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HomeMy WebLinkAboutP-2009-2280.Pani.11-07-08 DecisionPublic Service Commission des Grievance Board griefs de la fonction publique Bureau 600 Suite 600 180, rue Dundas Ouest 180 Dundas St. West Toronto (Ontario) M5G 1Z8 Toronto, Ontario M5G 1Z8 7pO   Tel. (416) 326-1388 7pOpF   Fax (416) 326-1396 P-2009-2280, P-2011-0247 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Complainant Fatima Pani - and - The Crown in Right of Ontario (Ministry of Attorney General and Ministry of Government Services) Employer BEFORE.DWKOHHQ*2¶1HLOVice-Chair FOR THE COMPLAINANTGavin Leeb Counsel FOR THE EMPLOYER Lisa Compagnone Ministry of Government Services Counsel HEARING May 30, 2011. - 2 - Decision [1] This decision deals with an issue concerning accommodation of a disability which the parties have put before the Board for an interim ruling. Ms. Fatima Pani has filed FRPSODLQWVZLWKWKH%RDUGFRQWHVWLQJVHYHUDODVSHFWVRIWKHHPSOR\HU¶VWUHDWPHQWRIKHU absence due to illness and claiming various remedies. A hearing on the merits has not yet taken place, but in the interim, the employer has proposed a return-to-work plan. The issue on which the parties have sought a ruling is whether the employer should be directed to facilitate and pay for a review of its proposed return to work plan by a SK\VLFLDQWRHQVXUHWKDWLWPHHWVWKHFRPSODLQDQW¶VUHVWULFWLRQVDVVKHUHTXHVWV7KH HPSOR\HU¶VSRVLWLRQLVWKDWLWLVQRWSDUWRIWKHGXW\WRDFFRPPRGDWHWRLQLWLDWHDQGSD\IRU medical approval of a return-to-work plan it considers to be in accordance with the PHGLFDOUHVWULFWLRQVSURYLGHGE\WKHFRPSODLQDQW¶VGRFWRU [2] Counsel for the grievor maintains that the employer should facilitate an appointment with a physician who, at the request of the employer, performed an Independent Medical Examination (IME) of the grievor in 2010. What is sought is a joint request from the employer and the complainant to answer the question as to whether the proposed return-to-work assignment meets her restrictions or not. Factual/procedural background [3] The complainant originally proposed a conference call to deal with the issue now before me, but the employer wished an in-person hearing, which was held. Both sides wished to argue the question on asserted facts and documents rather than delaying the matter further by scheduling further hearing dates to call viva voce evidence. I have assumed the asserted facts true for the purposes of this motion. It is important to make clear that GRLQJVRGRHVQRWDPRXQWWRDILQGLQJRIIDFWRQWKH%RDUG¶VSDUW,IWKHPDWWHUSURFHHGV to hearing, the facts will be determined from evidence then before the Board, and could be different from those relied on here. [4] Ms. Pani, the complainant, has been off on sick leave for an extended period of time. It is not currently disputed that she suffers from a disability, or that the employer owes her DGXW\WRDFFRPPRGDWHWKDWGLVDELOLW\7KHFRPSODLQDQW¶VWUHDWLQJVSHFLDOLVWKDV provided reports to the employer, most recently on February 24, 2011, in which he - 3 - answered questions from the employer in regards to her ability to return to work. The restrictions set out in that report included a change of location and reporting arrangements. On April 13, 2011, the employer confirmed an offer to return to work in an assignment which it maintains responded appropriately to her medical restrictions. The complainant does not feel that the currently proposed return to work plan is sufficiently responsive to her restrictions, and has made the employer aware of this. The employer afforded her time to check the matter with her treating specialist, but without SD\,QWKHLQWHULPKRZHYHUWKHFRPSODLQDQW¶VVSHFLDOLVWKDGUHWLUHGIURPSUDFWLFHDQG was no longer available to review the proposal. The complainant sought and obtained a referral to a new specialist, but the first appointment available is not until the end of July. The complainant and her counsel turned to the employer to re-contact the doctor who SHUIRUPHGWKH,0(DWWKHHPSOR\HU¶VUHTXHVWZKRZDVIDPLOLDUZLWKKHUFDVHDQGLWZDV thought could provide the review in a shorter time frame, thus facilitating the FRPSODLQDQW¶VHDUOLHUUHWXUQWRZRUN [5] Employer counsel indicated she had been told that the only thing that the doctor could do would be a full Independent Medical Examination, not a review of a return-to-work plan, perhaps because of contractual arrangements with him. Arguments and Conclusions [6] The employer argues that the duty to accommodate does not include the obligation to LQLWLDWHDQGSD\IRUDPHGLFDOUHYLHZRILWVUHWXUQWRZRUNSURSRVDO,WLVWKHHPSOR\HU¶V position that the analysis of whether facilitating a review of the return-to-work proposal amounts to undue hardship would be premature, since it is not required by the duty to accommodate to do so. Further, counsel argues that the case law stands for the proposition that medical information must come from the employee, not the employer. In WKHDOWHUQDWLYHLI,ZHUHWRILQGWKDWWKHGXW\WRDFFRPPRGDWHLQFOXGHVWKHFRPSODLQDQW¶V request, the employer does not argue that it would amount to undue hardship to do as the complainant requests. [7] Employer counsel relies on the following case law: OPSEU (Balog) and Ministry of &RPPXQLW\)DPLO\DQG&KLOGUHQ¶V6HUYLFHV, (April 21, 2004) GSB # 1998-1972, et al., [2004] O.G.S.B.A. No. 73, Guibord and Treasury Board (Transport Canada), (December 8, 1995) PSSRB # 166-2-25249, [1995] C. P. S.S.R.B. No. 114, application for judicial review dismissed by the Federal Court of&DQDGD±7ULDOGLYLVLRQRQ1RYHPEHU - 4 - 1996, reported at [1996] F.C. J. No. 1534, Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 (S. C. C.); Sault Area Hospitals v. Service Employees th International Union, Local 268 (Ainslie grievance), (2001), 96 L.A.C. (4)168;OPSEU (Ranger) and Ministry of Community Safety and Correctional Services, (January 18,  *6%² - 5 - notes that the contractual issues concerning the physician who performed the IME were raised by employer counsel for the first time at the hearing, and so he was not in a position to have explored them to see if they could be resolved. [10] Counsel for the complainant relies on the following case law: Central Okanagan School th District No. 23 v. Renaud, [1990] 2 S.C.R. 489; 95 D.L.R. (4) 577; (S. C. C.); Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1992] 2 S.C.R. 970 (S. C. C.); British Columbia (Superintendent of Motor Vehicles v. British Columbia (Council of Human Rights), [1992] 2 S.C.R. 970 (S. C. C.); Ahkwesahsne Police Assn. v. Mohawk th Council of Akwesasne (White grievance), (2003), 122 L.A.C. (4)161. * * * [11] As the parties both acknowledge, the content of the duty to accommodate varies according to the facts. Employer counsel relies on attempts to formulate guidelines or principles in the cases cited above, particularly references in the case law to the HPSOR\HH¶VREOLJDWLRQWRSURYLGHPHGLFDOHYLGHQFHDVWKHDQVZHUWRWKHTXHVWLRQSRVHG It is generally true, as counsel argues, that the medical evidence usually flows from the employee, unless the employer disputes it, in which case employers may ask for, and facilitate an independent review, as the employer did at an earlier stage of this case. But ,GRQRWDJUHHZLWKWKHHPSOR\HU¶VVXEPLVVLRQWKDWWKHFDVHODZLVFOHDUWKDWWKHRQXVLV otherwise always on the employee to provide medical evidence and pay for it. [12] The context in which this request is raised is very specific, and has not been dealt with in the cases cited. The complainant provided medical evidence from her treating specialist, who made very specific recommendations as to a carefully coordinated graduated return-to-work process. The employer has responded with a return-to-work proposal, which the complainant does not agree meets the restrictions, and which her counsel suggests might represent facial compliance but not really be accepting of the restrictions. The doctor who authored them is no longer available to provide clarification. $OWKRXJKWKHHPSOR\HU¶VSURSRVDOFUHDWHVIRUPDOUHSRUWLQJDQGZRUNORFDWLRQ assignments which they assert meet the restrictions, the complainant has raised concerns as to whether the proposal is actually effective or bears too much risk of triggering a relapse because of the elements it does not address. Employer counsel did not argue that the concerns were frivolous. - 6 - [13] Having carefully reviewed the case law, it is my view that no general principle can be GHULYHGWRWKHHIIHFWWKDWWKHHPSOR\HU¶VGXW\WRDFFRPPRGDWHGRHVQRWLQFOXGHDGXW\WR ensure that its return to work plan is medically viable, in the presence of reasonable questions in that regard. Although I agree that the complainant must cooperate in facilitating a return to work, I do not subscribe to the notion that the employer's duty to accommodate pauses once it has put forward a return-to-work proposal, until the grievor either returns to work or provides further medical evidence. It is an ongoing duty. [14] Both counsel referred to the decision of the Supreme Court of Canada in Renaud, cited th above, and in particular to the following passage at 95 D.L.R. (4) at page 593. In discussing what the complainant must do in order to facilitate accommodation, the Court said as follows: a. To facilitate the search for accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus, in determining whether the duty of accommodation has been fulfilled, the conduct of the complainant must be considered. b. This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept UHDVRQDEOHDFFRPPRGDWLRQ«7KHFRPSODLQDQWFDQQRWH[SHFWDSHUIHFW solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged. [15] The employer focuses on its view that its return-to-work plan is a reasonable response to WKHJULHYRU¶VUHVWULFWLRQVZKLOHWKHFRPSODLQDQWVD\VWKDWWKHYHU\LVVXHLVZKHWKHUWKH SURSRVDOLQWKHZRUGVRIWKH&RXUWLQWKHTXRWHMXVWDERYH³LVUHDVRQDEOHDQGZRXOGLI LPSOHPHQWHGIXOILOOWKHGXW\WRDFFRPPRGDWH´7KHHPSOR\HHKDVUDLVHGWKHFRQFHUQ that the proposal would not meet the restrictions and could endanger her still fragile recovery. In my view, addressing these concerns is part of the ongoing mutual duty to - 7 - facilitate the accommodation of the grievor's disability. The narrow question before me is whether the manner of addressing those concerns proposed by the complainant is part of that duty. The question for the Board at the moment is not whether the proposed UHWXUQWRZRUNDVVLJQPHQWPHHWVWKHFRPSODLQDQW¶VPHGLFDOUHVWULFWLRQV [16] Although it is not necessary to engage in the undue hardship analysis, as the employer did not argue that pursuing the requested medical review represented undue hardship, it is relevant to the question before me to note, as does the Ranger decision cited above, referred to by employer counsel on another point, that s. 17 (2) of the Ontario Human Rights Code specifically names certain factors as relevant to whether accommodation is viable short of undue hardship, i.e. cost, outside sources of funding, if any, and health and safety requirements. Although the parties did not specifically address the latter, I note that the general health and safety requirements set out in s. 25 of the Occupational Health and Safety ActLQFOXGHWKHHPSOR\HU¶VREOLJDWLRQWRWDNHHYHU\SUHFDXWLRQ reasonable in the circumstances to protect the worker. And counsel for the employer did such as the not dispute the relevance of the factors set out in Central Alberta Dairy Pool, size of the employer. [17] To return to the basic situation, the employer has proposed a plan for returning the grievor to work, which it acknowledges is part of its duty to accommodate. The employee has raised concerns, which are not argued to be frivolous or unreasonable, and proposed a method to resolve them. It was not argued that the proposal to contact and pay for a review by the doctor who did the IME was unreasonable. Nor was it disputed that such an opinion might serve to allay or confirm the concerns raised by the complainant, or that the doctor in question might be in a good position to provide the opinion as he had the advantage of an earlier examination of the complainant and review of the case, whereas any other specialist reviewer will be seeing the complainant for the first time. There were statements made by employer counsel about what she had been told about contractual arrangements with the physician who performed the earlier IME, but it was not suggested that the employer had approached him with a proposal to IDFLOLWDWHWKHJULHYRU¶VUHWXUQWRZRUNE\DVNLQJIRUDQRSLQLRQRUWKDWDQRWKHU,0(ZDV inappropriate for the intended purpose of resolving the issue here. The issue of whether it was faster to go that route than others is not possible to determine on the facts asserted before me. - 8 - [18] The employer relies on remarks made in the Sault Area Hospitalscase, cited above, to the effect that the restrictions which should govern are those which are identified as medically necessary, so that the employer is entitled to be satisfied that the restriction has some medically recognized basis. Here there is medical evidence about restrictions, but the parties do not agree on the interpretation of that evidence, as to whether the proposal is consistent with the restrictions provided. This is not the same situation as in the Sault Area Hospitals case as the Board of Arbitration there found that at all relevant times the offered work was consistent with the grievor's reported medical restrictions. Here, there has been no similar finding. The dispute over that issue has instead generated the request for a medical review of the return-to-work proposal. [19] The employer refers to the Balog case, cited above, for the proposition that it is not required to consult with the employee prior to proposing an accommodation solution. While this may be so, it does not resolve the problem here which is a squarely raised dispute as to whether or not the proposal meets the medical restrictions already , also relied on by the provided to the employer. As to Guibord and Treasury Board HPSOR\HUZKHUHLWZDVIRXQGWKHUHZDVQRUHDVRQDEOHH[SODQDWLRQIRUWKHJULHYRU¶V hesitancy to accept the accommodation, that is not the factual situation before me. 0RUHRYHULQWKDWFDVHLWZDVIRXQGWKDWWKHHPSOR\HU¶VSURSRVHGVROXWLRQZDV UHVSRQVLYHWRWKHJULHYRU¶VFRQGLWLRQDQGWKDWLIVKHKDGKDGUHDVRQWREHOLHYHDWWKH relevant time, that exposure to the new work location proposed would not only be of no assistance, but would actually be detrimental to her condition, she had a duty to let that be known. In my view that is the situation before me, as the complainant has pointed out her view that the restrictions provided by her physician are not met by the proposal. As noted above, I am of the view that it is part of the duty to accommodate for the employer to address those concerns. With the cooperation of the employee, it needs to ensure that its proposed work assignmentPHHWVWKHHPSOR\HH¶VUHVWULFWLRQV [20] Having reviewed the request and the facts that are before me, I find that the FRPSODLQDQW¶VSURSRVDOLVDUHDVRQDEOHRQHWKDWZRXOGOLNHO\DGGUHVVWKHFRQFHUQV UDLVHGDVWRZKHWKHUWKHHPSOR\HU¶VUHWXUQWRZRUNSODQDFWXDOO\PHHWVWKHUHVWULFWLRQV her former specialist has provided to the employer. It may not be the only reasonable method to ensure that the proposed accommodation is safe in the circumstances, but it is certainly a reasonable proposal and precaution to protect both the worker and the employer. The employer is directed to either engage in the proposed facilitation of the - 9 - review by the physician who did the IME or, if that is actually not feasible despite the best efforts of the employer, to take other measures to ensure that the proposed DVVLJQPHQWDFWXDOO\PHHWVWKHFRPSODLQDQW¶VUHVWULFWLRQV,IWKHFXUUHQWSURSRVDOGRHV not meet those restrictions, it will have the continuing duty to take other measures to DFFRPPRGDWHWKHFRPSODLQDQW¶VGLVDELOLW\LQIDFLOLWDWLQJDUHWXUQWRZRUNDVVRRQDV SRVVLEOH:KHWKHUWKHHPSOR\HU¶VFRQGXFWLVUHDVRQDEOHDQGPHHWVWKHGXW\WR accommodate in all the circumstances, and what remedy should flow if it is determined otherwise, are questions that are not before me at this juncture, but may be determined if necessary. [21] In sum then, the answer to the question before me is that, in the circumstances of this FDVHLWLVSDUWRIWKHHPSOR\HU¶VGXW\WRDFFRPPRGDWHWRWDNHUHDVRQDEOHVWHSVWR HQVXUHWKDWDUHWXUQWRZRUNSODQPHHWVWKHFRPSODLQDQW¶VUHVWULFWLRQVHVSHFLDOO\LQWKH face of medical evidence already supplied, and the questions raised by the grievor, as to whether it is likely to be harmful to her in its current form. The solution proposed by the complainant is a reasonable measure to this end, although likely not the only one. As the employer did not argue that the proposal that the employer pay for the review even DSSURDFKHGXQGXHKDUGVKLS,ILQGWKDWLWGRHVQRW,WLVKRSHGWKDWWKHSDUWLHV¶PXWXDO cooperation will resolve any further issues in respect of the genuine issue as to whether the current proposal meets the grievor's restrictions. Nonetheless, the Board remains seized to deal with the implementation of the above decision as necessary. th Dated at Toronto this 8 day of July 2011. .DWKOHHQ*2¶1HLO9LFH&KDLU