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HomeMy WebLinkAboutP-2004-2738.Nancy Marshall.06-05-15 Decision Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 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 P-2004-2738 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Nancy Marshall Grievor - and - The Crown In RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Nancy Marshall Eugene Marshall FOR THE EMPLOYER SImon Heath Counsel Mimstry of Government ServIces HEARING March 22, 2006 2 DeCISIon ThIS deCISIOn deals wIth the gnevance of Nancy Marshall, as lImIted by the Board's Intenm decIsIOn dated November 7 2005 In that decIsIOn, the gnevance was dIsmIssed, for reasons related to delay and mootness, wIth the exceptIOn of the portIOn of the gnevance that alleges that the gnevor should not have been returned to her home posItIOn In August 2004 for medIcal and health reasons The Issue now before the Board IS whether there was a health reason whIch meant that she should not have returned to her home posItIOn at that tIme, and that the employer was In breach of a term or condItIOn of her employment when It returned her nonetheless When the matter reconvened, the gnevor gave her eVIdence In chIef, submItted a bnef of documents and IndIcated that she was not IntendIng to call other wItnesses At that Juncture employer counsel asked that I dIsmIss the gnevance on the basIs that the eVIdence dId not make out a sufficIent case for the gnevor to succeed, 1 e there was no pnma facIe case The rest of thIS decIsIOn deals wIth that motIOn. Background The gnevor' s home posItIOn sInce September 2000 IS that of Office Manager In the Toronto RegIOn Office She was out of her home posItIOn on secondment between June 2002 and July 2004 The tImIng of the gnevance was cOIncIdent wIth the fact that the latest of her secondments had come to an end on July 16 2004 She enJoyed the work In her seconded posItIOns, feelIng freer to do her Job effectIvely and wIshed to contInue When an earlIer secondment was comIng to an end In January 2004 she had approached her Human Resources consultant and requested a further secondment. She obtaIned a further short secondment from Apnl to July 2004 but that posItIOn was over she was told to go back to her home posItIOn, whIch started after her vacatIOn whIch ended on August 13 2004 The gnevor had wntten a letter of complaInt to her Deputy Mimster on January 24 2003 IndIcatIng among other thIngs that she could not go back to work at the Toronto RegIOn, CItIng the dysfunctIOnal and unhealthy workplace envIronment. In July 31 2004 she filed thIS gnevance, allegIng harassment and a pOIsoned work envIronment. As part of the gnevance she 3 states that "for medIcal and health reasons I cannot return to thIS dysfunctIOnal and unhealthy workplace envIronment." At the heanng of thIS matter she IndIcated that the health reason that should have prevented the employer from returmng her to her home posItIOn was that she was workIng In a stressful envIronment. She dId not feel she could be effectIve as a manager wIth what she expenenced as Interference from her DIrector MarnIe Weber and the dysfunctIOnal work envIronment whIch she says has affected her health. Ms Marshall testIfied that, once she had been told to return to her home posItIOn, she consulted her doctor because she knew gOIng back to the same posItIOn WIth the structural Issues unchanged would not be healthy The doctor's advIce was to see how It went, and they would take It from there She said that at the tIme, because she had been In other Jobs for two years, she was well, although she felt stressed at the Idea of gOIng back to her home posItIOn. She said that "my doctor does not Just let me go off for no reason" that her health was not bad enough then. Nonetheless, she felt that returmng was negatIve to her health, and that her concerns had been Ignored by semor officIals In the Mimstry and that the problems are stIll ongoIng. The gnevor IS of the VIew that the employer breached her nght to work In a safe and healthy envIronment by not Intervemng or dOIng anythIng about the negatIve sItuatIOn In the Toronto RegIOn office She asserts that the employer delIberately returned her to a dysfunctIOnal work sItuatIOn, agaInst all the advIce and eVIdence they had. Further she alleges that thIS has caused her to become SICk. SpecIfically Ms Marshall focuses on the dual reportIng system whIch IS stIll In place In the Toronto RegIOn. ThIS refers to a longstandIng complaInt ofMs Marshall's that the structural arrangement In her office was IneffiCIent, confusIng and stressful EIght admInIstratIve staff report to her but work for Toronto RegIOnal managers ThIS creates a dIfficult sItuatIOn for her because she does not see theIr everyday work, but IS responsible for managIng them and dOIng performance appraisals and dIscIplImng these employees The other regIOnal offices do not have thIS structure, and she IS of the VIew that they all work more effectIvely as a result. She has been frustrated by what she expenences as a lack of support from semor management, In that she has suggested that the other arrangement was better and has spoken wIth her Human Resources consultant many tImes, but the structure has not been changed. 4 The gnevor dId return to her home posItIOn In August 2004 and worked for ten months untIl, In her submIssIOn, the sItuatIOn made her Ill, and she went off on sIck leave on June 16 2005 She once agaIn returned back to work on October 31 2005 Although the gnevor IS dIssatIsfied wIth many thIngs SInce her return to her home posItIOn In August 2004 the Issue remaInIng from the gnevance filed In the summer of 2004 IS related to the decIsIOn of the employer to return to her to home posItIOn, and that IS the necessary focus In thIS decIsIOn. In terms of medIcal eVIdence, there IS no eVIdence relatIng to the summer of 2004 when the gnevor returned to her home posItIOn. There IS only the gnevor's own account of her conversatIOns wIth her doctor There IS some eVIdence concermng the gnevor's health In the folloWIng year startIng wIth a note from her doctor dated June 17 2005 statIng that the gnevor was unable to return to work Indefimtely and that she was under hIS care The next medIcal document IS dated July 15 2005 IndIcatIng that the gnevor's specIfic work-related lImItatIOns were "stressful envIronment at work and she cannot concentrate at work" A further document bears the date August 3 2005 In whIch the gnevor's physIcIan answers questIOns from the employer as to what accommodatIOn mIght be reqUIred for the gnevor to return to work. The answers IndIcate that the doctor was of the VIew that she was unable to perform the dutIes of her Job at that tIme, and that the condItIOn was temporary In reply to employer counsel's request that the Board dIsmIss the gnevance on the basIs that the eVIdence shows that there was nothIng to stop her from returmng to her home posItIOn or the secondment from endIng In the summer of 2004 It IS the gnevor's posItIOn that the subsequent medIcal sItuatIOn IndIcates that her concern that returnIng to her home posItIOn would lead to a detenoratIOn In health was true *** In order to succeed wIth thIS gnevance the gnevor needs to establIsh that there was a health reason whIch IndIcated she should not return to her home posItIOn In the summer of 2004 and that the employer breached a term or condItIOn of her employment when she was dIrected to return nonetheless The eVIdence does not establIsh that such a health reason eXIsted at the tIme of her return to her home posItIOn. Her own eVIdence IndIcates that she was well at the tIme, although apprehensIve about returmng. There IS no other eVIdence whIch contradIcts that. On 5 thIS basIs alone It IS clear that thIS one remaInIng portIOn ofMs Marshall's gnevance cannot succeed. Moreover there IS nothIng to IndIcate that the employer breached any term or condItIOn of employment In returmng her to her home posItIOn. Taken at ItS hIghest, the gnevor's eVIdence IS that she made Human Resources personnel aware In January 2004 that she would prefer to contInue In secondments because she feared her health would detenorate If she returned to her home posItIOn. The fact that the supervIsor who had earlIer been the focus of her concerns was no longer there had not sufficIently resolved her concerns The lInk between the conversatIOns In January and the argument that the employer should not have returned her to the Toronto RegIOn over SIX months later appears to be the suggestIOn that the employer should have known from earlIer conversatIOns concermng her secondments that her health would be negatIvely affected. ThIS IS not enough to prove that the employer has breached some term or condItIOn of her employment It IS generally not appropnate for an employer to assume an employee has a dIsabIlIty at all, let alone one sufficIent to prevent them from dOIng theIr regular Job In the absence of specIfic commumcatIOn from the employee to thIS effect. There IS sImply no eVIdence that Ms Marshall commumcated anythIng to thIS effect to the employer In, or relatIng to the summer of 2004 Her recent eVIdence IS that she has no medIcal eVIdence from her own doctor to support that assertIOn. The fact that the gnevor felt apprehensIve about returnIng to her home posItIOn, and the structural sItuatIOn whIch she found unsatIsfactory does not amount to a "health problem IndIcatIng she should not have been returned to the Toronto RegIOn" as alleged In the gnevance, In the face of the eVIdence about the state of her health In the summer of 2004 A substantIal focus of the gnevor's remarks at the heanng and In the matenal submItted relates to the Idea that her subsequent need for sIck leave In October 2005 VIndIcates her posItIOn that she should not have been returned to the Toronto RegIOnal office ThIS later sIck leave occurred ten months after the dIsputed return to work, and the medIcal eVIdence before me does not say anythIng about the penod In dIspute here, whIch IS the summer of 2004 Thus, the penod of sIck leave In 2005 does not assIst the gnevor's case, gIven her own eVIdence that she was well at the tIme she returned, and that her doctor's advIce was to try It and see how It went. 6 In the result, the remaInder of the gnevance IS dIsmIssed, as the gnevor has not establIshed that she had a health problem In the summer of 2004 whIch prevented her from returmng to work, or that the employer breached a term or condItIOn of her employer by returnIng her there Dated at Toronto thIS 15th day of May 2006