Loading...
HomeMy WebLinkAboutJames 09-02-04 IN THE MATTER OF AN ARBITRATION BETWEEN: WHITBY MENTAL HEALTH CENTRE (The "Hospital") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 331 (The "Union") Individual grievance of Roy James (the"Grievor") dated September 10,2008 Hearing held in Oshawa, Ontario, on February 02, 2009. AWARD Craig Rix, Counsel for the Employer Peggy Smith, Counsel for the Union I have been appointed pursuant to section 49 of the Labour Relations Act, 1995 (the "Act") to hear and determine this matter. The parties agree that I have been properly appointed and have jurisdiction to decide this matter. This matter concerns the individual grievance of Roy James dated September 10, 2008 (the "Grievance") alleging that the Hospital is not being reasonable in meeting his need for accommodation in violation of the Collective Agreement and the Ontario Human Rights Code (the "Code"). Prior to the commencement of the hearing, Counsel for each party met with me and made brief submissions regarding the Grievance. I was also provided with a copy of a Memorandum of Agreement between the Hospital and the Union dated October 21, 2008 (the "Agreement"). The parties agree that the facts are not in dispute and that no oral evidence is be required to decide the matter. Accordingly, the parties agree that I may issue this award on consent. Background The Grievance arose when the Hospital sought medical documentation concerning the Grievor's disability. In particular, the Hospital sought medical infOlmation to explain why the Grievor could work evening and night shifts, but not day shifts. On October 21,2008 the Hospital and the Union agreed to a mediated settlement relating to the accommodation of the Grievor and resolving the Grievance. The terms of the settlement were reduced to writing and executed as evidenced by the Agreement. The terms of the Agreement included a provision that the Grievor would participate in an Independent Medical Examination (1MB). Subsequent to attending at the 1MB a dispute arose relating to the disclosure of the IME findings to the Hospital's Occupational Health Department. As a result, the Hospital refen-ed the Grievance to arbitration seeking enforcement of the Agreement. On the day of the hearing, the Grievor consented to the disclosure of the IME to the Hospital's Occupational Health Department. As a result of the disclosure, the parties agree that the Grievor will continue to be accommodated on evening and night shifts. Decision The duty to accommodate is fundamental to eliminating discrimination and integrating persons with disabilities into the workplace. In a unionized workplace, an employer is not the only party who is subject to the duty. The duty to accommodate is a multi-party duty that places obligations on all three parties; the employer, the union and the employee see Central Okanagan School District No. 23 v. Renaud (1992),95 D.L.R. (4th) 577 (S.C.C.). The duty requires each party to work together to facilitate accommodation in the workplace. Communication between the employee and the employer is essential to effective and successful accommodation in the workplace. It is very difficult for an employer to accommodate an employee if they do not have the information that is relevant to providing accommodation. Therefore, an obligation exists that requires an employee who seeks accommodation to provide relevant information to assist in identifying the nature of the accommodation that may be required. In this matter the Union and the Hospital, recognizing each party's obligation to facilitate accommodation, entered into an Agreement that required the Grievor to attend an IME and co-operate in the process of workplace accommodation. As part of the Grievor's duty to co-operate under both the Agreement and the law, the Grievor has an ongoing obligation to co-operate and provide timely access and As part of the Grievor's duty to co-operate under both the Agreement and the law, the Grievor has an ongoing obligation to co-operate and provide timely access and disclosure of relevant information to assist in the process of accommodation. This disclosure includes the production of relevant medical documentation to substantiate any work related absences. I am hopeful that the parties will now be able to work together and meet their obligations without having to resort to arbitration. However, as requested by the parties, I shall remain seized for a period of one year to address any issues arising out of the Grievor's workplace accommodation. Dated this 4th day of February 2009, in the City of Toronto, Ontario.