS whether the eVIdence should nevertheless be admItted. Counsel for the umon stated that It IS beIng Introduced for a lImIted purpose, not to prove the ments of the case before me but to support certaIn remedIal claims and, therefore the eVIdence, whIch occurred between 1996 and 1997 should be permItted. In decIdIng cases where the scope of the eVIdence IS an Issue thIS board has referred to Hotel Dieu Grace Hospital, supra, as helpful See Dale et al. Waraich and Patterson (supra) In Hotel Dieu Grace Hospital, ArbItrator PIcher Said when consIdenng the scope of eVIdence to be permItted allegIng racIal dISCnmInatIOn "that It IS Important In thIS case to stnke a fair balance between the concerns of both partIes" ArbItrators must balance the umon' s need to establIsh a pattern of harassment over a number of years agaInst the employer's need to be able to refute allegatIOns that may have occurred many years before the gnevance ArbItrators must also balance the nght to a full and fair heanng WIth the realIty that an over-long, and arduous heanng may not serve the partIes or procedural fairness 10 In Dale et al. Vice-Chair Abramsky decIded to exclude eVIdence that related to earlIer settled gnevances In balancIng the Interests of the partIes, she consIdered both the age of the allegatIOns that were beIng put forward and the fact that the partIes had settled these earlIer gnevances by way of Minutes of Settlement. Vice-Chair Abramsky also noted that thIS board has consIstently recogmzed the Importance of gIVIng effect to final settlements between the partIes She held that "Once a matter IS settled, the expectatIOn IS that the matter IS resolved and wIll not reappear In some dIfferent gUIse" In Waraich, Vice-Chair Watters relIed on the reasomng In Dale et al when he decIded to exclude eVIdence that related to gnevances settled In earlIer Minutes He stated further that he reached hIS decIsIOn "In large part, to ensure and promote the sanctIty of final settlements" In excludIng the eVIdence, Vice-Chair Watters made It clear that It was not eVIdence as of the date of the Minutes of Settlement, but rather It was the eVIdence alleged as the baSIS of the gnevance The eVIdence after the gnevance was filed was admISSIble I agree that If eVIdence IS to be excluded because the events have been the subJ ect of a settlement, then It IS the date of the gnevance whIch provIdes the bnght lIne, not the settlement date Umon counsel has argued that Dale et al and Waraich are dIstIngUIshable because In those cases the eVIdence was beIng tendered to prove the ments of the later gnevance In contrast, the umon WIshes to adduce the eVIdence for a lImIted purpose, to support the umon's theory that the gnevor has suffered more because of the alleged harassment and dISCnmInatIOn at OCDC because of the prevIOUS harassment and dISCnmInatIOn at L'Ongnal The trouble WIth thIS IS that the Mimstry was not wIllIng to admIt to the allegatIOns when It sIgned the Minutes of Settlement on June 22, 1998 and It IS not wIllIng to admIt them now In fact, the Minutes expressly deny any admISSIOn of lIabIlIty Moreover the terms of the Minutes go beyond the usual practIce of 11 the partIes by IncludIng very strong language that no underlIng facts of the gnevances wIll ever be "referred to In any other admInIstratIve, quasI-JudICIal or legal proceedIng." Thus, havIng carefully consIdered thIS matter I have come to the conclusIOn that It would be IneqUItable and preJudIcIal to the employer In thIS case to defend the allegatIOns of dISCnmInatIOn and harassment wIth regard to L'Ongnal JaIl so long after they have occurred, but pnmanly because they were the subJect of Minutes of Settlement. The partIes to Minutes of Settlement must be able to rely on the terms, whIch they have negotIated In good faith. Further It would not be fair to reqUIre an employer to preserve eVIdence Indefimtely to defend Itself agaInst the possIbIlIty of havIng to refute allegatIOns, whIch were the subJect of Minutes of Settlement. FInally I note that Dr Koch's eVIdence Included InfOrmatIOn from the gnevor as to hIS expenence at L'Ongnal, whIch she relIed on In formIng her OpInIOn, and whIch was properly admItted for that purpose and not for the truth of ItS contents The employer's motIOn IS hereby granted and eVIdence of events at L'Ongnal before December 8 1997 the date of the gnevance IS not admIssIble THE UNION'S MOTION FOR A COMPLIANCE ORDER On October 6 2004 the umon's motIOn for an Intenm relIef order was granted. It proVIded In part The employer shall make ItS best efforts to accommodate the gnevor In a SUItable posItIOn, conSIstent WIth the medIcal OpInIOnS proVIded, wIthIn 30 days of thIS order If the employer IS unable to place the gnevor In a SUItable posItIOn WIthIn 12 30 days, the gnevor shall be placed back on the payroll, and the employer shall contInue to make Its best efforts to accommodate the gnevor ThIS Intenm order shall expIre when the decIsIOn on the ments IS Issued. The employer was unable to find a SUItable posItIOn WIthIn the 30 days and, therefore, placed the gnevor back on the payroll On January 26 2005 a letter was sent to Mr Ranger from the Human Resources Consultant for the Mimstry notIfYIng hIm that a temporary aSSIgnment had been IdentIfied In the Ottawa Centre ProbatIOn and Parole Office There was a meetIng WIth the gnevor on February 14 2005 to dISCUSS the pOSItIOn and at that tIme the Mimstry requested a medIcal note that approved that the gnevor could return to work. The gnevor' s doctor responded by letter March 17 2005 confirmIng that the gnevor could return to work ImmedIately and recommendIng that he do so on a gradual baSIS He began workIng Tuesdays and Thursdays for the first three weeks He was to contInue through the workIng hardemng three days for the next three weeks, four days for the next three weeks, and then full-tIme thereafter The Mimstry responded to the gnevor on March 21 2005 confirmIng receIpt of the medIcal InfOrmatIOn and confirmIng other detaIls such as the locatIOn of the employment and the hours of work. Thus the gnevor began work In the Ottawa Centre ProbatIOn and Parole Office In the week of March 28 2005 Although the gnevor was workIng In the capaCIty of admInIstratIve support, he was to remaIn beIng paid as a correctIOnal officer On Apnl 14 2005 two weeks after returnIng to work, In a meetIng WIth the Area Manager the gnevor was Informed that he would be paid for the days that he worked only ThIS was confirmed In wntIng on Apnl15 2005 In a letter to the gnevor SIgned by the Area Manager The reductIOn In pay WIthout notIce to the gnevor meant he was forced to borrow money from fnends to cover hIS normal lIvIng expenses 13 The first thIng the umon IS seekIng IS a complIance order so that the gnevor receIves full pay for the penod of work hardemng. Mr Leeb argued that by not paYIng the gnevor full-tIme pay the employer had breached the order of October 6 2004 In the alternatIve the umon sought an Intenm relIef order that the gnevor be paid for 40 hours a week at the CorrectIOnal Officer rate for the same penod of tIme of the work hardemng penod. The umon also seeks an order requmng that the Mimstry to gIve 30 days notIce of any contemplated change In the gnevor's employment and/or compensatIOn. The umon reserved ItS nght to seek aggravated or pumtIve damages at the end of the case based on how the gnevor had been treated dunng thIS work hardemng penod. Mr Leeb argued In support of the motIOn that the October 6 order was Intended to keep the gnevor at an appropnate pay rate In the Intenm whIle the case was beIng heard on the ments Further the order was clear that the Mimstry was reqUIred to accommodate the gnevor Into a sUItable posItIOn and If not wIthIn the 30 days then put hIm back on the payroll The order was desIgned to ensure that hIS dIgmty and health were preserved. Counsel stated that It was vIrtually a slap across the head to the gnevor who had been workIng for a number of weeks before he was told that he would only be paid for the actual days worked. Counsel argued In sum that the orders requested were well wIthIn the power of the board and partIcularly Important because of the lack of good faith that had been shown by the employer In dealIng wIth the gnevor Counsel relIed on the cases cIted to the board for the prevIOUS Intenm relIef applIcatIOn. Counsel for the employer argued that essentIally the umon was askIng that the gnevor be paid when he was not workIng dunng the work hardemng penod. The employer had maIntaIned the gnevor on full pay between the tIme that a posItIOn was IdentIfied untIl he actually began work. 14 Ms MurJI said that the gnevor was paid In the way that every other employee IS paid when they return to work on a work hardemng scheme There was no oblIgatIOn to pay the gnevor for the days not worked. She noted that some employees use vacatIOn and/or sIck credIts to make up the loss With regard to the lack of notIce, counsel took the posItIOn that It was not necessary when It was ObVIOUS that he would be paid only for the work he actually dId once returmng to work. Toward the end of her submIssIOn, Ms MurJI stated that the gnevor had 22 days of vacatIOn In hIS bank, whIch he could have used to supplement hIS pay The gnevor would have also been entItled to sIck tIme WIthIn several weeks of returmng to work. Therefore, he also could have used sIck tIme to supplement the lost Income With regard to the umon's second, alternate argument, counsel submItted that It would not be an appropnate Intenm order and that there was no JunsdIctIOn to make such an order Further whIle the gnevor had made allegatIOns of harassment and dISCnmInatIOn, nothIng as of yet had been proven. She noted that the employer has a duty to accommodate and that thIS duty had been satIsfied. With regard to the thIrd request of the umon that an order be Issued requmng 30 days advance notIce of any change to the employee's compensatIOn and/or employment, counsel argued that the board had no authonty to thwart the employer's responSIbIlIty to dIrect and manage the workplace Counsel for the employer relIed on the folloWIng cases In support of her submIssIOn Versa Services Ltd and Milk and Bread Drivers, Daily Employees Caterers and Allied Employees Union, Local 647 (1994) 39 L AC (4th) 196 (Brown) ONA v Orillia Soldiers Memorial Hospital (1999) 169 D.L.R. (4th) 489 (Ont. CA) OPSEU (Dupuis) andMinistry of Northern Development and Mines (2001) GSB 0409/00 (DIssanayake) Hayd([l1,ay Motor Inn and British Columbia Government and Service Employees Union (1995) 51 LAC (4th) 351 (Lang) Royal 15 Crest Life Care Group Inc and CUPE, Local 1712 (1993) 38 L AC (4th) 250 (CarrIer) Stelco Inc Hilton Works and United Steehwrkers of America, Local 1 005 (1995) unreported case (Gray) DECISION - UNION'S MOTION FOR COMPLIANCE ORDER HavIng carefully consIdered the submIssIOns of the partIes I have decIded that the employer has not breached the board's order of October 6 2004 The order reqUIred the employer to make ItS best efforts to accommodate the gnevor In a sUItable posItIOn WIthIn 30 days of the order If the employer was not able to find the gnevor a sUItable posItIOn WIthIn that tIme frame, It was reqUIred to put hIm back on the payroll and contInue to make ItS best efforts to accommodate the gnevor In makIng that order the board noted In effect what the umon has asked for IS Intenm accommodatIOn, and there IS never an absolute guarantee that accommodatIOn wIll be achIeved. The employer's duty IS to accommodate to the pOInt of undue hardshIp Therefore the order here has to recogmze that oblIgatIOn and ItS lImIts The gnevor IS also oblIged to cooperate In the accommodatIOn process As part of that accommodatIOn process the employer was able to IdentIfy a temporary assIgnment for the gnevor at an OAG 8 level SInce the gnevor had been off work for some tIme hIS doctor recommended a work hardemng program and so the gnevor returned to work on a gradual basIs untIl he reached full-tIme hours I accept the submIssIOn of the employer's counsel that the gnevor was treated as any other employee returmng to work after a sIck leave He was, therefore, paid for the work he dId. 16 Counsel for the employer submItted that It should have been ObVIOUS to the gnevor that he would only be paid for the actual work he dId once returnIng to the Mimstry It certaInly was not ObVIOUS to the gnevor and he should have been Informed before he returned to work. Although I am not satIsfied that thIS amounts to a breach of the Intenm relIef order It was not handled well Better commumcatIOn at the begInmng of the process of returnIng the gnevor to work would have prevented the gnevor' s dIscomfort and thIS emergency motIOn. He would have made a claim for the lost wages at the conclusIOn of the care Counsel for the employer remarked towards the end of her submIssIOn that the gnevor could have used hIS vacatIOn days to make up the lost wages dunng the work hardemng penod. Also wIthIn several weeks he would also have earned sIck credIts, whIch he could have used. It IS hIghly unfortunate that the gnevor was not told thIS when he was first beIng advIsed of the temporary assIgnment. It IS also hIghly unfortunate that the gnevor dIdn't thInk to ask when he was Informed on Apnl 14 that he was only gOIng to be paid for the days he worked. Umon counsel stated that had he known thIS was a way of the gnevor maIntaInIng hIS wages he would not have brought thIS motIOn. Thus In conclusIOn I find that the employer has not breached the October 6 2004 order and It would not be appropnate to Issue another Intenm relIef order for the lost wages In the CIrcumstances I agree wIth counsel for the employer that In thIS case any such order would be premature and IS better addressed In cloSIng argument. I also note, for the record, whIle counsel for the employer argued agaInst the umon's request for an order to reqUIre the employer to gIve the gnevor 30 days notIce of any new posItIOn or any change In compensatIOn, counsel stated that the employer wIll gIve such notIce to the gnevor Employer counsel also acknowledged that the order of October 6 2004 remaInS In effect untIl a decIsIOn on the ments of thIS case IS 17 rendered and that the employer has an ongOIng duty to find a sUItable posItIOn for the gnevor If possIble For the reasons noted above, the umon's motIOn IS hereby demed. Dated at Toronto thIS 29th day of July 2005 ~ - " " , "" O. _ " ;;n= . ,,_, _; .. "".d' VIce- "air "".