HomeMy WebLinkAbout2019-1164.Kay.21-04-14 DecisionCrown Employees
Grievance Settlement
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180 Dundas St. West
Toronto, Ontario M5G 1Z8
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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# 2019-1164
UNION# G-71-19-BOE
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Kay) Union
- and -
The Crown in Right of Ontario
(Metrolinx) Employer
BEFORE
Michelle Flaherty
Arbitrator
FOR THE UNION
Dean Ardron
Ursel Phillips Fellows Hopkinson LLP
Counsel
FOR THE EMPLOYER Daniel Fogel (Counsel)
Jamie Burns (Student-at-Law)
Hicks Morley Hamilton Stewart Storie LLP
HEARING
April 14, 2021
-2-
INTERIM DECISION
[1] This hearing commenced on April 14, 2021 via video conference. The parties
agreed I was properly appointed and there were no challenges to my jurisdiction to
hear and decide this matter.
[2] On March 18, 2021 the Union wrote to the Employer advising of a preliminary
motion it intended to bring:
The Union seeks the adjournment of the hearing in order to permit the
Grievor to obtain a medical report from a treating psychiatrist or
psychologist which addresses the following questions:
a. In your medical opinion, does the Grievor suffer from any
medical condition (or conditions) which are relevant to the
misconduct set out in the Employer’s particulars of March 8 and
9, 2021? If so, please indicate the diagnosis of each condition.
b. In your medical opinion, how long has the Grievor suffered from
these conditions and does he continue to suffer from them to
today’s date?
c. In your medical opinion, is there a medical condition (or
conditions) that caused or contributed to the conduct that gave
rise to the misconduct set out in the Employer’s particulars of
March 8 and 9, 2021?
d. If yes, please indicate what specific behaviours or conduct is
attributable to the medical condition (or conditions).
e. In your medical opinion, is the Grievor currently medically fit to
return to work? If not, please provide your detailed explanation
of why he is medically unfit.
f. Does the Grievor require any ongoing medication, treatment, or
follow-up in order to become or remain fit for work? If yes,
please provide particulars.
g. In your opinion, can the Grievor be safely returned to work at
Metrolinx in the future? Why or why not?
h. In your medical opinion, does the Grievor need to comply with
any other requirements, recommendations or requests in order
to be safely returned to work? Please elaborate with specifics to
assist the parties in monitoring follow-up and/or compliance if
necessary.
-3-
[3] In advance of the hearing, the parties agreed to use the April 14, 2021 hearing day
to address various case management issues.
[4] I heard representations from the parties regarding the factual and legal
background to this grievance. In seeking its adjournment, the Union made
reference to Toronto District School Board v. Ontario Secondary School Teachers'
Federation (Bissoon Grievance), [2005] O.L.A.A. No. 80 (Davie).
[5] Having heard the representations of counsel, I hereby direct the following steps be
taken.
Independent Medical Examination
[6] The Union shall advise the Employer by June 1, 2021, if the Grievor has agreed to
a Union IME or if the Grievor intends to obtain his own IME. The IME will be
conducted by a duly qualified psychiatrist or psychologist.
[7] By September 1, 2021, the Union will either provide a copy of any such IME report
to the Employer or advise that it is not relying on medical evidence. If the IME
report is in process and will not be completed by September 1, 2021, the parties
will discuss this issue and schedule a conference call if necessary.
[8] If the Union intends to rely on an IME report or is relying on an underlying medical
condition, the Union will obtain and provide all medical records which are arguably
relevant to the medical condition. The documents will be provided as soon as
possible and no later than September 1, 2021.
[9] The Employer has reserved its right to dispute the admissibility of the IME Report
or portions thereof.
Crown and Police Materials
[10] The Employer has expressed its intention to seek documents from the Crown and
Police, which relate to the Grievor’s alleged harassment of certain individuals
between January 1, 2018, and present. The documents being sought are set out
in a letter from Metrolinx to the Union of today’s date. Without determining the
question of admissibility, these materials are arguably relevant to issues in dispute
and therefore their disclosure is required for the adjudication of those issues.
[11] The Employer has sought production of certain documents from the Crown and
Police. The Police have provided materials which are redacted and indicated that
unredacted materials require the consent of the Grievor.
[12] The Employer will provide the Union with draft Consent forms to obtain the
materials. The Union and Grievor are directed to take reasonable steps to
facilitate the production of these documents by June 1, 2021.
-4-
Other Production
[13] Following receipt of the IME Report, the Employer will advise within 15 days of any
outstanding production requests.
[14] The Union will advise within 1 week if there are disputes as to the requested
production.
[15] If production disputes remain, a case management conference will be scheduled
within 3 weeks with a view to resolving all outstanding procedural issues so the
matter can proceed on the merits on the next hearing day.
Liability Waiver
[16] In the specific circumstances of this case and in light of the Union’s request to
adjourn the hearing to permit the Grievor to obtain an IME Report, the Union will
not be entitled to seek back wages for the period commencing today until the
hearing into the merits of the grievance commences. This is without prejudice to
the Grievor’s right to apply for Long-Term Disability through the benefits provider.
Adjournment
[17] The hearing in this matter is adjourned to allow the Grievor to obtain an IME
Report addressing the questions set out in the Union’s request cited in paragraph
2 above.
Dated at Toronto, Ontario this 14th day of April, 2021.
“Michelle Flaherty”
______________________
Michelle Flaherty, Arbitrator