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HomeMy WebLinkAbout2018-1830.Porteous.19-11-25 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2018-1830; 2018-2870; 2018-2871; 2019-0272; 2019-0346 UNION# 2018-0271-0010; 2018-0271-0012; 2018-0271-0013; 2019-0271-0003; 2019-0271-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Porteous) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING November 21, 2019 -2- DECISION [1] The Grievor filed the five grievances noted in the style of cause which the parties have agreed will be consolidated. Mediation efforts on an earlier date established an allegation the Employer breached its duty to accommodate a disability of the Grievor was common to several of the grievances and was the sole issue in GSB File No. 2019-0272 (“the accommodation issue”). It also became apparent that the determination of the accommodation issue turned on whether the information which the Employer had on file was sufficient to trigger the duty. [2] Given the narrowness of this dispute, the parties agreed the Employer would produce all medical information in its file related to the Grievor’s accommodation request and a hearing would then take place for the purposes of determining the accommodation issue pursuant to Article 22.16 of the collective agreement. Article 22.16 provides for expeditious resolution of disputes. Decisions are to be succinct. They are of no precedential value unless the parties agree otherwise. [3] This decision determines the accommodation issue. [4] The material facts may be briefly stated. In February, 2016 the Grievor provided the Employer with a letter from her doctor, Dr. Cooney, which stated that she was being seen for “ongoing medical issues” and due to these medical issues she was “unable to regularly make it into work prior to 9 a.m.”. The doctor recommended that she be scheduled accordingly. The Employer complied with this scheduling recommendation, but sought additional information as to the nature of the Grievor’s medical restrictions. Repeated requests by the Employer resulted in essence the same information being provided by the doctor, except at some point Dr. Cooney indicated the Griever would be unable to regularly make it to work before 9:15 a.m. and recommended she be scheduled accordingly. Subsequent letters from Dr. Cooney also included the following statement (or a variant of it): “Due to confidentiality, the nature of her medical issues will only be released with a signed consent and for the appropriate reasons.” Ultimately, after almost two years of attempting unsuccessfully to obtain additional medical information, the Employer advised the Grievor that she would be required to attend at work at her regularly scheduled time. The grievance which is the subject of GSB File No. 2019-0272 followed. [5] Having considered the representations of the parties, I provided the following decision orally at the hearing: I am satisfied the Grievor had a disability within the meaning of the Ontario Human Rights Code. It does not necessarily follow, however, that she required accommodation in her employment: not all disabilities require such accommodation. -3- The duty to accommodate gives rise to mutual obligations. In order to fulfill its duty to accommodate, an employer needs the cooperation of the employee, and the employee is in turn required to cooperate. In order to be able to consider the possibility of accommodation of a disability on a long term basis, an employer requires sufficient information from an employee. That typically will take the form of medical information about the nature of the restrictions the employee has as a result of her disability. An employer is then obliged to provide reasonable accommodation of those restrictions, if it can do so without undue hardship. This determination lies with the employer, not the medical practitioner. Reasonable accommodation is not necessarily the same as an employee’s preferred accommodation. In this case, the information provided to the Employer by the Grievor from Dr. Cooney was insufficient. The recommendation that the Grievor be permitted to commence work after 9 AM, without more, appeared to be a suggestion of a specific form of accommodation or a statement of a preference on behalf of the Grievor. The characterization of this recommendation as a “medical restriction” does not make it so. The Employer’s follow up questions, for example with respect to whether the recommended start time was in any way related to commuting time, were entirely reasonable attempts by the Employer to understand the nature of the Grievor’s medical restrictions, if any, so that it could determine if and how the duty to accommodate was engaged. No material additional information was provided in response to these questions despite repeated requests. In these circumstances, I conclude the Employer did not breach its duty to accommodate when it required the Griever to commence work at her regularly scheduled time. [6] Accordingly, the grievance which is the subject of GSB File No. 2019-0272 is dismissed. The remainder of the matters will continue on dates already scheduled. Dated at Toronto, Ontario this 25th day of November, 2019. “Ian Anderson” _________________________ Ian Anderson, Arbitrator