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HomeMy WebLinkAbout2019-1673.Chesney.19-12-05 Decision Crown 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# 2019-1673 UNION#2019-0368-0254 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Chesney) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER James Cheng Treasury Board Secretariat Employee Relations Advisor HEARING November 27, 2019 - 2 - Decision [1] The Employer and the Union at the Central East Correctional Centre (“CECC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without written reasons. [2] Elizabeth Chesney filed a grievance dated September 12, 2019 claiming that the Employer had violated Articles 2 and 3 of the Collective Agreement, the accommodation policy, COCAP, and other policies when a manager treated the Grievor in a demeaning manner, and was not respectful of her accommodation needs. The Grievor is seeking damages, full pay for time off, and for the harassment due to her accommodation to cease immediately. [3] It would appear that the Grievor had a workplace injury in 2013. In or around 2017 the Grievor was off work for shoulder surgery, which in April 2019, following an appeal, was accepted by the Workplace Safety and Insurance Board as a recurrence of her original compensable injury in 2013. Upon her return to work following the surgery in 2017 the Grievor went through the workplace accommodation process, and was assigned to the X-Ray area as her work location. She was cleared to work overtime. [4] On January 22, 2019 the workplace parties, which included the Grievor, the Union, and Sergeant V. Akinbolade, acting for the CECC, signed off on the Grievor’s “Health & Productivity Program – MCSCS Correctional Officer Confidential Accommodation Plan” (the “HPP Plan”). That document identifies - 3 - the Grievor’s “Work Location/Unit (During Plan Assignment” as “X-Ray”. In the “Work Schedule/Hours” section of the form, along with some information regarding the Grievor’s specific restrictions, it states that the Grievor “can work overtime on weekends”. The form states that the Grievor’s limitations and restrictions are “Temporary” in nature. [5] On August 17, 2019 the Grievor was called in for a 9 to 5 overtime shift. When she arrived at the CECC, she was assigned to work in Central Control. The Grievor advised the General Duty Manager that she had to be accommodated to work in the X-Ray area, and was so assigned. [6] On the following Monday, August 19, 2019 the Grievor asserts that she received a phone call from Sergeant Akinbolade, who asked her about her accommodation and her ability to work other posts besides X-Ray. The Grievor advised Mr. Akinbolade that she was uncomfortable discussing the issue while on her post, and without a union representative present. Mr. Akinbolade therefore invited the Grievor to get a union representative and to come to his office. [7] Contrary to the Grievor’s assertion that Mr. Akinbolade had called her to discuss her medical issues on the phone with her, Mr. Akinbolade asserts that he was not calling to discuss that matter in detail with the Grievor on the phone while she was at her post, but had called the Grievor to alert her to what he wanted to meet to discuss with her. As soon as the Grievor had said she wanted to meet with a union representative present, he had invited her to come to his office. [8] Chris Butsch, the Local President of the Union, and the Grievor met with Mr. Akinbolade in his office. Present also from management was Sgt. Diane Claire, from Staff Services. Mr. Akinbolade asked the Grievor if there had been an issue with her working in Central Control on the weekend. The Grievor advised him that there had been, and that she was only to be accommodated by working in X- - 4 - Ray. What ensued thereafter is the Grievor’s claim that Mr. Akinbolade “began to argue” with her about her accommodation only being for Monday to Friday, and that her HPP Plan did not state that she could not work in other areas on the weekend. The Grievor argued that had not been the agreement when the accommodation had been arranged, and that it being a weekend did not change her medical needs for accommodation. According to the Grievor, Mr. Butsch asked where in the HPP Plan it stated that the Grievor could work in Central Control, but Mr. Akinbolade refused to indicate where, and maintained in a raised voice that it did not say that she could not work there. [9] The Grievor is of the view that Mr. Akinbolade’s voice had been raised in the meeting, and she was concerned that others in the Administration area could hear them. She characterizes Mr. Akinbolade as “yelling” at her as the meeting continued. Mr. Butsch maintains that Mr. Akinbolade was being aggressive with the Grievor. [10] Mr. Akinbolade advised the Grievor that if she wanted to only work overtime in the X-Ray post, he would need a doctor’s note stating that she could not climb ladders. The Grievor told him she felt he was harassing her, as she had had the prevailing accommodation for some time, and that the overtime issue had already been dealt with once before, to her satisfaction, and that Mr. Akinbolade was aware of that. [11] Mr. Butsch asked for a copy of the HPP Plan for the Grievor, and told the Grievor they should leave then as they were not getting anywhere. According to the Grievor and Mr. Butsch, as they were leaving Mr. Akinbolade’s office, the Grievor said quietly to Mr. Butsch “What a fucking joke”. Mr. Akinbolade is alleged to have “yelled” out the door that the Grievor should watch her language, to which Mr. Butsch had responded that the Grievor was speaking to him, and that she did not have to watch her language. Mr. Akinbolade is alleged to have “yelled even louder” that she needed to watch her language. The Grievor asserts that she felt - 5 - humiliated and practically ran out of the Administration area, as she felt that the assistants, Deputies, payroll staff and others could all hear Mr. Akinbolade “yelling at her”. The Grievor left the meeting crying. She was so upset by the meeting that she advised her manager that she needed to go home. [12] The Grievor was then off work for about a month, and would not return until she was able to meet with Deputy Superintendent Ciupak, which occurred on September 12, 2019. She returned to work on September 17, 2019. The Grievor claims that she has been harassed due to her disability, and by being asked for more doctor’s notes when she has been accommodated for almost two years. She did provide a doctor’s note that confirmed her restrictions, and indicated that she could not climb ladders, could not stand for longer than 10 minutes, and had to avoid stairs. [13] Sgt. Akinbolade agrees that in the meeting with the Grievor he told her that her HPP Plan accommodation did not extend to when she worked overtime, and maintains that the Employer has the right to try to ascertain whether there are any other posts that an accommodated employee can work on an overtime shift, other than the post that may be identified as their regular one. He was concerned that since the Grievor’s medical information had not indicated that she had a “no climbing a ladder’ restriction, that there were other posts where it may be possible for her to work that still met the Grievor’s restrictions. At the end of the meeting he advised the Grievor and Mr. Butsch that pending receipt of further medical information, he would give the Grievor a temporary overtime accommodation for the X-Ray post only, as that was what the Grievor wanted. [14] Mr. Akinbolade denies “yelling” at the Grievor during the meeting. Ms. Clair recalls that Mr. Akinbolade was being firm in his comments to the Grievor, who she described as having come into the meeting in an aggressive mood, and who was clearly upset as the meeting progressed. However, Ms. Clair states that Mr. Akinbolade was not yelling at the Grievor in this meeting. - 6 - [15] According to both Mr. Akinbolade and Ms. Clair, the Grievor became upset in the meeting, started swearing, and was crying. Mr. Akinbolade told the Grievor that under no circumstances was she allowed to swear at him and he reminded her of the professional conduct requirements in the workplace. According to both Mr. Akinbolade and Ms. Clair, the Grievor covered her mouth, and immediately apologized. I note that the Grievor denies having sworn at Mr. Akinbolade, as she says she caught herself before she said any swear words. She recalls that she covered her mouth, but did not apologize as she had not actually said a swear word. [16] Neither Mr. Akinbolade nor Ms. Clair heard or had any recollection of the Grievor’s comment to Mr. Butsch as the two of them were leaving Mr. Akinbolade’s office. [17] The Employer maintains that the Grievor took the meeting the wrong way as it has the right to inquire whether there are any other work location options that may be acceptable within an employee’s medical restrictions, and that this is especially so for overtime purposes. [18] This is a grievance in which the Union bears the onus of proving that Mr. Akinbolade treated the Grievor in a manner that was demeaning and disrespectful of her medical restrictions, such that the Employer should have to compensate the Grievor for the time she took off work after the meeting, and pay her damages. Having considered the submissions of the parties, I find that the Union has not met its onus. While the Grievor was clearly upset about being questioned about her ability to work overtime at any post other than X-Ray, that does not amount to harassment. The Employer is entitled to query whether an employee may be able to work at other posts that meet their restrictions, especially where, as here, the Grievor’s HPP Plan was a temporary one, and it made no mention of her not being able to climb ladders. - 7 - [19] Furthermore, while there is no doubt that the Grievor was upset and was crying in the meeting, I cannot find on the submissions before me that Mr. Akinbolade was “yelling” at the Grievor in the course of the meeting. As such, I cannot find that the Grievor was treated in a demeaning and disrespectful manner due to her workplace injury and subsequent accommodation. [20] The grievance is therefore dismissed. Dated at Toronto, Ontario this 5th day of December 2019. “Gail Misra” Gail Misra, Arbitrator