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HomeMy WebLinkAbout2003-2128.Moon.03-12-01 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# 2003-2128 UNION# 2003-0104-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Moon) Grievor - and - The Crown In RIght of Ontano (Mimstry of EducatIOn) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION George RIchards Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Deborah Metrakos Staff RelatIOns Consultant Mimstry of EducatIon TELECONFERENCE November 18 2003 2 DECISION On November 18 2003 I partIcIpated In a teleconference between George Richards, an OPSEU Gnevance Officer and Deborah Metrakos, a Labour RelatIOns Consultant wIth the Mimstry of EducatIOn. The purpose of the conference was to allow the Umon to make a motIOn for Intenm relIef In the matter of the gnevance of Brenda Moon. The gnevor was first employed by the Mimstry In December of 1986 on a supply basIs and IS currently an unclassIfied seasonal Classroom AssIstant at the Robarts School for the Deaf In London. She has had a long-standIng hIStOry of physIcal and mental health problems datIng back to the early 1990's For purposes of thIS applIcatIOn I do not need to recIte the hIstoncal background to her present problems Suffice to say that her physIcal condItIOn have been addressed by the Employer by adjustments to her work sItuatIOn. Her physIcIan had IndIcated approval for the accommodatIOns made The Issue before me concerns appropnate accommodatIOn for her psychologIcal problems The accommodatIOns at the tIme Included a temporary transfer from the Robarts School to the Amethyst DemonstratIOn School, whIch IS for chIldren wIth severe learnIng dIsabIlItIes The move was temporary In that the Employer was seekIng clanficatIOn of her lImItatIOns before decIdIng what, If any permanent accommodatIOn would be necessary ThIS temporary arrangement was to contInue to December of 2002 By December the Employer had not receIved the necessary InformatIOn and the accommodatIOn was extended. In February the Employer receIved lImIted medIcal InformatIOn about the gnevor's condItIOn and no InformatIOn on accommodatIOn. The Employer wrote detaIled letters to the gnevor's physIcIans and by Apnl had receIved appropnate medIcal InformatIOn on her physIcal lImItatIOns but nothIng wIth respect to her psychIatnc restnctIOns The gnevor consented to an Independent medIcal eXamInatIOn and, although the consultatIOn was completed on May 26 2003 the Employer has not receIved a copy of the report. The Employer had asked ManulIfe to arrange for the IME and theIr process reqUIred specIfic consents by specIfic deadlInes In any event, the result has been a delay In the release of the report. It IS not dIsputed at thIS tIme that the gnevor' s physIcal lImItatIOns have been addressed and that any further accommodatIOn reqUIred are related to he psychologIcal condItIOn. The Robarts and Amethyst schools are located on the same property In London and operated by the Mimstry of EducatIOn. The programs are dIStInCt In that the staff workIng at Robarts must be able to commumcate USIng Amencan SIgn Language (ASL) OtherwIse the essentIal dutIes are sImIlar It IS the ASL that IS problematIc for the gnevor I was not told why It IS problematIc although I assume It IS a matter of addItIOnal stress for the gnevor The temporary arrangement at Amethyst was dIscontInued In September and the gnevor returned to Robarts Shortly thereafter the gnevor wrote a letter to the pnncIpal complaInIng about beIng harassed by her fellow workers When asked to provIde more InformatIOn about the harassment, the gnevor never responded. The Umon's posItIOn IS that dealIng wIth the WDHP complaInt process IS too stressful for the gnevor at thIS tIme 3 SIX days after her return to Robarts, the gnevor went off on sIck leave Her physIcIan's note stated she would be off work for four weeks She has remaIned off to the present. The Employer takes the posItIOn that It has already accommodated the gnevor to the extent necessary to allow her to return to the physIcal aspects pfher job It IS commItted to contInuIng the IME process and, If necessary makIng accommodatIOns for any restnctIOns her physIcIan recommends However It had no opemngs In Amethyst and, In order to accommodate the gnevor It would have to dIsplace another employee In the face of thIS lack of InformatIOn, the Employer has done all It can at thIS tIme and It should not have to dISrupt ItS workplace wIthout proof of the need to do so The gnevance was filed on September 15 2003 and It was referred to the GSB on October 21 st The Employer attempted to set up a 2nd stage meetIng but the Umon RepresentatIve was unable to meet In November A meetIng IS arranged for December 3 2003 and the Employer asks thIS Board to dIsmIss the motIOn for Intenm relIef and allow the partIes to meet to contInue dIscuSSIOns about future accommodatIOns Mr RIchards takes the posItIOn that the gnevor wIll suffer Irreparable harm If she IS not returned to work as soon as possIble She has no Income and the stress of beIng unemployed can only exacerbate her psychologIcal problems The arbItratIOn process could result In a delay of several months or even a year before a final determInatIOn IS made AskIng her to return to Robarts, the very sItuatIOn that causes her stress In the first place, IS not a vIable alternatIve The test for Intenm relIef had been twofold the eXIstence of an arguable case on the ments and the balance of potentIal harm or Inconvemence In applYIng that test to the facts of thIS case, I must dIsmIss thIS applIcatIOn. In my VIew there IS not enough InformatIOn at thIS stage to determIne whether there IS an arguable case on the ments I am told that the gnevor IS happIer at Amethyst School and that her attendance and sIck leave record had Improved whIle In the temporary posItIOn. However I cannot determIne whether that IS because her psychologIcal needs are beIng better met at Amethyst or whether she IS happIer because that IS where she prefers to be If It IS the latter that cannot be grounds for accommodatIOn. NeIther party provIded me wIth any medIcal InformatIOn about any restnctIOns necessary to accommodate the gnevor's psychologIcal condItIOn. As far as I know none have yet been IdentIfied by her physIcIan. It cannot be said then that there IS an arguable case that the gnevor wIll succeed at arbItratIOn and therefore I cannot grant the request for Intenm relIef The applIcatIOn for Intenm relIef IS therefore demed. Dated at Toronto thIS 1 st day of December 2003