HomeMy WebLinkAboutStevens 07-07-16
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Case Name:
Canadian Blood Services v. Ontario Public Service
Employees Union (Stevens Grievance)
IN THE MATTER OF an arbitration
Between
Canadian Blood Services, and
Ontario Public Service Employees Union
Grievances of R. Stevens
[2007] O.L.A.A. No. 432
File No. MPA/Y700847
Onta rio
Labour Arbitration
S.L. Stewart (Arbitrator)
Heard: Hamilton, Ontario, May 31, July 10, 2006;
January 19, February 13, May 14 and 28, 2007.
Award: July 16, 2007.
(17 paras.)
Appearances:
For the Union: E. Holmes, Counsel.
For the Employer: F. Gallop, Counsel.
AWARD
1 There are three grievances before me, all of which are filed on behalf of Ms. Rose Stevens
and are dated August 1, 2002. The grievances arise out of a common factual foundation and
allege a failure to provide safe work, harassment and discrimination, a breach of the Human
Rights Code, a failure to accommodate and in particular, violations of Article 23.04 i) and 30.01 of
the Collective Agreement.
2 At the outset of the proceedings there was an issue between the parties as to the scope and
nature of the proceedings before me, given the timing of some of the allegations that had been
particularized and the fact that workers' compensation benefits had been awarded. In an award
dated October 6, 2005, at pp. 6-7, I noted that:
... the provisions of the Collective Agreement contemplate matters will be raised and
addressed by the parties in a prompt manner. It is unfair to require a party to defend
against allegations relating to events that took place well prior to an indication that
the events were viewed as a violation of the Collective Agreement. Accordingly, the
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focus of the arbitration process will be on the events as they existed around the time
of the filing of the three grievances, August 1, 2002.
While some evidence was adduced with respect to events prior to this period in order to provide a
full context for the grievances, I have not made reference to this evidence, given my ruling as to
the proper scope of the proceedings before me.
3 Ms. Stevens commenced her employment with Canadian Blood Services in the position of
part-time Laboratory Assistant in the Blood Component Laboratory in March, 1997. She worked
between three and five shifts a week, depending on the Employer's requirements. In the fall of
1999 Ms. Stevens experienced severe wrist pain. She was diagnosed with bilateral carpal tunnel
syndrome, which was determined by the WSIB to be a work related injury. An ergonomic
assessment was conducted in the fall of 2000 to assess the lab assistant position in order to
determine if performing the duties of that position would aggravate the injury and if there were
feasible accommodations that could be implemented. In a report dated October 19, 2000, it was
concluded that performing the duties of the position could aggravate the compensable injury and
suggestions for accommodations were made. Those recommendations included work method
changes and changes in the equipment and tools. Some changes have been made in the lab since
that time.
4 Ms. Stevens had carpal tunnel surgery for her right hand on July 20, 2001 and for her left
hand on August 10, 2001. She returned to work performing some lab duties and some training
duties. The WSIB granted her lost time benefits, a NEL (non economic loss) award and a top up
to compensate for a shortfall of hours between August 2002 and August 2003. On March 12,
2002, the WSIB determined that she had a permanent injury and in a letter dated March 26,
2002 wrote to Mr. B. Stephenson, the manager responsible for this matter, stating, in part:
As you are aware, Ms. Stevens was granted entitlement for repetitive strain injuries
affecting her neck and bilateral wrists/forearms. Ms. Stevens continues to receive
treatment for the bilateral wrist impairment. Ms. Stevens reports that her condition
continues to worsen due to her exposure to repetitive activities in her work place.
Ms. Stevens was referred to a regional evaluation center and was seen on March 12,
2002. It was confirmed that she has a permanent impairment affecting the wrists.
This impairment prevents her from performing repetitive or prolonged gripping and
pinching activities.
It is my understanding that these physical activities are a requirement of her job. As
there are questions regarding the physical suitability of Ms. Stevens' job demands, we
are required to request that Ms. Stevens be placed in a job more suited to her
physical abilities.
5 Ms. Stevens testified that around this time she had a number bf concerns. She was
continuing to perform work that she considered to be unsuitable and comments had been made in
the workplace which she considered to constitute harassment arising from her disability. She
made an appointment to see the Centre Director, Ms. P. Thorne, and a meeting between the two
of them took place on May 10, 2002. In that meeting Ms. Stevens detailed her concerns in
relation to harassment and suitable work. She testified that there was a positive discussion about
the prospect of her performing more training work and it was agreed that further information
would be provided to Ms. Thorne. Ms. Stevens did follow up in providing further information,
however there was no further discussion between them. Ms. Thorne moved with the Employer to
British Columbia but has since left its employ and did not testify in this proceeding.
6 Mr. R. Burwash, manager of human resources, testified that he was contacted by Ms. Thorne
about concerns that had been raised by Ms. Stevens in relation to allegations of harassment and
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the nature of her job duties. Mr. Burwash's understanding was that Ms. Thorne would pursue the
harassment matter and he would pursue the concern about her job duties. He testified that at the
time of the conversation he was aware of correspondence from the WSIB, which would appear to
have been the March 26, 2002 letter. He testified that the day after his conversation with Ms.
Thorne he spoke with Mr. Stephenson and directed him to ensure that a permanently modified
position was put in place for Ms. Stevens. On May 15, 2002, the WSIB wrote a further letter to
Mr. B. Stephenson. That letter, which was copied to Ms. Stevens, states in part:
As you are aware, Ms. Stevens is fit for modified work with regard to her right upper
extremity injury. She was last seen at a Regional Evaluation Centre (REC) on March
5, 2002. At that time, medical precautions were imposed on repetitive or prolonged
gripping and pinching. These medical precautions are permanent.
You have advised that an offer of permanent work is imminent. This modified work
will include training, demonstrations and clerical work. The offer will maintain Ms.
Stevens' pre-injury hours and wage. However, a concern was expressed by Ms.
Stevens regarding potential delays in implementing the modified work. She has
spoken with the individual responsible for training and was advised that a formal
request for such work had not been submitted.
7 Ms. Stevens testified that in late June or early July a meeting was scheduled to discuss the
permanent accommodation, at which she understood Mr. Stephenson to have arranged for Ms. J.
Johnstone, whose responsibilities included staff development, to be in attendance. She testified
that Ms. Johnstone was not in attendance and because she was absent, Mr. Stephenson advised
that the meeting would have to be rescheduled. Ms. Stevens testified that she was advised by Ms.
Johnstone that she had not been invited to the meeting. Ms. Stevens testified that it was this
event that precipitated the filing of the grievances. Ms. Stevens also testified about a July, 2002
conversation that she had with a senior technician, a member of the bargaining unit responsible
for the schedule. She testified that she asked him about the fact that beside her name on the
schedule there were blanks or question marks and that he responded saying that he "didn't know
what to do with her". Ms. Stevens continued to receive her usual number of hours of work.
8 By letter dated July 30, 2002, Ms. Stevens asked the WSIB for an investigation of the
matter. From her perspective, the modified job had not been implemented and there was no
indication that her concerns would be addressed. Mr. Burwash testified that he became aware of
Mr. Stephenson's failure to have the modified job implemented and that he directed him to "make
it happen". A list of job tasks was prepared and sent to the WSIB on August 1, 2002. Permanent
modified duties were implemented for Ms. Stevens shortly thereafter. It was apparent from both
the substance and tenor of his evidence that Burwash was not pleased with the way that Mr.
Stephenson handled the matter. Mr. Stephenson's employment with Canadian Blood Services was
subsequently terminated and he did not testify in this proceeding.
9 Commencing in mid-August, the Employer assigned Ms. Stevens to training related duties
three days a week. She requested and was granted a leave of absence to teach at a private
college, where she taught a six month course in the latter part of 2003, extending into 2004. On
March 30, 2004, the WSIB conducted an assessment to determine if the duties of the modified
position exceeded Ms. Stevens' medical restrictions or involved risk factors that could aggravate
her compensable injuries. At that time it was determined that the demands of the position were
within her restrictions and should not contribute to an aggravation of her condition. Ms. Stevens
was involved in a motor vehicle accident in June of 2004 and was off work in connection with
injuries arising from that accident.
10 Ms. Stevens testified that she felt that if the accommodations suggested by the WSIB in
October, 2000 were implemented she would have been able to work more days and that she has
been disadvantaged in relation to seniority accumulation and compensation as a result of only
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having three days of work available to her. She testified that in the summer of 2002, she
experienced particular pain when assigned to the task of pulling files and that she went to see Ms.
Ferrer, assistant lab manager, and told her that the duties that she was assigned were "hurting
me" and asked why they had not implemented the recommendations to change the job. Ms.
Ferrer reassigned her to other duties, however Ms. Stevens testified that she refused to continue
with them because an obligation to report problems resulted in antagonism on the part of her co-
workers. Ms. Stevens acknowledged in cross-examination that neither in response to the March
26, 2002 or May 15, 2002 letter from the WSIB nor in connection with the March 30, 2004
assessment did she specifically request that she return to her pre-injury duties modified in
accordance with the October, 2000 WSIB suggestions. In March, 2004, Ms. Stevens did raise the
issue of more hours with Ms. Ferrer, assistant lab manager, however the prospect of
implementing changes in accordance with the 2000 WSIB recommendations was again not
specifically raised or discussed. The Employer adduced evidence regarding the highly regulated
environment within which it operates, which mandates extensive review prior to the
implementation of any changes in work practices.
11 The following provisions of the Collective Agreement were referred to:
lA.Ol The parties agree that there shall be no discrimination, interference, restriction
or coercion exercised or practiced by the parties with respect to any employee
because of membership or non-membership in the Union or activities or lack of
activities on behalf of the Union or on any ground as defined by the Ontario Human
Rights Code.
23:04
a) Employees included in this Agreement shall be governed by the provisions of
the Ontario Workplace Safety and Insurance Act and shall be subject to its
rules and regulations.
b) The Employer and the Union agree that they mutually desire to maintain
standards of safety and health in order to prevent accidents, injury and
illness.
c) i) An employee who is unable to work as a result of accident, injury or illness
sustained while on duty in the service of the Employer within the meaning of
the Workplace Safety and Insurance Act, shall continue to receive her
regular salary and benefits from the Employer, less regular deductions,
provided she assigns over to the Employer her compensation payments due
from the Board for time lost as a result of the accident.
ii) An employee who elects not to assign her compensation payments to
the Employer and wishes to continue coverage of her insured benefits
and pension must make prior arrangements for the prepayment of
the full premium of any contributory insured benefit plans and her
share of pension contributions.
d) Should the employee's claim be disallowed by the Workplace Safety and
Insurance Board, then any monies paid by the Employer shall be either
charged against the employee's accumulated sick leave credits or if the
employee has no sick leave credits, the amount so paid shall be recovered
from the employee. Thereafter the employee shall be governed by the
provisions of Article 25 of this agreement.
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i) The Employer is committed to make every effort to create an adaptive work
environment for employees who sustain injuries at work. To this end
employees shall be placed on a Work Accommodation Program. Every effort
will be made by the Employer to provide the employee with suitable
employment up to the point of undue hardship.
30:01 Safety and Health
a) The Employer shall continue to make all reasonable provisions for the
occupational safety and health of employees. The Employer will welcome
suggestions on the subject from the Union and the parties undertake to
consult with a view to adopting and expeditiously carrying out reasonable
procedures and techniques designed or intended to prevent or reduce the
risk of employment injury or illness.
12 Mr. Holmes reviewed the Human Rights Code provisions relating to discrimination and the
duty to accommodate, in addition to the well established principles set out in the Supreme Court
of Canada decisions in Central Alberta Dairy Pool v. Alberta (Human Rights Commission) 72
Q,L,R, (4th) 41,7; Central Okanagan School District No. 23 v. Renaud 95 P.L.R.{4th)577; British
Columbia Public Service Employee Relations Commission v. B.C.G.S.E.U. :i.16_Q,L,R"(4thJ 1. In
particular, in relation to the latter case, more commonly referred to as the Meiorin decision, Mr.
Holmes emphasized the references at p. 14 to the "elevated status" of human rights statutes and
their status as "fundamental law", creating an obligation to interpret them liberally, as well as the
reference later in that decision to the concept of undue hardship. As well, Mr. Holmes referred me
to a number of arbitration awards in which these principles have been applied to various factual
situations, creating in some instances an obligation to accommodate in work other than former
duties and to combine duties to create a position. Mr. Holmes highlighted the particular provisions
of the Collective Agreement in issue in relation to the evidence before me and also made
reference to a number of decisions awarding monetary damages.
13 There was no real dispute with respect to the relevant legal principles. Ms. Gallop's
submission on behalf of the Employer was that Ms. Stevens' workplace injury has been
recognized and compensated in accordance with the Workplace Safety and Insurance Act, that
the provisions of the Code and the Collective Agreement have been complied with and that the
grievances should therefore be dismissed. Ms. Gallop emphasized the fact that at the time the
grievances were filed the Employer had been directed by the WSIB to provide Ms. Stevens with
different duties and the issue was the timeliness of the permanent assignment of the modified
duties, as opposed to the of implementation of the recommendations contained in the 2000
report. There was no suggestion otherwise asserted by Ms. Stevens in 2002 or in 2004 when a
further assessment was undertaken by the WSIB to determine if she was able to continue
performing the permanently modified duties. Ms. Gallop also took issue with whether Ms. Stevens
had been relatively disadvantaged in relation to seniority and emphasized the evidence relating to
the challenges in modifying work practices in the Employer's highly regulated operations.
14 I will first address the allegation of harassment. In his submissions, Mr. Holmes submitted
that the fact that Ms. Stevens did not receive a specific response from Ms. Thorne in relation to
her complaints of harassment in the past should compel the conclusion that harassment was
condoned by the Employer. He emphasized that a subsequent comment was made in connection
with the schedule. I am unable to accept the Union's submission in this regard. It is apparent that
Ms. Thorne acted upon her conversation with Ms. Stevens, as she immediately met with Mr.
Burwash. Aside from the comment about the schedule there is no evidence of any further
comments, which suggests that she addressed the matter of the kind of comments that Ms.
Stevens reported to her. While it is apparent that Ms. Stevens viewed the comment about the
schedule in the context of a history of events involving a number of other persons, I agree with
Ms. Gallop that this comment can certainly be regarded in a more innocuous manner, relating to
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the fact that Ms. Stevens was experiencing ongoing difficulties with her regular duties, as
evidenced by her own testimony and the March 26, 2002 letter from the WSIB. Ms. Stevens had
found that she was unable to perform a particular assignment with respect to pulling files and she
considered an alternative assignment to be inappropriate. There was a real issue as to what work
she should be assigned to and in my view, the comment was most likely made in this context.
While, as I conclude below, the Employer was inappropriately remiss in arranging to assign Ms.
Stevens permanently modified work, I am unable to conclude that the allegation of harassment of
Ms. Stevens has been substantiated.
15 As noted, the WSIB determined that Ms. Stevens sustained an injury arising out of her
employment. As a result of that injury Ms. Stevens was entitled to and was awarded lost time and
other monetary benefits by the WSIB in accordance with its statutory mandate. The relevant
circumstances of the grievances are that the Employer had been advised by the WSIB, in the
March 26, 2002 letter and again in the May 15, 2002 letter, that Ms. Stevens had a permanent
disability, that her present duties were unsuitable and that a permanent modification of her duties
was required. While Ms. Stevens did raise the recommendations that had been made in 2000 as
to modifications of a range of lab assistant duties with Ms. Ferrer in a conversation in 2002, aside
from the question of whether in fact she would have been able to perform the duties as modified
at that time, Ms. Stevens did not pursue that approach with the Employer or the WSIB. As
reflected in the May 15, 2002 letter, the focus of Ms. Stevens at that time was on the
implementation of a plan to assign her training duties. Accordingly, I am unable to conclude that
the Employer was under an obligation to pursue the implementation of the 2000
recommendations at that time. Quite simply, as Ms. Gallop emphasized, that was simply not the
framework of the discussion at that time. Accordingly, the issue of whether the implementation of
those recommendations would constitute undue hardship does not arise in the context of the
proceedings before me and I am unable to accept the Union's submission that the Employer's
failure to provide Ms. Stevens with lab assistant duties modified in accordance with the 2000
WSIB recommendations compels a conclusion that the Employer was in breach of its obligation
under 30.01 of the Collective Agreement to make reasonable provisions for Ms. Stevens' health
and safety or a breach of the Code.
16 However, it is my view that the Union has raised valid concerns in relation to the
Employer's response regarding permanently modified work. I agree with Mr. Holmes that the
Employer's handling of the matter was not in accordance with its obligations under Article 23.04 i)
of the Collective Agreement where it commits to "make every effort to create an adaptive work
environment for employees who sustain injuries at work". While, as Ms. Gallop emphasized, the
Employer did provide permanently modified work soon after the grievances were filed, its
response to the WSIB and Ms. Stevens in this matter was leisurely and somewhat cavalier, as
evidenced by the failure to invite Ms. Johnstone to a meeting in July and, as noted in the WSIB
correspondence, by the apparent failure to consult in a timely manner with the person responsible
for training. While I agree with Ms. Gallop that matters such as the development of modified
duties may take some time and that an unrealistic standard should not be imposed, the evidence
before me here suggests that the Employer simply did not take the necessary steps to involve the
appropriate people in moving the matter forward in a reasonable manner. Fortunately Mr.
Burwash became involved and ensured that the matter was dealt with in an appropriate matter,
however the fact remains that a representative of the Employer who was charged with the
responsibility of dealing with a significant interest of Ms. Stevens failed to fulfil the commitment
provided for in Article 23.04 i) of the Collective Agreement, resulting in a breach of that provision.
I am unable to agree with Ms. Gallop's alternative submission that any remedial response should
be limited to a declaration. There was a significant interest on the part of Ms. Stevens at issue.
While, as Ms. Gallop emphasized, there was no direct financial loss as a result of the violation and
the modified work was ultimately provided, it is my view that a simple declaration is not
sufficiently remedial and that this is the kind of case where it is appropriate and just to award
damages, which I fix at $1000.00. There is no issue of any duplication of WSIB benefits in this
award of damages, an award that arises directly from a specific violation of the Collective
Agreement.
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17 In summary, it is my conclusion that a violation of 23.04 i) of the Collective Agreement has
been established and I so declare. I award damages of $1000.00 to Ms. Stevens. In all other
respects the grievances are dismissed. I retain jurisdiction to deal with any difficulties that the
parties may experience in the implementation of this award.
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