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HomeMy WebLinkAbout2007-2382.Dakroub.09-07-08 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2007-2382, 2008-1943, 2008-1944, 2008-1945 UNION#2007-0234-0283, 2008-0234-0212, 2008-0234-0213, 2008-0234-0214 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Dakroub)Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Barry Stephens FOR THE UNION Anastasios Zafiriadis & Jennifer Fehr Ontario Public Service Employees Union Grievance Officers FOR THE EMPLOYER Diane Cotton & Sean Milloy Ministry of Community Safety and Correctional Services Staff Relations Officers HEARINGOctober 29, 2008. SUBMISSIONS January 23, 2009. 2 Decision [1]The parties have agreed to an Expedited Mediation-Arbitration Protocol. It is not necessary to reproduce the entire Protocol here. Suffice it to say part of the protocol is a ?Mediation-Arbitration? process, wherein each provides the Vice-Chair with submissions, which include the facts and authorities each relies upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and is without prejudice or precedent. [2]Mr. Dakroub has been a CO2 at Maplehurst Corrections Complex since August 1995. Mr. Dakroub suffers from a sleep disorder that prevents him from sleeping well, rendering him unfit to come to work at times. As a result of his condition his schedule has been accommodated so that he works only day shifts. [3]The grievor challenged the application of the standard 11.5-day threshold for absences administered under the employer?s Attendance Support Policy (ASP). In a decision dated February 24, 2006, I ordered that the grievor undergo an Independent Medical Examination (IME) to resolve the issue as to whether the grievor?s condition supported an attendance threshold different from those of other employees. [4]In posing questions to the IME Specialist, Dr. Hamer, about Mr. Dakroub?s medical condition, the employer also asked questions concerning Mr. Dakroub?s ability to complete overtime shifts. In the IME, completed by Dr. Hamer on April 24, 2006, the doctor recommended against the grievor working overtime until he could achieve regular attendance. The employer did not initially implement this recommendation. However, the grievor?s overtime 3 privileges were revoked approximately one year later, as of April 23, 2007. A grievance was filed at that time, and an interim agreement was reached that the parties would request a follow- up IME report. In this second report, dated February 25, 2008, the doctor indicated that the grievor?s absenteeism was ?behavioural?. As a result of this second report, the grievor?s overtime privileges were restored on March 12, 2008. [5]The union alleges that the decision to revoke the grievor?s overtime privileges was an unreasonable exercise of management rights, in that the employer did not have the authority to pose any questions to the IME doctor about the grievor?s ability to perform overtime, and, further, that the decision was discriminatory, disciplinary and violated the purposes of the ASP. Were the Overtime Questions Appropriate? [6]The union argues that the employer?s decision was improper since the questions asked of the IME doctor were improper. The union asserts that the purpose of the IME report ordered in my earlier decision was solely to determine an appropriate attendance threshold for the grievor under the ASP. In this context, the union reasons, there was no authority for the employer to pose the questions about the grievor?s ability to work overtime. [7]The employer takes the position that the questions posed of the IME doctor arose appropriately from the assessment and the purposes set out in my original order. [8]In my view, it was not improper for the employer to ask about the grievor?s ability to work overtime. The grievor?s attendance had been affected by tiredness attributable to a sleep disorder. Although he was unable to achieve attendance standards for his regularly scheduled shifts, he continued to work significant amounts of overtime. One might reasonably ask, given 4 these facts, whether the grievor?s ability to achieve attendance norms was impacted by working overtime. The doctor was free to provide any opinion, and could have responded that the overtime work was irrelevant. The employer?s questions were aimed at clarifying this aspect of the impact of the grievor?s condition on his attendance, and I find the questions to be reasonable and consistent with the intent of my previous order. Did the Employer Seek a Full Release? [9]The employer asked the IME doctor whether there was ?any other information? it should assess in considering the grievor?s accommodation request. The union asserts this question was comparable to a request for a full release of medical information. The union submits that it is improper for an employer to seek medical information not directly related to an employee?s th ability to attend work, relying on the decisions in City of Windsor, (1995), 51 L.A.C. (4) 61 (Brent) and Canada Post (1993), 30 C.L.A.S. 419 (Devlin). [10]The employer argues that the impugned question was within the terms of the order, and was aimed at gathering relevant medical information. [11]In my view, the question seeking ?any other information? was proper. It was not an open- ended request for a full release, as was the case in Re Windsor. It was, rather, a question focused on the issue at hand, i.e. the grievor?s request for accommodation with respect to his attendance targets. The employer was entitled to ask for and receive information relevant to the grievor?s accommodation request and, in doing so, was not constrained from asking general as well as more specific questions. There is nothing in the question, in my view, that would have led the IME doctor to release inappropriate information, nor did the doctor do so. 5 Was the Employer?s Decision Discriminatory? [12]The union asserts that the employer?s decision to ban the grievor from working overtime was discriminatory. [13]The union points out that the employer?s overtime protocol specifically states that employees on accommodation who ?indicate availability? will be treated the same as other employees in the distribution of overtime. The union submits this provision is consistent with the collective agreement requirement for ?fair and equitable? distribution of overtime, as well as the protections of the Ontario Human Rights Code. It is improper, the union argues, for the grievor to be denied overtime opportunities as a result of the fact that he requested accommodation. [14]The employer responds that the decision to remove the grievor from overtime was consistent with Dr. Hamer?s recommendations, and cannot be considered discriminatory. The employer asserts that, on the contrary, it would have been discriminatory and a violation of the grievor?s rights under the Human Rights Code, had the employer required the grievor to work overtime. [15]In my view, the decision to suspend the grievor?s right to work overtime was not discriminatory. Although the grievor indicated availability to work overtime, the employer had a medical report that recommended the grievor not work overtime until he was capable of demonstrating regular attendance with respect to his regular shifts. It is not discrimination for the employer to follow the recommendation of the doctor who assessed the grievor. 6 Was the Employer?s Decision Discipline? [16]The union also relies on what it asserts is an inconsistency in the employer?s application of the doctor?s advice. On the one hand, the doctor indicated ??overtime should only be considered if and when [the grievor] is handling his assigned shifts with little absenteeism.? However, he also stated there was no ?medical reason? why the grievor could not work overtime. The union argues the employer chose to rely entirely on one statement and ignore the other, and that this was an indication that the overtime ban was intended as discipline. At very least, the union asserts, the employer was required to seek a clarification from the doctor. [17]Essentially, I must decide whether it was reasonable for the employer to rely on the IME report in reaching the decision to withhold the grievor?s overtime privileges or whether, as the union suggests, the report was at least ambiguous and required further explanation. The answer to this question requires an analysis of the report. [18]The doctor made several comments in the report pertinent to the overtime issue. He characterizes the grievor?s primary condition as a ?controlled? sleep disorder. At the same time, he identified the fact that the grievor appeared to be affected by stress arising from the workplace. Dr. Hamer also noted the apparent conflict between the fact that the grievor was reporting stress related to the workplace, yet was working overtime shifts, stating: ?It seems odd the he states he experiences stress necessitating 36 sick days but is able to work 86 extra shifts in the 2005 calendar period.? [19]Significantly, the doctor sets out three recommendations in the report, one of which squarely and unambiguously addresses the overtime issue: ?It is prudent to suggest that this man may need counseling for the stress he relates to the work environment. Until that level of stress is lessened, overtime work is counterproductive to allowing him to succeed as achieving full attendance.? 7 [20]Thus, the doctor related a health concern, the grievor?s reported workplace stress, to his attendance, and stated that overtime would be counterproductive to lessening stress and achieving reasonable attendance. [21]The union places emphasis on the doctor?s statement that there is no ?medical? reason why the grievor could not work overtime. However the entire statement should be read in context. The full quote reads as follows: ?There is no medical reason why Mr. Dakroub must avoid overtime. However, with excessive time off due to stress related events it may be unwise for overtime to be sought. If this man is in need of time to relax and time to unwind from his daytime shift and the pressures that arise from his shift, then overtime would be definitely unwise. It seems that, the more a worker works, the more stressed s/he would become, and therefore would need sick days for stress relief.? [22]This analysis, rather than suggesting a contradiction in the doctor?s report, explains more clearly the doctor?s thoughts about the grievor?s stress, the potential deleterious effect of overtime, and the resultant potential impact on the grievor?s attendance. [23]The report ends with another clear statement of the doctor?s recommendation with respect to overtime: ?As mentioned, [the grievor] should be allowed to work throughout the day, giving him enough time to get home and unwind, to go to sleep before midnight. Overtime should only be considered if an[d] when he is handling his assigned shifts well with little absenteeism.? [24]Given this review, I do not agree with the union that the report was unclear or ambiguous. It appears to me to be quite clear. The grievor?s sleep disorder is controlled and he should be capable of regular attendance. In other words, his known medical condition did not prevent him from working overtime. However, the grievor reported to the doctor that he was experiencing stress in the workplace, and, the doctor concluded, such stress would interfere with the grievor?s 8 ability to recoup and refresh at the end of a workday. In such circumstances, the doctor advised that overtime would be ?counterproductive?. The doctor recommended that the grievor receive counselling to help alleviate the stress. In the interim, the doctor added, the grievor should not work overtime. The doctor?s recommendation appears to me to be reasonable, logical and consistent, and I have no hesitation in concluding that, at the time the decision was made to suspend the grievor?s overtime privileges, the best medical opinion available to the employer clearly recommended the grievor should not work overtime. [25]I note that, in spite of the doctor?s recommendation, the employer did not move immediately to implement the overtime ban, which tends to undermine the suggestion that the decision was disciplinary in nature. The employer, it appears, would have been content had the grievor?s stress permitted him to both achieve attendance goals and work regular overtime. However, in the months following the IME report, the grievor?s attendance continued to exceed target levels. On reviewing the situation in April 2007, the employer noted that in the previous six months the grievor had worked a total of 46 overtime shifts (an average of almost two overtime shifts per week), even though his attendance had not improved. It was at this point that the employer moved to implement the doctor?s recommendation with respect to overtime. [26]In my view, the employer?s actions were appropriate. Although it might have been more prudent to impose the overtime immediately in April 2006, the employer extended to the grievor the chance to deal with the attendance issues while continuing to work overtime. Unfortunately, the grievor could not respond to this opportunity, and his attendance continued to languish. It was only after a full year of continued attendance issues that the employer decided to implement the doctor?s recommendation and to suspend the grievor?s access to overtime. At the time of the decision, the employer acted on the best medical evidence it had available. In my view, that was 9 not only appropriate, given the grievor?s continued attendance problems it appeared to be the only logical step that could be taken. In the second IME report, issued in February 2008, the doctor determined that the grievor?s failure to achieve attendance goals was behavioural, which is clearly a disciplinary concern, and at that point the employer ended the overtime ban. In other words, when the medical opinion changed, the employer ended the ban. This is another strong indication that the ban was not intended as a disciplinary response but was based on the medical information. [27]I do not consider it relevant that the medical opinion changed in early 2008. The opinion with respect to the behavioural issues was not available to the employer at the time of the decision to remove overtime privileges. The medical opinion available at the time of the decision was Dr. Hamer?s original report. It is my view that the employer?s actions were founded upon and consistent with the original report. As a result, I do not accept the union?s submission that the facts support a conclusion that the employer?s response was disciplinary. [28]Given of all of the above, and after careful consideration of the submissions of the parties, the grievances are dismissed. th Dated at Toronto this 8 day of July 2009. Barry Stephens, Vice-Chair