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HomeMy WebLinkAbout2012-1875.Gaunce.15-12-23 DecisionCrown 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#2012-1875, 2012-1876, 2012-2036, 2012-2037, 2012-2038, 2012-2039, 2012-2040, 2012-2041, 2012-2042, 2012-2043, 2012-2322 UNION#2012-0411-0013, 2012-0411-0014, 2012-0411-0017, 2012-0411-0018, 2012-0411-0019, 2012-0411-0020, 2012-0411-0021, 2012-0411-0022, 2012-0411-0023, 2012-0411-0024, 2012-0411-0028 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gaunce) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Barry Fisher Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Labour Practice Group Counsel HEARING December 16, 2015 - 2 - Decision This is the Second Decision in this case. [1] In the First Decision of May 28, 2013, I bifurcated the process to first determine if there was any accommodation needs on a go forward basis. I found that the medical reports submitted in this case to date were highly deficient and that I could not make an intelligent decision based on those reports. The major deficiency was that the evaluators had not asked themselves the proper question related to the Grievors’ ability to climb a set of stairs a certain number of times per shift and instead seemed to think the issue was whether the Grievor could climb stairs throughout her entire shift. They found that she could not climb stairs throughout her shift and therefore she should not work in any Pod that had stairs. [2] As part of this process, I indicated that that the Ministry could obtain an Independent Medical Examination on the issue of whether or not the Grievor could climb a certain number of stairs per shift. I also suggested that the parties seek to agree on a doctor so that it would be a truly independent examination. The parties agreed with my suggestion. [3] The parties agreed that a new IME would be conducted by Dr. Douglas J.D. Ritter, a well respected orthopedic surgeon. All of the information provided to Dr. Ritter and the questions asked of Dr. Ritter were agreed to by both parties. [4] Dr. Ritter produced a report on June 15, 2015 which stated as follows: Question: Does Ms Gaunce have a physical limitation or restriction which would prevent her from ascending or descending the stairs in Pod A on seven to ten occasions per shift with the possibility of further unscheduled trips up and down the stairs? Answer: Based on my physical examination (strength, gait, range of motion) I do not believe she has a limitation which would prevent her from ascending or descending stairs in Pod A 7-10 times. [5] At the hearing on December 16, 2015 neither the Union nor the Ministry objected to the findings of Dr Ritter. The Grievor was concerned that Dr Ritter had only seen her for less than 30 minutes whereas the other evaluator had seen her for many hours. This other evaluation she was referring to was the one that I had found deficient. [6] No further evidence was called by either party. [7] I accept the report of Dr. Ritter. - 3 - [8] I therefore find that no accommodation is needed for the Grievor with respect to her ability to work as a C.O. on any of the Pods on the night shifts at the Ottawa Carleton Detention Centre. [9] We can now proceed to Step 2 of this process, namely determining liability issues for the allegations of past discrimination and harassment. I make the following procedural order. 1. The Union is to provide full particulars of all allegations of discrimination and harassment that it intends to rely upon. The Union will be restricted to those particulars at the hearing. 2. Once the particulars have been delivered, the Ministry will have 30 days to notify the Union and me of any preliminary objections. I will then deal with those objections either in writing or at a hearing. 3. Once the above steps have been dealt with, I will schedule sufficient hearing dates on the liability issue. Dated at Toronto, Ontario this 23rd day of December 2015. Barry Fisher, Vice Chair