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HomeMy WebLinkAbout2002-2964.McCormick.06-02-13 Decision Crown Employees Commission de Nj 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# 2002-2964 2002-2965 2002-2966 2004-2332,2005-0944 UNION# 2003-0634-0001 2002-0634-0005 2002-0634-0004 2004-0634-0003 2005-0634-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (McCormIck) Union - and - The Crown In RIght of Ontano (Mimstry of TransportatlOn) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION CarolIne "Nim" Jones PalIare Roland Rosenberg RothensteIn LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Sunee1 Bahal Counsel Mimstry of Government ServIces HEARING December 12,2005 January 12 & 31 2006 2 DeCISIon The Umon has moved for Intenm relIef In thIS matter askIng the Board to order the Employer to provIde a "specIal or compasslOnate" leave wIth pay to the gnevor pendIng the final concluslOn of her gnevances The Employer has opposed thIS motlOn. Facts There are seven gnevances before the Board. The first two were filed on August 28 2002 and allege that the Employer faIled to provIde a safe and healthy workplace, Improperly dISCIplIned the gnevor and Improperly reqUIred her to use her vacatlOn credIts The thIrd gnevance was filed on January 27 2003 and alleges unJust dIscIplIne On March 3 2004 a fourth gnevance was filed, allegIng dISCnmInatlOn and a pOIsoned work envIronment. A sImIlar fifth gnevance was filed on June 21 2004 The sIxth gnevance, also allegIng dISCnmInatlOn and harassment, was filed on May 3 2004 The seventh and final gnevance was filed on November 21 2005 allegIng that the Mimstry Improperly released pnvate medIcal InformatlOn wIthout the gnevor's consent. The partIes agreed, and the Board Issued a Consent Award, that the gnevor's eVIdence, for the purposes of thIS motlOn only could be tendered by sworn affidavIt wIthout cross- eXamInatlOn. The Mimstry also agreed that, for the purposes of thIS motlOn only that there IS an "arguable case on the ments" Consequently the partIes' dIspute centers on the second part of the test for Intenm relIef - the balance of harm or convemence to the partIes The gnevor through her affidavIt, outlIned her allegatlOns of dISCnmInatlOn and harassment. I do not find It necessary to descnbe them In detaIl, but they do allege very senous 3 claims of harassment and dISCnmInatlOn because of her gender as well as retalIatlOn for raiSIng her concerns - from supervIsors, management, human resources staff and co-workers In substance, she alleges a pattern and practIce of harassment and dISCnmInatlOn whIch has grown progressIvely worse over tIme The gnevor went off on sIck leave In June 2005 She exhausted her short term sIck entItlements In early December and applIed for long-term Income protectlOn under the collectIve agreement (L TIP) Her claim for L TIP has been demed, and to date there has been no appeal filed. Her employment status, at the present tIme, IS that she IS on a leave of absence wIthout pay It should be noted, however that her employment status was changed at our first day of heanng on the Intenm motlOn, December 12, 2005 On November 21 2005 the gnevor was sent a letter outlImng that she had been off work SInce June 13 2005 wIthout provIdIng medIcal InfOrmatlOn to support her absences or return to work. The letter contInued To date, you remaIn off work and we have not receIved medIcal InformatlOn from your medIcal practltlOner sufficIent for the mlmstry to determIne your fitness to perform your regular Job dutIes or whether or not there IS any workplace accommodatlOn avaIlable to qUIcken your return to the workplace Therefore the Mimstry has no other optlOn, but to consIder you to be on an unauthonzed leave of absence wIthout pay effectIve June 15 2005 The Mimstry wIll recover any compensatlOn receIved by you subsequent to June 15 2005 at a later date Further you are hereby notIfied that you are reqUIred to return to work on December 5 2005 as per the attached schedule Upon your return, we wIll be reqUIred to schedule several meetIngs to resolve all of the outstandIng matters that were beIng revIewed wIth you pnor to you leavIng the workplace FInally the letter advIsed the gnevor of SectlOn 20 of the Public Service Act whIch basIcally states that If an employee IS absent wIthout officIal leave to a penod of two weeks, he or she may be declared to have abandoned theIr posltlOn and be termInated. 4 The November 21 2005 letter appears to have been sent to the gnevor when the Mimstry's attempt to obtaIn medIcal InformatIOn through an Independent medIcal eXamInatIOn (IME) of the gnevor fell apart. It IS the Umon's posItIOn that thIS process fell apart because the Mimstry sent confidentIal medIcal and employee InfOrmatIOn about the gnevor to a thIrd party - the facIlItator of the lME and a doctor - wIthout the gnevor's consent. That led to the seventh gnevance, dated November 21 2005 The gnevor's receIpt of the November 21 2005 letter from the Mimstry and the Mimstry's faIlure to respond to the Umon's concerns about the alleged breach of the gnevor's pnvacy precIpItated the Umon's motIOn for Intenm relIef At the heanng on December 12, 2005 however the Mimstry In wntIng, rescInded the letter of November 21 2005 It also wIthdrew ItS requests for an lME of September 26 and October 17 2005 The letter contInued "EffectIve December 7 2005 you wIll be placed on a leave of absence wIthout pay pendIng a decIsIOn of your applIcatIOn for Long Term Income ProtectIOn (L TIP) " It also stated that "[s]hould you have accommodatIOns that you wIsh the employer to consIder kIndly provIde the appropnate medIcal and we wIll respond accordIngly" As a result of all that occurred, the gnevor asserted, In her affidavIt, that she dId not belIeve that she could return to work untIl her gnevances were addressed. In terms of the harm that would occur If her request for Intenm relIef IS not granted, her affidavIt, In relevant part, states as follows 73 In lIght of all the foregoIng, I do not belIeve that I can return to my current workplace, untIl matters raised In my gnevance have been addressed. I am currently under the care 5 of a psychIatnst who advIses me that I cannot and should not return to a pOIsoned work place My famIly IncludIng my husband and my two chIldren, have suffered greatly as they have had to wItness the effect that the harassment and dISCnmInatIOn has had on me over the last number of years Moreover even If I could return to the workplace, I belIeve that the employer wIll contInue to harass me and sIngle me out for dIfferentIal treatment and unfair dIscIplIne I belIeve that hIS would sImply gIve nse to Increased medIcal dIfficultIes for me, and further and addItIOnal gnevances and dIsputes 74 Furthermore, I am now reCeIVIng no Income The financIal hardshIp for me and my famIly IS Indescnbable Weare at nsk of beIng unable to meet our oblIgatIOns and thIS IS takIng a ternble toll on my marnage 75 Finally I am not wIllIng to provIde confidentIal medIcal InformatIOn from my psychIatnst or any other treatIng physIcIan to an employer who has already demonstrated that It has lIttle regard for my pnvacy my nghts, the collectIve agreement or ItS statutory oblIgatIOns No eVIdence other than the gnevor's affidavIt was submItted by the Umon. The Employer provIded eVIdence about the L TIP appeal process - specIfically how the partIes' have agreed, In the collectIve agreement, for that specIalIzed process to work. It also provIded eVIdence of ItS employment accommodatIOn and return to work polIcIes and practIces The eVIdence showed that when an employee exhausts STSP benefits and has not yet been approved for L TIP theIr employment status IS a leave of absence, wIthout pay Under LTIP an employee receIves 66 2/3% of theIr salary Under STSP benefits, an employee receIves 75% of theIr salary SInce the December 12, 2005 heanng, the partIes have selected a Vice-Chair and have set an ImtIal heanng date of March 15 2006 Both sIdes agree, however that thIS wIll be a long heanng, InvolvIng many wItnesses OptImIstIcally It may be concluded In 2006 but It may also contInue well Into 2007 6 Arguments of the Parties The Union The Umon asserts that In lIght of the ongOIng and extreme harassment, dISCnmInatIOn and retalIatIOn that the gnevor has suffered, the partIes must be separated from each other and that the gnevor should not be reqUIred to work In such a pOIsoned envIronment ThIS IS necessary It contends, for the partIes' to focus on the lItIgatIOn. OtherwIse, It asserts that there wIll InevItably be more conflIct and more gnevances In support, It pOInts to the Employer's letter of November 21 2005 whIch states that upon the gnevor's return to work, meetIngs wIll need to be scheduled to dISCUSS outstandIng Issues The Umon asserts that thIS Board should "put an end to It, put a stop to It" untIl the lItIgatIOn IS concluded. SeparatIOn, the Umon argues, preserves the partIes' posItIOns and protects both the Mimstry and the gnevor whIle allowIng the lItIgatIOn to proceed In an orderly fashIOn, wIthout new Issues contInually an SIng. If the partIes are not separated, the Umon asserts, new Issues wIll undoubtedly anse before the ImtIal ones are heard and resolved. The Intenm relIef It seeks, the Umon argues, ensures that the gnevor need not return the workplace untIl all of the outstandIng gnevances are resolved. The Umon acknowledges that the partIes are now separated through the gnevor's leave of absence wIthout pay but contends that the gnevor should not bear the financIal burden of the separatIOn, partIcularly In lIght of the harassment and dISCnmInatIOn that she has suffered and resulted In her InabIlIty to work. The Umon asserts that a leave of absence wIthout pay has already placed the gnevor In a precanous financIal posItIOn and caused stress for her famIly and marnage, whIch wIll worsen over the tIme thIS lItIgatIOn wIll take It asserts that the gnevor wIll suffer substantIal medIcal, emotIOnal and financIal harm unless ItS request for Intenm relIef IS granted. 7 The Umon acknowledges that the Employer has not been provIded wIth medIcal documentatIOn but argues that thIS IS a result of the employer's own mIsconduct and faIlure to protect the confidentIalIty of Ms McCormIck's medIcal and pnvate InfOrmatIOn. Under the cIrcumstances, the Umon argues that the Employer IS dIsentItled from reCeIVIng medIcal InfOrmatIOn. It contends that a leave of absence, wIth pay aVOIds the need to have her provIde medIcal InformatIOn to an employer who has not respected her pnvacy or nghts The Umon argues that vIOlatIOn of her pnvacy nghts cannot be compensated through a damage award The Umon would also accept, In the alternatIve, that the gnevor only be put on a leave of absence wIth pay untIl a comparable Job for the gnevor In terms of skIlls, responsIbIlIty and pay IS found, or untIl her CIrcumstances changed, i e she succeeded In an L TIP appeal In the Umon's VIew ItS request for Intenm relIef IS not substantIve, but procedural It asserts that It addresses "the manner In whIch the partIes wIll proceed wIth respect to one another "In the Intenm" I e untIl the final decIsIOn IS made" Re OPSEU (Belanger) and Ministry of Health GSB No 976/93 (Kaufman), at p 4 The Umon further contends that the Employer has provIded no eVIdence of any harm should the motIOn for Intenm relIef be granted. It asserts that the Employer has not, and cannot, claim that placIng the gnevor on a paid leave of absence would cause It financIal hardshIp It asserts that whIle the Employer provIded eVIdence of the normal L TIP appeal process and the employment accommodatIOn polIcy the gnevor's sItuatIOn IS not the normal case Rather It IS an extraordInary and exceptIOnal case, for whIch the normal processes should not apply 8 In sum, therefore the Umon asserts that the balance of harm or convemence clearly favors the gnevor In terms of labour relatIOns - the conflIct that has already taken place and the need to stop the conflIct from contInuIng - and the actual and potentIal harm to the gnevor should the motIOn not be granted. The Umon, In support of Its contentIOns cItes to Re OPSEU (Nield) and Ministry of Labour(1996),GSB No 1471/96 (Roberts) and (McKechme) endorsed, Ontario (Ministry of Labour and Ontario (Grievance Settlement Board)[1997] 0 J No 427 (Gen. DIV) Re OPSEU (Belangel) and MinistlY of Health (1997) GSB No 976/93 (Kaufman) Re OPSEU(Union Grievance) and Management Board Secretariat (1997) GSB No 1196/97 (DIssanayake) Re OPSEU (Fox) and Ontario Human Rights Commission (2001), GSB No 0507/01 (Stewart) Re Ontario (Management Board of Cabinet) and OPSEU (2003), 117 L.A.C (4th) 128 (Stewart) Re OPSEU (Ranger) and Ministry of Community Safety and Correctional Services (2004) GSB No 2002-2375 (LeIghton) Re OPSEU (Clarke) and Ministry of the Attorney General (2005) GSB No 2004-3263 (Abramsky) The Employer The Employer first argues that whIle It agreed that there was an "arguable case on the ments" It dId not agree that the gnevor's allegatIOns are true It dId not agree, by allowIng her affidavIt to be admItted as eVIdence, that the assertIOns were accurate or that thIS was an "extraordInary" case The Employer contends that on the questIOn of the balance of harm or convemence, the eVIdence favors denYIng the motIOn for Intenm relIef In ItS submIssIOn, ordenng the Employer to place the gnevor on a leave of absence wIth pay untIl her gnevances are fully lItIgated would 9 completely subvert and undermIne Its employment accommodatIOn and return to work polIcIes as well as end-run the L TIP appeal process The Employer pOInts out that the gnevor and the Umon have not provIded any medIcal documentatIOn to support theIr contentIOn that the gnevor IS unable to work In her home posItIOn Nor It argues, dId the gnevor provIde any such medIcal documentatIOn to management to JustIfy her absence or need for accommodatIOn. In ItS VIew grantIng the Intenm motIOn - ordenng the employer to gIve the gnevor a specIal or compassIOnate leave of absence wIth pay - would thwart the accommodatIOn process as well as the L TIP appeal process It would also In ItS VIew amend the collectIve agreement and the Public Service Act regulatIOns whIch establIsh how such specIal leave may be approved. The Employer notes that the gnevor has never even applIed for such leave Further It argues that such leave provIdes a sIgmficantly greater financIal benefit than LTIP or STSP whIch It fears wIll result In a floodgate of sImIlar claims, should the Board order such Intenm relIef The Employer further argues that the Umon, In essence, IS askIng for a cease and desIst order regardIng what the Umon fears wIll be future potentIal breaches of the collectIve agreement. It contends that by askIng the Board to order the partIes to be separated so that no new conflIcts wIll develop IS akIn to askIng for a cease and desIst order The case law It asserts, establIshes that the Board has no such authonty The Employer also argues that the Intenm relIef requested IS substantIve, not procedural, even under a broad readIng of the term "procedural" It submIts that the relIef would "make a findIng relevant" to the Board's determInatIOn on the ments, partIcularly as It Impacts remedy should the gnevor prevaIl It contends that If the Board orders a leave of absence wIth pay It 10 wIll be unable to argue that the gnevor IS not entItled to back pay for the entIre penod of the lItIgatIOn. In ItS VIew It takes that Issue off the table FInally the Employer argues that all of the gnevor's alleged and potentIal losses, IncludIng her pnvacy Interests, are compensable through an appropnate damage award and Interest at the conclusIOn of the case It asserts that the only harm alleged by the gnevor IS the normal type assocIated wIth loss of Income whIch, by Itself, IS InSUfficIent to award Intenm relI ef It further notes that there IS no eVIdence that the gnevor has taken any steps to mItIgate the financIal loss She has not applIed for Employment Insurance benefits, or sought alternatIve employment. In the Employer's submIssIOns, even If It breached the gnevor's pnvacy nghts In regard to her medIcal InformatIOn (whIch It demes), that would not obvIate the need for medIcal documentatIOn to support the gnevor's claim of InabIlIty to work. It reJects the Umon's contentIOn that It has forfeIted any nght to obtaIn medIcal documentatIOn from the gnevor and asserts that thIS Board should not permIt that result. It further argues that the alternatIve remedy suggested by the Umon provIdes a greater benefit than the duty to accommodate It submIts that under the duty of accommodate there IS no guarantee of an eqUIvalent posItIOn and that the partIes' recogmzed as much In the collectIve agreement under ArtIcle 7 5 whIch provIdes for medIcal reassIgnments and Income protectIOn for only SIX months Further under the duty to accommodate, the gnevor must cooperate In the process whIch, In ItS submIssIOn, the gnevor has faIled to do In regard to the Umon's argument that addItIOnal conflIct and gnevances wIll anse If the partIes are not separated, the Employer contends that such a sItuatIOn anses regularly wIth 11 respect to alleged patterns of dISCnmInatIOn. In those cases, It submIts, the partIes' consolIdate any addItIOnal matters that anse They do not entItle the gnevor to be placed on a leave of absence wIth pay In support of Its contentIOns, the Employer cItes to Re OPSEU (Nield) supra, Re Globe and Mail and Southern Ontario NeYf,spaper Guild (Kelly)(1993), 39 L.AC (4th) 85 (P.PIcher) Re OPSEU (Belanger) supra Re OPSEU (Union Grievance) supra Re Ontario(Management Board of Cabinet) and OPSEU supra, Re OPSEU (Fox) supra, Re OPSEU (Union Grievance) and Management Board Secretariat (2002), GSB No 0610/02 (Petryshen) OPSEU (Ranger) supra, Re BreYf,ers Retail Inc and United BreYf,ers Warehousing Workers Provincial Board (1998), 74 LAC (4th) 113 (Carner) Re OPSEU (Group Grievance Sammy et al) and Ministry of Correctional Services (2001) GSB No 0224/01 (Harns) Re OPSEU (Latimel) and MinistlY of Solicitor General and Correctional Services (March 13 2000), GSB No 0131/95 (Kaufman) Re OPSEU (Latimer) and Ministry of Solicitor General and Correctional Services (2005) GSB No 1995-0131 (Kaufman) Decision After carefully consIdenng the eVIdence and arguments of the partIes, as well as the case law I find that I must deny the Umon' s request for Intenm relIef In thIS matter ASIde from the Issue of whether the Employer IS correct In ItS submIssIOns that the Umon's motIOn reqUIres me to decIde an Issue central to the ments or make "a findIng relevant to ItS determInatIOn" the motIOn for Intenm relIef cannot succeed on the "balance of harm or convemence" test. In OPSEU (Leeder) and Ministry of Health (1995), GSB No 2498/93 et al (FInley) the Board stated that It must "weIgh" the potentIal harm or Inconvemence to the partIes 12 In a partIcular sItuatIOn It contInued at p 30 "If the potentIal harm or Inconvemence IS greater for the employee, then relIef would be granted, If It IS greater for the employer It would be demed " In assessIng the balance of harm or convemence the Board has consIdered a number of factors - whether there IS "some specIfic Inconvemence beIng suffered by the gnevor apart from what may generally may be presumed " whether damages, at the end of the heanng on the ments, would compensate the gnevor the length of tIme untIl the case on the ments mIght reasonably be concluded, any delay In bnngIng the motIOn for Intenm relIef, among other factors In thIS case, the eVIdence of harm to the gnevor should the motIOn for Intenm relIef not be granted, IS found In her affidavIt, most notably In Paragraph 73 and 74 whIch were quoted above She states that her psychIatnst "advIses me that I cannot and should not return to a pOIsoned workplace" She belIeves that If she returns to the workplace, "the employer wIll contInue to harass me and sIngle me out for dIfferentIal treatment and unfair dIscIplIne" and that "would sImply gIve nse to Increased medIcal dIfficultIes for me, and further and addItIOnal gnevances and dIsputes" In addItIOn, she has been wIthout Income SInce December 2005 and "[t]he financIal hardshIp for me and my famIly IS Indescnbable " Her famIly IS "at nsk of beIng unable to meet our oblIgatIOns and thIS IS takIng a ternble toll on my marnage " In terms of the financIal hardshIp the eVIdence IS vague and, at thIS pOInt, does not appear to be more than what may be generally presumed when an employee IS wIthout Income for a penod of tIme OPSEU (Fox et al.) supra OPSEU (Sammy) supra There IS no eVIdence of any addItIOnal consequences In regard to the loss of Income such as those set out In OPSEU 13 (SteYf,art) and MinistlY of Correctional Services GSB No 1000/94 (Gorsky) These Include the "genuIne possIbIlIty of the loss of a home, leased or owned" the potentIal repossessIOn of the gnevor's automobIle or the actual or threatened commencement of a court actIOn for momes owed. In terms of potentIal detnment to her health, the only eVIdence IS the gnevor's self- assessment. There IS no medIcal eVIdence to support the gnevor's assertIOn. A stnkIngly sImIlar sItuatIOn arose In OPSEU (Latimer) supra In that case, the gnevor also alleged a pattern of harassment and dISCnmInatIOn and went off on sIck leave She had exhausted her STSP benefits and applIed for L TIP whIch was demed but under appeal, so she was wIthout Income There, as here, her employment status was a leave of absence wIthout pay The Umon brought a motIOn for Intenm relIef, seekIng to restore Income to the gnevor though eIther contInuIng to pay the gnevor STSP benefits or dIrectIng the employer to grant the gnevor a paid leave of absence Also at Issue was the Employer's request for an IME, whIch the Umon sought to preclude There as here, the gnevor's eVIdence was presented through an affidavIt. The Board dId not accept the gnevor's eVIdence It stated, at p 30 WhIle sympathetIc to the gnevor's sItuatIOn, the Board cannot rely on the gnevor's bare statement as to her InabIlIty to work at thIS tIme To rely on her bare statement, In the course of determInIng the balance of potentIal harm or Inconvemence of an order dIrectIng the employer to provIde her wIth some form of Income over some Intenm penod, would be to decIde one of the central Issues In the gnevances, the gnevor's personal credIbIlIty The Board reqUIres a medIcal OpInIOn. I reach the same conclusIOn here 14 The gnevor IS askIng thIS Board to accept her statement that she IS unable to work and that she would have "Increased medIcal dIfficultIes" If she IS forced to return to work, wIthout any medIcal documentatIOn to support that claim She IS askIng the Board to place her on a paid leave absence, for a substantIal penod of tIme, solely on the basIs of that assertIOn. In contrast, In OPSEU (Ranger) supra, there was clear medIcal eVIdence that the gnevor was able to work, but not at hIS home locatIOn. There was also medIcal eVIdence that hIS condItIOn would Improve If he was returned to work. The Board relIed on that medIcal eVIdence In ItS rulIng that the gnevor must be accommodated, If possible In an alternate workplace Here there IS no such medIcal eVIdence There IS no medIcal eVIdence at all The Umon asserts that the absence of medIcal InformatIOn IS the fault of the Employer SInce It faIled to protect the confidentIalIty of the gnevor's medIcal InformatIOn. ThIS argument was also made In Re OSPEU (Latimer) supra, at p 11 where the gnevor asserted that that the Employer had not properly treated the confidentIal medIcal InfOrmatIOn It had receIved and alleged that "the mIsuse and abuse of thIS medIcal InformatIOn has contnbuted greatly to detenorate my emotIOnal and physIcal well-beIng." It was also the basIs, In part, for her refusal to partIcIpate In the IME Although the Board dId not dIrectly address thIS pOInt, ItS determInatIOn IS an ImplIcIt reJectIOn of thIS argument. It dId not accept the contentIOn that there was no need for medIcal InformatIOn In these CIrcumstances LIkewIse I am unable to accept the Umon's argument that the Employer has forfeIted any nght to medIcal InfOrmatIOn because of what happened In connectIOn wIth the faIled IME That Issue IS the subJect of a gnevance No eVIdence from the Employer has been presented on thIS Issue, and a motIOn for Intenm relIef IS "not the tIme to examIne the ments of the case" 15 OPSEU (Latimel) supra at p 27 quotIng OPSEU (SteYf,art) and MinistlY of Correctional Services GSB No 1000/94 (Gorsky) In the absence of any medIcal eVIdence, I am unable to conclude that the gnevor should be placed on a paid leave of absence due to the stress and straIn of the alleged harassment. At thIS pOInt, It should be noted, the Employer IS not pressIng the gnevor to return to work. On December 12, 2005 It rescInded the November 21 2005 letter and placed her on a leave of absence wIthout pay pendIng the L TIP determInatIOn. That L TIP determInatIOn has now been made, and there IS no eVIdence that any appeal has been filed. But the Employer has not IndIcated, one way or the other If It expects the gnevor to return to work or wIll allow her to remaIn on an unpaid leave of absence The Umon contends that more conflIct and gnevances wIll anse If the gnevor IS reqUIred to return to work. That may be, but there IS no eVIdence before me that the Employer wIll reqUIre her to return to work. Further wIthout medIcal eVIdence, there IS no basIs for me to conclude that the gnevor IS too III to work or that she would suffer medIcally If she IS returned to work. I am also not convInced that the prospect of addItIOnal conflIct, In the absence of compellIng medIcal eVIdence, would be a basIs to reqUIre the Employer to provIde a paid leave of absence The sItuatIOn where there are gnevances before the Board, and new IncIdents occur whIch, In turn, are gneved happens qUIte regularly The Umon argues that In Re OPSEU (Clarke) supra, the Board recogmzed that It may be reasonable where feasIble, to separate the partIes when allegatIOns of harassment occur It argues that the same ratIOnale applIes here In my VIew Clarke IS dIstIngUIshable on ItS facts It does not stand for the proposItIOn that an employee who alleges ongOIng harassment should be 16 placed on a leave of absence wIth pay Rather It stands for the proposItIOn that the potentIal for conflIct IS a factor In determInIng the balance of harm In thIS case, the potentIal for conflIct IS a factor should the gnevor be asked to return to work. So far that has not occurred. But even then, It would only be a reason to separate the partIes, If feasIble, not necessanly a basIs to order a leave of absence wIth pay Further I conclude that the gnevor's losses - economIC, human nghts and dIgmty as well as her pnvacy concerns - may be fully addressed through an appropnate award of damages and Interest, should she succeed on the ments OPSEU (Union Grievance) and Management Board Secretariat GSB No 0610/02 (Petryshen) I do not find the gnevor's potentIal losses sImIlar to the potentIal losses Involved In Re Ontario (Management Board of Cabinet) and OPSEU supra at p 132, whIch Chair Stewart found "could not be remedIed by an award of damages, should the Umons ultImately be successful" TurnIng to the potentIal harm to the Employer If the motIOn for Intenm relIef IS granted, I find that the harm would be sIgmficant. The harm IS not partIcularly financIal, although I would note that the Umon IS seekIng to have the gnevor compensated, for a potentIally prolonged penod, wIthout attendIng work. Yet In OPSEU (Sammy) supra, the Board held that that "[i]fthe Employer IS ordered to compensate the gnevors, It ought not to be so reqUIred wIthout the nght to reqUIre the gnevors to attend at the workplace and dIscharge theIr dutIes" Nevertheless, the Employer dId not claim, and there IS no eVIdence, that It would suffer financIal hardshIp If the motIOn were granted. 17 Instead, the harm would be to the Employer's employment accommodatIOn and return to work polIcIes, as well as Its L TIP appeal process Based on the eVIdence presented, the gnevor has determIned that she IS unable to work In her home posItIOn, but has not provIded any medIcal documentatIOn to the Employer to support thIS claim Nor dId she provIde any to the Board In connectIOn wIth thIS Intenm motIOn. The regular process for an employee In the gnevor's sItuatIOn, when she has exhausted her STSP benefits, IS to seek employment accommodatIOn or apply for L TIP The gnevor has not sought accommodatIOn. She dId apply for LTIP but her claim was reJected and she has not yet appealed. GrantIng an Intenm order that the gnevor be placed on a paid leave of absence, pendIng the completIOn of thIS lItIgatIOn, would have the potentIal to stop both processes The Employer would not be able, If It so chose, to seek the gnevor's return to work, wIth or wIthout accommodatIOn. The L TIP reVIew process, should the gnevor choose to appeal, would become unnecessary SIgmficantly the gnevor would be gIven a greater benefit than she would receIve under eIther the duty to accommodate or L TIP Under LTIP an employee receIves 66 2/3% of theIr salary Under the duty to accommodate, the employer has an oblIgatIOn to accommodate an employee to the pOInt of undue hardshIp In her home posItIOn If that IS not possIble, then the employer must look for alternatIve posItIOns In the workplace and Mimstry followed by the Ontano publIc servIce The employee has a duty to cooperate In thIS process, and to accept a reasonable accommodatIOn. The accommodatIOn, therefore, may not be an exactly eqUIvalent posItIOn as the Umon seeks In ItS argument In the alternatIve As the Board held In Re OPSEU (Rangel) supra at 7 "There IS never an absolute guarantee that accommodatIOn wIll be achIeved. The employer's duty IS to accommodate to the pOInt of undue hardshIp" 18 The Umon contends, however that the normal, regular processes are InapplIcable gIven the extraordInary nature of thIS case and the harassment that the gnevor has endured. The same argument was made In Re OPSEU (Latimer) supra In that case, at p 19 the Umon argued that "[w]hIle the employer was correct wIth respect to the normal CIrcumstances whIch must be present In order for an employee to receIve payment whIle off sIck, thIS IS defimtely not a normal sItuatIOn." In ItS analYSIS, the Board agreed, statIng at p 27 that "[t]hIS IS not a usual case ThIS IS a very specIal case and a very specIal request In very unusual cIrcumstances" Nevertheless, the Board dId not order the Employer to provIde Income to the gnevor dunng the Intenm penod. Instead, the regular processes - employment accommodatIOn and an IME, and L TIP appeal - were reqUIred. The Umon also argues that the accommodatIOn process and L TIP appeal process are completely separate and are not relevant to thIS proceedIng. It argues that thIS motIOn IS not seekIng an order that the gnevor be placed on L TIP or that she be accommodated. It submIts that an L TIP appeal, If one IS filed, and the accommodatIOn process may proceed Independently Rather It sImply seeks an order to place the gnevor on a paid leave of absence to separate the partIes from each other In lIght of the specIfic hIStory of thIS case With respect, I cannot agree that the Issues are so separate Although the Issues may be legally separate the practIcal realIty IS that they are IntertwIned. For sImIlar reasons, I cannot accept the Umon's alternatIve posItIOn that the gnevor be placed on a leave of absence wIth pay untIl the Employer can find her an eqUIvalent posItIOn. Such an order would potentIally usurp the employment accommodatIOn process 19 Conclusion For all of the reasons stated, and folloWIng the case law In partIcular Re OPSEU (Latimer) supra, the Umon's motIOn for Intenm relIef IS demed. Issued at Toronto thIS 13th day of February 2006