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HomeMy WebLinkAbout2013-2349.Grievor.15-09-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 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#2013-2349, 2013-2350, 2013-2351 UNION#2013-0579-0034, 2013-0579-0035, 2013-0579-0036 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Reva Devins Vice-Chair FOR THE UNION Katherine Ferreira Koskie Minsky LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING August 20, 2015 Decision [1] There are three grievances before me. In the first, filed on July 18, 2013, the Union alleges that the Employer failed to provide timely and appropriate accommodations of the Grievor’s permanent physical and psychological work restrictions from June 2012 to the date of the grievance. The second grievance was filed on August 1, 2013 and alleges that the Employer disregarded the Grievor’s medical restrictions when it ordered her to return to work, failed to appropriately accommodate her restrictions and unjustly terminated her employment by deeming her to have abandoned her post when she refused to return to an unsafe workplace. The last grievance was filed on August 29, 2013 and alleges that the Employer failed to file a Record of Employment with Service Canada within the prescribed timeframe following the Grievor’s unjust termination. [2] The Employer raised two preliminary matters for determination. First, it requests that the proceedings be bifurcated: that the Board hear the August 1st grievance and issue a decision on whether the Grievor abandoned her position before proceeding to deal with the remaining grievances. Second, it submits that the particulars that have been provided by the Union are overly broad and include matters that are outside the scope of the grievance and/or are untimely. The Employer reserved it’s right to raise any objections to the arbitrability of the third grievance and the issuance of the Grievor’s Record of Employment in closing argument. 2 Background [3] The Grievor was employed as a Diversity Outreach Officer in September 2011 when she suffered a workplace injury caused by a malfunctioning elevator. She was subsequently off work on a WSIB approved medical leave for an extended period of time. She was treated for both physical and psychological injuries and advised the Employer of permanent disabilities that would require accommodation upon her return to work. The parties engaged in a lengthy accommodation process that the Grievor alleges was both untimely and did not result in her medical restrictions being adequately or appropriately accommodated. She nonetheless returned to work on May 1st, 2013, suffered a further short term absence due to re- injury and returned again on May 15th 2013. [4] Immediately upon her return she experienced a severe allergic reaction from exposure to a chemical deodorizer used in the workplace. She went home as a result of this reaction and has not returned to work since that time. The parties engaged in further accommodation discussions related to the Grievor’s allergy. During this period the Grievor requested an extended vacation to cover some of her absence; her requests were denied. The Employer eventually ordered the Grievor to return to work, however she did not feel her accommodation needs had been appropriately addressed and she refused. [5] The Employer ultimately issued several orders for the Grievor to return to work and noted that she was away without authorisation. In a letter dated August 1, 2013, the Employer advised the Grievor that she was deemed to have abandoned her position. 3 [6] Three grievances arising from these incidents have been filed: a. July 18, 2013: grievance filed alleging that the Employer has failed to provide the Grievor with appropriate and timely accommodations from June 2012 forward; b. August 1, 2013: grievance filed alleging that the employer failed to provide appropriate and timely accommodation regarding the Grievor’s chemical sensitivity prior to ordering her back to work. The Grievor considered the workplace as unsafe and refused to comply with the return to work order, which led to her unfair termination. c. August 29, 2013: grievance filed alleging that the employer failed to submit a record of Employment within 5 days as required by law. Submissions [7] The Employer submits that the most efficient way of proceeding is to bifurcate the hearing: whether the Grievor abandoned her position is a discrete issue that can be determined after a fairly short hearing. It suggested that it would take three or four times longer to complete a hearing into all three grievances and it could easily be three more years before a decision is issued. The Grievor was released in 2013 and, analogous to discharge matters, the parties and the Board should endeavour to return her to work as soon as possible, if warranted. [8] The Employer also submitted that the particulars provided by the Union expand the scope of the grievance. It argued that a number of the facts alleged in the particulars do not flow from the grievances, even on a liberal interpretation. The Employer requested that the particulars regarding the following issues be struck: 4 a. Allegations regarding the removal of the Grievor’s name from the internal directory; b. Allegations regarding the Employer’s role in the overpayment of WSIB benefits; c. Allegations that the Employer unreasonably denied the Grievor’s vacation request; d. Allegations that the Employer is in breach of s. 43 of the Occupational Health and Safety Act; and e. Allegations regarding the OPSEU Pension Trust (“OPT”), which are outside of the GSB’s jurisdiction. [9] The Employer also requested that the Union be restricted to calling evidence of the Employer’s conduct from May 1, 2013 to the Grievor’s deemed abandonment. The Employer argued that the particulars of the Employer’s alleged conduct prior to that date are either irrelevant to the issue of the appropriateness of the Grievor’s accommodation, or untimely. The Employer acknowledged that the Board’s caselaw permits the Union to go back in time to establish a pattern of harassment, however, in this case that was unnecessary to determine whether the grievor was appropriately accommodated. To the extent that the grievance itself includes a reference to a failure to accommodate from June 2012 to the date of the grievance on July 18, 2013, those allegations are untimely. If the grievor felt that she was not appropriately accommodated in June of 2012, she was obliged to grieve then. [10] The Employer relied on the following cases in support of their motion: OPSEU (Jones et al.) v. Ontario (Ministry of Labour), GSB #2006-1204 (2010) (Abramsky); 5 AMAPCEO (Kooji) v. Ontario (Ministry of Attorney General), GSB #2009-2529, (2010) (Herlich); OPSEU (Ashley et al.) v. Ontario (Ministry of Community, Family and Children’s Services), GSB #2001-1700 (2003) (Abramsky); OPSEU (Sitek) v. Ontario (Ministry of Community Safety and Correctional Services), GSB #2012- 0579 (2013) (Devins). [11] The Union vigorously opposed the motion to bifurcate the proceedings and asked that all three grievances be heard together, as in the normal course. In it’s submission the first two grievances are significantly intertwined. Both grievances raise issues regarding the adequacy of the Grievor’s accommodation and the accommodation process. Although the immediate cause of the Grievor’s absence when she was declared abandoned was with respect to her environmental allergies, her fears regarding her safe return to work were informed by the Employer’s treatment of her throughout the entire accommodation process, which commenced with her initial injury in 2011. [12] Moreover, the Union argued that the Grievor is alleging that the Employer engaged in a pattern of discrimination and harassment that was ongoing until, and even beyond, her termination. In the circumstances, the Union submits that it would be severely prejudiced in its ability to present its case on the abandonment grievance if it did not call all of the evidence relevant to the entire accommodation process. [13] The Union further submits that if the matter were bifurcated, a determination on the August 1st grievance would not be dispositive of the remaining two grievances. Therefore, there is very little efficiency to be gained. Indeed, in the Union’s submission it would likely be less efficient in that the same witnesses would be 6 required for all three matters and would be called on at least two occasions. Furthermore, the parties run the risk of wasting considerable time arguing over relevancy. [14] With respect to the Employer’s arguments that the particulars have expanded the scope of the grievance, the Union submitted that the issues that have been identified by the Employer are inherent in the original grievances. The grievances specifically cite violations of Article 3, the discrimination and harassment provision of the collective agreement. The particulars disclose the Employer’s failure to accommodate the Grievor, failures in the accommodation process and discrimination and harassment in the Employer’s treatment of the Grievor in this period. Particulars that demonstrate a pattern of discrimination and harassment are permitted for a period of up to three years under the Board’s jurisprudence. [15] The Union further maintained that the particulars regarding violations of the Occupational Health and Safety Act are inherent in the original grievances. Although the grievances do not specifically mention the Act, they do include allegations that Article 9, the health and safety provision, was violated and specifically mention that the Grievor did not want to return to unsafe working conditions. In the Union’s submission, that is sufficient to encompass the particulars regarding OSHA. [16] The Union relied on the following cases in support of its submissions: OPSEU (Patterson) v. Ontario (Ministry of Children and Youth Services), GSB #1989-1546 (2006) (Abramsky); OPSEU (O’Brien) v. Ontario (Ministry of Community Safety and Correctional Services), GSB #2003-1881 (2011) (Leighton); OLBEU (East) v. 7 Ontario (Liquor Control Board of Ontario), GSB #2004-4059 (2005 (Dissanayake); OPSEU (Stewart et al.) v. Ontario (Ministry of Solicitor General and Correctional Services), GSB #1999/98 (2000) (Harris); Toronto v. CUPE Loc. 79 (Aminirad), (2004) 128 LAC (4th) 217 (Kirkwood); Greater Sudbury Hydro Plus Inc. v. CUPE, Loc. 4705 (Armstrong), (2003) 121 LAC (4th) 193 (Dissanayake); Daybar Industries Ltd. v. United Steelworkers of America, Loc. 9042 (Virdee), (2012) 223 LAC (4th) 126 (Knopf). Decision [17] I turn first to the issue of bifurcation. In considering requests to bifurcate the proceedings, the Board has weighed the potential for a more efficient hearing process, including whether the disposition of one aspect of the case might be dispositive of all issues, against the potential unfairness to one of the parties in proceeding in this manner. [18] Vice Chair Harris stated the basic principles in Stewart, supra, at p. 6, as follows: In deciding whether to bifurcate proceedings the Board seeks to maximise efficiency in the hearing process. If the early resolution of an issue may be dispositive of the matters before it, then bifurcation is a useful procedural tool, provided there is no unfairness to any party in following such a procedure. The Vice Chair identified the issue before him as “whether there are any efficiencies to be obtained” in bifurcation, but repeated the admonition that “efficiencies may only be considered where there is no compromise of procedural fairness and natural justice” (at p. 8). Ultimately, the Vice Chair dismissed the motion, having concluded that the evidence could not be readily divided between the different issues and that there was “great potential for the hearing to get 8 bogged down into disagreement over what evidence is and is not relevant to the proposed circumscribed issues” (p. 8). [19] Having considered the submissions of the parties I have determined that it would not be appropriate to bifurcate these proceedings. In my view there is very little efficiency to be gained by granting the motion. The Union has made it clear that the grievor’s refusal to attend at the workplace was directly related to the Employer’s failure to properly accommodate her commencing with her initial accident in 2011. That failure, including flaws in the accommodation process, is at the heart of the grievance the Employer seeks to uncouple from the abandonment hearing. If both grievances are not heard together, either, the Union will be denied the opportunity to call relevant evidence regarding the grievor’s failure to return to work or there will be significant duplication. In either case, the circumstances do not favour bifurcation of the proceedings. I would also note that a decision rendered in the abandonment grievance would not be dispositive of the remaining grievances, which is another factor that weighs against bifurcation. [20] The Employer suggested that this is akin to a discharge grievance and every effort should be made to return the grievor to work as soon as possible, where warranted. Although I agree that generally a case such as this should be expedited whenever possible, there are many unique facts in this instance that make an imminent return to work unlikely in any event. The grievor’s former position no longer exists and her medical restrictions will make it very challenging to find an alternate position. I would dismiss the motion for bifurcation. 9 [21] I turn then to the scope of the grievance and whether the particulars provided by the Union improperly expand upon them. The principles set out by the Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and Carpenters Local 2486, (1975), 57 DLR (3d) 199 still provides the starting point for analysis: No doubt it is the practice that grievances be submitted in writing and that the dispute be clearly stated, but these cases should not be won or lost on the technicality of form, rather on the merits and as provided in the contract and so the dispute may be finally and fairly resolved with simplicity and dispatch. … Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect the agreement provisions. [22] Arbitrator Dissanayake discussed these principles and further fleshed them out in Greater Sudbury Hydro Plus, supra, at paragraphs 12-14, as follows I find two countervailing principles in the foregoing statement by the Court of Appeal. The first is that, where on a liberal reading of the grievance an issue, although not articulated well, is inherent within it, an arbitrator ought to take jurisdiction over that issue, despite any flaws in form or articulation. However, there is also a countervailing principle to the effect that an arbitrator ought not, in the guise of “liberal reading”, permit a party to raise at arbitration an issue which was not in any manner, even inherently, joined in the grievance filed. To do that would defeat the very purpose of the grievance and arbitration procedure. [23] The Employer has suggested that a number of issues raised in the particulars in this case are not inherent in the grievance, even on a liberal reading. For the most part, I do not agree. Nor do I agree, however, with the Union’s submission that because Article 3 was grieved, all allegations of discrimination and harassment should be permitted. In my view, a fair and liberal reading of the grievance suggests that the essence of the dispute was restricted to the grievor’s disability, accommodation and the accommodation process. A general complaint of 10 “discrimination or harassment” on different grounds, entirely outside of the accommodation process, would not be captured by these grievances. [24] To the extent that the Union is alleging that certain actions, such as the removal of the grievor’s name from the internal directory, the Employer’s role in the WSIB overpayment and the refusal to grant vacation, were occasions on which the Employer tried to harass her during the accommodation process or were discrimination on the basis of her disability, then I find that they are within the scope of the grievance. I would, however, grant the motion with respect to the particulars regarding the OPT. The alleged events took place after the grievances were filed and the relationship between the OPT issue and the accommodation process or the Grievor’s disability is too remote to be logically connected to the grievance at hand. [25] I would also permit the Union to pursue allegations related to s. 43 of the Occupational Health and Safety Act. The August 1st grievance references Article 9, the Health and Safety provisions under the collective agreement, and specifically mentions the grievor’s refusal to comply with the Employer’s demand that she return to work to an unsafe workplace environment. There would be no doubt that the grievor was alleging that she was being ordered back to work when it was not safe for her to attend at her designated workplace. [26] Lastly, I would dismiss the Employer’s motion to restrict the evidence to events dating from May 1, 2013 forward. The Union has alleged a pattern of discrimination and harassment throughout the accommodation process. The fundamental question is one of balancing the interests of the parties: how far back does the 11 Union need go to prove their case and how far back should be permitted so that there is no unfairness to the employer who will have to defend against allegations that have long since passed. [27] In balancing the interests of the parties, the Board has found that it is normally fair to allow the parties to call evidence for three years preceding the grievance to prove an alleged pattern of harassment: Patterson, supra and O’Brien, supra. Although each case must be assessed on it’s own facts, three years is generally considered to be sufficient time to allow the Union to establish a pattern of harassment without the events being so old that they are difficult to defend. The Board has also noted that this permits the hearing to be somewhat contained. [28] In addition to the wisdom of generally permitting the Union to go back three years in harassment cases, I am of the view that this is especially important in cases regarding a failed accommodation. Settling on an appropriate accommodation plan involves an ongoing process that inevitably spans a period of time, in some cases a significant period of time. I do not consider it helpful or appropriate to encourage multiple, individual grievances throughout an active accommodation process. It is more productive to encourage the parties to continue searching for an accommodation that is acceptable to all of the parties, rather than focussing on perceived failures through the grievance process. [29] In this case the grievor first went off on extended leave September 2011; she returned for the first time on May 1st, 2013 and again on May 15th. The parties were engaged in extensive efforts to accommodate a series of complex medical restrictions throughout this period. The first grievance clearly states that it pertains 12 to the accommodation process back to June 2012. The employer has known all along that the entire accommodation process was at issue and I am not persuaded that it would have difficulty defending these allegations because of the passage of time. [30] The Employer’s motion to bifurcate the proceedings is dismissed; the motion to limit the scope of the particulars is allowed in part and the allegations regarding the OPSEU Pension Trust will be struck. The remaining particulars, including those that pre-date May 1, 2013, remain. Dated at Toronto, Ontario this 17th day of September 2015. “Reva Devins” Reva Devins, Vice-Chair 13