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HomeMy WebLinkAbout2003-2762.Howells.06-01-16 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# 2003-2762, 2003-2763 UNION# 2003-0725-0017 2003-0725-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Howells) Union - and - The Crown In RIght of Ontano (Ontano Clean Water Agency) Employer BEFORE Nimal V DIssanayake Vice-Chair FOR THE UNION Jim GIlbert Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Jamce Campbell Counsel Mimstry of Government ServIces HEARING May 30 & 31 October 20 & 21 and November 23 2005 2 DeCISIon This decision relates to two grlevances filed by Mr Cary Howells on October 21, 2003 In essence they claim that Mr Howells ("grievor") was terminated because of his disability, contrary to the Ontario Human Rights Code and the collective agreement The way the parties have joined issue, these grlevances ralse two primary issues First, whether the cessation of the grievor's employment was a result of termination of his employment (as asserted by the union) or a result of a non- renewal of an unclassified contract (as asserted by the employer) The second issue lS, if it lS found to be a non- renewal, whether the decision to not renew was in whole or In part based on a ground prohibited by the Human Rights Code and the collective agreement, so as to confer jurisdiction on this Board The grievor was hired on November 28, 2002 by the Ontario Clean Water Agency at its Atikokan Water Treatment Plant on an unclassified contract that had a term December 02, 2002 to May 14, 2003 His contract was then renewed from May 15, 2003 to August 31, 2003 During this first extension, on July 23, 2003 the grlevor was injured at work and went off work His WSIB 3 claim was approved and he has remained on WSIB benefits as of the last hearing date While he was off, he received a second extension of his contract, from September 1, 2003 to November 3, 2003 Then late in October the grievor received a letter from the Operations Manager, Mr Marcel Lavigne (The letter was dated September 15, 2003 but I accept the evidence that it was an inadvertent error and should have read October 15, 2003), which in part read Dear Mr Howells, Effective Friday October 31, 2003 your contract for employment with the Ontario Clean Water Agency has been terminated Another employee was hired on contract to fill the position that had been occupied by the grlevor Termination or non-renewal The grievor was hired into a position of Operator Trainee The position specification provides in part, "Must hold (or be able to obtain within specified time) Water Treatment, Wastewater Treatment, Wastewater Collection and Water Distribution 0 I T licenses to comply with Reg 435/93 (as amended) of the Ontario Water Resources Act" The Standard Operational Procedures of the employer stipulates that only persons holding a valid 0 I T licence 4 under Reg 435/93 may operate a municipal drinking-water system or a regulated non-municipal drinking water system The evidence lS that most employees do not possess the 0 I T licence at the time of hire However, only individuals who possess the prerequisites to write the 0 I T examination, l e grade 12 or equlvalency, are hlred The grlevor was an exceptlon In that he was hlred desplte not havlng hls grade 12 or equlvalency The usual progresslon was that an employee would pass the 0 I T llcence and then work for 1 year, whlch quallfles hlm to obtaln the full operator's llcence Mr Lavlgne testlfled that tYPlcally a flrst contract for a new hlre lS for 5~ months As a matter of pollcy employees are expected to obtaln the 0 I T llcence durlng the flrst contract Most do It In 2 months All new hlres durlng Mr Lavlgne's tenure, except for the grlevor, had obtalned the 0 I T llcence durlng thelr flrst contract Mr Lavlgne dlscovered that the grlevor dld not have hls grade 12 approxlmately a month after hls hlre, when he dlscussed wlth the grlevor about gettlng hls 0 I T llcence 5 Mr Lavlgne testlfled that he had lnstructed the grlevor's lmmedlate supervlsor at least on two occaSlons to dlrect the grlevor that he must get hls 0 I T llcence prlor to the explry of hls flrst contract on May 14, 2003 He had confldence that Mr Brown had done that However, by May 14th the grlevor had not obtalned hls 0 I T llcence In that sltuatlon an employee's contract would not normally have been renewed However, Mr Lavlgne dlscussed wlth Mr Brown that the grlevor was a good worker, and dlrected that hls contract be extended to glve hlm a further opportunlty to get hls 0 I T llcence Thls resulted In the extenslon of the grlevor's contract from May 15 to August 31, 2003 Mr Lavlgne testlfled that at the tlme of that extenslon It was expllcltly stated to the grlevor that he must obtaln hls 0 I T llcence In that perlod However, durlng the term of that contract, on July 23, 2003, the grlevor suffered a work-related lnJury and went off work on WSIB beneflts Even followlng dlscusslons wlth the Human Resources Staff, Mr Lavlgne was uncertaln whether he could allow the grlevor's contract to run out on August 31 :t, whlle he was off on WSIB In the Clrcumstances It was declded that the contract should be extended for two 6 months, to allow tlme for the employer to declde what It should do Thls resulted In a further contract from September 1, 2003 to November 3, 2003 Upon subsequent consultatlon wlth the Human Resources Dept , Mr Lavlgne was lnformed that WSIB had advlsed that Slnce the grlevor was on a short-term contract, hls employment can be termlnated, desplte the fact that he was on WSIB beneflts The unlon relled on two facts In submlttlng that the grlevor's last contract had been termlnated early, as opposed to not renewed Flrst, the contract had a term that was to explre on November 3, 2003, but the grlevor ceased to be an employee effectlve October 31, 2003 Second, the employer's letter ltself dld not use termlnology lndlcatlng a non-renewal Instead, It stated that effectlve October 31, 2003 hls contract has been "termlnated" The unlon urged me to flnd that the employer had declded to termlnate the contract early rather than lettlng It run out I accept the eVldence of the employer wltnesses that the lntentlon was to not renew the grlevor's contract after It runs out The eVldence lS that as early as July 2003, 7 Mr Lavlgne had communlcated to Mr Brown hls declslon to not renew the grlevor's contract, If he had not obtalned hls 0 I T llcence by August 31, 2003 The subsequent two month extenslon was made only because of the uncertalnty created by the grlevor's lnJury The eVldence lS that throughout, the dlScusslon was about not renewlng If the grlevor dld not quallfy hlmself There was no eVldence of any dlScusslon about termlnatlng the contract early Even durlng thelr testlmony, It was obvlous that Mr Lavlgne nor Mr Brown appreclated the slgnlflcance In law In the dlstlnctlon between the terms termlnatlon and non- renewal I have no reason to doubt Mr Lavlgne's explanatlon that when he used the word "termlnated" In the letter, he lntended to convey that the contract wlll not be renewed He explalned that whlle the contract was to run to Monday November 3, 2003, he recognlzed that the grlevor was not at work anyway October 31, 2003 was a Frlday and also the end of a pay perlod For admlnlstratlve and payroll purposes It was much eaSler, If employment lS deemed to end at the end of a pay perlod It was only because of thls admlnlstratlve convenlence that he used the 8 October 31, 2003 date There was never an lntentlon to termlnate the contract early Whlle technlcally an early termlnatlon could be sald to have occurred where an employee wlth a contract that runs to November 3 ceases to be employed effectlve October 31, I accept the employer's eVldence that there was no lntentlon to termlnate the contract early It lS lmprobable that the employer would be anXlOUS to rld ltself of an employee who lS not at work anyway, when he had only three more days before hls contract ran out Whlle the employer had made several admlnlstratlve and/or clerlcal errors, I am satlsfled that what was lntended, and what occurred, was a declslon to not offer the grlevor a new contract Was the declslon to not renew In contraventlon of the Human Rlghts Code and the collectlve agreement In llght of the flndlng that what occurred was a non- renewal, the Board's ]urlsdlctlon to reVlew the employer's declslon lS very narrow However, there lS common ground that If the declslon to not renew was made In vlolatlon of the grlevor's rlght not to be dlscrlmlnated on the basls of hls handlcap, the Board does have ]urlsdlctlon 9 The employer's posltlon lS that the declslon to not renew was solely based on the grlevor's fallure to obtaln hls 0 I T llcence whlch was requlred by leglslatlon before he could perform the full range of dutles of hls posltlon Counsel submltted that whlle normally a new hlre lS expected to obtaln the 0 I T llcence durlng hls lnltlal 5~month contract, the grlevor In fact recelved preferentlal treatment When he had falled to quallfy hlmself durlng hls flrst contract, he recelved an extenslon to allow hlm more tlme to get hls 0 I T llcence Hls supervlsor took the lnltlatlve to contact a school where he could do the necessary studles He was allowed pald tlme off to attend the school Desplte the encouragement and asslstance by the supervlsors, the grlevor had falled to quallfy hlmself As a result, the grlevor could only perform labourer type dutles of hls posltlon He could not do technlcal dutles unless he was accompanled by another quallfled employee Counsel pOlnted out that the Operator Tralnee posltlon, by deflnltlon, envlsaged that an lncumbent would complete hls tralnlng and become quallfled Whlle the leglslatlon dld not stlpulate that the quallflcatlon must be obtalned wlthln a speclflc tlme perlod, the employer had followed a 10 conslstent pollcy of requlrlng that employees quallfy themselves durlng thelr lnltlal contracts The reasonableness of that pollcy lS eVldenced by the fact that all new hlres, except for the grlevor, had met that tlme- llne One of the maln confllcts In the eVldence lS about the tlmlng and nature of the notlce glven to the grlevor by the employer that he was requlred to obtaln hls 0 I T llcence If he lS to contlnue hls employment The employer's eVldence lS that the grlevor was so advlsed flrst durlng the lntervlew that led to hls hlre, and subsequently on at least several occaSlons The grlevor testlfled that he flrst became aware of the requlrement In late January/early February 2003 The unlon pOlnted out that the employer could have done thlngs dlfferently If It wlshed to convey to the grlevor that the obtalnlng of hls 0 I T llcence lS a condltlon of hls contlnued employment The employer should have expllcltly stlpulated that condltlon In the letter of appolntment, for lnstance I agree that the employer could have documented many of ltS deallngs wlth the grlevor, 11 whlch would have made It much eaSler for the employer to defend ltself The employer produced no wrltten document where the grlevor was advlsed of the requlrement Indeed, It was conceded that all such communlcatlons were verbal Nevertheless, even on the grlevor's own admlsslon, at least by January/February 2003, the grlevor was aware of the requlrement to get hls 0 I T llcence The obllgatlon to quallfy hlmself lS hls Not the employer's The employer provlded hlm asslstance to achleve the quallflcatlons Perhaps the employer could have done more, as the unlon suggests However, I have not been referred to any legal obllgatlon on the employer In that regard Whlle the employer could have been more dlrect and formal In communlcatlng the lmportance of obtalnlng the 0 I T llcence, I flnd that the grlevor dld recelve the followlng memorandum dated February 3, 2003 from hls supervlsor, Mr Brown Cary you have only 13 5 credlts avallable at thls tlme You need 1800 credlts to wrlte for your OITs I have talked to Anlta Petrof about thls today Anlta has sald they wlII let you wrlte If you pass your GED test The flrst avallable test tlme lS, Feb 21 & 22/2003 You wlII have to wrlte at thls tlme It wlII be held In Thunder Bay at the 12 Confederatlon College These dates are on Frlday and Saturday In February Flrst steps are to go to Readlng Plus In Atlkokan, they wlII setup testlng procedures to help you out, thls wlII allow them to determlne what you need to study up on and prepare you to wrlte They wlII send a schedule for you to follow and a meetlng tlme to dlscuss all requlrements Thls lS the only way you can achleve the requlred crlterla to wrlte, It must be done Thls lS a requlrement, for your work posltlon, wlthout the ablllty to become certlfled your contract wlII be termlnated (Emphasls added) Whlle I have dealt wlth the foregolng arguments forwarded by the unlon, that lS really a dlgresslon from the lssue whlch allows me ]urlsdlctlon to reVlew the employer's declslon to not renew an unclasslfled contract That lS, was that declslon made, In whole or In part because of the dlsablllty suffered by the grlevor on July 23, 2003 In thls regard, Mr Lavlgne testlfled that In July, prlor to the date of the grlevor's In]Ury, It became apparent to hlm that the grlevor would not be able to obtaln hls 0 I T llcence by the end of hls contract on August 31, 2003 Therefore he declded to termlnate the 13 grlevor's employment effectlve August 31, 2003 and communlcated that declslon to the grlevor's supervlsor, Mr Brown Mr Brown corroborated thls eVldence, that prlor to the grlevor's lnJury Mr Lavlgne told hlm that the grlevor's employment wlII be termlnated at the end of hls contract on August 31, 2003 unless he obtalns hls 0 I T llcence by that date Thls eVldence clearly establlshes that the declslon to not renew was predlcated solely on the grlevor's obtalnlng of the 0 I T llcence, and had nothlng whatsoever to do wlth hls lnJury In other words, the grlevor's contract would not have been renewed, even If he had not suffered the lnJury, because he had falled to quallfy hlmself The unlon submltted that the lnJury suffered by the grlevor prevented hlm from obtalnlng hls 0 I T llcence, and suggested that the employer could have "accommodated" the grlevor by keeplng hlm on employee status untll he was able to obtaln hls quallflcatlons It was pOlnted out that, Slnce the grlevor was off work on WSIB beneflts, It would not have caused any hardshlp for the employer to do so I agree that the employer could have done so However, the lssue lS whether the employer had a legal 14 obllgatlon to do so The answer clearly lS "no" The duty to accommodate means maklng whatever arrangements requlred ( short of undue hardshlp) to enable the dlsabled employee to return to the workforce There lS no eVldence whatsoever that the grlevor had made any request for accommodatlon that would have enabled hlm to return to work On the contrary, there lS eVldence that the grlevor falled to respond to an offer from the employer that he attend work desplte hls lnJury and do "llght dutles" lnvolvlng the reVlew of operatlonal procedures In Re Gallagher 152/94 (Gray) , the unlon argued that because the employer could have conferred employee status on the grlevor wlthout sufferlng undue hardshlp, It was obllged to "accommodate" the grlevor by renewlng hls employee status and slmply toleratlng hls total lncapaclty untll such tlme as he recovered sufflclently to return to modlfled dutles The Board, at pp 16-17 wrote When the Superlntendent declded she would not reappolnt the grlevor to employment as an unclasslfled correctlonal offlcer, the grlevor was lncapable of performlng the essentlal dutles of that employment, and there was no prognosls then as to when, If ever, he would recover sufflclently to perform elther regular or modlfled dutles The employer argued that whatever It may have chosen to do In the past, the Code dld not 15 obllge It to appolnt to a posltlon someone then lncapable of performlng the work of that posltlon The unlon's response was that because the employer could have conferred employee status on the grlevor wlthout sufferlng undue hardshlp, It was obllged to "accommodate" the grlevor by renewlng hls employee status and slmply toleratlng hls total lncapaclty untll such tlme as he recovered sufflclently to return to modlfled dutles Thls ralses the dlfflcult questlon whether slmply toleratlng total lncapaclty lS an accommodatlon of the sort requlred by subsectlon 17 (2) of the Code That questlon was addressed thls way In Re Bonner v Ontario Ministry of Healthr Insurance Systems Branch (1992) 16 C H R R D/485 ( Hubbard) at paragraph 80 Sectlon 16(la) [now s 1 7 (2) ] of the Code and the case law deallng wlth the former s 16 (1) (b) lndlcate that a person cannot be Judged lncapable of performlng unless It lS found "that the needs of the person cannot be accommodated wlthout undue hardshlp " Clearly the "needs" In questlon are needs whlch If met would actually enable a person to perform the work so that It can be sald that, but for the fallure to provlde those needs, the employee would have been able to perform the work The "needs" must be such that upon thelr accommodatlon capaclty would occur The "need" for deferral of actlvlty to some future tlme In the hope that Clrcumstances wlII change for the better lS not a "need" the accommodatlon of whlch would enable the person to perform work that he or she lS demonstrably unable to perform currently It lS not, In my oplnlon, a "need" wlthln the meanlng of that term as contemplated by the Code 16 When the Superlntendent declded not to appolnt the grlevor to a further term of employment as an unclasslfled correctlonal offlcer, there was no need whlch, If accommodated, would have enabled the grlevor to then perform elther regular or modlfled work In that posltlon If the analysls In Bonner lS rlght and bears appllcatlon here, It would follow that the employer was not obllged by the Code (or, If the declslon had been made In December 1993, by Artlcle A) to accommodate hlm In the manner suggested by the unlon, no matter how llttle It mlght have cost It to do so In the present case there lS no eVldence that It was the lnJury that prevented the grlevor from gettlng hls 0 I T llcence He had been employed approxlmately for 8 months before hls lnJury He had yet not obtalned hls prerequlsltes to be In a posltlon to wrlte for hls 0 I T llcence The lnescapable concluslon to be reached from the eVldence lS that the declslon was based solely on the grlevor's fallure to obtaln the requlred quallflcatlons as per employer pollcy Thls Board has no Jurlsdlctlon to pass Judgement on the reasonableness of that declslon In the Clrcumstances faced by the grlevor In any event, as In Re Gallagher (supra) the grlevor was, at the relevant tlme, lncapable of performlng the essentlal dutles of hls posltlon There was no prognosls as to when, If at all, he would recover sufflclently to be able to perform regular, or even modlfled dutles In the Clrcumstances there was no 17 duty to accommodate by renewlng the grlevor's contract untll such tlme that he lS able to return to work I flnd that there has been no vlolatlon of the Human Rlghts Code or the collectlve agreement The grlevances are therefore dlsmlssed Dated thls 16th day of January, 2006 at Toronto, Ontarlo ~ . . ,.... , " . . -, > .. .. .... ... . 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