HomeMy WebLinkAboutAvila 98-04-23
IN THE MA TIER OF AN ARBITRATION
BE1WEEN:
THE TORONTO HOSPITAL
(the "Employern)
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
and its Local 571
(the "Union)))
GRIEVANCE OF LAURA AVILA
BOARD OF ARBITRATION:
Margo R. Newman, Chair
Steven Cass') Employer Nominee
Wally Majesky, Union Nominee
APPEARING FOR THE EMPLOYER:
Patricia Murray) Counsel
Mary Jane Tome
Pauline Monks
Theresa Frechette
APPEARING FOR THE UNION:
George Richards, Senior
Grievance Officer
Helen Simpson
Laura A vila
A hcaring was conductcd in Toronto on January 7, March 31 & September
4,1997.
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DECISION AND AWARD OF BOARD OF ARBITRATION
The preliminary issue raised by the Employer in this case is the
appropriate scope of the grievance. The grievance was filed by the grievor,
a Registered Technologist, on January 15, 1996, and states as follows:
STATEMENT OF GRIEVANCE:
Violation of Article 5, 9, all other relevant articles
and WCB Act. Ergonomically sound work area not
provided for my return to work from WCB -nor a proper
chair provided both of which the Hospital said it
would provide as to ~ needs on my return.
SETTLEMENT DESIRED:
Provide an ergonomically sound work area
immediately and stop the harassment and making me
sicker by having me work in an improper manner for
my injuries which they caused.
The evidence adduced encompasses background concerning the
nature of the grievor's injury, the creation of a return to work Vocational
Rehabilitation Plan for her, her attempt to return to work, and discussions
between the parties concerning her situation as well as the grievance
processing. While such evidence will be detailed herein, where relevant,
suffice it to say that the Employer is of the view that the grievance raised
three concerns which it felt were resolved during the grievance processing.
On the other hand, the Union believes that this grievance raises the issue
of whether the Employer met its duty to accommodate the grievor during
the relevant time period, a matter which it contends was not settled
between the parties.
'fhe Iimployer objected to receipt of any evidence which broadened
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the issue beyond whether it provided the grievor with an ergonomically
sound chair in January and February, 1996. The Union intended to take
issue not only with the Employer's treatment of the grievor upon her
return to work in January, 1996, bu t also with the manner and method by
which the return to work Vocational Rehabilitation Plan was arrived at and
imposed upon the grievor.
As a matter of background, the grievor began working for the
Employer as a Registered Technologist in 1987, and injured her back by
falling off of a chair at work in August, 1994. While the Workers'
Compensation Board (WCB) approved her claim in November, 1994, it
found that the Employer was not responsible for the accident, granting it
100% cost relief. There is no dispute that the grievor had a legitimate and
painful back injury and that she rightly received WCB compensation for it.
In the Summer of 1995, . WCB determined that the grievor was
capable of going back to work on a graduated basis. In October, 1995 WCB
sent a workplace ergonomist to conduct an assessment of the grievor's job
to see if the physical demands were consistent with her abilities. This
assessment was conducted with the participation of the Employer and the
acting Union President, but not the grievor. At the time, the grievor had
restrictions on heavy lifting, prolonged sitting/standing, and repetitive
twisting. The WCB ergonomist reported that the nature of the grievor's lab
work was almost ideal for the grievor's restrictions since she could
alternate between sitting, standing and moving, and recommended that
she return to work in the Urinalysis and Immunoassay labs and be
provided with a fully adjustable chair.
The grievor attendcd a mceting at thc Hospital on December 7, 1995
where she was presented with the Vocational Rehabilitation Plan devised,
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in part, by her WeB caseworker. That plan provides for an 8 week trial in
the Urinalysis and Immunoassay laboratory areas, with graduated hours
and duties working up to her full-time pre-injury accommodated job. The
grievor testified that she attempted to voice the concerns she had with the
plan, including her inability to meet its terms, the workload, or become
full-time after only 8 weeks, but she was cut off by the Hospital
representative and, accused of not cooperating. The grievor testified that
she should have been involved with the ergonomist in going through the
job duties and responsibilities of eac,h area, since he clearly did not have
an understanding of what .was involved in each task of her job, whether it
could be done standing or sitting, and whether twisting was required. She
stated that she did not get the opportunity to question the report or show
its inconsistencies, and was told that she either signed the return to work
plan or her benefits would be cut off and she would be out of a job. The
grievor testified that she signed the Vocational Rehabilitation Plan tlwith
allowancestl because she did not want to lose her job and did not feel she
had a choice.
The Employer sent a letter to the grievor after this meeting
addressing concerns the grievor had expressed about batch sizes and times
to do pipepetting. Biochemistry Manager Vickie Mee clarified that the
Hospital was prepared to reduce the grievor's batch sizes so that there
were no prolonged periods of sitting, resulting in a reorganization of
workload so that specific runs could be completed over her working hours.
She also noted that the Employer would provide the grievor with an
ergonomically correct chair.
Although the Vocational Rehabilitation Plan called for the grievor to
rcturn to work on December 15, 1995, she did not return until January 8,
1996 due to her physical condition at the time. The initial assignment 1Il
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her trial period was to the Urinalysis section. The grievor testified that she
had difficulty because the Hospital did not provide an appropriate
adjustable chair despite trying a few, her work area was not designed for
sitting since there was a bench which made it difficult for her to properly
position her legs when operating the machine, and she was forced to stand
most of the time to perform the time-sensitive tests which necessitated
repeatedly twisting her body.
Pauline Monks, Manager of the Biochemistry Department, testified
that after the grievor returned to work she was advised that there was an
obstacle of a garbage can and a shelf beneath the cupboard below the
grievor's work area causing her difficulty with placing her feet and knees.
Monks testified that the Employer removed both the shelf and garbage can
and cleared out the cabinet, thereby permitting the grievor to place her
feet below the counter where she worked. Monks also stated that she got
the grievor an ergonomically correct chair which had to be adjusted to her
specifically. Monks testified that, despite asking the grievor to advise her
of any other issues that may arise, she was never informed that there
were any other problems concerning the grievor's work area.
According to the grievor, her condition was worsening as a result of
her work environment. She noted that her doctor's were expressing the
medical opinion that it was unlikely that she would be able to return to
full-time work by the end of the trial period. Apparently, a Functional
Abilities Examination (FAE) was filed with the WeB during this time
expressing 'similar concerns. The grievor testified that she had problems
with the chairs provided to her by the Employer, which were never
properly adjusted for her, did not provide sufficient support, and did not
permit her feet to land at the required 90 degree angle.
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The instant grievance was filed on January 15, 1996. Monks
responded by letter dated January 18, 1996 denying the grievance and
indicating that the Hospital was complying with the recommendations of
the WeB workplace analyst. She noted that the Employer had provided an
ergonomically correct chair, and had removed the obstacles from her knee
and feet space. The letter stated that the. grievor should direct further
concerns she had regarding her modified work position by appealing to the
WCB. The grievor testified that when she got this letter, she felt that the
Employer was not working with her and that she could no longer go to
Monks with any issues that she had. The grievor was unable to continue
working due to the worsening of her condition by the end of her trial
period.
A grievance meeting was held on February 15, 1996. Present for the
Hospital were Monks, Suzanne Niles, Human Resources Manager, Theresa
Frechette, Safety Officer and Carol Ray, WCB analyst. Present from the
Union were June Hollins, then Union President, and Helen Simpson. Monks
did not know why the grievor was not in attendance at the meeting or
whether she was invited. According to Monks, the Union agreed that the
Employer had corrected the work station problems and the outstanding
issue revolved around the chair. Monks recalled the Union stating that the
chair should have arms and the Employer contending that the analyst's
report did not recommend them. Monks stated that she suggested that
they try the chair that was being provided by the Employer and if it did
not fit or the grievor wanted arms,. then the Hospital would order them.
Monks testified that Niles asked Hollins whether they had resolved the
issue and her response was that they had.
By letter dated February 221 1996 Niles responded to the third step
grievance, in part) as foHows:
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The concerns that were of issue to the grievor
and the union at the time of the grievanceJ were
reviewed and discussed and it was determined that
they had been resolved. It was suggested that the
grievor may request arms for her ergonomic~lIy
correct chair, and in such case Management agreed to
purchase the arms.
Therefore, the Hospital maintains that there is
no violation of the Collective Agreement.
The Employer heard nothing further from the Union concerning this matter
until it progressed the case to arbitration. Union President Hollins retired
and moved during the period between the grievance referral and the
arbitration hearing, and Simpson moved into her position.
Due to her medical condition, the grievor has been unable to work for
the Employer since mid-February, 1996. Apparently, WCB reduced her
benefits on December 15, 1995 and cut off her benefits entirely, after
February 9, 1996. At the time of the arbitration hearing, the grievor was
appealing that determination as well as the job suitability findings made
by the WCB. Subsequent to the hearing, the Board was notified that the
grievorts WCB appeal was allowed in part, and that some of her WCB
benefits were restored and vocational rehabilitation services were
reopened. The Employer was not represented at the WCB appeals hearing,
and argues that the findings therein are not relevant tOt n,or binding upon,
this Board.
In its opening statement, the Union clarified its remedy request to
include a declaration that the Hospital failed to accommodate the grievor, a
direction that the Hospital negotiate with the grievor and the Union
concerning all aspects of her return to work and provide real
~\(;eornnH)drtjion to her if ;md when slIP. is Hhle III return io work in lhe
8
fu ture, and the assessment of damages. During the course of the hearing,
the Employer made it clear that it was willing to meet with the grievor and
her Union representatives, and consider job accommodation for her, if and.
when she establishes by medical evidence that she is able to return to
work.
In support of its preliminary motion to narrow the scope of the
hearing to whether the chair provided by the Employer was ergonomically
sound, the Hospital argues that the broader issue of accommodation was
never brought forward by the grievor or the Union throughout her returnM
to-work period or the grievance processing, and was never discussed by
the parties. The Employer contends that the Union should not be permitted
to expand its grievance to include new issues not dealt with in the
grievance procedure, citing Re Electrohome Ltd. and IBEW, Local 2345
(1984), 16 L.A.C. (3d) 78 (Rayner); Re Rennie Inc. and Amalgamated
Clothing & Textile Workers Union, Local 740 (1993), 39 L.A.C. (4th) 76
(Haefling).
The Employer argues that it was entitled to rely upon WCB.s
workplace assessment and a Vocational Rehabilitation Plan executed by all
parties, and fulfilled its responsibilities thereunder. It asserts that, had it
known of other concerns, it could have addressed them at the time as it
did those of which it was notified. The Employer notes that there is a duty
on the employee to assist in securing appropriate accommodation, relying
upon Re GSW Heating Products Co. and United Steelworkers of America
(1996), 56 L.A.C. (4th) 249 (Barrett), and Board of School Trustees, School
District No. 23 (Central Okanagan) et al. v. Renaud et al. (1992), 95 D.L.R.
577 (Sup. Ct.). It contends that the grievor did not fulfill her obligation to
aid in her own accommodation by not informing the Employer of her
concerns m a timely manner, and should not be permitted to reopen that
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issue for the first time in an arbitration hearing.
The Union notes that the Board derives its jurisdiction from the
grievance itself which~ in this case, very broadly encompasses issues of an
Hergonomically sound work area II and cites Article 5 (No Discrimination)
which specifically mentions the Ontario Human Rights Code~ and Article 9
(Accident Prevention - Health & Safety Committee). It alleges that issues of
accommodation being raised at the hearing are clearly encompassed within
the scope of the grievance as written. The Union argues that it is not trying
to change the grounds of the grievance, but, rather, to narrow down and
focus the issues being" raised by the grievance. The Union avers that the
grievor's problems with lifting, twisting, sitting and standing, as well as the
chair~ came out in the grievance procedure.
The Union contends that the communication problems which
occurred between the grievor and the Employer were not a result of her
failing to cooperate in her accommodation, but the Employer's failure to
listen .to her concerns and its improper treatment and coercive way of
dealing with her. It also points to the internal Hospital communication
problem where the grievor's supervisors were not being notified of her
medical condition and restrictions and the ongoing medical correspondence
being received from her doctor. The Union stresses that the grievor was
not included in the important meetings where her return to work program
and job content was devised or where her grievance was discussed.
The Union argues that its failure to clarify all of the grievor's
concerns during the February grievance meeting cannot be fatal to the
further processing of the grievance as written. The Union points to the lack
of strict requirements concerning narrowing the issues or procedural rules
within the Agrcemenfs grievance processing provision (Article 10). It also
10
notes that it was clear from its prompt referral of the grievance to
arbitration that no settlement was reached concerning the grievance, and
the Employer should not be permitted to rely upon the lack of a specific
objection to its February 22, 1996 letter to support a contention that the
matter was resolved. The Union relies upon the language of Article 10.09
req1,liring that all agreements reached must be between the Union, Hospital
and the grievor, in further support of its position that no settlement to
resolve the grievance occurred. Absent such an agreement, the Union
alleges that the broad grievance is fully arbitrable, and that it must be
permitted to address the important statutory issues raised therein.
The Board has carefully reviewed all of the facts presented as well as
the parties arguments and makes the following findings. First, we conclude
that the scope of the instant grievance is properly limited to events
occurring after the grievor returned to work on January 8, 1996 and does
not encompass objections to the manner and method by which her
modified work plan was established or agreed to prior to that time. Thus,
the propriety of the workplace analyst's recommendations and the
Vocational Rehabilitation Plan established in reliance on such report are
not properly before this Board as they were not mentioned in the
grievance nor discussed during the grievance processing. Further, these
matters were 'challenged through the WCB appeals procedure and
addressed, in part, in the WCB Reinstatement Officer Decision of October 7,
1997.
Second, the Board is willing to assume, for the sake of this A ward,
that the grievance encompasses matters relating both to the provision of a
proper chair as well as an ergonomically sound work area, and is not as
limited as the Employer argues. It is clear that an unfortunate lack of
communication oGGurred for whieh the Union, the grievor and the
11
Employer are all partially responsible, and that~ as a result, the Employer
was unable to address at the time of the grievor's return to work certain
concerns brought out for the first time at the arbitration hearing. That
being said, the Board is of the opinion that a further hearing on the merits
is unnecessary for the following reasons.
Even assuming that the Union was successful in proving at a hearing
on the merits that medical information was submitted to the Employer
which should have put it on notice that there were problems with the
grievor's work station~ on the facts of this case the Board concludes that
the best the Union could hope to achieve by way of remedy is a finding
that the Employer must comply with its legal obligation to accommodate
the grievor in the event she provides medical documentation that she is
able to return to work in the future.
The Board rejects a request for monetary compensation and damages
in this case based on the following facts already elicited at the hearing: (1)
the scope and processing of the grievance; (2) issues which were not raised
by the grievor to her supervisors preventing the Employer from further
accommodating her at the time; (3). the grievor's admitted inability to
return to work since February, 1996; (4) the Employer's admitted
responsibility to reemploy the grievor upon presentation of proper medical
evidence and its legal duty to accommodate her at that time, thereby
protecting the grievor's statutory rights; (5) prejudice to the Employer in
making it defend an additional lengthy hearing regarding matters not
directly raised in the grievance procedure; and (6) the fact that all of the
parties bear some responsibility for the existence of these issues arising
for the first time at arbitration.
The EnmJover has reqe,HedJv exnressed its wilJinpness 10 med its
J!, .. 1 u ..l t,....
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legal obligation to accommodate the grievor in the future, if, and when, she
can return to work. Based upon the Board's jurisdiction derived from the
January 15, 1996 grievance, we order that the Employer do so. In the
event the grievor can return to work, she will so notify the Employer and
furnish supporting medical documentation. The Employer, the Union and
the grievor will then meet to determine how best the grievor's condition
can be accommodated within her work environment and will consider any
WeB proposed modified work plan which may exist at the time. We trust
that the parties will conform to their legal obligations in the future, and
will freely communicate with each other to enable the grievor's
reint~gration into the work force to go as smoothly as possible.
Accordingly, the Board finds no need to direct the holding of a
further hearing, and the grievance is sustained, in part.
DATED at Toronto this 23rd day of April, 1998.
-- ~~~~~air ---
I concur.
Isl Steven Cass
Steven Cass, Employer Nominee
See Addendum for
separate concurrence.
Is/ Wally Maiesky
Wally Majesky, Union Nominee
AD])BNDUM
Although I ooncttr with the a.ward~ I believe that the award shQtdd, have.
recognized the fact that !\.{s. Avila's brLck injury mltlgat.ed t.o 11 great. extent; her ttbility
to pro-act in the vety early ~ of this dbp~lte, Th~Id'())X, the b.1ay wasi
attrfuutahie to .a medir..allY .Dona fieft: re.ason, and the gdevor shoold not have been
prejudiced. .
1 also bdteve It is patently unblr to exput i$ted l'Vl;rkets. Ukr MoJ.: Avi1a.J to
be held to a high sta.nda..."'tl of conduct and due dillgence,. especially when they are net
in 100% good health. and in fact;r are medically incapacitated..
I al~o bcl.ieve the facts of this case IndirAte tha.t the grlC:vOf was the victim of a
course of (onduct, namely, the. employers apparent anti~hca1th and safety attitude. .
The.rclOJ1e. the Board should ha~ exercised its discreti()ll .and probed the pre-.
gri~ancc evidence. pertaining to the alleged emplqyct ant1~hea1th and safeW animus
as suggested by the unio~_
hrfAtU<HAM. Ontario
Aprli 1:>, 1998