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HomeMy WebLinkAbout2015-0554.Kolmann.20-01-06 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# 2015-0560; 2016-0563; 2016-0564; 2016-0565; 2016-0567; 2016-0568 UNION# 2015-0368-0179; 2016-0368-0075; 2016-0368-0076; 2016-0368-0077; 2016-0368-0079; 2016-0368-0080 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kolmann) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Randi H. Abramsky Arbitrator FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING SUBMISSIONS September 16, 2019 Written submissions on October 29, 2019 and December 18, 2019 - 2 - Decision [1] On May 6, 2016, the Grievor, Carol Kolmann, filed seven grievances, two of which have been addressed in an earlier award. The remaining five grievances were presented by the Union through documents and argument. A sixth grievance, dated April 14, 2015, was also addressed. No viva voce evidence was called. Facts [2] On January 21, 2016, a co-worker, Mr. Vinzce, was assigned to work in the Admitting and Discharge unit at Central East Correctional Centre, the unit to which the Grievor was also assigned. Mr. Vinzce was assigned to that unit following knee surgery. It is alleged that as Mr. Vinzce sat in a chair, the chair broke and he fell down. The Grievor tried to assist him, and claims that while doing so, she suffered a workplace injury. She filed a claim under the Workplace Safety & Insurance Act (“WSIA”). [3] The Employer opposed the Grievor’s WSIA claim. At the request of the Workplace Safety & Insurance Board (“WSIB”), it submitted a summary of the video surveillance footage from the work area. It denied the Grievor’s request to review that video. Subsequently, through the WSIB process, the Grievor was able to view the video. [4] The earlier Award addressed two grievances which alleged that the Employer’s refusal to provide her with an opportunity to review the video at the time, and also allowing another bargaining unit member to view the video and summarize it, violated the collective agreement. [5] In a decision dated September 28, 2018, I dismissed the grievances. I determined that Appendix COR-10, Surveillance in Correctional Workplaces, provides for disclosure of video surveillance “[p]rior to a disciplinary meeting.” At par. 17, I conclude: There was no such [disciplinary] meeting in this case, and consequently, no obligation on the Employer to provide either notice or a copy to the Union. There is no obligation under Appendix COR-10 to provide a copy to an individual employee. [6] In terms of providing access to another bargaining unit employee, I determined that “[t]he administrative assistant viewed the video as part of her duties in Staff Relations” and there was “no prohibition on this contained in the collective agreement.” [7] The Grievor was unsuccessful in her claim before the WSIB. She applied for reconsideration of that determination, but lost. According to Union counsel, she filed an appeal of that determination, but was unsuccessful. [8] The five grievances relate to the January 21, 2016 incident and some of the Employer’s actions which followed. They allege as follows: - 3 - Grievance 0075 – alleges that the Employer beached the collective agreement, the Occupational Health and Safety Act (“OHSA”), and the duty to accommodate by not considering the health and safety of others in the institution. According to Union counsel, this grievance asserts that the co-worker should not have been assigned to the Admitting and Discharge unit because it placed him, and therefore, her at risk of injury. Grievance 0076 – alleges that the Employer breached the collective agreement and OHSA by not providing her with a safe work area. According to Union counsel, this grievance concerns the co-worker’s chair, which broke, and the need for the Employer to provide equipment which can withstand the rigors of the unit. Grievance 0077 – alleges that the Employer violated the collective agreement and the Privacy Act by improperly using surveillance video on her to imply that her WSIA claim was fraudulent. According to Union counsel, this grievance alleges that the Employer improperly used video surveillance of the unit to dispute the Grievor’s WSIA claim, without allowing her to see it. Grievance 0079 and 0080 – allege that the Employer violated the collective agreement, policies and codes by improperly denying her WSIA injury, and informing WSIB not to accept her lost time injury as work-related, as well as providing false information to WSIB. Her absences were then counted in regard to the attendance management program. According to Union counsel, these grievances assert that the Employer should have provided her with an opportunity to discuss the incident before it determined to oppose her claim, and the Employer should not have opposed her claim. Grievance 0179 This grievance, dated April 14, 2015, alleges a violation of the collective agreement and the Ontario Human Rights Code, as well as other “legislation”. It refers to a February 25, 2015 attendance management meeting, and asserts that the “Employer has not modified the work area as agreed to in 2005” which led to “flare ups” causing absences. [9] No viva voce evidence was called. A WSIB document dated December 12, 2011, recommended an “ergo chair best suited for Carol’s size.” Another WSIB document dated August 10, 2011, states: Carol Kolmann’s accommodated work area will have to have proper ergonomical chairs, table with adjustable heights, computer adjustable sliders, and keyboards, etc. to meet her needs. [10] The Union submitted emails from the Grievor to Ministry personnel, concerning complaints she raised about her chair, from April 2012 to February 2016. The Grievor, based on an accommodation, works in the A & D subcontrol area along with other employees. The ergonomic chair required by the Grievor was consequently used by other employees, and she would, with some frequency, - 4 - discover problems with the chair – missing wheels, a broken arm, or it would slowly slide down. [12] In an email sent by the Grievor on February 17, 2016 (10 months after the grievance was filed), the grievor listed “a few of my documented Chair issues in the A & D subcontrol for the past 4 years”: Wednesday 18 April 2012. 2 wheels broken off the chair, email sent to warehouse. Warehouse has no chairs and will replace wheels. Monday 18 March 2013 Broken chair arm, email to staff services. Will look into it. Northing done for over 6 months. Wednesday 03 April 2013 Broken wheel off the chair, email to staff services. …No reply from staff services and Kevin said it was not a maintenance issue. Contact warehouse at 6021. Thursday 07 April 2014 Chair wheel broke off as I was sitting on it, injured my back and neck. Email sent to staff services and …. No reply from staff services and Kevin said it had nothing to do with maintenance. Friday 08 April 2014 Email sent to warehouse and wheel was replaced immediately. Thursday 28 August 2014 Chair wheel broke off again, email to warehouse same chair that had wheel replaced on the 8th. Warehouse came and replaced the wheel. Tuesday 16 September 2014 Chair wheel broke off again, email to warehouse. Warehouse replaced the wheel. Monday 03 November 2014 Chair wheel broke off again, email to warehouse. Warehouse replaced the wheel. Monday 22 December 2014 Chair wheel broke off while sitting on the chair. Email sent to warehouse, wheel was replaced. 2015 staff services had a kinesiologist come in and then staff services gave me a chair. No measurements were taken and a chair was ordered that did not suit me for my accommodation needs. No ergonomic specialist was into take proper measurements of the area of the chair size. Thursday 21 January 2016 Chair wheel broke off while staff was sitting on it. WSIB forms done. - 5 - Friday 12, February 2016 Chair jammed in one position will not go to full chair height extension. Email sent to staff services and Warehouse staff services said they will be down to take my measurements for a new chair. (Staff services are not ergonomic specialists). [13] Other documents reveal some issues concerning ergonomic assessments. One took place on September 9, 2014. Another one took place in January 2017. Reasons for Decision Grievances 0075 and 0076 [14] These grievances claim that the Employer failed to provide her with a safe workplace by assigning the Grievor’s co-worker to the Admitting and Discharge unit, following his return to work after knee surgery, which placed her at risk of injury. She also claims that the Employer failed to provide her with a safe work environment by failing to provide her co-worker with a properly functioning chair. [15] In my view, neither claim has merit. The Admitting and Discharge unit of the institution is a unit where employees in need of accommodation may safely be placed, as it does not involve direct inmate contact. That is why the Grievor herself is assigned to that unit, and has been for many years. Assigning the Grievor’s co- worker, who had recently had knee surgery, to the Admitting and Discharge unit did not fail to provide her with a safe workplace. [16] I also find no merit to the Grievor’s assertion that the Employer’s failure to provide her co-worker with a proper functioning chair created an unsafe workplace for her. That may be a claim that could have been raised by the co-worker, but not the Grievor. Grievance 0077 [17] This grievance asserts that the Employer improperly used the video surveillance to dispute her WSIA claim, when it did not allow the Grievor to see it. [18] The Employer asserts that it has the right to dispute an employee’s claim that an injury is “work-related” before the WSIB. In this case, it submits that when it advised WSIB about the existence of the video surveillance, WSIB requested a summary of it, which it provided. [19] I agree that the Employer has a right to dispute an employee’s claim that an injury is “work-related.” The Employer properly informed WSIB about the existence of the video and properly provided the summary (and the video) to WSIB, at WSIB’s request. Any right of the Grievor to see that video surveillance lies in the collective agreement, and the earlier Decision determined that she did not have a right to view it in this case. The Award suggests, at par. 20: - 6 - The Union may have some legitimate points that in a WSIA investigation, both parties would benefit from a review of the tapes. In this case, the Grievor as adamant that an accident occurred which caused her significant injury. She disputed the Employer’s summary which found that nothing could be seen. The parties, through the appropriate MERC, should explore whether video surveillance should be provided to employees in these limited circumstances. [20] Consequently, while it may seem “unfair” for the Employer to have refused to allow the Grievor to view the video at the time, it did not violate her rights under the collective agreement. Grievances 0078 and 0079 [21] These grievances assert that the Employer improperly opposed her WSIA claim, and provided “false information” which caused WSIB to deny her claim. There is no identification of the “false information” involved – only the video surveillance summary, and tape. For the same reasons I stated in regard to Grievance 0077, the Employer has the right to dispute an employee’s claim that his or her injury is work-related, and it properly supplied the summary and video to the WSIB. [22] The Employer also asserted that any remedy for the Employer’s alleged actions in relation to the Grievor’s WSIA claim could have and should have been raised in that forum, which is completely separate from the GSB and has “exclusive jurisdiction” over such claims. It notes that the Grievor did appeal the WSIB’s denial of benefits, without success. It was that determination, it submits, not its actions that led to her absences connected with the January 21, 2016 injury to be counted in relation to the Attendance Management Program. [23] The Employer relies on Re Pouli and Ministry of Community Safety and Correctional Services, OLRB Case No. 0295-16-UR, which dismissed an employee’s claim, among other issues, that the “Employer caused her Workplace Safety and Insurance Board (“WSIB”) benefits to be denied.” She also alleged that it was a reprisal. At par. 18, the Ontario Labour Relations Board held, as follows: In addition to her allegations respecting the outcomes and the adequacy of the investigation, Ms. Pouli asserts that the Employer caused her WSIB benefits to be denied. It is not the Board’s role to analyse the WSIB process. It is a separate and distinct process from that at issue in a section 50 application. I have difficulty accepting that an Employer taking an adverse position before the WSIB constitutes a reprisal for the purposes of the Act. In any event, and most significantly, the Board can do nothing to remedy an adverse result that Ms. Pouli experienced at the WSIB. … [24] I agree. The GSB is an entirely separate tribunal from the WSIB. Under Section 123, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has “exclusive jurisdiction to hear and decide” “all appeals from final decisions of the Board [WSIB] with respect to entitlement to…benefits under the insurance plan.” - 7 - Grievance 0179 [25] The Union submits that the Ministry did not accommodate the grievor’s disability with any reliability. It asserts that the Ministry did not procure designated or durable equipment for her use. It submits that it should not have placed her in this situation, which posed the risk of harm and actually did cause harm. It submits that it is the Employer’s responsibility to provide for the safety and health of its employees, and that it failed to do so. [26] The Employer asserts that this grievance is precluded by a November 28, 2014 Memorandum of Settlement, which set out a specific procedure set out in Schedule A of that agreement, for issues relating to the Grievor’s accommodation which she failed to comply with. It also submits that in accordance with the same MOS, any disputes or facts prior to November 30, 2012 were fully and finally resolved. [27] The Union disagrees. It asserts that Schedule A of the MOS relates to the Grievor’s assignment in A & D subcontrol and the duties assigned, “not to every issue of accommodation in the workplace.” Paragraph 6 of that agreement states: “If a requirement arises for either party to amend the accommodation either by modifying the grievor’s existing duties or by moving the grievor to a new assignment then the parties shall follow the process attached here as Schedule A.” [28] I concur with the Union. The Schedule A process set out in the MOS applied to the Grievor’s assignment to A & D subcontrol – not all issues regarding her accommodation in that assignment. The MOS would, however, bar the Grievor’s reliance on accommodation issues that occurred prior to November 30, 2012, as that agreement, was a “full and final settlement of any and all claims, complaints, grievances or actions arising up to November 30, 2012, out of this matter or facts related to this matter that the Grievor has or may have against the Employer….” The “matter” involved the “Employer’s obligation to accommodate her disabilities…” Issues surrounding the ergonomic chair would be included in that matter. [29] The Employer also asserts that the Union cannot rely on the ASMP meeting of February 25, 2015 because a Memorandum of Settlement, dated November 10, 2015, settles “a host of ASMP issues” and resets the Grievor’s attendance under that program at zero. The Union contends that the November 10, 2015 settlement was limited to specific grievances which arose between 2010 and December 31, 2011. It submits that it creates no bar to referencing the February 2015 meeting. [30] I agree with the Union. The November 10, 2015 MOS is quite specific in regard to what it settles. It settles the specific grievances listed, which were filed between March 4, 2010 and December 31, 2011, as well as any claims based on the “facts giving rise to those grievances…”. It does not cover the ASMP meeting of February 25, 2012. [31] On the merits, the Employer asserts that the emails demonstrate that the required repairs were being addressed. It contends that it has at all times made reasonable - 8 - efforts to provide the necessary ergonomic equipment, and if a problem arose, it was addressed as soon as possible. It also notes that the last email concerning an issue was in February 2016, “so it can be inferred that a process is now working to maintain the supply of the chair.” [32] The evidence presented on this issue is quite limited. It seems to me, however, that, overall, the Employer did make efforts to ensure that there was a working, proper ergonomic chair. There were numerous times that when a wheel broke the warehouse quickly fixed it – April 8, 2014; August 28, 2014; September 16, 2014; November 3, 2014; December 22, 2014. There were some lapses, most notably March 18, 2013, where the Grievor claims she was waiting for 6 months for the arm of the chair to be repaired. That incident, however, predates the grievance by more than two years, and there was no evidence that it occurred again. [33] The evidence, consequently, is too limited to conclude, on the balance of probabilities, that the Employer violated the Grievor’s rights. It certainly seems that the chair, for a period of time, broke frequently. But the Employer, with some exceptions, acted quickly to correct it. It may have been better for the Employer to have obtained a chair solely for the Grievor’s use, as it appears that other employees may have caused issues for the chair. But in a 24/7 operation, with numerous employees utilizing the same equipment, I have no evidence that would be feasible. Without more evidence, I simply cannot conclude that the Union met its onus in this matter. [34] Accordingly, for the reasons set out above, the grievances are dismissed. Dated at Toronto, Ontario this 6th day of January, 2020. “Randi H. Abramsky” Randi H. Abramsky, Arbitrator