HomeMy WebLinkAboutGrievor 17-11-19IN THE MATTER OF AN ARBITRATION brought pursuant to the Ontario Labour
Relations Act, 1995, as amended
(Grievance #2017-0491-0024)
BETWEEN:
ARNPRIOR DISTRICT AND MEMORIAL HOSPITAL
(the "Hospital")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 491
(the "Union")
AWARD
Sale Arbitrator:
Hearing date:
APPEARANCES
For the Union:
Marilyn A. Nairn
October 3 and 4, 2017
(Ottawa, Ontario)
Michael Fisher et al.
For the Employer Hospital: Jeremy Schwartz et al.
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AWARD
1. This is an accommodation grievance. The Grievor has been a part-time
Medical Radiation Technologist ("MRT") at the Hospital since 2007, working a 0.75
full-time equivalency ("FTE"). This 0.75 FTE included 0.55 FTE performing X-rays,
and 0.1 FTE performing Bone Mineral Densitometry ("BMD").
2. It is not in dispute that the Grievor suffers from a medically verified disability
that restricts the Grievor from providing care to a single patient, AB, even in
emergency circumstances. ("AB" is used throughout this decision in place of the
identity of this patient, to preserve their right to privacy. These are not the
patient's initials). The disability arose as a result of a criminal act committed by AB
upon a member of the Grievor's family, an act for which AB was convicted.
3. Although this happened many years ago, a recent chance encounter at the
Hospital occurred on May 24, 2017 when AB attended on a non -urgent X-ray
requisition. The Grievor's condition was triggered and a co-worker, who happened
to be working at the time, performed the X-ray instead. The Hospital was not made
aware of the Grievor's medical condition until some time after this incident.
4. Information provided to the Hospital about the circumstances and the
Grievor's restrictions evolved over time. From June 30 (when the first medical note
was provided) to August 23, 2017, the medical certificates provided by the
Grievor's treating psychiatrist and family physician prescribed that the Grievor could
have "no contact" with AB, under any circumstances.
5. AB is approximately 70 years old and suffers from a developmental disability
and a number of age-related conditions, though AB's health is otherwise very
stable. AB lives at a local group home in Arnprior. AB's physician works at the
Hospital, and from time to time AB has appointments with that physician and others
at the Hospital site, including the primary care building.
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6. From lune 30 (when the first medical was provided) to July 5, management
took several steps to minimize the likelihood that the Grievor would have contact
with AB. To summarize: the group home and AB's physician agreed to take steps
to notify the Hospital so that scheduled appointments and procedures/tests could
occur when the Grievor was not working. The group home advised that they would
note on AB's chart that in emergencies, they would transport AB to a different local
hospital, and would ask an ambulance transporting AB to do so as well (though the
EMTs have ultimate discretion). Finally, the Hospital established a system so that
whenever an emergency or urgent X-ray is required while the Grievor is working,
the Grievor may ask whether the patient is AB, and if so, the Grievor may contact
other MRTs to see if someone else can perform the stat procedure in a timely way
(ie. within the 45 -minute window established in the Hospital's on-call policy).
7. As a result of these mitigating steps, the only time the Grievor would have to
provide care to AB would be if AB were to require a stat X-ray in an emergency, all
efforts to divert AB failed, and no other MRT was available to perform the X-ray in a
timely way. However, because the medical restrictions very clearly prohibited any
contact, not just providing care, the Hospital determined that it could not prevent
inadvertent contact on its premises - thus the Hospital informed the Grievor that
there was no suitable work available. When precisely the Hospital determined and
conveyed its position on the issue of contact is disputed, but I need not resolve the
issue unless the parties are unable to resolve the issue of damages and
retroactivity as referred to below.
8. On August 23, the Grievor's family physician provided a medical note, which
clarified that the Grievor acknowledged that the Hospital did not control its
premises. Although this did not remove the "no contact" restriction, it called for
further clarification. The Hospital had the Grievor bring a medical consent and
information request to the family physician, to which the doctor responded on
August 29. Although the August 29 note confirmed that the Grievor could provide
no care, even under emergency circumstances, it clarified the "no -contact"
restriction, prescribing that the Grievor could have visual contact so long as the
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Grievor could act freely to avoid and/or leave AB's presence. As a result, the
Hospital reinstated the Grievor's BM® hours (0.1 FTE), which are always scheduled,
elective procedures.
9. In terms of the remaining 0.65 FTE in X-ray, prior to the arbitration, the
Hospital understood that the Union and Grievor had consistently taken the position
that a suitable accommodation would be to reassign the Grievor to work days only
so that the Grievor would always be working when the unit manager was also
present (on the assumption that the manager would perform the work instead), and
to remove the Grievor's evening and on-call shifts when there would be no
redundancy. The Hospital took the position that this would not be a reasonable
accommodation, asserting that the Grievor's supervisor could not be available and
on-site at all times (she may be on vacation, sick, or at meetings off-site), and
because there was no way to reassign the Grievor's evening and on-call shifts to
co-workers. In other words, the Hospital took the position this would constitute an
undue hardship.
10. The Hospital took the position that the accommodations it had already put in
place were sufficient to ensure that the Grievor would only have to provide care to
AB in extremely remote circumstances, and that the Grievor would have to accept
that remote risk or could not be returned to work. The Union maintained that the
Grievor's medical restrictions could not be violated. The Hospital took the position
that it was unable to accept the risk, however remote, that it would not be able to
provide care to AB, and so it reasoned that it could not accommodate the Grievor
without suffering undue hardship, That undue hardship being either, that it be
required to accept a risk that AB could be denied emergency care, or that it be
required to employ redundantly so the Grievor was never working alone.
11. Over the course of
two days,
I received submissions
and reviewed
documentary evidence filed
on consent
between the parties. In
addition to the
findings of fact articulated
above, the
following facts were put
before me on
consent.
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12. It is not in dispute that the Hospital is a small, community hospital that
provides services to the local community. It goes without saying that the Hospital
does not provide the same number and level of services, or have the same
resources and redundancies as would a hospital in a major centre.
13. Because of this reality, there are a number of services the Hospital does not
provide, or cannot provide given a dearth or absence of resources, specialized
equipment, or personnel. Regardless of whether the Hospital has the resources to
enable it to address those shortcomings, by operating as it does, the Hospital is
taking the risk that a patient will present and it will not be equipped or staffed to
provide required care.
14. Although AB is an older patient, the attending physician has advised that
AB's condition is very stable, such that AB is no more likely to require emergency
medical care, or in particular, to require a stat X-ray, than any other member of the
local population.
15. The Hospital had, prior to arbitration, been informed that it was a standard of
practice that ORNGE (which provides patients with safe and timely care, transport
and access to health services) could not accept a patient for transport in
circumstances where the patient had been intubated but no chest X-ray had been
performed to confirm proper positioning thereof. However, the Hospital was later
informed that ORNGE would not refuse to transport AB without an x-ray, despite
the standard of practice. ORNGE would instead rely on other indicators of proper
placement. This was similarly confirmed with Renfrew County Paramedic Services.
Decision
16. For the reasons that follow, the Grievance is allowed. I direct the Hospital to
return the Grievor to work and to assign the previously scheduled X-ray work back
to the Grievor, without loss of service or seniority.
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17. The Union does not assert, and I find no evidence that the Hospital failed to
meet the procedural requirements of the duty to accommodate. Moreover, I find
that it would be an undue hardship to require the Hospital to accommodate the
Grievor by staffing redundantly or to require the Hospital to reassign the Grievor to
work hours in such a way that the hospital would be unable to backfill the hours
that the Grievor used to work.
18. However, in light of the accommodations which the Hospital had already put
in place by July 5, and in light of the additional evidence that ORNGE would not
refuse to accept AB absent a chest X-ray and that AB is very stable and no more
likely than anyone in the community to require a stat X-ray, I find that the risk that
the Hospital would not be able to provide care to AB is exceedingly remote.
19. More specifically, I find that there is an exceedingly remote risk that AB
would present in an emergency, require a stat X-ray when only the Grievor was
present or on-call, that all mitigation steps put in place by July 5 to divert AB would
fail, and that no other staff would be available to step in and perform the procedure
within the 45 minute on-call window established by the Hospital. In other
circumstances, another MRT could fall unexpectedly ill, have an accident on the way
to work, or the X-ray equipment could break down, and as a result the Hospital
would be unable to provide emergency X-rays services. I find that the exceedingly
remote risk in respect of AB is fundamentally no different than those other
(arguably less remote) risks borne by the Hospital due to its size and resources.
20. I find that requiring the Hospital to carry this exceedingly remote risk does
not amount to undue hardship in these unique circumstances. The Grievor's
fundamental right not to suffer discrimination in employment pursuant to the
Ontario Human Rights Code and the collective agreement weighs heavily. Should
the Hospital not return the Grievor to work and re -assign the Grievor to those
previously worked hours in X-ray, the bulk of the Grievor's work would effectively
be lost to the Grievor. That is not a risk. That is the reality.
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21. Thus, I find that the Hospital's duty to accommodate the Grievor includes the
obligation to reinstate the Grievor to those hours working in X-ray, with the July 5
accommodations in place, and that such an accommodation does not constitute
undue hardship to the Hospital.
22. 1 remit the issue of retroactive pay to the parties to address on their own. In
the event that the parties are unable to resolve the issue of remedy, I remain
seized with regard to any such remedial issue and with respect to the application of
this award.
Dated at Toronto, Ontario this 19th day of November, 2017.
Marilyn A. Nairn, Arbitrator,