HomeMy WebLinkAboutBiggar 02-09-10
In the Matter of An Arbitration
Between
Leeds & Grenville Rehabilitation
and Counselling Services
. ("the Employer")
And
...
Ontario Public Service Employees Union
(the "Union")
Regarding: Grievance of Diane Biggar
00 --1jL! /-03;
Sole Arbitrator:
Felicity D. Briggs
For the Employer:
Terrance A. F. Whyte, Counsel
For the Union:
Peggy Smith, Counsel
On October 18, 2000, the grievor, Diane Biggar, filed a grievance alleging
that the Employer had violated article 4- no discrimination - of the collective
agreement. Her requested remedy was to be made whole. A hearing was held
on October 24, 200 I and the parties asked that I attempt to mediate the
matter.
The grievor went on Short Tenn Disability on April 29, 2000 due to ongoing
back problems. She applied for arid eventually received Long TernT Disabilty
insurance as provided in the collective agreement. At the time of the
mediation session the grievor was of the view'that she could return to work
and that the Employer had fa,iled to ac.commodate her return. Ultimately the
parties agreed to adjourn the mediation on the basis that the grievor would
seek a functional abilities evaluation through the insurance carrier. The parties
agreed that the Employer would encourage the carrier to ensure that the
functional abilities evaluation would be completed no later than June 2, 2002.
From the Union's point of view this would allow them an opportunity for a
thorough assessment of the .grievor's abilities. If Ms. Biggar was able to
perform certain functions neeqed in the workplace then that evidence could
be considered in a detennination as to whether the Employer failed to
accOlmnodate the grievoL The date of early June 2002 was of import because
the two year period of disability from the grievor's own occupation would
expire. The carrier would then have to assess whether to continue coverage
on the basis that the grievor was totally disabled from any occupation.
At the October 24, 2001 mediation session the parties also agreed that if the
emril...-:r refused a hmctionai abilities cvaluation I wuuld be; contacted to
...
detennine how next to proceed. TIlis conference call was not necessary
because the evaluation was completed. In JIme of 2002 the insurance carrier
agreed that the grievor was totally disabled from any occupation. She is
currently in receipt of those benefits.
At the time the mediation sesSIOn was adjourned the parties agreed to
schedule a further hearing day in September of 2002 in the event further
litigation was necessary. On S.eptember 6, 2002, the hearing was convened.
Surprisingly> the grievor want~d to contll,me. with her grievance alleging that
the Employer failed to accommodate her into a position in the workplace
notwithstanding that she has been found to be totally disabled. It was the
Union's position that it did not dispute the medical evidence that substantiates
the grievor's disability. Accordingly, the Union stated that there was no
dispute between the parties. The Employer's position had consistently been
that there was no violation of the collective agreement.
Given that there is no dispute between the parties, I dismiss the grievance.
. .
Dated in Toronto this loth day of September, 2002.
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I PI'
. V0
/v
Felicity D. Brig s
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