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HomeMy WebLinkAbout2004-3263.Clarke.05-01-26 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# 2004-3263 UNION# 2004-0271-0007 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Clarke) Union - and - The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION GavIn Leeb BarrIster and SOlICItor FOR THE EMPLOYER Kelly Burke Semor Counsel Management Board Secretanat HEARING January 17 19 & 25 2005 2 DeCISIon The Umon has moved for Intenm relIef In regard to the Employer's decIsIOn not to renew ItS temporary transfer agreement wIth the gnevor Ms Florence Clarke under whIch she worked as a classIfied court reporter In the Milton courthouse, rather than at the Duffenn/Finch courthouse locatIOn, her home posItIOn. Ms Clarke filed a gnevance protestIng the Employer's decIsIOn on December 20 2004 The Umon requests that the Board Issue an order requmng the Employer to rescInd the termInatIOn of that agreement, pendIng the heanng of her gnevance contestIng the Employer's decIsIOn. The partIes agree that I have JunsdIctIOn to decIde thIS motIOn for Intenm relIef There was no agreement regardIng JunsdIctIOn of the underlYIng gnevance and the Employer has specIfically stated that It IS not WaiVIng any of the procedural reqUIrements under the collectIve agreement. Background In May 2001 Ms Clarke, along wIth two other classIfied court reporters, filed a gnevance assertIng that "we have been forced to perform authonzed dutIes on overtIme hours wIth no overtIme pay contrary to the collectIve agreement." Thereafter on August 20 2003 the Umon filed a polIcy gnevance allegIng that "[t]he work assocIated wIth the preparatIOn and productIOn of typed transcnpts and certIfYIng them as accurate IS bargaInIng umt work to whIch the collectIve agreement applIes" 3 The first day of heanng was on July 10 2003 and SInce then there have been many heanng dates Four awards have been Issued due to vanous motIOns filed by the partIes, and there IS substantIal eVIdence left to hear Ms Clarke has testIfied a number of tImes In these proceedIngs, and her testImony was to contInue on December 17 2004 On that date, however she was unable to testIfy because on the precedIng day December 16 2004 she was advIsed by her manager Ms Bev Thomson, that the Mimstry would be termInatIng her agreement to work In the Milton court house EffectIve January 3 2005 she was to report to work at the Duffenn/FInch courthouse On December 17 2004 the partIes' agreed to have the Umon's motIOn for Intenm relIef heard on January 17 2004 The heanng then contInued on the evemngs of January 19 and January 25 2005 Facts Ms Clarke IS a classIfied court reporter wIth the Mimstry of the Attorney General, and has worked In that posItIOn for more than twenty years Her home posItIOn was at 80 The East Mall court house In EtobIcoke, and she worked there approxImately mne years In 2001 due to mold problems at 80 The East Mall locatIOn, the EtobIcoke court was temporanly relocated to the FInch/Duffenn courthouse at 2201 FInch Avenue ThIS relocatIOn was very problematIc for Ms Clarke due to the locatIOn of that court In relatIOn to her home In StreetsvIlle, Ontano She explaIned that she was a "nervous dnver" havIng obtaIned her dnver's lIcense at the age of 41 and she was afraid to dnve on hIghways The traffic, the trucks, cars weaVIng between lanes on Highway 401 was very fnghtemng to her In addItIOn, she had InqUIred about publIc transIt from the TTC and was advIsed that the commute would take approxImately 2 1Iz hours each way whIch she felt was prohIbItIve She dIscussed her concerns 4 wIth her supervIsor Bobby KIStOW and her manager Rosa MartellI, both of whom were sympathetIc On May 15 2001 Ms Clarke requested a temporary transfer to the Milton court. That letter reads, In pertInent part, as follows Two weeks ago we were Informed that the lease had been sIgned to accommodate the East Mall Courthouse at 2201 FInch Ave for a two year penod. ThIS news has caused me great stress I lIve In StreetsvIlle and have been commutIng back and forth to 80 the East Mall both by Go traIn and car for the last mne years To travel every day to thIS new locatIOn at FInch and Weston from where I lIve would cause extreme duress that I belIeve would eventually take ItS toll on my mental well-beIng. I learned to dnve late In lIfe and do not take the hIghways My optIOns for routes are EglInton and Steeles Avenue I have done Steeles to FInch and Duffenn, and It has taken me over an hour and a half one way and that IS not In rush hour traffic To get to The East Mall takes me between 30 to 35 mInutes by car or Go traIn. To travel to the new locatIOn by publIc transIt from StreetsvIlle would take at least three hours one way I have already verbalIzed my request to be transferred to Milton dunng thIS temporary penod. Your response has been very posItIve and I trust that after twenty-two years servIce WIth the Mimstry that thIS accommodatIOn wIll be realIzed. On June 26 2001 Ms Clarke's request was approved. Manager of Court OperatIOns for the Milton court, Ms Bev Thomson, testIfied that the temporary transfer was acceptable to Milton provIded that It was "cost neutral" to the Milton courthouse She explaIned that the Milton court dId not have an operatIOnal need for a full-tIme court reporter but she was wIllIng to assIst by havIng Ms Clarke work In Milton whIle the mold Issue was beIng addressed, provIded there was no addItIOnal cost for the hours Ms Clarke was not actually In court. The East Mall courthouse agreed to pay for those hours Ms Thomson stated that she had not seen Ms Clarke's May 15 2001 letter and was not aware that the request had been made based on Ms Clarke's fear of dnvIng on hIghways It was her understandIng, from Rosa MartellI, the Manager of Court OperatIOns for 80 The East Mall courthouse, that the Issue was one of dIstance and convemence 5 The Mimstry and Ms Clarke entered Into a "temporary transfer agreement" dated September 20 2001 That agreement states as follows 1 ThIS document constItutes a temporary transfer agreement of Florence Clarke to the Milton Court office In the capacIty of Court Reporter Mimstry of the Attorney General, Court ServIces DIVIsIOn. 2 The term of thIS temporary assIgnment wIll be for 5 1Iz months, effectIve September 24th 2001 3 The assIgnment may be extended as operatIOnally reqUIred, at the dIscretIOn of the employer 4 Dunng the term of assIgnment Florence Clarke's salary and classIficatIOn (Court Reporter 11) wIll remaIn the same 5 For the duratIOn of the assIgnment Florence Clarke wIll be paid by Milton court. (EtobIcoke court wIll pay the dIfference of classIfied vs unclassIfied) 6 The transfer may be termInated by any of the partIes upon submISSIOn of two (2) weeks wntten notIce 7 Florence Clarke wIll report dIrectly to Michele Slosh, SupervIsor of court Support for program dIrectIOn and performance management. 8 Florence Clarke's home base wIll be Milton court but may be reassIgned on an emergency basIs to OakvIlle or BurlIngton court. 9 Upon termInatIOn of thIS assIgnment Florence Clarke wIll be reassIgned dutIes wIthIn the Courts ServIces DIVISIOn, Toronto RegIOn. 10 Upon the relocatIOn of the EtobIcoke Court back to the 80 The East Mall sIte, or an alternate permanent locatIOn, Ms Clarke wIll return to her home posItIOn of Court Reporter 2, Mimstry of the Attorney General, Court ServIces DIVISIOn, Toronto RegIOn (EtobIcoke) In later documents, the "temporary transfer agreement" was referred to as a "secondment agreement" and It was contInued, through vanous extensIOns, through January 1 2005 It was the gnevor's understandIng that her relocatIOn to Milton would last untIl the EtobIcoke courthouse returned to EtobIcoke She testIfied that she was unaware that the Mimstry on December 21 2001 announced that the EtobIcoke court would be permanently relocated to the 6 FInch/Duffenn courthouse effectIve Apnl 2, 2002 Mr Bobby KIStOW then SupervIsor at 80 The East Mall courthouse, testIfied that he faxed a copy of thIS announcement to Ms Clarke, at the Milton courthouse but he dId not know If she had actually receIved It. DespIte the permanent relocatIOn of the East Mall courthouse, the temporary transfer of Ms Clarke to the Milton courthouse contInued. As noted, Ms Clarke was unaware of the permanent relocatIOn and, apparently so was Ms Thomson. Ms Thomson testIfied that she was unaware that the locatIOn Issue had been decIded untIl she made Inqumes Into the specIfic terms of the transfer agreement In the late Fall of 2004 The Toronto regIOn had not advIsed her of thIS Over the summer of 2004 a number of actIOns were taken by Manager Thomson In regard to the court reporters and court support staff generally and to Ms Clarke specIfically that Ms Clarke felt were harassment because of her gnevance regardIng the tYpIng of transcnpts On July 14 2004 she filed a gnevance whIch alleges a breach of ArtIcle 2 1 (Management RIghts) 3 2 (DIsCnmInatIOn for umon actIvIty) and ArtIcle 60 1 (Health and Safety) It was accompamed by a four-page attachment, outlImng what, In Ms Clarke's VIew had occurred. The letter lIsts a number of specIfic actIOns by Ms Thomson and concludes that the "no tYpIng dIrectIve and the escalatIng harassment Imposed by Ms Thomson whIch I belIeve to be dIrectly related to my umon actIvItIes and the arbItratIOn that I have been Involved wIth for the past three years, has now overwhelmed me" It further states that "[t]he contInUOUS and escalatIng harassIng behavIOr exhIbIted by Ms Thomas has put such stress on me that comIng to work IS very dIfficult." In fact, Ms Clarke took a week off due to stress In late June of 2004 Also In July 2004 Ms Clarke wrote to JustIce Durno AdmInIstratIve JustIce for the Supenor Courts, that she was "no longer able to prepare and certIfy my transcnpts" because of 7 the polIcy of the Mimstry prohIbItIng court reporters from tYpIng transcnpts dunng regular work hours She stated, In part Regretfully beIng reqUIred to type all my transcnpts after my regular workIng day has taken Its toll on my physIcal and mental well-beIng. After fourteen years, I am no longer able to contInue forfeItIng my weekends, vacatIOns and a good mght's sleep for the sake ofprepanng transcnpts In a tImely and accurate manner ThIS letter was copIed to her manager Bev Thomson, and a number of other IndIVIduals As a result of thIS letter IndIcatIng that she was "no longer able to prepare and certIfy my transcnpts" management began to transfer the tYpIng of Ms Clarke's transcnpts to other court reporters Ms Clarke would take the record, but another court reporter would be assIgned to type the transcn pt. On September 15 2004 a meetIng was held as a result of thIS letter between Ms Clarke and Ms Thomson, and a umon steward. Ms Clarke took what was said as a threat to cancel what she referred to as her "transportatIOn accommodatIOn" to the Milton court house In Ms Clarke's VIew thIS was the thIrd such threat Ms Thomson had made and she felt that Ms Thomson was USIng these threats as "leverage" agaInst her gIven the Importance to her of remaInIng In Milton. From the Employer's perspectIve, the meetIng was to deal wIth Ms Clarke's statement that she could no longer prepare transcnpts and the Impact that was havIng on her abIlIty to contInue In Milton. AccordIng to Ms Thomson, the JudIcIary had raised concerns In September about Ms Clarke's abIlIty to prepare overnIght transcnpts In lIght of her July letter and the fact that a number of JUry and cnmInal tnals were antIcIpated In the Fall whIch would reqUIre transcnpts on an on-gOIng basIs On thIS basIs, Ms Thomson felt that she could no longer 8 contInue to keep Ms Clarke In Milton and advIsed her of that. Dunng theIr dIscuSSIOns, Ms Clarke stated that she could, from tIme to tIme, do overnIght transcnpts, and Ms Thomson advIsed her thIS was new InformatIOn, compared to her letter of July and that the Mimstry would need medIcal documentatIOn outlImng what she could and could not do Although Ms Clarke dId not request a medIcal accommodatIOn, Ms Thomson took her letter and statement to be, In effect, a request for accommodatIOn. In Ms Clarke's VIew she was not requestIng a medIcal accommodatIOn. She Just wanted to be able to type transcnpts dunng the regular work day As a result of thIS meetIng, no changes were made to Ms Clarke's assIgnment, and Ms Thomson was to prepare a package for the gnevor to take to her doctor On November 6 2004 Ms Thomson provIded the medIcal forms to Ms Clarke Ms Clarke testIfied that she dId not reVIew them and requested, through an emaIl on November 8 2004 to know why she had to do so and that she would need Ms Thomson to wnte to her doctor that she was not allowed to prepare transcnpts dunng regular work hours and that they must be typed after work. The medIcal package provIded to Ms Clarke for her doctor outlInes her dutIes as a court reporter and specIfically mentIOns that those dutIes Include "provId[ing] certIfied transcnpts of court proceedIngs on request (note- transcnpts are prepared on Incumbent's own tIme) "Ms Clarke testIfied that because Ms Thomson dId not respond to thIS request, she dId not have the medIcal forms completed. On November 29 2004 Ms Thomson wrote to Ms Clarke agaIn requestIng that the medIcal forms be completed and outlImng the process of accommodatIOn. In response Ms Clarke requested that a meetIng be held. 9 On December 3 2004 a meetIng took place, at Ms Clarke's request, to dISCUSS a number of Issues, IncludIng the accommodatIOn process AgaIn, there IS a dIspute regardIng what was said. Ms Clarke and the Local Umon PresIdent took what had been said as assurance that Ms Clarke would contInue to work In Milton, that there was plenty of work for her there In the New Year The employer's eVIdence was that no assurance regardIng the contInUatIOn of her temporary transfer agreement was provIded. The eVIdence showed that there was sIgmficant dIscussIOn about the no-typIng polIcy dunng the meetIng. At the conclusIOn of the meetIng, Human Resources Consultant BIll Yaeden, who attended the meetIng through a conference call, advIsed that he would consIder what had been said and get back to the partIes As a result, accordIng to Ms Thomson, the request for medIcal InformatIOn was essentIally put "on hold." Then, on December 16 2004 consIstent WIth paragraph #6 of the ongInal temporary transfer agreement, the Mimstry provIded two week's wntten notIce that the transfer would be termInated Ms Thomson testIfied that a number of factors led to that decIsIOn. She explaIned that Ms Clarke's InabIlIty to type transcnpts was creatIng a number of operatIOnal dIfficultIes GIven the court's workload and the Judge's preferences, It was antIcIpated that she would need to be assIgned to tnals where It was more lIkely that transcnpts would be ordered, yet they would have to be assIgned to someone else, at a tIme when the overall workload of the court reporters and the Milton courts In general was IncreaSIng. A number of court reporters had complaIned about beIng unable to keep up wIth theIr own transcnpts as well as Ms Clarke's Although court reporters from other courts could be assIgned Ms Clarke's transcnpts, Ms Thomson was concerned about creatIng delays Conversely If she were transferred out of Supenor Court to the 10 Ontano Courts, there were concerns that her hours In court would be InSUfficIent and that the transfer arrangement would no longer be cost neutral Ms Thomson further testIfied that because Ms Clarke had stated, on a number of occaSIOns, that she had been transferred to Milton on an "accommodatIOn" whIch was not Ms Thomson's understandIng, she decIded to ask Human Resources to reVIew the terms of the ongInal agreement. Human Resources advIsed her that the transfer was not a medIcal accommodatIOn due to a dIsabIlIty and that the ImtIal reason for the transfer - the temporary relocatIOn of the East Mall courthouse - had been decIded some tIme ago She testIfied that SInce the contract was "naturally expmng" on January 1 2005 and the ongInal basIs for It - dealIng wIth a temporary relocatIOn - had been determIned, she decIded not to renew the agreement. On December 20 2004 Ms Clarke filed a gnevance protestIng the Mimstry's actIOn. The gnevance alleges that" the Mimstry's decIsIOn to termInate my assIgnment at Milton IS contrary to the collectIve agreement and the Ontano Labour RelatIOns Act." EssentIally Ms Clarke alleges that Ms Thomson termInated the agreement In retalIatIOn for her purSUIt of the gnevance In the Hunt et al case, and her complaInts about the no-typIng polIcy It IS clear that Ms Clarke feels that Ms Thomson, and the Mimstry have pumshed her for speakIng out forcefully on thIS Issue On December 20 2004 Ms Clarke sent an emaIl to Ms Thomson regardIng the decIsIOn to termInate her transfer to Milton and the manner In whIch It was done The content IS hIghly emotIOnal and reveals Ms Clarke's negatIve VIews about Ms Thomson. The emaIl states that dunng the meetIng on December 16 2004 Ms Clarke told Ms Thomson that "It was because of 11 the way you treated people that you were so dIsrespected In the bUIldIng." It complaIns that "you dId not even have the courtesy to Wait untIl the end of the day to gIve me what you knew would be very dIsturbIng news " It asserts that Ms Thomson "InstIgated" - wIth the Mimstry's encouragement - a "no-typIng" polIcy In Milton "that dId not eXIst In thIS JunsdIctIOn untIl I arnved rather than allow me to type dunng my regular workIng day" Ms Clarke testIfied about the harm that would ensue If Intenm relIef were not granted. She explaIned that travellIng to the Finch courthouse would be very dIfficult and stressful for her for the same reasons she had requested a temporary transfer to Milton In 2001 The dnve, gIven her fears regardIng dnvIng, precluded dnvIng on Highway 401 and takIng the sIde streets would take a substantIal amount of tIme as cause stress In addItIOn, on a personal level, she was concerned about the extra tIme reqUIred to commute, whIch would sIgmficantly Impact her famIly lIfe She explaIned that she was used to be home by 6 00 P m and that would become ImpossIble If she had to commute to the Finch courthouse She explaIned that workIng at Duffenn/FInch was not what she "had sIgned on for" when she was hIred by the Mimstry At the heanng, the Umon also presented a doctor's letter dated December 27 2004 from Ms Clarke's famIly doctor wntten at the request of the gnevor's counsel The letter states that "Ms Clarke does suffer from a psychologIcal dIsorder whIch she told me about at thIS most recent appoIntment of December 21 st She has qUIte a fear or phobIa of dnvIng, In partIcular on hIghways" He stated "For her to dnve to FInch and Weston from her MissIssauga home would have been overly traumatIc for her as she cannot dnve on hIghways due to pamc and anxIety dIsorder brought on by hIghway dnvIng." He noted that "publIc transIt to thIS locatIOn would have taken about two hours so thIS was ObvIOusly not feasIble" He also noted "[t]hIS condItIOn may be somewhat amenable to treatment, however we have not dIscussed thIS pnor to her last 12 appoIntment. " He stated that there are specIalIsts who deal wIth these dIsorders, "but the treatment IS not always successful and can be lengthy" It was the doctor's OpInIOn that because she must lImIt herself to smaller roads, "I feel that her workIng at the FInch and Weston Road locatIOn IS not possIble" In hIS OpInIOn, "due to thIS anxIety dIsorder she does reqUIre an accommodatIOn In the form of a contInUatIOn of her assIgnment to the Milton Court House The only other vIable optIOn may be workIng In a locatIOn closer than the FInch locatIOn such as Brampton. However Milton appears to be an Ideal arrangement for her gIven her medIcal dIsabIlIty" The Employer strongly obJected to the IntroductIOn of thIS letter wIthout the doctor beIng called to testIfy and be subJect to cross-eXamInatIOn. At the heanng, the letter was IdentIfied In the record, but not admItted Into eVIdence, wIth the partIes to make submIssIOns on the Issue In cloSIng argument. Manager Thomson testIfied regardIng the Impact of the Board's ordenng Ms Clarke to remaIn In Milton, pendIng a heanng on the ments They Included a number of operatIOnal concerns related to Ms Clarke's InabIlIty to type transcnpts after hours, IncludIng concerns about beIng unable to contInue to assIgn her to motIOns court where few transcnpts are reqUIred, concerns about findIng others who could type her transcnpts, concerns about that sItuatIOn ImpactIng a tnal She also testIfied about the dIfficultIes created by Ms Clarke's allegatIOns of harassment on her abIlIty to manage She explaIned that she felt "ImmobIlIzed" and "paralyzed" by Ms Clarke's accusatIOns and the IncreaSIng gap between what she Intended and Ms Clarke's InterpretatIOn of her actIOns She stated that theIr relatIOnshIp had detenorated and that theIr meetIngs had become IncreasIngly hostIle and "tOXIC" and that after each meetIng there were emaIls from Ms Clarke, copIed wIdely In the Mimstry aCCUSIng her of harassment. She stated that the sItuatIOn was also negatIvely ImpactIng her relatIOnshIp wIth the Local Umon PresIdent. After the meetIng on December 16 2004 as Ms Clarke and the Local Umon PresIdent left her 13 office her door was slammed shut and the Local Umon PresIdent said "what a bItch." Ms Thomson also testIfied that It was her VIew that other employees were very aware of the conflIct between Ms Thomson and Ms Clarke and were uncomfortable wIth that sItuatIOn, IncludIng one person who asked that Ms Clarke not return to Milton. Decision 1 Jurisdiction The Employer asserts that the Board has no JunsdIctIOn to order Intenm relIef regardIng ItS decIsIOn not to renew Ms Clarke's secondment agreement. It asserts that determInatIOns of that nature are vested exclusIvely In management and do not anse from any "nght" In the collectIve agreement, over whIch the GSB has JunsdIctIOn. I conclude that the Board does have JunsdIctIOn to order Intenm relIef In thIS matter The Board has adopted a consIstent body of Junsprudence In thIS area whIch broadly Interprets the power "to make Intenm orders concernIng procedural matters" as set forth In SectIOn 48(12)(1) of the Ontano Labour Relations Act. OPSEU (Fox et al) and Ontario Human Rights Commission (2001) GSB No 0507/01 et al (Stewart) ProvIded that the relIef IS not dISposItIve of the gnevance and the umon IS able to satIsfy the two-part test for Intenm relIef, the Board clearly has JunsdIctIOn to order such relIef In thIS case, management's nght to termInate the temporary transfer agreement IS not absolute It IS fettered by the gnevor's nghts under the collectIve agreement, IncludIng ArtIcle 3 2 whIch prohIbItS "dISCnmInatIOn or harassment practIsed by reason of an employee's membershIp or actIvIty In the Umon." ArtIcle 2, Management RIghts, states that management has the nght to manage the busIness and dIrect the workforce" IncludIng the enumerated specIfic 14 thIngs, "subJect only to the provIsIOns of thIS Central CollectIve Agreement " Therefore management's nght to termInate Ms Clarke's temporary transfer agreement IS lImIted by ItS oblIgatIOn not to dISCnmInate on the basIs of Umon membershIp or actIvIty The Ontano Labour Relations Act also prohIbItS dISCnmInatIOn on the basIs of Umon actIvIty and that Includes the filIng and purSUIng of gnevances Ms Clarke's December 20 2004 gnevance alleges, In part, that the termInatIOn of the agreement was because of her gnevance In relatIOn to the preparatIOn oftranscnpts and her partIcIpatIOn In that proceedIng. It IS clearly a matter over whIch the Board has JunsdIctIOn to reVIew the Employer's actIOn and to Issue Intenm relIef, If appropnate 2. Is there an arguable case on the merits? The case law establIshes a two-part test for the grantIng of Intenm relIef The two-part test 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 Inconvemence of the partIes In decIdIng If there IS "an arguable case on the ments" the standard IS not a "balance of probabIlItIes" standard but a lesser standard. OPSEU (Union Grievance) and Management Board Secretariat (1997) GSB No 1196/97 (DIssanayake, Vice-Chair) at p 6 In thIS case, based on that lesser standard, I find that there IS an arguable case on the ments The Umon's eVIdence, If credIted at the heanng, would establIsh that the Mimstry's decIsIOn was based, In least In part, on Ms Clarke's actIvItIes In support of the transcnpt preparatIOn gnevance 3 Where does the balance of potential harm or inconvenience lie? I find that thIS IS the truly dIfficult determInatIOn In thIS matter because I belIeve that there IS harm to both partIes There can be no questIOn that Ms Clarke would find the commute to FInch/Duffenn qUIte stressful and sIgmficantly more tIme-cOnsumIng than her commute to 15 Milton. It IS clear though, that she would not have to take Highway 401 to get there, or take publIc transportatIOn. She could dnve USIng a vanety of routes, only one of whIch she has ever tned. Nor IS there any eVIdence that other alternatIves, whIch would lImIt the amount of dnvIng she would have to do have been consIdered, such as car poolIng or obtaInIng a nde wIth someone Nevertheless, It IS clear that Ms Clarke would find the commute to the Duffenn/FInch locatIOn to be qUIte dIfficult and stressful As noted prevIOusly the Employer obJected to the IntroductIOn of the letter from the gnevor's doctor dated December 27 2004 wIthout the doctor beIng present for cross- eXamInatIOn. It argued that the tImIng and content of the letter were hIghly SUSpICIOUS, that the letter was prepared at counsel's request to support her claims In thIS proceedIng, and that It should not be accepted Into eVIdence wIthout the doctor beIng called as a wItness In support It cItes to Re Abitibi Consolidated Inc and International Association of Machinists and Aerospace Workers, Lodge 268 (2002) 103 L.AC (4th) 160 (Spnngate) The Umon argued that the letter was admIssIble under the Ontano Labour Relations Act and that the only Issue was the weIght to be gIven It. In support, It cItes to Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees Local 79 (1992) 25 LAC (4th) 73 (Spnngate) In the alternatIve, the Umon suggests that an Intenm order be granted, pendIng the Umon's abIlIty to present the doctor for eXamInatIOn and cross-eXamInatIOn, relYIng on OPSEU (Nield) and MinistlY of Labour (1996), GSB No 1471/96 (Roberts), endorsed by the DIvIsIOnal Court, January 22, 1997 In the ordInary course, i e a regular heanng on the ments, I would not admIt the doctor's letter of December 27 2004 wIthout the doctor beIng called to testIfy As set out In Re Abitibi 16 Consolidated Inc supra at p 162, and the cases cIted thereIn, the more recent Junsprudence has "adopted the VIew that a medIcal note or report of any consequence should not be admItted Into eVIdence at the request of one party unless the doctor who prepared the document IS made avaIlable to be cross-examIned by the other party If It so requests" The doctor's letter of December 27 2004 IS clearly a medIcal report "of consequence" and IS germane to a central Issue In thIS case The type of "proof' accepted In applIcatIOns for Intenm relIef, however appears to be of a lesser standard due to the need for expedIency In OPSEU (Nield) supra at p 6 the arbItrator accepted the unsworn declaratIOn of the gnevor as sufficIent eVIdence to grant a temporary order for Intenm relIef, "at least where the CIrcumstances are so urgent as to make vIrtually ImpossIble the submIssIOn of better eVIdence" In thIS case the Umon tned, wIthout success, to have the doctor testIfy on January 17 2004 Further In OPSEU (Union Grievance) and Management Board Secretariat (1997), GSB No 1196/97 (DIssanayake) the Board relIed on the submIssIOns of counsel where no wItness testIfied about the potentIal harm The Board held at pp 8-9 [T]he predIctIOn of umon counsel, although not tendered as eVIdence under oath, In my VIew was a reasonable and logIcal predIctIOn of what may occur In these types of proceedIngs, no party wIll be able to "prove" the harm because tYPIcally requests for Intenm relIef are made before the harm IS done In each case, In consIdenng the condItIOn of "balance of harm" the Board must attempt as best as It can, to predIct what harm may be reasonably expected In the partIcular cIrcumstances 17 AccordIngly In lIght of the nature of thIS proceedIng, I wIll admIt the doctor's letter Into eVIdence, but for the reasons set forth below I can only gIve It mImmal weIght. Although admIssIble, the letter IS hearsay and the Employer dId not have a chance to cross- examIne the doctor It was also clearly wntten for thIS heanng In order to bolster the gnevor's claim I do find that the letter confirms the gnevor's testImony that she has a fear or phobIa about dnvIng on hIghways What I cannot accept IS the doctor's conclusIOn that her workIng at Duffenn/FInch by takIng smaller sIde streets IS "not possIble" so therefore "she reqUIres an accommodatIOn In the form of a contInUatIOn of her assIgnments to the Milton Court House" or a closer locatIOn than FInch. The phobIa he descnbes IS related to hIghway dnvIng, not dnvIng In general He specIfically states that "she cannot dnve on hIghways due to pamc and anxIety dIsorder brought on by hIghway dnvIng." In the letter the doctor does not consIder any other alternatIves such as carpoolIng or obtaInIng a nde wIth someone, and he sImply reJects the length of the commute by publIc transIt as "ObvIOusly not feasIble" The letter makes no mentIOn of the allegatIOns of harassment made by Ms Clarke agaInst the manager of the Milton courthouse, nor dId he consIder from that perspectIve, the Impact that her staYIng at the Milton courthouse In addItIOn, the letter states that "[t]hIS condItIOn may be somewhat amenable to treatment" although none has been explored. The possIbIlIty of treatment undermInes the conclusIOn that she "reqUIres an accommodatIOn In the form of a contInUatIOn of her assIgnments to the Milton Court House" These factors, In my VIew undermIne the conclusIOns regardIng accommodatIOn reached by the doctor AccordIngly I find that the doctor's letter supports the gnevor's testImony that she has a phobIa about hIghway dnvIng, but It does not establIsh that the Employer must accommodate her by contInuIng her temporary transfer agreement to Milton. 18 It IS Important to note that thIS letter was the first IndIcatIOn that the gnevor IS seekIng an accommodatIOn due to a dIsabIlIty as set out In the Ontano Human Rights Code The eVIdence showed that, In the gnevor's VIew by her statIng that she had a fear of dnvIng on hIghways It was akIn to makIng such a claim for dIsabIlIty but It IS clear that It was not perceIved as a dIsabIlIty claim by the Employer The gnevor was never asked to provIde medIcal documentatIOn of her fear nor dId she provIde any In my VIew Ms Clarke cannot be faulted for that SInce there was no need for medIcal documentatIOn untIl she was no longer allowed to work In Milton. Clearly however the gnevor has now made a claim of dIsabIlIty under the Human Rights Code based on a phobIa of hIghway dnvIng, and that claim wIll need to be addressed by the Employer under ItS accommodatIOn polIcy In thIS regard, I make no rulIng on whether the Employer has an oblIgatIOn to accommodate an employee's commute to work, as opposed to the Job Itself The Employer asserts, In turn, that the Mimstry and Ms Thomson, would also suffer harm If Ms Clarke remaIned In Milton In lIght of her InabIlIty to prepare transcnpts after hours as well as because of her gnevance and complaInts regardIng harassment by Ms Thomson Ms Clarke's July 14 2004 gnevance and supportIng documentatIOn assert that there has been "escalatIng harassment Imposed by Ms Thomson " It asserts that "[t]he contInUOUS and escalatIng harassIng behavIOr exhIbIted by Ms Thomson has put such stress on me that comIng to work IS very dIfficult." The eVIdence shows that Ms Clarke's feels overwhelmed, has had trouble sleepIng, and suffered stress as a result of what has occurred. She took a week off work due to stress In June 2004 The Mimstry asserts that It IS In lIght of such allegatIOns and CIrcumstances 19 that the "balance of harm" reqUIres that Ms Clarke not be returned to Milton on an Intenm basIs The Mimstry asserts that ItS management actIOns are contInually beIng vIewed as examples of "harassment" by Ms Clarke and that It would be dIsruptIve and problematIc for ItS manager and Ms Clarke as well as other staff, for her to contInue there under these CIrcumstances The Mimstry also asserts that It nsks potentIal addItIOnal lIabIlIty and further allegatIOns and problems If the dIrect contact and conflIct between Ms Clarke and Ms Thomson were to contInue In my VIew these are legItImate Employer concerns In OPSEU (Group Grievance and Sammy et al.) and Ministry of Correctional Services (2001) GSB No 0224/01 et al (Hams, Vice-Chair) the Board quoted, at pp 6-7 from a decIsIOn on Intenm relIef by ArbItrator Ken Swan In William Nielson Ltd and UFCW (unreported, July 16 1993) whIch, In part, states [T]here are other factors whIch mIght very well demonstrate Inconvemence to an Employer partIcularly where elements of addItIOnal financIal cost, reasonable apprehensIOn of harm to the workplace or other employees, or senous questIOns of workplace morale anse In thIS case, the Employer asserts that there IS a reasonable apprehensIOn of harm to the workplace and ItS manager In partIcular and questIOns of workplace morale would anse should the gnevor be allowed to remaIn In Milton under Ms Thomson's supervIsIOn, pendIng the heanng In thIS matter Normally when allegatIOns of harassment are made, It may be reasonable, where feasIble, to separate the partIes It prevents escalatIOn of the sItuatIOn and aVOIds addItIOnal allegatIOns from exacerbatIng an already dIfficult sItuatIOn. Here, the Employer argues that because the gnevor was In Milton on a temporary transfer agreement untIl January 1 2005 It was feasIble to 20 separate the partIes upon the expIry of that agreement. It submIts that It was the prudent thIng to do Yet the gnevor wants to remaIn In Milton where the alleged harassment has taken place and under the dIrectIOn of Ms Thomson. She testIfied that she wants to do that, despIte the harassment, because keepIng her "travel accommodatIOn" was her "bIggest concern." The Umon contends that not to grant the requested relIef sends the message that If you gneve harassment, and are vocal about It, you are subJect to removal from the workplace and a gIven three-hour commute, whIch wIll have a chIllIng Impact on employees It acknowledges that havIng a harassment claim made agaInst a manager may be dIfficult and uncomfortable for the manager but It asserts that It IS not a basIs to relocate the accuser To do so It submIts, IS akIn to pumshIng or blamIng the vIctIm The Umon has a valId pOInt In the normal case where an employee IS In hIS home posItIOn. Too often, It IS the alleged vIctIm who IS moved. But Ms Clarke was not In her home posItIOn. She was In Milton on a temporary transfer agreement, whIch was expmng. In that sItuatIOn, where there are senous claims of harassment agaInst a specIfic manager not returmng the gnevor there - on Intenm relIef - cannot be seen as pumshIng the vIctIm It IS, Instead, a matter of balancIng the harm. The Umon also asserts that the harm raised by the Employer can be contaIned by havIng the gnevor's ImmedIate supervIsor ElaIne Ferry deal wIth Ms Clarke Instead ofMs Thomson. It submIts that the Employer's "harm" IS really a matter of admInIstratIve Inconvemence, and that the InteractIOns between Ms Clarke and Ms Thomson could be lImIted I cannot agree The eVIdence showed that there are many Issues that would anse In relatIOn to Ms Clarke's work 21 that Ms Thomson would have to be mvolved m should the gnevor be returned to Milton. These mclude accommodatIOn Issues, Issues about assIgnments and transcnpts and Issues regardmg work locatIOn - all areas of potentIal conflIct. WhIle the gnevor testIfied that she would treat Ms Thomson professIOnally and the Umon argued that the Issues were not "personal" to Ms Thomson but rather related to the Mimstry's no-typmg polIcy the gnevor's emaIls after her meetmgs wIth Ms Thomson demonstrate that It was very personal The emaIls clearly blame Ms Thomson, personally for a wIde vanety of actIOns mcludmg Imposmg the no-typmg polIcy m Milton. In contrast, the eVIdence showed that Ms Clarke's relatIOnshIp wIth the Manager at Fmch/Duffenn, Rosa MartellI, was a good one Also per Ms MartellI's testImony m the Hunt et al case, GSB No 2001-0534 et al Ms MartellI's practIce IS to allow court reporters to type transcnpts dunng down tIme As a result, some of the operatIOnal concerns caused by the no- typmg polIcy m Milton combmed wIth Ms Clark's mabIlIty to type transcnpts after hours, may not anse or may be lessened at Duffenn/Finch. As set forth m OPSEU (Leeder) and Ministry of Health (1995) GSB No 2498/93 et al (Finley Vice-Chair), at p 30 [F]ollowmg the determmatIOn that there IS an arguable case, [the analysIs] IS one of "weIghmg" the potentIal harm or mconvemence to the partIes m a partIcular sItuatIOn and grantmg or denymg the mtenm relIef based on the outcome of thIS exercIse, and on the practIcalItIes of the sItuatIOn. If the potentIal harm or mconvemence IS greater for the employee, then relIef would be granted, If It IS greater for the employer It would be demed. Here, there IS clearly potentIal harm or mconvemence to both partIes I find, however that, on balance, the harm to the Employer outweIghs that to the gnevor In lIght of the fact that Ms 22 Clarke was on a temporary transfer agreement to Milton (versus It bemg her home posItIOn) and m lIght of the operatIOnal concerns caused by the her mabIlIty to type transcnpts after hours, as well as the repeated allegatIOns of harassment that she has made agamst her Milton manager whIch have affected her own health and well-bemg, the potentIal harm to the Employer of the gnevor's remammg m Milton and the real potentIal for contmumg conflIct, pendmg the outcome of thIS matter outweIghs the burden Imposed on the gnevor by commutmg to Duffenn/Fmch. In so rulIng, I do not mImmIze the gnevor's dIfficulty m commutmg to Duffenn/Finch compared to Milton. I know she feels that she IS bemg pumshed for speakmg out. But the Issue here, m thIS request for mtenm relIef, IS the balance of harm For the reasons set forth above, I find that the harm to Ms Clarke from not awardmg mtenm relIef, pendmg the outcome of the heanng on the ments, does not outweIgh, on balance, the potentIal harm to the Employer should the requested mtenm relIef be granted. Conclusion For all of the reasons set forth above, the Umon's motIOn for mtenm relIef IS demed. Issued at Toronto thIS 26th day of January 2005 :hru1161W ~